Obrazy na stronie

of all constitutional questions ; a very danger- ercise authority over property, is it not ous doctrine indeed, and one which would place us under the despotism of an oligarchy:

irrefragible that they are powerless over Our judges are as honest as other men, and persons ? not more so. They have, with others, the And here let us quote a paragraph same passions for party, for power, and the from Mr. Jefferson's letter, to a confiprivilege of their corps. Their maxim is, is boni judicis est ampliare jurisdictionem,

dential agent, which we think will be and their power the more dangerous as they

somewhat a stumbling-block to the inare in office for life, and not responsible, as veighers against a higher law :* the other functionaries are, to the elective con. trol. The constitution has elected no such "The question you propose, whether cirsingle tribunal, knowing that to whatever cumstances do not sometimes occur which hands confided, with the corruptions of time make it a duty in officers of high trust to and party, its members would become despots. assume authorities beyond the law, is easy of It has more wisely made all the departments solution in principle, but sometimes embarcoëgual and cosovereign within themselves. rassing in practice. A strict observance of If the legislature fails to pass laws for a cen- the written laws is, doubtless, one of the high sus, for paying the judges and other officers duties of a good citizen; but it is not the of government, for establishing a militia, for highest. The laws of necessity, of self-presnaturalization as prescribed by the consti- ervation, of saving our country when in dantution, or if they fail to meet in congress, the ger, are of higher obligation.” judges cannot issue their mandamus to them, if the president fails to supply the place of a The following extract from Mr. Jefjudge, to appoint civil or military officers, to ferson's letter would seem to indicate issue requisite commissions, the judges cannot

that the decision in the Dred Scott case, force him. They can issue their mandamus or distringas to no executive or legislative of- by the Supreme Court, would have been ficer, to enforce the fulfillment of their official considered by him of no avail. If the duties, any more than the president or legis. lature may issue orders to the judges, or their

interpretation we put on it be true, the officers. Betrayed by English example, and

Supreme Court has merely uttered a unaware, as it should seem, of the control of speculative opinion, no more binding our constitution in this particular, they have in law than it is in reason and in the at times overstepped their limit, by undertaking to command executive officers in the dis

great principles of humanity.t charge of their executive duties ; but the “ The second question, whether the judges constitution, in keeping three departments are invested with

exclusive authority to decide distinct and independent, restrains the author.

on the constitutionality of a law, has been hereity of the judges to judiciary organs, as it tofore a subject of consideration with me in does the executive and legislative to execu- the exercise of official duties. Certainly, there tive and legislative organs. The judges cer- is not a word in the constitution which has tainly have more frequent occasion to act

given that power to them, more than to the on constitutional questions ; because the laws

executive or legislative branches. Questions of meum and tuum, and of criminal action,

of property, of character, and crime, being forming the great mass of the system of law, ascribed to the judges, through a definito constitute their particular department.- course of legal proceeding, laws involving When the legislative or executive functiona.

such questions belong, of course, to them; ries act unconstitutionally, they are responsi. and, as they decide on them ultimately and ble to the people in their elective capacity. without appeal, they, of course, decide for The exemption of the judges from that is themselves. The constitutional validity of quite dangerous enough. I know no safe de

the law or laws, again, prescribing executive pository of the ultiinate powers of the socie- action, and to be administered by that branch ty, but the people themselves ; and if we ultimately and without appeal, the executive think them not enlightened enough to exercise must decide for themselves, also, whether, their control with a wholesome discretion, the under the constitution, they are valid or not. remedy is not to take it from them, but to in

So, also, as to laws governing the proceedings forin their discretion by education. This is

of the legislature, that body must judge for the true corrective of abuses of constitutional

itself the constitutionality of the law, and power.

equally without appeal or control for its coor“Pardon me, sir, for this difference of opin. dinate branches; and, in general, that branch, ion; my personal interest in such questions is which is to act ultimately and without appeal entirely extinct, but not my wishes for the

on any law, is the rightful expositor of the longest possible continuance of our govern- validity of the law, uncontrolled by the opini. ment on its pure principles. If the three pow. ons of the other coördinate authorities. It ers maintain their mutual independence on may be said that contradictory decisions may each other, it may last long, but not so if arise in such case, and produce inconvenience. either can assume the authorities of the other.

