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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 them 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 Coke published the fourth Institute. Mr. Justice Johnson, in his excellent opinion in Ramsay vs. Allegre, remarks upon it as somewhat surprising, that from the time of Richard II. down to the beginning of the seventeenth century, this 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.t
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 remote 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
Argum. before the Lords, p. 71. +2 Burnet's Hist. Reform. p. 132. # Judges Hopkinson of Pennsylvania, and Bee of South-Carolina.
applies in England, is applicable a multo fortiori here-where we have not 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 things 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 defining 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 ex
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 government 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 muchbefore 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 yielding 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, like 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 naturecertainly, 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 distinguished person before us has laid up abundantly those miseris viatica cunis, which wisdom and virtue, and they alone, confer upon the chosen few—which the world cannot give, neither take away.
ART. IV.-Voyage dans la Russie Méridionale, et particulière
ment dans les provinces situées au-delà du Caucase. Par le Chevalier Gamba. Paris. 2 vols. 8vo. 1826.
For the greater part of the last three thousand years, the history of civilized man has, in an extraordinary degree, been confined to those nations that have inhabited the shores of the Mediterranean. Nearly all that we possess of arts, of science, of religion, have been unfolded in those fortunate regions. It is upon them alone, that the uninterrupted light of traditionary or of recorded history has been permitted to shine. Until within a few centuries, the heroic song, the legendary tale, the historic chronicle, have generally dwelt upon the deeds transacted in this limited portion of the globe. All other regions and people arose to view occasionally, and have left only broken and interrupted memorials of their existence and of their glory.
Within a few centuries, a wonderful change has been produced. Knowledge and wealth and power have been distributed over distant and scattered realms. Countries, unknown in ancient days, are becoming the seats of science and of arms, and it may be considered among the extraordinary incidents of modern times, that a nation, arising amidst the inhospitable deserts of Sarmatia, is gradually approaching the range of ancient civilization, overshadowing with its power the abodes of former magnificence and modern barbarity, is found exploring and illustrating provinces and kingdoms, which were only obscurely noticed in the legends of antiquity.
Among those districts which, at intervals, have broken on the view of civilized man with transient celebrity-one, remarkable for the fables which hang over its early history, for many circumstances which at distant periods have distinguished its more accurate annals, is that country which, to the north and east, encircles the Euxine sea, and more particularly, that mountainous isthmus placed between the Euxine and Caspian, which includes the declivities of the great chain of the Caucasus.
The Borysthenes, the Tanais, the Tauric Chersonesus, have all been the occasional theatre of memorable events. But the name of Colchos is still more strongly interwoven with the imagination of the scholar. It awakens the recollection of many of the tales of the heroic age of Greece, recals to our memory the names of Phryxus and of Helle, the misfortunes of