Art. III. Commentaries on American Law.
By James Kent.
Vol. I. 18 26. Vol. II. 1827. 8vo. O. Halsted. New-York
It is quite a matter of course that "the influence of America upon the mind," (to borrow a convenient, though somewhat pedantic phrase) should become first and chiefly, if not exclusively perceptible, in the department of politics and law. We are not aware that any new and peculiar sources of poetical enthusiasm have been revealed to us, nor have we as yet seen any thing in our history or condition, to justify the belief-so confidently inculcated by many of our prophetic fellow-citizens-that some great revolution in the abstract sciences and in speculative philosophy, is to be reckoned among the probable consequences of the declaration of independence. The adventurers that first peopled this continent, were not a race of barbarians, whose character was yet to be formed or developed. They brought with them the manners, the knowledge, and the modes of thinking, which belong to a highly advanced state of social improvement. Coelum non animum, &c. All their historical recollections and hereditary feelings-their literary associations and philosophical tenetsnay, even their very religious doctrine and discipline, which was the motive that determined so many of them to quit their homes-were essentially European. Nor was there any thing in their situation here, to sever these strong ties-to give a new impulse to opinion in matters of philosophy and learning, or, in short, to influence in any material degree, their own intellectual character and pursuitsmuch less to produce a sensible effect upon the general condition of the human mind. It is, on the contrary, our misfortune, in one sense, to have succeeded, at the very outset of our career, to an overgrown inheritance in the literature of the mother country, and to have stood for a century in that political and social relation towards her, which was, of all others, most unfavourable to any originality in genius and opinions. Our good fathers, piously spoke of England as their home. The inferioritythe discouraging and degrading inferiority-implied in a state of colonial dependence, chilled the enthusiasm of talent, and repressed the aspirations of ambition. Our youth were trained in English schools, to classical learning and good manners; but no scholarship-great as we believe its efficacy to be-can either inspire or supply, the daring originality and noble pride of genius, to which, by some mysterious law of nature the love of country and international spirit, seem to be absolutely necessary. We imported our opinions ready-made-"by balefuls," if it so pleases the Rev. Sidney Smith. We were taught to read by English schoolmastersand to reason by English authors--English clergymen filled our pulpits, English lawyers our courts-and above all things, we deferred to and dreaded the dictatorial authority and withering contempt of English criticism. It is difficult to imagine a state of things more fatal to intellectual dignity and enterprise, and the consequences were such as might have been anticipated. What is still more lamentable, although the cause is in a good measure ceased, the effect continues, nor do we see any remedy (or the evil until our youth shall be taught to go up to the same original and ever-living fountains of all literature, at which the Miltons, and the Barrows, and the Drydens drank in so much of their enthusiasm and inspiration, and so to cast off entirely that slavish dependence upon the opinions of others which they must feel, who take their knowledge of what it is either their duty, their interest or their ambition to learn, at second hand.
But in politics and jurisprudence, the American people were compelled by the very novelty of their situation to think for themselves. Nature, which is explained by philosophers and imitated by the artist and the poet, is every where the same, and it is not impossible, that our literature and science, to however exalted a pitch of excellence they may ultimately atttain, may never exhibit tiny strictly national peculiarities. But tile case is very different with the civil-and juridical institutions of a country. These are, in a great degree, the work of man, and may be moulded, and have been moulded into endless varieties of form, to suit his occasions or his caprices. In this respect, our founders could not, if they would, be mere imitators. They could bring with them from the mother country, only the general principles of government and jurisprudence--great outlines of a free constitution, and the invaluable maxims of the common law. But its institutions were more or less inapplicable to their present circumstances, and their civil polity find to be recast and built up anew from the very foundation. Their wisdom was thus tasked from the beginning, in selecting such parts only of the laws of England, as were adapted to their situation, while they were of course studious to preserve what ever had so preeminently distinguished them among the institutions of modern Europe, as most auspicious to liberty and justice. That superstitious veneration for English example and opinion, which, in merely speculative matters, led to servile imitation and implicit acquiescence, was here precluded, or at least corrected by the very nature of things, and the stores of useful information which they had acquired in studying the constitution, civil and political, of the mother country, could, in such novel circumstances, serve at most to enlighten speculation and direct experiment. We need scarcely add, that those vehement and protracted discussions of all the principles of public law that preceded the war of the revolution, had a strong tendency still more to disenthrall the minds of our leading politicians from any undue influence which the authority or the reasonings of English jurists and publicists may have exercised over them before.
These observations are, however, more strictly applicable to law than to politics ; because the former, as we shall presently attempt to shew, is at once the most exact and the most complicated of all the moral sciences, while the latter, in spite of all that has been written and said about it, can, in our opinion, scarcely aspire to the dignity of a science at all. We know that in hazarding this position we shall scandalize many, probably most of our readers. If any thing is taken for granted in this country, cis a truth better established than all others, it is, that in matters of government we have found out the philosophers stone--and are now in possession of an infallible secret to make men free and happy, and to keep them so forever, even in spite of themselves. The first lesson we inculcate upon our young politicians, (and most of our politicians are young) is, that a true statesman, like a true philosopher, is quite independent
of circumstances, and can pull down the whole fabric of a government and put it up again, as easily as Owen of Lanark would lay out a parallelogram, and with the same absolute certainty of improving the condition of the people. Now, we are heterodox enough to think this not only an error, but a most pernicious error. We believe that no constitution in the world is worth a straw but public opinion and national character, and that it is altogether impossible for mortal man to predict what is to be the result of any important changes in the distribution of political powers. In a word, that no general principles in politics except such as are too general to be of much practical utility--can be safely depended upon in the administration of affairs. But ive must reserve, this topicwhich however, we seriously believe to be one of the most important that call be pressed upon the consideration of the American public-for some future remarks.
To address ourselves more particularly to the causes which affected the condition of jurisprudence in this country in the manner alluded to above. In all the Provinces, as is well known, the common law of England was adopted, but only so far forth as it was not inconsistent with the genius of their institutions, and the letter and spirit of their own statutes. The latter, as we have seen, were necessarily very numerous and important. The whole law of tenures, once constituting with its various incidents and consequences, so vast a department of English jurisprudence, was emitted entirely. The forms of conveyancing were materially altered and simplified, as were those, also, of judicial proceedings. All that was local and customaryall that, in mainland, preserved because antiquity had hallowed it, or prescription turned it into property, was discarded; and wherever these and such like chances left any chasm in the system, it was filled up by positive legislation, or by judicial decisions, founded upon the analogies of the constitution and the laws. Here, at once, we perceive a vast field opened up for oriental speculation and reasoning. Every case might present a twofold difficulty; first, to decide what was the law in England, and secondly, whether it were applicable here. The latter question it was impossible to answer without going into the true grounds and reasons of the law; and Burkes lawyer, who was at a loss "whenever the waters were out," and "the file afforded no precedent," would often find himself as much embarrassed in an American court of justice, as in our deliberative assemblies. Indeed, this single circumstance is sufficient to show that great mans notions upon the effect of a legal education, must be received--if they are to be received at all-with many grains of allowance-so far, at least, as concerns the profession on this side of the Atlantic.
Another important point in the judicial history of this country is the effect of its separation front England by the war of the Revolution. This great event took place at what may be considered, with a view to our jurisprudence, as a very critical juncture. Lord Hardwicke had not many years before resigned the great seal, having greatly amplified and improved the Chancery system begun by Lord Nottingham, without, however, exhausting the complicated subjects that fall within it. Lord Mansfield was, even then, at the head of the Kings Bench introducing those innovations (real or supposed) into the law, which alarmed Lord Kenyon and other narrow-minded men so much, but which, by his own account of it, throw Mr. Justice Buller into a perfect extacy of wonder, at the depth, the comprehensiveness, and the acumen of that powerful and ruling understanding. The jurisprudential nova,* which dates about Lord Holts time, was still in a state of progress and improvement. Many important principles were yet to be settled, many obsolete errors or hasty opinions to be exploded, many fundamental statutes to be interpreted and applied, and the whole law merchant, and the whole law of prize, to be sanctioned by decision and reduced to a system. We need only refer to the vast accessions that have been made to the body of English law--the jurisprudence des arrętsfrom the publication of Douglas Reports to the present day. Our courts have, thus, had an opportunity of reconsidering many matters, after they had been disposed of in England, and in coming to their conclusions, have had all the benefit of the argument without being bound by the authority of the cases in Westminster Hall.
It was natural, also, that in order to assist them in making up their judgments upon matters of new impression, as they are called, they should not confine themselves to the English Reports and text books, but should have recourse to other systems of cultivated jurisprudence, and especially to the writings of the Civilians. We were very happy to find our own opinions upon this subject expressly sanctioned by the authority of Chancellor Kent, and, indeed, it may be observed, that among the benefits conferred upon his country by that venerable and learned man, it is not the least, that he has exemplified in his own brilliant success, the use that may be made in our courts of the enlightened equity of the Roman jurisconsults. "It may be observed," says our author, "that a very large proportion of the matter contained in the old reporters, prior to the English Revolution, has been superseded, and is now cast into the shade by the improvements of modern times; by the disuse of real actions and of the subtleties of special pleading; by the cultivation of maritime jurisdiction; by the, growing value and variety of personal property; by the spirit of commerce, and the enlargement of equity jurisdiction; by the introduction of more liberal and enlightened views of justice and public policy; and, in short, by the study and influence of the civil law." The English lawyers, on the other hand, have entertained a strange Jealousy of the corpus juris civilis, and have studiously disclaimed and deprecated the idea of being under any obligations to it. The answer of their 11 sturdy ancestors" at Merton, has been always repeated with approbation, and even with triumph, as their example has been faithfully. followed (with some distinguished exceptions, however) in all succeeding times. Perhaps it was erring on the safe side in England to discountenance every attempt to interpolate their own common law with the doctrines of a foreign Jurisprudence ; but situated as we are in this country, we do not see why the Reports of Westminster Hall, since our Revolution, should be in such request as to be found in all our libraries, while the works of the Civilians are banished from most of them like a contamination. To be sure, as long as feudal tenures subsisted in all their rigour, and land property was the exclusive object of the law, there could be no great intercommunity of principles between systems so opposite in all their essential characteristics. Feuds were altogether of positive institution, and as far as possible removed from the common standard, which we shall presently advert to, of the law of nature. It is worthy of remark, however, that it is evident from Bracton, who often uses the very words of the Justinian collection, that the maxims of justice, taught by Proculus and Capito, by Gaius and Papinian, had enlightened the understandings and mingled with the opinions and feelings of mankind even in that age, and thus contributed much to form the mores-the common law, which is only the common sense-of the English people.