This is possible, and is a necessary failing in I ask your candid reconsideration of this all human proceedings. Yet, the prudence subject, and am sufficiently sure you will of the public functionaries, and the authority forin a candid conclusion. Accept the assur- of public opinion, will generally produce acance of my great respect."

commodation. Such an instance of indiffer

ence occurred between the judges of England Now, if the federal courts cannot ex

(in the time of Lord Holt) and the House of


* Letters, vol. v., p. 542.

+ Letters, vol. vi., p. 461.

Commons; but the prudence of those bodies points of the day-the question of slaveprevented inconvenience from it. So in the

ry, and the powers of the federal courts. cases of Duane, and of William Smith, of South Carolina, whose characters of citizen

If we be not mistaken, they show his ship stood precisely on the same ground, the democracy to have been a real, not a judges, in a question of meum and tuum pseudo-creed, and demonstrate the Dewhich came before them, decided that Duane

claration of Independence not to have was not a citizen; and, in a question of membership, the House of Representatives, under

been a lawyer's special plea, but the the same words of the same provision, adjudged declaration of a philosopher on the subWilliam Smith to be a citizen. Yet no incon. ject of the great and immutable rights venience has ensued from these contradictory

of man.

How, then, can the people decisions. This is what I believe, myself, to be sound. But there is another opinion enter.

of the South place themselves on the tained by some men of such judgment and broad platform of Jeffersonian demoinformation as to lessen my confidence in my cracy, which was so catholic that it fully own. That is, that the legislature alone is the

sustained Lord Mansfield's decisionexclusive expounder of the sense of the consti. tution, in every part of it whatever. And they

that slaves could not exist in Engallege, in its support, that this branch has land. authority to impeach and punish a member The destruction of slavery was the of either of the others, acting contrary to its

dream of Mr. Jefferson's life. He did declaration of the sense of the constitution. It may, indeed, be answered, that an act may

not live to see it realized; but as cerstill be valid, although the party is punished tain as fate itself is its destruction in for it, right or wrong: However, this opinion, Virginia. He dreamed through the which ascribes exclusive exposition to the whole of his life of the destruction of legislature, merits respect for its safety, there being in the body of the nation a control over slavery, and under the federation and them, which, if expressed by rejection, on the under the union sought to accomplish subsequent exercise of their elective franchise, it. When the western territory was enlists public opinion against their exposition,

ceded by Virginia and the other united and encourages a judge or executive on a future occasion, to adhere to their former colonies, soon after the Revolution, opinion. Between these two doctrines, every the duty of forming laws for the govone has a right to choose, and I know of no

ernment of the west region devolved on third meriting any respect.

the committee of which Mr. Jefferson “I have thus, sir, frankly, without the honor of your acquaintance, confided to you my was chairman, and Howell of Kenopinion.”

tucky and Chase of Maryland were

members. They reported a plan of That the federal judiciary was not at

government for the territory, one of all consonant with the views of Mr. Jefferson will be evident from the following

the provisos of which, by Mr. Jeffer

son, and written out by himself, was as extract from his message to Congress,

follows: Dec. 8, 1801 :

“ That after 1800, of the Christian era, there “The judiciary system of the United States, shall be neither slavery nor involuntary servi. and especially that portion of it recently erect- tude in any of the said states, otherwise than ed, will, of course, present itself to the contem. in punishment of crimes, whereof the party plation of Congress; and, that they may be shall be found to have been personally able to judge of the proportion which the in. guilty.” stitution bears to the business it has to perform, I have caused to be procured from the several On the 19th of August, 1784, Constates, and now lay before Congress, an exact gress, on motion of Mr. Spaight, of N. statement of all the causes decided since the

Č., Mr. Read seconding the motion, first establishment of the courts, and of those which were depending when additional courts

struck out this proviso, six states voting and judges were brought in to their aid. ay and three nay; and thus (the fed

“And, while on the judiciary organization, eral constitution requiring a majority of it will be worthy your consideration, whether

states) slavery was not admitted, but the protection of the inestimable institution

