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the settling of this fundamental proposition will very clearly expose its fallacy.
The importance and necessity of an interpretation and application to individual rights and obligations, of the laws and constitution, is a subject that necessarily occupies a great deal of space in this Appendix. It seems a little astonishing that any set of men should, in our system of government, think of addressing themselves to popular partiality, by decrying the judiciary, or attempting to prostrate it to the legislative or executive power; for it is in fact the only direct safeguard the citizen has against those powers, so that making the judiciary a subservient, dependent appendage of the other powers of government, is, in fact, a total destruction of personal liberty. This we take to be an updeniable proposition, the truth of which is palpable to any man of ordinary capacity. That any set of men, who find the judiciary standing in the way of some temporary views of their own, should feel a dissatisfaction with the judges, is not unnatural, and as judges are sometimes wrong, as well as other men, there are not wanting just occasions to dissent from their opinions. But that any person should go so far as to decry the judiciary itself, as a part of the government, and think that the people would even, for a moment, maintain the idea of crippling and prostrating the power, in the strength and independence of which, their own personal liberty and all their social rights are involved, is a thing which, if it had never happened, would at once be pronounced incredible. The judiciary is not only the sole protector of individual liberty and rights, under every government where it is independent, (where it is not so there is no liberty,) but it is also, as Mr. Dane remarks, in fact, by far the most unpopular branch of the government, where it is, as with us, connected with trial by jury.
When we consider the numerous judicial magistrates, and especially two or three hundred thousand of jurymen, the solid and select part of the people in the judiciary, exclusively, and others connected therewith, I hesitate not to affirm that there is more weight of character in the judiciary than in both of the other two departments.
In the following passage the author takes a very liberal and philosophical view of our parties, and draws from their history another argument in favor of the necessity that the citizens should have an independent tribunal to which to look for the protection of their persons and their rights.
• The varying notions of party men. If we would know how one of them construes the constitution and laws, we must inquire whether he is in the majority or minority. Men naturally enlarge powers, when in their own hands, or the hands of their friends, and limit them when in the hands of their adversaries,
in the same degree. Majorities possess and exercise them. Their passions, feelings, and self-confidence ever influence them to extend them, and to make them bear hard on opposed minorities, whose passions and feelings are, by nature, against such extension. We may cite thousands of cases to prove the facts. A few must suffice. When a respectable member of Congress (Mr. B.) was in the federal majority, he thought the citizens' right and power to sue a state, was the fairest feature in the federal constitution, and that its specified powers must yield, so as to effect the common defence and general welfare. When in the minority, his object was to confine its powers to the plain meaning, and to limit them to the very letter of the specified powers. Instance of a state legislature. In 1798, that of Virginia was in the minority in the general government; then it thought Congress had no power to enact the alien and sedition acts, and that the Supreme Court was not the common arbiter; and it strove hard to limit federal powers. In 1810, Virginia was in the majority in the general government; then her legislature unanimously held, that court was the common arbiter, as above, and then supported the very extended powers of the general government, exercised in creating and upholding the long embargo, and restrictive system; and more especially the despotic acts of Congress, enacted to enforce those measures. In 1829, Virginia, on the great subjects of the times, as tariffs, and internal improvements, was in the minority, and her legislature returned to its ground of 1798, denied the Supreme Court was the common arbiter, and limited the
powers of the Union as much as possible. These facts canpot be disputed.
“Take the majorities in the three cases. The Virginia legislature las made that court the common arbiter, and once or twice, not such arbiter. Such changes have not been peculiar to Mr. B, and Virginia, but a majority of party men, and of states, have conducted in a similar manner, during fifty-four years, though the evidence of their changes may not be so well preserved on record. From all this we may infer, that the numerous speeches made in so long a time, to extend or limit constitutional powers and rights, state and federal, have not all grown out of the constitution, so much as they have out of party feeling and passion, self-love, and self-confidence. Therefore, we find the same men, parties, and states, have been, at different times, and on different occasions, directly opposed to themselves. When some states supported the alien and sedition acts, their speeches and writings were framed to extend federal powers. When the same opposed to embargoes, restrictions, and the war, all were framed to limit these powers. All these things prove the necessity there is of a common arbiter, to sit and hear parties, not to think and act like them; as exempt as possible from party spirit, party passions and feelings, to decide the numerous contests that daily arise among a free and active people, ever contending for their respective rights. In 1810, the Virginia legislature, unanimously, proclaimed very just and valuable opinions, declaring this Supreme Court was the common arbiter, and therein agreed, eight states, to wit, North Carolina, Maryland, Georgia, Tennessee, Kentucky, New Jersey, Vermont, and New Hampshire. No states appeared to dissent. (Johnson, p. 38, and Doings of Virginia, 38, 39.) The more we examine these subjects, the more we are induced to hold that the state legislatures are the most unfit to be the common arbiter, to judge and decide controversies, not only because, on sound American principles, they are only law makers, in number above twenty, and composed of numerous members, but because they are a party organized, not to hear parties, and stand between them to judge and decide uprightly, but to argue pro and con, and to be influenced to decide by argument and eloquence, rather than by evidence and truth, dispassionately, coolly, and impartially weighed. In contests with the general government, it is the duty of state legislatures to claim rights rather than to sit in judgment, and decide, finally, on the rights they claim as theirs. Experience proves members of Congress and of state legislatures, in general, argue pro and con, like parties, and not sit, hear, and decide, like judges. To think and decide what the law ought to be, is their proper business, and not what it is.'