Independently, however, of any historical connection of that kind, very little reflection will be necessary to convince us of what vast utility the volumes of the Civilians may be to us in our legal inquiries. As widely as systems of positive law may differ, there will always be some-frequently many points of coincidence and similarity between them. Besides this, in the progress of things, there is a tendency to a gradual abolition of merely technical rules and arbitrary institutions, and to the adoption in their stead of such as are more simple and rational, and of more universal application. This tendency is, of course, increased by the progress of commerce and the intercourse of nations. Thus, the Lex Mercatoria-the great body of the law merchant, is strictly juris gentium-and there would, at the present day, be very little discrepancy between the decisions of a French, an English, and an American court, upon any commercial question.
The use of the word juris gentium, in this connection, suggests to us an illustration of this topic, from the writings of the Civilians, which deserves, on more accounts than one, to be brought to the notice of our readers.
The Roman lawyers, besides their first great division of law into the jus publicum and jus privatum, analyzed it into three distinct kinds, or rather constituents. 1° jus naturale, which they described as being common to the whole animal creation, such, for instance, as the union of the sexes, the procreation and education of offspring, &c. 2°. The jus gentium., which we must be careful not to confound (as is often done) with what is called, in the language of modern jurisprudence, the, law of nations. The jus gentium of the Civilians, comes nearer to what we term the "law of nature," and was by them distinguished from the jus naturale, in that the latter was common to all animals, were as the former extended only to the human species. In another place, they have defined it thus quod naturalis ratio inter omnes homines constituit, id apud omines gentes peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur.-1. 9. in fin. ff de just. ct jur. To this jus gentium, they accordingly refer most of the usages and institutions the pursuits and relations of civilized men-among which we find the following particulars enumerated under the same head in the Pandects. Ex hoc jure introducta, bella, discretae gentes, regna, condita, dominia distincta, agris termini positi, aedificia collocata, commercium, emptiones, venditiones, locatioties, conductiones, obligationes instituae --1. 5. eod.. That is to say, they class together under this head, those things which are so manifestly reasonable and proper, or so agreeable to the general -condition and exigencies of society, as to have found their way into every system of laws. In by far the majority of cases, the jus gentium, as thus defined, would be found to coincide with the law of nature, according to the opinion of Cicero, who affirms, broadly, that omni prorsus in re omniuia consensits lex nahtrm putanda est. It may happen, however, that an extraordinary concurrence of circumstances, the barbarism of an age, or other similar causes; shall lead to the universal adoption of customs and principles that shall not coincide, with the conclusions of right reason, or the feelings of a refined humanity. Piracy was once juris gentium, and so was the seizure of property wrecked. It is in this sense of the word also, that Sir 11. Spelnian speaks of the feudal system as the "law of nations in our western world"-a system (as has already been observed) as artificial, as far removed from the natural state of society as it is possible to imagine. 3o The third kind was the jus civile, which it were inaccurate to translate "municipal law," for the Civilians mean by jus civile, not that law which is contradistinguished from international, but only that part of the municipal law of every country, which arises from arbitrary legislation and peculiar customs, and which, therefore, cannot be classed either with the jus naturnle or the jus gentizin. "Itaque," as it is elegantly expressed in the Digest, " cum aliquid addimus vel detrahimus juri communi, jus proprium id civile efficimus"-1.6. eod.
If we adopt this precise and philosophical arrangement of the civilians, we, shall find that. in an advanced state of society, a very large, if not the largest portion of every system of juris- prudence is, what is strictly speaking, juris gentium. The peculiarities of positive law are
gradually effaced by the intercourse of nations, and each code approximates more and more to the standard of that-quod naturalis ratio apud omnes gentes constituit. In this respect it will be found to be with the laws as it is with the characters of different peoples; they appear, at first sight, to be infinitely diversified, but very little examination is necessary to convince us that they resemble each other much more in the great, eternal principles of a common nature, than they differ in respect of local or national peculiarities. Thus by our law, the most solemn contract is in the shape of a scaled writing- by the civil, it was a verbal stipulation. So far there is a wide
difference between them; but for one question that arises about the form of a covenant, there will be, at least, a hundred involving principles of universal application; as to the meaning of the parties, the extent to which their responsibility goes, the effect of fraud, mistake or duress, the rights and liability of sureties, &c. In all such matters, the writings of the Civilians are a neverfailing source of light and instruction, and we have no hesitation in saying, that in many most important enquiries, we have derived, in the course of our own experience, much greater assistance from Voet and Cujacius, or Domat and Pothier, than from our own books. Indeed, the juridical history of England furnishes illustrious examples of the same fact. The boasted essay of Sir W. Jones, on the law of bailments, contains very little that is not familiar to every student of the corpus juris civilis, and if his classification is more complete, and his discussion of the subject more satisfactory than that of Lord Holt in Coggs v. Barnard, it is, no doubt, owing altogether to his familiarity with the works of the Civilians. The same thing may be predicated of the still more boasted improvements of Lord Mansfield. That great judge invented nothing. He was called upon to expound the contracts of merchants, and be (lid so, with the assistance of special juries at Guildhall, by the lights of the jus gentium. He had beforehim, besides the monuments of the ancient civil law, and the learning of the commentators, the French ordonnance de la marine and the commentary of Valin, and lie did no more than sanction by the authority of judicial decision, and accommodate, in some few instances, to the usages of his own country, the principles which he found developed in those great repositories of wisdom and equity.
It is foreign from our present purpose (even if we were prepared) to express any opinion as to the comparative merits of the common and civil law. Each has, no doubt, its peculiar excellencies and defects,-points in which it approximates more nearly to, or deviates more widely from, the common standard of right reason, than the other, and the comparing them together, even in these particulars, affords one of the most profitable exercises that can be imagined for a reflecting mind. We will just remark, by the way, however, that we think the civil law will be found, in general, to study a refined equity more than the policy of society, whereas the common law seldom departs from its stern maxim, that a private injury is better than a public inconvenience. It is very important to keep in mind this point of difference between them. Thus there is something captivating in the equity of the principle, that a sound price implies a warranty of the soundness of the commodity ; but it is certain that this rule is productive of great practical inconveniences, and we believe that in this State, where we have had ample opportunity to witness its operation, there are very few experienced lawyers, but, would gladly expunge from our books the case which first introduced it here.
But whatever may lie the comparative merits of these two systems of jurisprudence, considered per se, it is certain that the civil law has greatly the advantage of ours in the manner in which it has been expounded and illustrated. This, indeed, is a difficulty, for which allowance must be made by the readers of the Volumes before us. They are another attempt to arrange and to develop the elements of a branch of knowledge that has never yet been taught as it ought to be. In comparing what the Civilians have written upon any subjects that have been treated of by English text writers, or discussed in the English courts, it is, we think, impossible not to be struck with the superiority of their truly elegant and philosophical style of analysis and exposition. Their whole arrangement and method--the division of the matter into its natural parts, the classification of it t:nder the proper predicaments, the discussion of principles, the deduction of consequences and corollaries--every thing, in short, is more luminous and systematic--every thing savors more of a regular an exact science. Even Blackstone, with all his prepossessions in favour of whatever is English, admits that before his time "the theoretical, elementary parts of the law had received a very moderate share of cultivation," and although his own Commentaries have abridged and facilitated the studies of professional men, and made a certain knowledge of legal principles accessible, even to mere amateurs, yet we think, that they have, by no Means, superseded the necessity of future labours in the same vineyard. There is, in spite of all the pompous eulogies that have been passed upon that work, a great deal of justness in Horne Tookes remark, that "it is a good gentlemans law book, clear, but not deep." The truth is, that the learned commentator" was any thing but an original or philosophical thinker. He has done nothing more than fill up the outline sketched by Sir Mathew Hale, and with all his perspicuity, and precision, and comprehensiveness, one is continually tempted to say of it, as D. Aguesseau does of the Institutes of Justinian -- quoique Pordre de ce livre ne, soit pas vicieux, vous souhaiterez nearimoins plus dune fois quel eut pu etre trace par M. Domat au lieu de letre par M. Domat au lieu de letre par M. Tribonien. If Lord Bacon had lived in the reign of George III. and accomplished the great work which lie was so desirous of undertaking, even in his own time, his profound and systematic understanding had left us, no doubt, a novum organon of jurisprudence, worthy of the science and the age. The other elementary writers of our law the compilers of institutes, abridgments, &c. even down to the present day, are, with few, if any exceptions, liable to the same criticism. The most than can be said of them is par negotis, neque supra. None of them stand upon that "vantage ground," of which Bolingbroke speaks. They are mere pragmatici who treat their subjects in a strictly technical manner, and whose whole system of logic consists of a case in point. They seem to dread nothing more than generalization, or the stating a proposition in the form of a theorem. They string together cases from which it is often difficult to extract any distinct, general principle, and which are determined to be analogous, or otherwise, by circumstances comparatively immaterial. Let any one reflect upon the confusion into which the courts of England were betrayed in their attempts to reconcile the necessity of words of perpetuity to carry the. fee in a will, with the rule that the intention shall govern, and the figure which a. digest of these decisions makes as part of a scientific system! So of the controversies occasioned by Porter vs. Bradley, and the other cases on that point. Would it be believed that stress has been laid by grave lawyers upon the verbal distinction between "leaving, issue" and "leaving issue behind," as if issue could be left any where else. Compare Chitty on Bills with Pothiers Traite, de Contrat de Change, or any other elementary book in our law with a corresponding treatise of that admirable writer, and it will he impossible to dispute the, justness of the preceding observations. In a word, the remark of a celebrated French jurist, in reference to the law of his own country as it stood in his day, is entirely applicable to the appearance which our jurisprudence makes in these very inelegant and unphilosophical Compilations: It seems to be a mass of irregularities and incoherencies, which consists rather in particular usages and occasional decisions, than in immutable principles, or in consequences deduced immediately from the rules of natural justice.