In of juries has been extended to all the cases not prohibited in the territories. involving the security of our persons and

1787, the continental congress, sitting property.

in New York simultaneously with the Their impartial selection also being essen- convention which formed the federal tial to their value, we ought further to consider whether that is sufficiently secured in those constitution at Philadelphia, passed an states where they are named by a martial de- ordinance for the government of the pending on executive will, or designated by western territory north of the Ohio, the court, or by officers dependent on them."

which contained, substantially, all Mr. These, and other extracts from Mr. Jef. Jefferson's provisos, and concludes with ferson's writings, would clearly enough the following perpetual contract : show his opinion on the two great mooted “There shall be neither slavery nor invol

untary servitude in the said territory other. world. As members, therefore, of the univerwise than a punishment of crimes, of which sal society of mankind, and standing in bigh the parties shall be duly convicted.”

and responsible relation with them, it is our

sacred duty to suppress passion among our. That Mr. Jefferson looked forward to selves, and not to blast the confidence we have the certain revival of the anti-slavery inspired of proof that a government of reason

is better than one of force. This letter is not agitation, and its final disruption of the

of facts but of opinions, as you will observe; federal compact, unless it were prevent- and, although the converse is generally the ed in the only way he ever seems to

most acceptable, I do not know that, in your have dreamed the matter could be set

situation, the opinions of your countrymen

may not be as desirable to be known to you as tled-by the abolition of slavery-is facts. They constitute, indeed, moral facts, proven by the following letter to his as important as physical ones to the attention friend Hugh Nelson :*

of the public functionary. Wishing a long

career to the services you may render your “MonticeLLO, March 12, 1820.

country, and that it may be a career of hap

piness and prosperity to yourself, I salute you “I thank you, dear sir, for the information

with affectionate attachment and respect.” in your favor of the 4th instant, of the settlement for the present of the Missouri question. I am so completely withdrawn from all atten.

No one, we presume, will pretend to tion to public matters, that nothing less could say that Kansas is anxious to share the arouse me than the definition of a geographic evil. al line, which, on an abstract principle, is to One more extract on the judiciary of become the line of separation of these states, and to render desperate the hope that man can

the United States, taken from a letter ever enjoy the two blessings of peace and self

to Thomas Ritchie, editor of the Richgovernment. The question sleeps for the pres- mond Enquirer, should startle Judge ent, but is not dead."

V. V. Daniel, who grew up almost at In a letter to Mr. Rush, he indi

the knee of Mr. Jefferson. Its subject cates very plainly what he would have

is the book of John Taylor, of Caroline :

“ Construction Construed." thought of the attempt to fasten slavery on Kansas:t

“But it is not from this branch of govern

ment we have most to fear. Taxes and short "Nor is our side of the water entirely un. elections will keep them right. The judi. troubled ; the boisterous sea of liberty is never ciary of the United States is the subtle corps without a wave. A hideous evil—the magni- of sappers and miners constantly working un. tude of which is scen, and at a distance, only, der ground to undermine the foundations of by the one party, and more sorely felt and our confederated fabric. They are construing sincerely deplored by the other, from the diffi. our constitution from a coordination of a gene culty of the cure-divides us at this moment ral and special government to a general and too angrily. The attempt by one party to supreme one alone. This will lay all things at prohibit willing states from sharing the evil, is their feet-and they are too well versed in thought by the other to render desperate, by English law to forget the maxim, ' boni judicis accumulation, the hope of its final eradication. est ampliare jurisdictionem.' We shall see if If a little time, however, is given to both par- they are bold enough to take the daring stride ties to cool, and to dispel their visionary fears, their five lawyers have lately taken. If they they will see that, concurring in sentiment as do, then, with the editor of our book, in his to the evil, moral and political, the duty, and address to the public, I will say, that against interest of both is to concur, also, in devising this every man should raise his voice;' and, a practicable process of cure. Should time more, should uplift his arm. Who wrote this not be given, and the schism be pushed to admirable address ? Sound, luminous, strong, separation, it will be for a short time only: two not a word too much, nor one which can be or three years' trial will bring them back, like changed, but for the worse. That should quarreling lovers, to renewed embraces, and go on-lay bare these wounds of our conincreased affections. The experiment of sepa- stitution-expose the decisions seriatim- and ration would soon prove to both that they had arouse, as it is able, the attention of the namutually miscalculated their best interests. tion to these bold speculators on its patience And even were the parties in Congress to se- Having found, from experience, that impeachcede, in a passion, the soberer people would ment is an impracticable thing—a mere scarecall a convention, and cement again the sev. crow—they consider themselves secure for erance attempted by the insanity of their func- life; they skulk from responsibilities to pub. tionaries. With this consoling view, my great- lic opinion-the only remaining hold on them. est grief would be for the fatal effect of such Under a practice first introduced into Eng. an event on the hopes and happiness of the land by Lord Mansfield, an opinion is bud. world. We exist, and are quoted as standing dled up in conclave, perhaps by a majority proofs that a government, so modeled as to of one, delivered as if unanimous, and with rest continually on the will of the whole socie. the silent acquiescence of lazy or timid assoty, is a practicable government. Were we to cates, by a crafty chief judge, who sophisti. break to pieces, it would damp the hopes and cates the law to his mind by the turn of his the efforts of the good, and give triumph to own reasoning. A judiciary law was once those of the bad, through the whole enslaved reported by the Attorney General to Congress,