The author, however, vindicates the state governments, and is in favor of strenuously maintaining them.
There are not wanting some repetitions in this treatise, and it presents occasional traces of political feelings which actuate the great mass of ihe community much less powerfully now than formerly ; yet the reader's patience is by no means tried by the former, nor his confidence impaired by the latter. The work is written with more spirit and earnestness than is usually met with in a law book, and so may be read with greater interest, than is inspired by a string of naked propositions and references.
In a note Mr. Dane clears up the question discussed in the Senate last winter, relating to his share in the authorship of the ordinance of 1787, for the government of the North-western Territory, and shows, very satisfactorily, that the public, in considering him to have been its author, has given him no more credit than belongs to him, and has done no injustice to the claims of any other
The Carolina Law Journal. The first number of this journal was published in July last. It is edited by Messrs. J. Blanding and D. J. M‘Cord, the latter gentleman being the reporter of whose fourth volume we have given abstracts in our present
number. The editors do not give in this number any outline of the plan of their publication; an idea of which may, however, be found from the contents of this number, which we will cursorily notice: 1. The first article consists partly of some original remarks on the study of the law, animadverting with some severity upon the basty and superficial education of lawyers in this country; and the very easy terms of admission to practice in the courts. The remainder is an extract from the Library of Useful Knowledge, on the character and writings of Coke, published in England in 1828, and attributed to Mr. Brougham. 2. The second article on the Rights and Powers of Juries, excepting a short introduction, is from No. XVI. of the Westminster Review, relating principally to the law of libel, in which the right of the jury to decide the law and the fact is strenuously contended for. The tenor and scope of this article, is, that the jury have, in general, a right to bring in their verdict, in defiance of the opinion of the court, upon a matter of law. 3. An article from the Charleston Mercury on the subject of colored marriages, i. e. marriages between whites and free blacks. 4, 5, 6, 7, 8. Reports of cases, viz.; a case on a purchase by the trustee of the estate held in trust; one on adverse possession by a tenant; one not embraced in the regular reports, viz. Myers v. Myers, as to charging interest against executors and administrators; and one on commercial guaranty, viz. Sollee & al. v. Meugy, in which it is decided that a letter of credit in favor of a person, addressed to C., will not be a guaranty to C., and his partner subsequently associated with him; and that a letter saying, “I have covenanted that he shall use my name for one thousand or fifteen hundred dollars,' is not a continuing guaranty to that amount, but only applies to the first credits given to that amount to the person in whose favor the letter is written. 9. An address by the bar to the court, and the answer of the court, on occasion of the decease of Judge Nott, late president of the Court of Appeals of South Carolina.
Impeachment of Judge Peck. A trial of some interest is to take place at the next session of congress before the senate, on the articles of impeachment presented by the house of representatives on the memorial of Luke E. Lawless, at the last session, against James H. Peck, District Judge of the United States for the District of Missouri. The complaint and impeachment arose from transactions relating to the case of Soulard and others, petitioners against the United States, in which the question was whether certain lands had been granted by the Spanish government to the ancestor of the petitioners; the object of the petition and proceedings being to obtain an adjudication on the validity of the title of the petitioners. Many other petitions of a similar description, and the decision on which would depend upon the
principles, were pending before the same court at the December term, 1825. Judge Peck decided against the validity of the title. The general ground of the decision was, as we understand his statement in the defence, that, to complete the title of the claimants under the Spanish government, an act of the government was requisite, assenting to or confirming the same, and so, that until an equivalent assent or confirmation should be given by the government of the United States, the title of the claimants was not complete. The decision was appealed from ; and the case was accordingly still sub judice after this decision. The opinion of Judge Peck was given at length, and was afterwards published in the Missouri Republican, at St. Louis, in March, 1826, at the request, as he states, of a number of the members of the bar. On the publication of the opinion, Mr. Lawless, the attorney for the claimants, sent an article to the Missouri Advocate and St. Louis Inquirer, which was published in that paper on the 8th of April, 1826, signed “A Citizen.' The article is introduced by the following paragraphs:
* To the Editor. Sir, I have read with the attention which the subject deserves, the opinion of Judge Peck on-the claims of the widow and heirs of Antonie Soulard. I observe that, although the judge has thought proper to decide against the claim, be leaves the ground of his decree open to discussion.
Availing myself, therefore, of this permission, and considering the opinion so published, to be a fair subject of examination, to every citizen who feels himself interested or aggrieved by its operation, I beg leave to point the attention of the public to some of the principal errors, which I think that I have discovered in it.'
The writer then proceeds to specify summarily eighteen errors, as he supposes them to be, in law or fact, in the judge's opinion, and adds :
In addition to the above, a number of other errors consequential on those indicated, might be stated. The judge's doctrine as to the forfeiture, &c. seems to me to be peculiarly pregnant with grievous consequences. I sball, however, not tire the reader with any further enumeration, and shall detain him only to observe, by way of conclusion, that the judge's recollection of the argument of the counsel for the petitioners as delivered at the bar, differs materially from what I can remember, who also heard it. In justice to the counsel I beg to observe, that all I have now submitted to the public, has been suggested by that argument as spoken, and by a printed report of it wbich is even now before me.'
Shortly after this publication, viz. on the third Monday of the same April, as the impeachment states, the judge issued a process of contempt, on which Mr. Lawless was arrested and brought into court, and, after a hearing, was sentenced by the jury to