There was a time when the same complaints were made about the civil law. Cicero repeatedly touches upon the subject, and urges the necessity of introducing into it the light and. tile order of a philosophical arrangement. In his treatise De Legibus, (i.5) he exhorts his young friends to elevate their views to loftier objects than were commonly aimed at by men engaged in forensic pursuits. "The science of jurisprudence ought to be drawn," says he, "not from the edlict of the Praetor, as is usual nowadays, nor from the Twelve Tables, as was formerly the practice, but out of the very depths of philosophy-pinitis ex intimi philosophia." His remarks upon the character of his distingnished contemporary, Servius Sulpicius, also deserve to be cited as very apposite and striking. He does not scruple to prefer that jurisconsult before Mutius Scaevola, who was generally considered as the first lawyer of the age. In accounting for the preference, he admits that Scaevola was as thoroughly versed in the laws as a man can become by long, practice and assiduous study. And so were other lawyers who made a figure at that time. But he declares that he knew no one besides Sulpicius, who was master of that higher art, as he calls it -- very distinct from mere technical skill, and not to be acquired by the experience, and discipline of the forum--which discovered itself in a lucid order, in precise definition, in sound interpretation, in a systematic development of the whole doctrine in question, and a logical deduction of all its legitimate consequences, at the same time that everything false or irrelevant was rigorously excluded by the analysis. In another passage, which throws great light upon the subject of the preceding observations, he expresses himself still more, fully and precisely to the same effect.
It is evident from these citations, that the excellencies which have been alluded to as characteristic of the writings of the Civilians, do not arise out of any thing in the nature of that law, but solely from the preparatory discipline and general intellectual habits of its professors. Philosophical studies had made but little progress at Rome before the time when Cicero and Sulpicius flourished. It was, indeed, principally to the beautiful treatises of the former upon the various questions discussed in the Athenian schools, that the citizens of that martial commonwealth were indebted for their initiation into such pursuits. It was not to be expected, therefore, that men of business, absorbed in the occupations of the Forum, and attached by habit to its forms, should outstrip their own age so far as to Incorporate into the doctrines and method of a practical profession, improvements that were not yet familiar even to men of a speculative turn of mind and of learned leisure. But the subsequent fortunes of the civil law were much brighter. Heineecius states it as a fact, acknowledged on all hands, that the greater part of the ancient-jurisconsults of a subsequent period, were very much addicted to the study of philosophy, and employed in expounding and interpreting their own science, those rules and principles which they had learned in the discipline of the Lyceum and the Porcbh. Indeed, this fact, especially as regards the latter school, cannot fail to strike every one who looks, however superficially, into the Corpus Juris Civilis, many of the reasonings collected there, and even the very maxims and definitions, being strongly tinctured with the characteristic subtlety, as well as with the severe and elevated ethics of this favourite sect. In modern times, that jurisprudence has enjoyed the same advantage,. While in all the courts of continental Europe, it has been consulted as written reason, or enforced as common law from the time of Irnerius even down to the present day, it has been considered in their universities as a necessary part of a regular academic education. It has thus been taught, as a branch of liberal studies, and, indeed, most of the great men who have identified their names with it, were, in the strictest sense of the word, mere scholars and philosophers. Gravina mentions Brissonius as a singular exception to this remark. Cujacius, the great coryphaeus of the band, wis not only himself a scholastic man, but went, so far as to declare that, if he had ever acquired any knowledge of the law by practice, he should strive to forget it "ne a Romano jure distraheratur." Some of these writers it is true, have treated questions of jurisprudence altogether as matters of elegant literature -- "flores magis quam fructus attulerant," as the author just quoted, says of Peter Faber, Vultejus, Pacius, &c.
There are among the Civilians those who have pushed this love of systematic arrangement and close rigorous logic so far, as to emulate the reasonings of the geometricans. Thus, Puffendorf made his debut in the learned world by a work, entitled "Elements of Natural Law, according to a Mathematical Order." Heineccius also, who has been pronounced by a high authority, the first of elementary writers, adopts the same precise method in his popular commentaries- upon the Digest and the Institutes. His way is to begin with a definition, which is made as comprehensive as possible. He then proceeds to deduce from it, what he calls axiomata, or clear, indisputable propositions. These he again applies to more complicated questions, and rung them down to all their consequences, with wonderful exactness and logical connexion.
It is, no doubt, such examples that suggested to Dugald Stewart some very just and striking observations, which as they are connected with the subject of elementary institution in the law, we shall present to our readers. They serve also to illustrate and confirm a position advanced in the course of the preceding remarks, that with the single exception of mathematics, jurisprudence is that department of knowledge, of which the principles axe best settled, the reasonings at once the most refilled and the most exact, and the conclusions the most safe and satisfactory.
"In those branches of study," says the Scotch philosopher, which are conversant about moral and political propositions, the nearest approach, which I can imagine, to a hypothetical science analogous to mathematics, is to be found in (a code of municipal jurisprudence; or rather might be Conceived to exist in such a code, if systematically carried into execution, agreeably
to certain general or fundamental principles. Whether these principles should or should not be founded in justice and expediency, it is evidently possible, by reasoning form them consequentially, to create an artificial or conventional body of knowledge, more systematical, amid, at the same time, more complete in all its parts than, in the present state of our information, any science can be rendered, which ultimately appeals to the, eternal and immutable standards of truth and falsehood, of right and wrong. This consideration seems to me to throw some light on the following very curious parallel which Leibnitz has drawn (with what justices I presume not to decide between, the works of the Roman Civilians and those of the Greek Geometers. Few writers, certainly, have been so fully qualified as he was, to pronounce upon the characteristical merits of both.
"I have often said, that after the writings of the Geometricians, there exists nothing which, in point of force and subtlety, can be compared to the works of the Roman lawyers. And as it would be scarcely possible, from mere intrinsic evidence, to distinguish a demonstration of Euclid from one of Apollonius or Archimides, (the style of all of them appearing no less uniform than if reason herself were speaking through their organs) so also, the Roman lawyers all resemble each other like twin-brothers; insomuch, that from the" stvic alone of any particular opinion or argument, scarcely any conjecture could be formed with respect to the author. Nor are the traces of a refined and deeply meditated system of natural jurisprudence any.where to be found more visible or in greater abundance. And even in those cases wbere its principles are deptirted from, bither in compliance with the language consecrated by technical forms, or in consequence of new statutes, or of ancient traditions, the conclusions which the assumed hypothesis renders it hecessary to incorporate witb the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity which excites admiration. Nor are these deviations from the law of nature so frequent as is commonly imagined.
In order fairly to appreciate the justness of the comparison instituted in the preceding paragraphs, between jurisprudence and the exact sciences, it would be necessary to go at large into Mr. Stewarts theory of mathematical evidence. This our hinits will not permit us to do-but it is worth while, with a view to make the ilhistration of our own remarks more perfect, to state his general principle. It is, that in all other sciences, the propositions which we attempt to establish, express facts, real or supposed, whereas in mathematics, (and we may add, in jurisprudence also) the propositions which we demonstrate, only assert a connexion between certain suppositions and certain consequences. The premises which we proceed upon are altogether arbitrary-we frame our definitions at will and reason from them. Thus all the properties of a circle are deducible from the assumed equality of the radii. Our reasonings, therefore, in mathematics and in law, are directed to objects essentially different from those of the other sciences-not to ascertain truths with respect to real existences, but to trace the logical filiation of consequences which follow from an arbitrary hypothesis, and, if from this hypothesis, we reason with Precision, the evidence of the result is of course irresistible. The Scotch philosopher, it is true, takes too much for granted, when be speaks of its being possible to devise a set of arbitrary definitions in jurisprudence that shall be as precise as those of geometry-a notion, by the way, which ought to be particularly acceptable to the reformers of the Jeremy Bentham school, but which is unfortunately not quite just. But the fact, that such a degree of accuracy may even be approximated, is sufficient to shew that the logical method of the Civilians, is not mere formal parade and idle affectation.
Blackstone ascribes the neglect of the common law, as a, branch of a liberal education, and, therefore, a good share of the defects adverted to in the preceding remarks, to the influence of the Romish Clergy, who had an absolute control over the English schools and universities. The discovery of the Pandects at Amalfi, which is supposed to have taken place early in the century after the conquest, he adds, had nearly occasioned its total ruin, and, indeed, nothing seems more probable. England was at that time overrun with foreign ecclesiastics who engrossed all the little knowledge of the age, and line an unbounded influence over the opinions of mankind. Being the only persons that had any acquaintance with the Latin language,
they alone had access to these long hidden treasure of an ancient wisdom and civilization, and to make their devotion for them more exclusive amid bigotted, Pope Innocent IV., it seems,
forbade them so much as to look into the volumes of the common Law. Independently, however, of any undue influence of this kind, it is easy to imagine what an impression the sudden appearance of such a volume as the Pandects must have made in the midst of the darkness and barbarism of the twelfth century, when we consider that, according to the forcible expression
of a late writer, it was the very first book which spoke the language of reason to the modern world. All Christendom resounded with its praises-there sprang up among, the nations
a general emulation to understand and to adopt its principles and in less then half a century after Irnerius began his lectures at Bologna, a professorship of civil law was established at Oxford, under the patronage of the Norman Archbishop of Canterbury, to which Vaccarius, a dependent of that Dignitary, was appointed. The, common law was, in the mean time, left to barons and barbarians, and upon the whole, we ought rather to wonder how, under such disadvantages, that venerable code should have come down to us in so perfect a state as to present upon the whole, as noble a scheme of pratical liberty and justice as the world has ever seen.
The improvements which have been made in it in this country, and to which we have already had occasion to advert, have almost entirely "depurated it from the dregs and feculence" of feudal times. Many of the decisions made within the last twenty years, shew that the spirit of these improvements has not been lost on our courts. We venture to say, that no case in the English books upon the law of corporations, can sustain a coinparison with that of the trustees of Dartmouth College vs. Woodward, reported in the 4th Wheaton: and the same decided superiority may be claimed for some other arguments and judgments, not only in the Supreme Court of the United States, but in those of the States. It is true, that owing to something in the state of public opinion here, or the uncertainty of popular elections, the bench in America is not always as ably filled as it might be, and our books of Reports, along with much learning and ability, are often encumbered with disgraceful trash--with truisms pompously elaborated, or with exhibitions of deplorable ignorance. We are also disposed to think, that our lawyers, although they sometimes except the English in the discussion of great principles and of new points, are not, however, so thorough-paced in their profession, so familiar with "the file," as they. This may, in some degree, be accounted for by the very fact that they are often compelled to look abroad into other systems of jurisprudence and the decisions of foreign tribunals, for assistance and authority, instead of confining themselves, as is the case in Westminster Hall, to their own precedents and analogies. It cannot be disguised, however, that it is also owing in a good measure to their being less exelusively devoted to their profession, and the facility with which popular talent forces itself into reputation, at the expense of less showy, but more useful acquirements. But this evil will be corrected in the progress of things: and in the mean time, the character which is already stamped upon the profession in this country, of liberal, and enlarged and philosophical enquiry, holds out to us the most encouraging prospects of future excellence.