* Letters, vol. vii., p. 151.

+ Letters, vol. vii., p. 182.


requiring each judge to deliver his opinion se. the companion of his last journey, and riatim and openly, and then to give it in meet it was that those two men should writing to the clerk, to be entered in the record. A judiciary, independent of a king

die together. They, as much as any or executive alone, is a good thing; but inde. other two, had built up the nation; they pendence of the will of the nation is a

had piloted the ship of state through solecism, at least in a republican govern

many a storm, and, full of honors and

of years, were entitled to rest. Were These extracts bring us down almost they with us to-day, is there a doubt to the date of the death of Mr. Jeffer- that they would unite in the most son, who, as we have seen, was spared determined resistance to the effort the excitement of other days, when which some of our countrymen are party prejudices became far greater. now making, to establish among the On the 4th of July, 1826, when the normal institutions of this nation a cusnation was everywhere rejoicing, and tom which they considered to be wholwhen countless ears were hearing read ly an evil, and for a speedy extirpation his grand Declaration of Independence, of which their hope was coördinate with the spirit of the old patriot passed their faith in the progressive civilization away. His colleague, Mr. Adams, was of mankind?


WITHIN the last six months, several

the kitchen and parlor opening upon works on building have been pub- opposite sides of the hall directly you lished in this country, and although no open the front door; all these minor one of them is of any very great im- miseries abound in these places, and portance, we shall make them the text

present themselves as well in the costly of some words on the general subject- as in thc cheaper structures. It is eviso far, at least, as it concerns us Amer- dent that house-building has never been. icans.

studied as an art by these gentlemen, at The two books, whose titles are given least this decision would be the result of below, are the most recently published. an examination of the engravings, but Mr. Cleaveland's is a pleasant little the letter-press which describes them, volume, written in a clear, unambitious and comments upon them, shows not style, and containing many excellent hints only feeling and enthusiasm, but judgand suggestions; but the illustrations ment and honesty of purpose. Perhaps are very poor, and the designs do not this is the result of triple authorship; appear to be well-considered. Indeed,

we do not pretend to account for tho on looking over the plans and exteriors discrepancy; it most certainly exists. with care, it must appear surprising Mr. Vaux's book presents us with a that the authors of the book should similar inconsistency, for he offers us a have fancied themselves proper guides collection of designs and plans, many of the public taste—for there is not a of them worthy a careful examination, single house presented for our examin- but his comments upon them do not ation which has not some ugly feature please us. Nevertheless, it is very evipredominating — scarcely one whose dent that Mr. Vaux fully understands proportions are not bad—while the his profession, so far as all technical plans are of the most meagre and incon- matters are conce ed; for there has venient description. Narrow and wind- been no book published in America, on ing halls, cramped stair-cases, bed- the subject of architecture, which is rooms and kitchens opening into par- more thorough than tbis one. The lors, and without other means of access, plans are the best part of the book, and

* The Requirements of American Village Homes considered and suggested; with Designs for such Houses at moderate cost. By H. W. CLEAVELAND, William BACKUS, and SAMUEL D. Backus. New York: D. Appleton & Co., 1857.