Nothing can contribute more to strengthen these good dispositions, than the mode of teaching by lectures, (which we are glad to find becoming so common in different parts of the country) and the publication of works upon the elements of jurisprudence. We have already illustrated this truth by the example of the civil law, but it is sufficiently evident of itself. Under the pressure of business, neither advocates nor judges have time to digest philosophical methods. It is quite as much as can generally be expected of them, that they should apply established principles, and shew that "the principal case" is analogous to others already decided. Extraordinury occasions, indeed, will lead--as in this couintry they frequently have led--to a more profound investigation of principles in the courts-but this can obviously be done to much greater advantage by a lecturer who confines himself exclusively to the elements of the science. In the present state of our law especially, the task of arranging and developing its whole system, according to the plan alluded to in the foregoing observations, must, of necessity, devolve upon
speculative men. Accordingly, if we have any fault to find with the excellent work before, t1s, it is, that it is too much of a mere index of compilationit is not such a book as Chancellor Kent
would have produced, had he been all his life, like Cujas or Pothier, a professor of law, instead of a judge, although the bench would seem to be more favourable to enlarged and systematic thinking than the bar.
Chancellor Kent, however, has rendered an essential service to the profession. The two volumes before us, contain an excellent summary of the general rules of law, as it is practised
in this country. Some of the subjects are better treated than they have been by English text-writers, while there is always this advantage in, favour of the work, that it presents that view,
of thern which must be talken in American courts of justice. The lecture on alienage, for instance, strikes us as decidedly superior to Wooddesons, upon the same subject, and as containing
an able and just exposition of that very difficult doctrine in reference to the effects of our revolution upon it. The same thing may be said of the lectures upon marriage, and the domestic
relations growing out of it. Even in these, however, we discover some of the defects of which we have already complained so much. For instance, there are many questions connected with the disabilities of alienage, which must have presented themselves to every one who had reflected deeply upon that subject, and which we have known to become important in the course of a judicial inquiry, that have not been so much as hinted at by our author. How comes it, that a principle apparently so contradictory and paradoxical, should have been admitted in the law, as that any one might acquire what he was not allowed to holdthat law, of which one of the first maxims is, that it does nothing in vain? Why did the land purchased by an alien go to the king, and not to the lord, as it would have done, had the alien been made a denizen before the purchased, and then died without leaving any heir but the ultimus heres of the tenure? Was this right of the king, a roval prerogativeone of the jura regalia so familiar to feudal lawyers--analogous for instance, to the Emperors inte rest in the property of Jews, who, were considered in Germany as servi fisci? Did the estate in such cases, vest in the king by way of escheat or forfeiture? a question of great importance with reference to the distinctions taken in Burgess vs. Wheate. Suppose a conveyance from an alien who dies before office found is the title of the purchaser good as against the king? Chancellor Kent answers this question, in conformity with the English authorities, in the negative. Yet the reason of the law seems scarcely intelligible, unless it be assumed, that aliens were allowed to acquire solely for the benefit of the crown, whose revenue in feudal times, depended very much upon fines and forfeitures. If this be the principle, to hold the title good in the case proposed, would be to defeat the very object of the law, in allowing the alien to take a title at all. Accordingly, it is laid down in Dyer, (26 in margin) that an alien cannot take a copy-hold, and the reason given is, because the king shall not have it a position which, we have no doubt is good law, some authorities, seemingly, to the contrary notwithstanding. But whether this conjecture is well founded or not, the omitting all remark upon matters of so much curiosity and importance, appears to us a great defect in an elementary treatise.
The work of Chancellor Kent, as far as it is Perfected in these volumes, is divided into five parts. The first, which embraces nine lectures, is devoted to the law of nations. The, second, presents a view of the government and constitutional jurisprudence of the United States. The third, treats of the various sources of American municipal law. The fourth and fifth, which occupy the whole of the second volume, are an exposition of the rights of persons and the law of personal property. We shall devote the rest of this article to some observations suggested by our authors discussion of the subjects under the first and second heads.
1. We are by no means so well satisfied with the execution of the first part of Chancellor Kents work, as with the rest of it. It is little better than a digest of the cases in prize law, decided in England by Sir W. Scott, and in tbis country by the Supreme Court of the United States; interspersed with a few general principles from the common elementary treatises. Presenting, therefore, as it does, (and, indeed, as it pretends to do) only a hasty sketch and brief outline of the system of international law, although it may be convenient enough as a book of occasional reference, or a manual for young students, it cannot be considered as forming a very valuable accession to the library of an experienced jurist.
It may still be affirmed that an eleinentary work, worthy of the present condition of international law, is a desideraturn in jurisprudence.
It will have been perceived by our readers, from the brief abstract which has been given of the arrangement of the civil law, according to the system of Justinian, that no separate place is allotted in it to the law of rations; for their jus gentium, had a far more comprehensive signification. Indeed, when we reflect that the Roman Empire extended over the whole civilized world, (for to be conquered by that people was, in those times, the only means to become civilized) and when we consider, moreover, the cruel maxims of all ancient warfare, we shall be less surprised at this omission. Their system was calculated for perpetual success: they did not contemplate the possibility of their waiting the protection of such a code. As soon as a Roman citizen fell into the hands of an enemy he was capitis minor and dead to the commonwealth. The Senate sometimes even refused to ransom their countrymen, when they could do so on easy terms, lest it should impair their military virtue and discipline in future wars. We are aware of the noted passage of the oration for Balbus (c. 6.) in which Cicero commends Pompey for what he calls singularis quaedam laus ejus et praestabilis scientia, in foederibus, pactionibus, conditionibus, populorum, regum, exterarum nationum; in universo denique belli jure et pacis. But it would be a gross error to inflex from sitch a rhetorical flourish that the Romans bestowed upon the rights of nations, with regard to each other, anything like the same pains with which they cultivated thier municipal law. Their jus belli et pacis was excessively simple-extending no further than to the fair interpretation and religious observance of treaties, and to such other obvious and necessary usages as must exist even among barbarians and outlaws, as for example, the immunity of ambassadors and the like: nor, indeed, do the words of Cicero strictly imply any thing, further. This accounts more sensibly than some conjectures which we have seen, for Grotius adopting that title for his great work. He wrote Latin with too much purity to deviate from the best standards, and that language did not express, in any other way, the idea of international law.
It is to the genius and learning of that extraordinary mail, that the world is indebted for the first successful effort to reduce, to a systern, those principles upon which alone the intercourse of independent nations, in an enlightened state of society, can be carried on. Jeremy Bentham finds fault with this great work, as not being of a sufficiently definite and practical character. "Of what stamp," says Jeremy, "are the works of Grotius, Puffendorf and Burlamaqui? Are they political or ethical, bistorical or juridical, expository or censorial? Sometimes ono thing, sometimes another; they seem scarcely to have settled the matter among themselves." There is, undoubtedly, much truth in this criticism and so far as it applies to Puffiendorf and Buriamaqui--although Sir James MIntosh speaks of the former in terms of high praise-we must confess that we are disposed to concede to it even more, if possible, than its author would demand. W own with DAguesseall, que nous navons jamais pu achever la lecture du gros livre de, Puffendorf--but it is impossible to reflect upon the area at which Grotius wrote, in the midst of the horrors and atrocities of religious persecution and of civil war-calamities, of whose utmost bitterness he
had himself been compelled to taste-without acknowledging that this treatise De Jure Belli et Pacis, in which enlightened reason, refined humanity immense learning and elegant scholarship, mingle their winning and varied attractions, and where strong sense and convincing argument are rendered still more persuasive and venerable by the authority of great names, was at once a most noble monument of that day, and the herald of one yet brighter and more auspicious. In spite of the "march of mind," we believe no one has ever attentively studied it without being the wiser for it, and although the author, had he lived in our times, would, perhaps, have blotted out half of it, as cumbersome and superflous--we doubt whether the public would bave been, either in profit or amusement, a gainer by it. In short, we perfectly concur in the euloginin bestowed upon it by Sir James MIntosh, that Grotius "produced a work which we now, indeed, justly deem imperfect, but which is, perhaps the most complete, that the world has owed, at so early a stage of any science, to the genius and learning of one man."
Still there can be no doubt that it has many defects--partly because so little had been done before it--partly and still more, because so much has been done since. The new law of nations was, indeed, even then known in practice. The merciful and benignant spirit of Christianity had made itself visible, amidst the carnage of Smithfield and St. Bartholomews, in its effects upon modern civilization; courage had been refined and softened by chivalry; and the insolence of victory was subdued, and the rights of conquest were circumscribed and settled throughout Europe by a controlling public opinion. But the customary and conventional law of nations was yet in its infancy. Those intimate relations, commercial and political, which have since bound up all Christendom in one great society, and, as it were, family union, were just beginning to be formed and consolidated. The idea of the balance of power, which had, of course, been familiar to mankind in all ages, wherever the many find it necessary to combine against the strong, but which was not acted on as a standing rule of conduct upon a grand scale, until mighty governments were formed, and distant enterprises became commongave to treaties the effect of precedents, and clothed them with the authority of law. That of Westphalia, for instance, was considered as the very foundation of the Jus Publicum of Germany. Since Grotitis wrote, two centuries more fruitful by far great events, and magnificent improvement than any equal period in the history of mankind, have been continually adding to the number of such principles, and confirmin,, and consecrating them as they have been ascertained.