Villas and Cottages. A Series of Designs prepared for Execution in the United States. By Calvert Vaux, Architect. New York: Harpers, 1857.

constitute its real value, the exteriors degeneracy of their bricks and mortar, for the most are clumsy and unimagin. the most charming piece of burlesque ative. His book is a striking contrast to since Gulliver; but, generally speakthose of his old partner, Mr. Downing's, ing, other writers take a milder and less in many things. The plans are better, relentlessly virtuous view, and seem to and there is evidently more familiarity think, that though matters are come to with the conventional rules of the archi- a pretty bad pass, yet, if the public will tect, but these advantages cannot bal- only set to work in the right spirit, and ance the charming simplicity of Down- adopt their designs, all may yet go well. ing's style, and the evident sincerity Mr. Downing is good-natured in this and singleness of his purpose. Mr. matter, and thinks there is a good time Vaux's book-and we wish to do him no coming; he does not insist upon his own injustice—is too full of egotism. In strong designs as a panacea, but gives us a colopposition to this, stands Mr. Downing's lection gathered from various quarters, modesty, which never allowed him to and recommends the mixture. The other speak an unnecessary word about him- notes in the gamut are sounded by the self, and which touched even his satire rest of the choir, and the general result with good-nature. Indeed, none of is a chorus of depreciation, ending in a these books have impressed us with the grand hallelujah of anticipatory praise; belief that Mr. Downing's volumes are looking forward to the day when the to be immediately superseded, and we public, driven by an æsthetic fury, shall shall continue to think that they suf- pour into their offices with unlimited orficiently fill the field which they pro- ders and the most gratifying surrender fess only partially to occupy, and that, of individual feeling and sentiment to from their point of view, they leave very the superior taste and knowledge of little to be said on the subject of which these artistic gentlemen. they treat.

This, in seriousness, is the upshot of Yet we must still ask ourselves of the whole matter. Mr. Ruskin believes, what use are all these books? To what and all the others whom we have menend are they written ?" For it seems to tioned believe, that a love of good buildus, that from Mr. Downing to the lasting is to be created by an influence comer in blue and gold, a fatal error has from without, rather than by a moveseized all among us, who have written ment from within. Mr. Ruskin, especialon this subject of building; and even ly, speaks of this age, and the men Mr. Ruskin has failed to perceive that who live in it, and the work it is doing, his conclusions do not follow from his as no man, were he Paul himself, has a premises. All these writers, small and right to speak of his fellow-men. Nay, great, begin by urging that the art of a man with the brain and heart of Paul building has fallen into languishment could not speak so; his greatness of and decline, that, if not dead, it cannot intellect would forbid his so misapprebe said to be alive; that those who hending the thought of his century, and build, build carelessly, slavishly and the largeness of his heart would prevent knavishly, and that those for whom they such overweening conceit as such wholebuild are cold, indifferent, ignorant, and

sale condemnation of his fellows must often knavish, too. These opinions are imply. But, after this hopeless comnot expressed in the same way by all mencement, Mr. Ruskin proceeds every: writers upon architecture. Mr. Ruskin, where to urge, that we should do good indeed, swings himself about in awful and great things; or, if not great, at fury, and hurls every sort of pitch and least good and sincere things, as if that defilement upon the unhappy gentle- were possible with creatures so debased men who venture to sqeak, when he and material. He does not once see, treads upon their cherished corns; he


of these men, that beautiful becomes almost Pythian in his pro- building is no longer the law of the phetic ecstasy of denunciation, when time, because the thought and energy he speaks of the impiety of building of the time spend themselves elsewhere; railroads and warehouses instead of that it is the product of peace-outward cathedrals and cloisters, especially if

and inward. Peace in the state, peace the warehouses should happen to have in the heart and brain of man. That à Greek rosette upon them anywhere; the work of this age is revolution, and and, indeed, we think his lectures to that while freedom is wrestling for her the people of Edinburgh, about the life, and a deathless struggle is impend

nor do

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