It is to combine in one great work. these conventional and customary rules, so far as they have been universally acceeded to among nations, with the principles of reason and natural law, to which they ought to approximate as much as possible, that same master hand is now called for. As it is, the student of international law is compelled to have recourse to the reports of adjudicated cases. "Elementary writers," says Mr. Justice Story, in the case of the Nereide,* "rarely explain the principles of public law with that minute accuracy of distinction which legal precision requires. Many of the most important doctrines of the prize courts will not be found to be treated of, or even glanced at in the elaborate treatises of Grotius, Puffendorf and Vattel. A striking illustration is their total silence as to the illegality and penal consequences of a trade with the public, enemy. Even Bynkershoek, who writes professedly on prize law, is deficient in many important doctrines which every day regulate the decrees of prize courts. And the complexity of
modern commerce has added incalculably to the number, as well as to the intricacy of questions of national law. In what publicists are to be found the doctrines as to the illegality of carrying enemys despatches: or of engaging in the coasting, fishing, or other privileged trade of the enemy? Where are transfers in transitit, pronounced illegal ? Where are accurately and systematically stated all the circumstances which impress upon the neutral, a general or limited hostile character, either by reason of his domicil, his territorial possessions, or his connexion with a house of trade in the enemys country. The search would be nearly in vain," &c.
No one, we are persuaded, however, will have occasion to regret the necessity of resorting to the volumes of reports in this branch of jurisprudence, since, besides the intrinsic advantages of that mode of study (after all that has been said against it, the surest and the best for those who wish to become profound in the science) they holdout other attractions of no ordinary kind. The judicial eloquence of Lord Stowe, is the very copiose loquens sapientia of the great Roman orator, abounding in so many charms and graces, that his decrees deserve to be cited as models of style, and will bear a comparison with the most finished compositions of our English classics, at the same time that it is difficult to treat such subjects with greater ability and acumen,
or with a more enlaryed philosophy. Nor have we any reason to shrink from a comparison with such exalted excellence. The great man who presides over the Supreme Court of the United
States (to confine ourselves to him) does not, indeed, display the same exquisite elegance and felicity of diction, but he is second to no judge that ever lived, in some of the most important attributes of the judicial character; in depth and comprehensiveness of intellect, in luminous arrangement, in clearness of expression, in a logic, which, in general (for alas! even Judge
Marshall has erred) is proof against all sophistry, and against which, no sophistry is proof-in a word, in a large, sound, pervading good sense, which is satisfied only with the fullest and
fairest views of a subject, but which, where it is once satisfied, seldom fails to impart its own convictions entirely to others.
2. The constitutional jurisprudence of the United States! Under this imposing- title is presented to us, one of the most striking examples which history furnishes, to illustrate and support an opinion advanced in the course of the preceding remarks. If any one wishes to be convinced how little, even the wisest men, are able to foresee the results of their own political contrivances, let him read the constitution, with the contemporaneous exposition of it contained (even) in the Federalist; and then turn to this part of Chancellor Kents worli, to the inaugural speech of the present Executive of the United States, and to sorne of the records of Congress, during the memorable session which is just past.
He will find that the government has been fundamentally altered by the progress of opinion-that instead of being any longer one of enumerated powers and a circumscribed sphere, as it was beyond all doubt intended to be, it knows absolutely no bounds but the will of a majority of Congress-that instead of confining itself in time of peace to the diplomatic and commercial relations of the country, it is seeking out employment for itself by interfering in the domestic-concerns of society, and threatens in the course of a very few years, to control in the, most offensive, and despotic manner, all the pursuits, the interests, the opinions and the conduct of men. lie will find that this extraordinary revolution has been brought about, in a good degree by the Suprerflie Court of the United States, which has applied to the constitution-very innocently, no doubt, and with coMmanding-tability in argument-and thus given authority and currency to, such canons of interpretation, as necessarily lead to these extravagant results. Above all, he will be perfectly satisfied that that high tribunal affords, by its own shewing, no barrier whatever against the usurpations of Congress-and that the rights of the weaker part of this confederacy may, to any extent, be wantonly and tyrannically violated, under colour of law, (the most grievous shape of oqpression) by men neither interested in its destiny nor subject to its controul, without any means of redress being left it, except such as are inconsistent with all idea of order and government. Perhaps, he will think with us, that the effect of a written constitution, interpreted by lawyers in a technical manner, is to enlarge power and to sanctify abuse, rather to abridge and restrain them-perhaps, he will conclude that the American people have not been sufficiently careful at the beginning of their unprecedented experiment in politics, what principles they suffered to be establisled-perhaps, he may took forward to the future with anxiety and alarm, as bolding forth a prospect of a rapid accumulation of power in the hands of those who have already abused it, or on the contrary, with. a strong hope that experience will teach wisdom, and diversified interests and conflicting pretensions, lead to moderation in conduct-perhaps, (and surely nothing could be more rational) he might wish to see proper means adopted to bring back the government to its first principles, and put an end to the unhappy jealousies and heart-burnings which are beginning to embitter one part of our people against another-we do not undertake to anticipate his inferences-but we have no doubt in the world, that he will confess with us as to the fact-that he will confess Congress to be, to all intents and purposes, omnipotent in theory, and that if, in practice, it prefer moderate counsels and a jurit and impartial policy, it will be owing, not to any check in the constitution, but altogether to the vigilance, the wisdom, and the firmness of a free people.
We are not, indeed, sure but that this conclusion will, in the end, be productive of much good, and that we ought rather to rejoice than complain, that at so early a period of our history, it has been forced upon the public mind--in one part at least of this confederacy-by evidence too strong to he resisted, and with a depth and seriousness of conviction which promises to make it an active, permanent and universal principle of conduct. Our political opinions, it appears to us, have been hitherto in the last degree, wild and visiortary. We have been so much accustomed to talk in a high-flown strain, of the perfection the faultless and unalterable perfection-of our institutions, that we were beginning to think that every thing had been done for us by our predecessors, and that it were impossible to mar their work by any errors of doctrine, or any defect in discipline ainong ourselves. We do not sufficiently reflect, what a rare and glorious privilege it is to be a free people, (in the only proper sense of that term) and how difficult it is, even under the most favourable circumstances, to keep so. We have unbounded faith in forms, and look upon a written constitution as a sort of talisman, wbich gives to the liberties of a nation "a charmed life" In short, no people was ever so much addicted to abstractions. It is really curious to look into the debates of Congress, when measures pregnant with important consequences are the subject of discussion. The University of Paris, in the hey-day of scholastic divinity, never excelled them in the thorny, unprofitable, and unintelligible subtleties of dialectics. Our statesmen are, in general, any thing but practical men-a fact that may be, in some degree, accounted for by the vast predominance of mere professional lawyers, (not of the first order) and the fact, that we have a written constitution to interpret by technical rides. We look in vain for that plain, manly, unsophisticated good sense-that instinct of liberty, which characterizes the controversial reasoning of the great fathers of the English constitution-the Seldens, the Sidneys, the Prynnes-and their worthy descendants and disciples, the founders of our own revolution. A measure is proposed, revolting to the moral sense and the common sense of mankind-unequal and oppressive, inconsistent with the cardinal objects and the whole genius of the government. It is opposed by those upon whom it bears hardest as unconstitutional-that is to say, as unfit to be adopted by the rulers of a free people, because it is unjust, and is not bona fide intended to fulfil the purposes of the federal compact. Immediately a metaphysical disputation ensues, and if by such jargon as has immortalized the angelical and seraphic doctors, the constitutionality of the scheme be made to appear very doubtful, it is at once assumed by the majority as demonstrated, and, perhaps, acquiesced in by the minority, because the question, if it should be thought sufficiently important, can he tried again possibility of those who before the Supreme Court. The responsibility of those who pass the law, is shifted upon those who interpret it; and thus the former venture a great deal farther upon questionable ground, than they would were their decision entirely without appeal. If, again, when the law comes before the Supreme Court, that judicatory, from some defects in its constitution or its administration, will not or cannot pronounce it void-the, will of the majority is at once considered as sanctified-its act is of course lawful, is just, is reasonable and proper. The people at large, after a few unheeded murmurs, submit to this imposing authority, and think that their discontents inust be unreasonable, because their understandings have been puzzled by sophisters, and awed by the learning of the bench. In short, the constitution is made to have the effect of an estoppel (an odious thing in law) upon their just complaints, and they are expected to suffer, like poor Shylock, any hardship which a subtile interpretation can deduce from their "bond."
We will now proceed to make some remarks upon the total unfitness of the Supreme Court to act the part of an umpire in questions of constitutional law, from the very principles of construction which itself has established.
It is obvious at the very first view of the constitution, that it confers upon the Government of the, United States, in the shape of distinct, substantive powers many which would now be considered, and which, indeed, seem to be in the nature of things, merely subsidiary and instrumental. For instance, to authorize Congress expressly "to make rules for the government of the land and naval forces," after charging it with the declaration, of war, the levying of armies, and the manitenance of a navy, was wholly unnecessary according, to the notions, of our constitutional lawyers; for such a right would follow of course, and ex necesitate rei. Nay, it would place this subject in rather a striking, light to draw, up the project of a constitution, in conformity with the doctrines of the Supreme Court, in the case of McCullough vs. Maryland. Such an instrument would be admirable for its pregnant brevity. All that needed to have, been done in the way of express grants of power, was, according to that opinion, to enable Congress,
2. To regulate commerce.
To these provisions, the convention might or might not have added a third, which is nothing more than a maxim of universal law, "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest"-viz.
3. To make all laws necessary and proper to carry into execution, the foregoing powers.
All the other clauses of the eighth section, witb the exception of three very unimportant ones, are, according to those principles, perfectly superfluousthe most unmeaning and migatory verbiage that ever disgraced a set of tyros in law-making. Is there any power omitted in our projet that may not be easily deduced from the frame and objects of the government, by the same course of reasoning. Which is supposed to have demonstrated the right of congress to incorporate a bank? Can it be pretended, that the prerogative of investing a body of men with corporate franchises, is not by the law which the people of the States lived under, by the language which they spoke, by the opinions which they universally entertained in 89, as perfectly well defined and ascertained, as a distinct, substantive power-one of the admitted jura regaliaas any other in the constitution, and much more than some of them?
The Supreme Court, it is true, does endeavour to shew that it is not; and it does so by a course of reasoning, which, however plausible at first sight, appears to us to be utterly fallacious and unsound. The power of creating a corporation," says the Chief Justice, though appertaining to sovereignty, is not like thio power of making war, or levying taxes, or of regulating commerce, a great, substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity. The power of creating a corporation is never used for its own sake, but for the purpose of effecting, something else," &c. The power of "levying taxes" not used as a means to execute the power of making war! What is t be history of the national debt in England or in this country? Besides, we we should like to be informed what power ever was "used for its own sake," and not for the purpose of effecting something else? Who ever declared war for the bare sake of declaring war-except, indeed, that great constitutional lawyer and original thinker, Caligula, who is said to have triumphed over Britain, by merely parading its troops upon the opposite shore, and marching off with the shells gathered there, for spoils and for trophies. Nay, the only idea which we are able to conceive of any power, is, as producing effects-it is ex vi termini, a means. Yet, according to the metaphysics of the Supreme Court, the fact that it may be a means, proves it no power!
We do not know that an attempt has ever been made by any of our constitutional lawyers, either in Congress or in the Courts, to explain what is meant by "sovereign-political powers" a phrase, however, perpetually used in such discussions, as if nothing could be more ascertained and precise. Thus, taking the matter up on principle-why should coining money be a great state prerogative, any more than issuing bank notes and other negotiable paper, which constitute by far the, greater part of the circulating medium of this country? Why should the right of war be exclusively confined to the whole society, and not be, as in the baronial times, the privilege of every gentleman of a certain degree? These questions are just as difficult to answer, as that so triumphantly asked in McCulloughs case; why should the, gran a corporate franchise be regarded
as a prerogative of sovereignty? It is obvious to reply, that the policy of society requires it-but it is enough for us to say that such powers have, in fact, been regarded as State prerogatives or jura regalia, and especially, that they were so considered by the common law of this land, at the adoption of the constitution. If any stress, therefore, is to be laid, (and great stress is laid by the Suprerne Court) on the idea of "these great, substantive and independent powers," that instrument must be, construed in reference to the general understanding of mankind-and, if after granting some of them, it expressly withholds all that have not been enumerated, it is passing strange to say that, under any vague words of course-any mere expressio, eoruin quae tacite insunt-such as the clause authorising Congress to pass all laws necessary, &c. those which were expressly refused have been implicitly granted.
It only remains to be shewn, that the power of instituting a corporation is defined. by the common law as an attribute-a distinct and peculiar attribute, if there ever was one-of sovereignty. Indeed, this is admitted by the Chief justice, and that concession seerns to give up the whole controversy-for if it was a "substantive, independent power" at all, it is clearly a power not granted. But the doctrine on this subject deserves, to be more particularly stated.
By the law of England, the king alone-qua talis, and not as part of the legislature-can grant a charter of incorporation. It is as much his prerogative to do so, as it is to confer a title of nobility or to declare war. This doctrine is expressly laid down by Blackstone. It is true, that in some few causes of extraordinary exigence, the Parliament was undertaken to confer a franchise, and may do so still, but such acts have always been regarded as irregular, although the king, of course, must assent even to them. "The Parliament," says Blackstone, "by its absolute and transcended authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by Stat. 39, Eliz. c. 5, which incorporated all hospitals and houses of correction founded by charitable persoils, without further trouble, and the same has been done in other cases of charitable foundations. But otherwise, it has not formerly been usual thus to trench upon the prerogative of the crown, and the king may prevent it when he pleases." Now, we ask, if this does not demonstrate beyond a doubt that, by the common law, the right of creating a corporate franchise, "is regarded as a transcendent, power of sovereignty in the British constitution," the opinion of Mr. Pinkney of Maryland, to the contrary notwithstanding. If this be admitted to be, as it unquestionably is, the true theory of the British constitution, we may save ourselves the trouble of inquiring, what is the doctrine of the civil law upon the subject. The constitution of the, United States is not to be construed in reference to that jurisprudence it is matter of positive construction, of peculiar character, of strict law-Nihil ad edictum Praetoris. Still less, we take it, ought it to be controlled by the wild. imaginings, and speculative conceits of men, as to what might, could, would or should be law. Surely the sound rule of interpretation is, to suppose that the people of this country meant what they said, that they spoke the language of their own day, and acted upon the ascertained and immemorial maxims of their hereditary institutions. Besides, it is not true, as Mr. Pinkney affirms, upon no better authority than Blackstones Commentaries, that a corporation was, by the civil law, a mere voluntary association of individuals, not particularly controlled by the state. The doctrine of that jurisprudence may be seen upon reference to Domat, who has collected all the texts, and states the principle with his usual clearness and judgment. Nor is any stress, whatever, to be laid upon a circumstance which, the learned advocate just mentioned, seems to consider as so important, viz. that the king might authorize a subject to-institute a corporation. He would have found by going a little beyond the English text books, that the question whether the jura regalia may be delegated, has been fully discussed and decided, under some qualifications, in the affirmative, by those who are accustomed to look rather more deeply into such subjects than "Doctor Blackstone."
Instead, therefore, of inferring from the fact that, in England, the authority of Parliament is not necessary to create a. corporation, as Mr. Pinkney does in McCulloughs case, that the
granting of such franchises is no act of sovereigtity, we deduce from the same premises, precisely the opposite conclusion. We ask, how it comes to pass, that the reasoning of the Court in that case, never occurred to the great constitutional lawyers of the mother country? Why should the granting a charter, even by an omnipotent Parliament, be considered "as trenching upon the kings prerogative," if the doing so, would be only employing; a "means" within the ordinary range of legislative discretion? Is it not manifest that the argument would apply to that government with the same, and, indeed, with greater force than it does here? Ought not the British legislature-of which the monarch too is a constituent, part to have as large a discretion as a Congress of few, and those specified and enumerated powers? If Patliament should undertake, with a view to accomplish some of its legitimate objects, to incorporate a company, the king, says Blackstone, would have a right to say to them, "you have begun at the wrong end, you ought to have, requested the crown to exercise its prerogative;" then with what sort of colour can it be pretended, that such a statute differs in no wise from any other act of legislation, according to the common law of England, which was, and is the common law of this land. But we shall present, the other instances to shew that the Federal Government in laying down its principles, has assumed more--has been less scrupulous in its regard for the aliment landmarks and consecrated maxims of law and liberty, according to the faith of our fathers, even than that of England.
Does the Supreme Court mean to say, that Congress, under one of its two cardinal powers, that of regulating commerce, would have a right to found and incorporate a city within the
limits of a state. Yet, why not since its acts are the supreme law, and what "laws are necessary and proper," is matter of legislative discretion, not to be passed upon by the courts? In short, there is no end to the consequences that may and will be deduced from the doctrine in MCulloughs case. The arnount of it really is, that the enumeration of powers in the constitution was a vain attempt to confine what, is necessarily illimitablethat such an instrument never can ascertain its objects with any sort of precision-that it can, at most, hint a vague purpose and sketch a sweeping outline, which is to be filled up at discretion-in sbort, that it is not the plan of a government formed and settled, and circumscribed from the first, as it is intended to continue forever, but is a mere nucleus, around which a government is to be formed, according to the circumstances of the times, and the opinions of mankind. Such a principle being once established, no man can pretend to anticipate what shape the constitution of the United States (riot that writteii by the convention, but the other which is to be built upon it) is destined to take. We are fairly at the mercy of sophisters and metaphysicians, and we shall see fully verified, the wise old maxim of the schools dolus versatur in generalibus. One usurpation will be a precedent for another-it will be treason to complain in future, of abuses, that in point of principle, can be no worse than those we have already submitted to. Thus Mr. Pinkney begins his argument in this very case, by declaring that he did not consider the constitutionality of the bank as an open question, because it had been assumed by Congress, and acquiesced in for thirty years! We venture to predict that no act of the federal government (supposing it to have common discretion) will ever be pronounced unconstitutional in that court, for the simple reason that the principle of MCulloughs case covers the whole, ground of political sovereignty, and consecrates usurpation in advance.--A regular bred dialectician shall demonstrate, drop by drop, with the most vigorous logic, that a tun of wine will not get a man drunk, if his hearer will only consent to surrender his senses to a Sorites. The consequences in such deductions shall be inevitable, and no man be able to say this or that link in the chain of reasoning is bad; on this side is Jona and not Peloponnesus-here law ends, and usurpation begins. For a man of coninion sense-indeed, for plain, practical men-it is enough that such reasonings, however ingenious and consequential, lead to Manifest absurdity, and so miist be radically vicious somewhere. That argument, for instance, cannot be sound which necessarily converts a government of enumerated into one of indefinite powers, and a confederacy of republics into a gigantic and consolidated empire. But such moderation is not to be expected of those who deal in sweeping abstractions, and reason about government and the most interesting and practical concerns of mankind, precisely as a scholastic divine-" lie that hight irrefragable," would argue upon nn unintelligible thesis in ontology or pneuinatology. Ought not the maxim of the federal government-from its very end and constitution-from its inevitable tendency to encroachment and usurpation, and the extreme difficulty of defending its jurisdiation with sufficient accuracy-to be quod dubitas ne feceris? Can any thing justify those who administer such a government-from first to last, a matter of compromise and concession, of complex organization and discordant materials-in venturing upon measures of such dubious character (to say the least of them) as to require all the ingenuity of the most practised disputants to reconcile the common sense of mankind to them?
MCulloughs case established a doctrine sufficiently latittidinarian. It gave the government an unbounded discretion in the choice of "means" to effect its constitutional objects. Nor does it confine the exercise of this arbitrary power to cases of absolute necessity. It declares that Congress has the same latitude in matters even of the most doubtful character, by way of standing policy-in time of peace, for example, it may do what could only be justified by the pressing exigencies of war, when the urgency of the case creates its own law and supersedes all others A, national bank, is, no doubt, in many points of view, an excellent institution, btit did any one ever before hear of such an establishment being founded for the purpose of collecting revenue? But whether as a means, "it is neccsstiry and proper" it seems, is for the Legislature to decide, and the court has no, right to look into that question. What is this but to say, that do any thing, provided they declare that it is done Congress may with a view to effect something else-it is not material what that is within their undoubted powers? Add to this, the rule, laid down in Fletcher vs. Pecli, that the motives of the lawgiver cannot be looked into by the judges, unless the vouchsafe to declare them, and this whole doctrine is as complete as the most ambitious political libertine could wish it to be. Thus the only chance, of having the present tariff declared unconstitutional by the Supreme Court, was, that its authors should call it what it really is-an act, passed to encourage domestic industry, and for no other purpose in the world. A conscientious man would feel himself bound-a high-minded and honourable man would think it at least ungenerous, not to avow the motives upon which he acted, and which he believed to be fully sufficient to justify his conduct. Mr. Draytons motion to that effect however, at the last session, seems to have been scouted, and this outrageous enactment (for we are unwilling to call it a law)
comes before the court, and is treated by it was a bona fide revenue measure; a fraud upon the constitution, which is notorious to every man in the nation, being absolutely invisible to its highest judicatory! Were such a.rule of interpretation adopted in the Jus Privatum, as has been laid down in the Jus Piblicum of this confederacy, there is not a statute but might become a dead
letter. Let any one only reflect upon the ingenious devices of money-lenders to evade the usury acts-but these have been all foiled, because the courts have looked into the motives of the parties, and the emphatic language of Lord Alansfield is literally true, that it is not in the wit of man to reserve, with impunity, more than the lawful interest, on any contract which amounts, substantially, to a loan of money.
Perhaps it may be said that this would be allowing too much discretion to the court--but we not see that it would exceed the bounds of a sound, legal discretion. Such as is absolutely
necessary in every part of the administration of justice. Besides, that discretion would have the inestimable advantage of being in favorem libertatis, whereas the uncontrolled discretion
of Congress is just the contrary. None but the worst consequences can reasonably be anticipated from it. In a country extending over such an immense territory-already comprising a multitude of commonwealths, differing so widely in interests, in character, and in political opinions, and still going on to increase without any assignable limitit is preposterous to expect that a central government, which shall attempt to meddle with the domestic concerns of society, can be tolerable to its subjects. It will be inevitably societas mater discordiarum; or if two sections should unite to give the law, it would be the most impracticable, impenetrable and reckless tyranny that ever existed. At all events, whether we have pointed out the true causes
of the evil, and whether there be any remedy for it or not, we are satisfied that no purity of character, no rectitude of intention, no superiority of judgment and capacity in the judges of the Supreme Court and we can scarcely expect greater than it is already distinguished by) will ever enable that tribunal to answer its great end, as an umpire between the states and the confederacy. The mischief has already been done the first step is taken, and the whole system is radically wrong.
Another instance in which the Federal Courts seem to have sanctioned principles at variance with the genius and practice of the common law is remarked by Chancellor Kent, whose observations we shall present to our readers. He is addressing himself to the case of the United States vs. La Vengeance, and others, that have since been decided in conformity to it:
" It may now be considered as the settled law of this country, that all seizures under laws of impost, navigation and trade, if made upon tide waters navigable from the sea, are civil cases of admiralty jurisdiction, and the successive judgments of the Supreme Court upon this point, are founded upon the judiciary act of 1789. If the act of Congress declares them to be cases of admiralty jurisdiction, it is apprehended that this is an extension of admiralty powers beyond the English practice. Cases of forfeiture for breaches of revenue law are cognizable in England in the exchequer upon informations, though the seizure was made upon navigable waters, and they proceed there to try the fact on which the forfeiture arises by Jury. Informations are filed in the Court of Exchequer for forfeiture upon seizure of property, for breach of laws of revenue, impost, navigation, and trade. In the case of the Attorney General vs. Jackson, the seizure was of a vessel lying in port at Cowes, for breach of the act of navigation, and the proceeding was by information and trial by jury, according to the course of the common law.--Lord Hale said, that information of that nature lay exclusively in the exchequer. Congress had a right, in their discretion, to make all such seizures and forfeitures cognizable, in the district courts; but it may be a question whether they had any right to declare them to be cases of admiralty jurisdiction, if they were not so by the law of the land when the, constitution was made. The constitution secures to the citizen trial by jury in all criminal prosecutions, and in all civil suits at common law, where the value in controversy exceeds twenty dollars. These prosecutions for forfeitures of large and valuable portions of property, under revenue and navigation laws, are highly penal in their consequences; and the Government and its officers are always parties, and deeply concerned in the conviction and forfeiture. And, if by an act of Congress, or by judicial decisions, the prosecution can be turned over to the admiralty side of the district court, as being neither a criminal prosecution nor a suit at common law, the trial of the cause is then transferred from a jury of the country to the breast of a single judge. It is probable, however, that the Judicial act of 1789 did not intend to do more than declare the jurisdiction of the district courts over these cases; and that all prosecutions for penalties and forfeitures upon seizures under laws of impost, navigation and trade, were not to be considered of admiralty jurisdiction, when the case admitted of a prosecution at common law; for the act saves to "suitors, in all cases, the right of a common law remedy, where the common law was competent to give it." We have seen that it is competent to give it, because, under the vigorous system of the English law, such prosecutions in. rent are in the exchequer according to the course of the coninion law, and it may be doubted whether the case of the La Vengeance, on which all the subsequent decisions of the Supreme Court have rested, was sufficiently considered. There is, however, much colonial precedent for this extension of admiralty jurisdiction. The Vice-Admiralty Courts in this country, when we. were colonies, and also in the West- Indies, obtained jurisdiction in revenue causes to an extent totally unknown to the Jurisdiction of the English admiralty, and with powers quite as enlarged as those claimed at the present day. But this extension of the jurisdiction of the American Vice-Admiralty Courts beyond their ancient, limits, to revenue cases and penalties, was much discussed mid complained of on the part of this country, at the commencement of the Revolution.
"Whatever admiralty and maritime jurisdiction tbe district courts possess would seem to be exclusive, for the constitution declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; and the act of Congress of 1789 says, that the district courts shall have exclusive original cognizance of all civil causes of admiralty, and maritime jurisdiction. It is certain, however, that the state courts take an extensive and unquestioned cognizance of maritime contracts, and on the ground that they are not cases, strictly and technically speaking, of admiralty and maritime jurisdiction. If, however, the claim of the district courts be well-founded to the cognizance of all maritime contracts, wheresoever the same may be made, or whatever may be the form of the contract, it would seem that the jurisdiction of the state courts over those contracts could not be sustained. But I apprebend it may fairly be doubted whether the constitution of the United States meant, by admiralty and maritime jurisdiction, anything more than that jurisdiction which was settled and in active practice under the English jurisprudence when the constitution was made; and whether it had any retrospective or historical references to the usages and practice of the admiralty, as it once existed in the middle ages, before the territories of the admiralty had been invaded and partly subdued by the bold and free spirit of the courts of common law, armed with the protecting genius and masculine vigour of trial by jury." Vol. i. pp. 349-352.
The last observations point to the pretensions of the admiralty, as stated and sanctioned in the case of De Lovio vs. Boit. We confess that we once regarded this sally of the learned
judge who decided that case as a notable piece of knight errantry, very ingenious, very romantic, and quite harmless. We regarded, with indulgence, the natural disposition of a mind much addicted to certain studies, to overrate their importance, and make their application as universal as possible-like the musician in Cicero, who explains every thing by the principles of harmony,
and the dancing-master in Moliere, who considers his own art as the foundation of all the sciences. We even sympathised with what we thought the generous and uncalculating zeal of
such an enterprise, and felt all the pathos of the following very touching appeal. "In both these cases, (enforcing the Judgments of foreign admiralty courts an( I proceeding in rem upon bottomry-bonds executed in foreign parts) the authority of the adiniralty has been admitted in the most ample manner, and in a recent case of bottomry, triumphantly upheld against every objection. These melancholy remains or its former splendour stand upon the ancient foundations of the admiralty before the reign of Richard II and if they have survived the assaults of enmity and time, it is because the principles on which they rest, are solid and immovable. But we did not, at that time, think it possible that these notions should be gravely entertained by any minds not possessed with the same passion. We think somewhat differently now. It would not surprise us much to see these exploded doctrines of unsettled and barbarous times re-established amongst us, and the flag of "the Admiral" floating triumphantly over the vast field of maritime contracts.
Having already exceeded the limits allotted to this dry article, we shall not enter into a detailed discussion of the subject, but we cannot refrain from making a very few remarks upon it before we lay down our pen.
It would be difficult to support a paradox with greater ingenuity and learning, aud in general, in a more able and persuasive manner than the very learned judge who decided De Lovio
vs. Boit, has displayed in defence of his. He has done all that could be done for the cause. Si Pergama dextra, &c. If any one could re-edify the crumbled and mouldering fabric of the
admiralty, it were he. But it appears to us that the reasoning of Lord Coke, in the 4th institute, is as conclusive as it is simple and obvious. In his answer to the sixth objection, he says-- "The like answer as to the first. And it is further added, that for the death of a man, and of mayhem (in those two cases only) done in great ships, being and hovering in the maine streame only, beneath the points of the same rivers nigh to the sea, and no other place of the same rivers, nor in other causes, but in those two only, the admiral hath dognisance. But for all contracts, pleas, and querels made or done upon a river, haven or creek, within any county of this realm, the admiral, without question, hath not any jurisdiction, for then he should hold plea of things done within the body of a county, which are triable by verdict of twelve men, and merely determinable by the common law, and not within the court of the admiralty, according to the civil law. For that were to change and alter the laws of the realm in those cases, and make those contracts, pleas and querels triable by the common laws of this realm, to be drawn ad aliud examen, and to be sentenced by the judge of the admiralty according to the civil laws."
This statement rather than argument, in our opinion, exhausts the whole subject. All that is necessary to be done by the defenders of the common law and the trial, by jury in this matter,
is, to explain the text of Colic, and refute the cavils (for they can be nothing more) of his adversaries. But the light in which he puts the controversy is entirely satisfactory to men of plain
sense. Suppose, without having regard to precedents, one were asked, whether, from the general spirit of the English law, be thought it probable that such an anomalous and foreign jurisdiction were tolerated by it? Could be possibly doubt about it? Surely he would suppose that the jurisdiction of the common law courts was co-extensive with the realm and all its social concerns, wherever that jurisdiction could be effectual wherever every right could be protected, and every-wrong redressed by it. He could not conceive how a people who have been in all ages so jealous on the subject of their own institutions-especially so stout and heroic in defending the trial by jury, and the principles of magna charta-could think of admitting an exception of so important a kind, and that too without the smallest occasion for it. For, as to the notion of its being so advantageous to have maritime cases disposed of velis levatis, according to their phrase, that would go too far to be entertained even for a moment. Speedy justice is, doubtless, a very good thing, but pure justice and public liberty are still better-at least so have thought the people of England in all ages. Why, we repent it, should there be more than one system of law in a
country, where that law is competent to do perfect justice? Why should the authority of a tribunal depend upon the ebbing and flowing of the tide in a river within the body of a county tiny
any more than upon the changes of the moon. As to the divisum imperium on the sea-shore, there is reason in that, because if the jurisdiction is to stop at the bounds of a territory, as it must somewhere, and if the sea be assumed as the proper boundary, the extent of its waters is a good-enough practical line of demarcation. At all events, being settled, it is not worth while to disturb it for the purpose of establishing another that may not be a jot better. But is there any sense in the pretension of exercising jurisdiction in one river, or one part of a river, and not another, because the tide flows or does not flow there, while there are tribunals open that can do ample justice whether it flows or not? The analogy of chancery is really against the friends of the admiralty, who so confidently rely upon it. The true theory of our jurisprudence is, that that Court entertains
jurisdiction only where the complaint is remediless at law. We are, of course, aware that there are cases of concurrent jurisdiction, and that even where the common law courts adopting the principles of equity, have administered the same remedies, the jurisdiction of the latter is not considered as necessarily ousted. But these are mere abuses. Mr. Brougham has, we perceive, in his scheme of reform, declared war against trusts, and we shall, on a futurc occasion, make some further remarks upon the excesses or superfluities of the Proctorian jurisdiction. As for the case of hypothecation, it comes within our principle, and is a fair exception, because the common law courts do not afrord the stipulated remedy. The other exception of seamans wages, is, as Lord Holt considers it, a mere indulgence, and a very convenient way of settling sucli small matters.
Another important consideration,and one that greatly strengthens (if any thing were wanted to strengthen) the decided opinion of Lord Coke, is, that the authorities cited oil the other side are mostly taken from barbarous and unsettled times, or from foreign law. Suppose it could be shown that the statutes of Richard II do not mean what that illustrious lawyer says they do, and that there were, at remote periods, even stronger and more numerous precedents in favour of the admirals usurpations, shall judge Storys indefatigable researches have yet discovered. How much ought they to weigh, at this time of day, against the reason of the thing, the analogies of the law, the gellius of the constitution, and the almost unbroken current of authorities for a century and a half together. Nearly all that has ever been done to make England what she is, and to lift up the common law to its present just supremacy in that realm, over the tyrannical forms and principles of other systems, has been acconipfished since Lord Cokes time. His commanding authority and virtuous efforts and example eminently contribtited to bring about these improvements. When Mr. Justice Buller is quoted to shew that the first of our common lawyers was inimical to the admiralty, it ought to be remembered that he was equally so to every thing else that savored of arbitrar power and of hostility to the liberties of Englishmen. Some indulgence may be extended-perhaps an especial degree of authority conceded to that incorruptible and undaunted champion of magna charta -- the author and proposer of the Petition of Rights, and one of the founders of that very freedom which we now enjoy. Those who overthrew the Star Chamber, and the High Commission Court, would scarcely tolerate the pretension of the adiniralty-while on the contrary.-- Accordingly, Sir Leoline Jenkins expressly informs us that the famous order in Council of 1632 "was punctually observed as to the granting and denying of prohibitions, till the late disorderly times bore it down, as an act of prerogative prejudicial (as was pretended) to the common law and the liberty of the subject." The wise and practical men who founded the Commonwealth of England-who breathed into her constitution the breath of life, and whose reforms triumphed even over the prejudices of their wretched successors, and the untoward events that for a moment threatened to have obliterated thein all,
have in this, as in other respects, set us an example worthy of our imitation. The reputation of these Admiralty Courts does not appear to have been very high in the century before Lord Colic published the fourth Institute. Mr. Justice Johnson, if his excellent opinion it, Ramsay vs. Allegre, remarks upon it as somewhat surprising, that from the time of Richard II down to the beginning of the seventeenth century, tbim jurisdiction should have attracted so little of the attention of the Common Law Courts. But if it eluded the jealous vigilance of a rival judicatory, it was not fortunate enough to escape the censure of public opinion. We have historical evidence of this fact. In the year 1549, we find the ministers of Charles V. complaining to Paget, ambassador of Edward VI. that foreign merchants could get no justice done them in the English admiralty. Paget defends himself by an argumentum ad hominem, retorting the reproach upon its authors. His logic had its effect, and it was confessed on all hands, that there were great corruptions and abuses in these courts.
In a word, the principle laid down by Chancellor Kent, in the extract just made from his work, is unquestionably the sound one, that the admiralty jurisdiction is to be taken as it stood at the time the constitution was adopted, and not as it possibly may have been in dark and rernote ages. Of the extent of it, according to this rule, there can be very little doubt. The (then recent) English cases are clear-the doctrine of great constitutional lawyers is clear-the reasoning from the principles of a free government and the provisions of magna charta is clear-and we have the concurrent authority of two American judges of the highest respectability, and at a distance from
each other, expressly upon the point. Every argument that applies in England, is applicable a multo, fortiori where we have lot only the law of the land and the trial by jury to look to, but the conflicts of state and federal jurisdiction to prevent or to reconcile.
In closing these remarks upon the constitutional jurisprudence of the United States, we repeat what we said at the beginning, of them. We think the course which thitigs are taking in this country must lead to a passive and slavish acquiescence under usurpation and abuse. Liberty is a practical matter--it has nothing to do with metaphysics-with entity and quiddity. It is a thing to be judged of altogether in the concrete. Like the point of honour, or the beauties of art, or the highest perfection of virtue, it addresses itself to the common sense and feelings of mankind. There is no definitig it with mathematical exactness--no reducing), it to precise and inflexible rules. What, for instance, does it signify, that a skilful disputant. might possibly prove the tariff law to be within the words of the constitution would that prevent its being a selfish and oppressive, and, therefore, a tyrannical measure? Is there, any practical difference whatever, between the usurpation, of a power not granted, and the excessive and perverted exercise of one, that is? If a man abuses an, authority of law under which he is acting, he becomes a trespasser ab initio and if it be an authority in fact, he is a trespasser for the excess. The master of a ship and other persons in authority, have a right to correct those who are subject to their control
is an act of immediate severity less a trespass and an offence on that account.? What, if the govermnent should suspend the habeas corpus act, without such an overruling necessity as could
alone excuse the measure, and the courts would not control its discretion, would not the people, with reason, laugh at the man who should talk of such an outrageous abuse of power as constitutional, because the judges did not pronounce it otherwise? Nor does this depend upon the express provision in the constitution. Not at all. In a free country, every act of injustice,
every violation of the principles of equality and equity, is ex vi termini a breach of all their fundamental laws and institutions. In the ordinary administration of the law, indeed, the distinction between usurpation and abuse, may sometimes be important, but in great questions of public, liberty, in reason, and in good faith, it is wholly immaterial. The moment that this sensibility to its rights and dignity is gone, a people, be its apparent or nominal constitution what it may, is no longer free. A quick sense of injustice, with a determination to resist it in every
shape and under every name and pretext, is of the very essence and definition of liberty, political as well as personal. How far, indeed, this resistance is to be carried in any particular instance, is a question of circumstances and discretion. So dreadful are all revolutions in their immediate effects-so uncertain in their ultimate issues, that a wise man would doubt long-that a moderate and virtuous man would bear much before he could be prevailed upon to give his consent to extreme measures. We would be any thing rather than. apostles of discord and dismemberment, sorely as the government to which South-Carolina, and the south in general, have been so
loyal and devoted, is beginning to press upon all our dearest interests and sensibilities. But we feel it to be our duty to exhort our fellow-citizens to renewed exertion, and to a jealous and sleepless vigilance upon this subject. The battle must be fought inch by inch-no concession or compromise must be thought of. The courage and constancy of a free people can never fail, when they are exerted in defence of right. It is, indeed, an affecting spectacle, to look around us at the decay and desolation which are invading our pleasant places and the seats of our former industry (and opulence-there is something unnatural and shocking in such a state of things. A young country already sinking into decrepitude and exhaustion--a fertile soil encroached upon again by the forests from which it has been so recently conquered-the marts and sea-ports of what might be a rich country, depopulated and in ruins. Contrast with this our actual condition, the hope and the buoyancy, and the vigour and the life that animated the same scenes only twenty-five years ago, and which have now fled away from us to bless other and more favoured regions of this land. It is scarcely less discouraging to reflect upon the probable effects which the admission of an indefinite number of new states into the union, with political opinions, perhaps, altogether unsettled and unsafe, will produce. But we are wielding too much to feelings, with which recent events have, we own, made our minds but too familiar, and we will break off here.
We take our leave of Chancellor Kent, in the hope of soon meeting with him again. We have generally given him, throughout this article, the title which he honoured far more than it honoured him, and which it is an everlasting disgrace to the greatest state in the union, that he does not still bear. What a mean and miserable policy! Lest it should have to pay their paltry salaries to a few superannuated public servants, to deprive itself of the accumulated learning, the diversified experience and the ripe wisdom of such a man at the age of sixty! A commonwealth, flourishing beyond example or even imagination, wantoning and rioting in the favours of fortune which have been poured upon it without stint, chaffering and haggling in by far the most important concern of society, lilke an usurious pawnbroker, for a few thousand dollars. In some of the poorer states, such stupid economy would be more excusable, or rather less unaccountable, for nothing can excuse it. The rarest thing in nature certainly, the rarest thing in America-is a learned and able judge, at the same time, that he is not only, in the immediate administration of justice, but still more, if possible, by his immense influence over the bar and the community at large, beyond all price. But we Americans do not think so, or rather we act as if we did not. The only means of having a good bench. is to adopt the English plan-give liberal salaries to your judges, let them hold their offices during good behaviour, and when they begin to exhibit symptoms of senility and decay, hint to them that their pensions are ready to be paid them. The last is a necessary part of the system-but it is what the American people can never be brought to submit to. They are economical, (God save the mark!) and, therefore, will not spend money without a present and palpable quid pro quo-they are metaphysical, and, therefore, they will not violate what is called, we know not why, principle. They deem anything preferable. Extinguish the light of a Kent or a Spenser-submit to the drivellings of dotage and imbecility-nay, even resort to the abominations of an elective judiciary system-anything rather than adopt the plain, manly, and only sure means of securing the greatest blessing, but liberty, which civil society can attain to, the able administration of the laws!
In the present instance, the people of New-York alone are the sufferers. The disthiguished person before us has laid tip abundantly those miseris viatica canis, which wisdom arid virtue, and they alone, confer upon the chosen few-which the world cannot give, neither take away.