Page images

inhabitants chose delegates to prepare a Constitution for adoption by the vote of the whole people. The composi. tion of the assembly corresponded to the peculiar character of the population. It consisted in part of a number of cunning lawyers, covetous of honors and of gold, and whose morality seems liable to something more than suspicion, partly of rough and ignorant subjects drawn from all possible social conditions ; add to these a few Mexicans of Spanish descent, manifestly the honorable men of the body, but laboring under the two-fold disad. vantage of a foreign language and recent conquest. The Convention met at Monterey, a miserable settlement, in which there was not even a printing-press to be found. One thing they were bent upon, to get through their work in the shortest possible time, and hurry back to more lucrative employment. As to fundamental principles they were sufficiently agreed; democracy was to have free development, and the newest constitutions of the other States were to serve for models, as being embodiments of the largest liberty. Under these influences the Convention made incredible speed, the entire declaration of rights was settled in a single evening session, and it was only the more practical details of the payment of representatives, the district system, the admission of free blacks, &c., &c., that led to more discussion. The proceedings were conducted with tolerable decorum, and that general knowledge of parliamentary forms, which seems native to the American. The speeches in one respect were less American, for they were short, and it was only occasionally that a touch of the backwoods-man betrayed itself. The treatment of the topics was strikingly jejune. That such an assembly should not go profoundly into the philosophy of legislation, or the experience of other times and countries was natural, and on the whole sensible, but a little more enlargement of view in the appreciation of modifying circumstances, and some knowledge of the received constitutional maxims might have been expected. The naivete of ignorance went sometimes far enough, as when one of the sages of the assembly pronounced that the habeas corpus dated from the first Justinian.' But with all this, these naturalgrown legislators drew up in a few weeks a constitution, neither better nor worse than those of many of the other States; the people adopted it, and the whole political machine went into operation without opposition. California continues, it is true, to be somewhat unsettled in

civil affairs, and their administration is neither in very trustworthy hands, nor sufficiently regular and efficient. But reasonable allowance must made for the extraordinary circumstances in which they have been placed, and the assurance of a gradual improvement.

“ The sum of the whole matter is, that a State has been brought into existence without historical antecedents, simply by a present general consent of individuals; the democratic principle in its freest development has been applied, and the operation in practice is found tolerable. Sound sense and the habit of liberty have enabled men without cultivation and with little other qualification to accomplish a task in which the most advanced nations of the old world have utterly failed, amid greater difficulties, it is true, but with far greater means at their command.

“ Equally interesting, but in quite another view, is the recent experiment in Massachusetts. In this State, the seat of the highest culture and a social life the most honorable to America, the constitution has been twice altered since the separation of the colonies; the last time in 1820. A new revision was proposed and eventually decided upon by the people, and a Convention elected to prepare amendments for their adoption. The call for the Convention was carried by but a small majority, (66,416 against 54,112), and Boston, rich and conservative, strenuously opposed a change.

" A very numerous Convention met on the 4th of May, 1853, and by the Ist of August had formulated the result of their deliberations in eight distinct propositions of amendments. The labor proved fruitless. The amendments were severally rejected by the popular vote, though by slender majorities, the affirmative ranging from 60,000 to 67,000, and the negative a little over 68,000.

“But the proceedings are none the less in the highest degree interesting and instructive, and we are under obli. gations for the full report officially published. It is impossible not to speak with the highest respect of the great abilities, the political education, and the various knowledge of many of its members; and, take it for all in all, democracy as developed in Massachusetts, one of the most advanced of the United States, leaves a favorable impression. Nor is it merely the successful cultivation of parliamentary eloquence that claims our acknowledgment, but the maturity of thought as well, and the extent of information. There is indeed an obvious inferiority both in general and political education on the part of the more



radical and ultra-democratic leaders, diverging occasionally into ill-breeding and breaches of decorum. The conserva. tives have the advantage in statesmanship and skill. Such men as the ex-United States Senator Choate, the United States Attorney Hallett, Professors Greenleaf and Parker, several of the ex-governors, and particularly the advocate Dana, whose speeches show equal ability, judgment, and independence, would do honor to any deliberative assembly in the world.

“ This is not the place to treat of the particular questions before the Convention. They did not, of course, disturb the foundations of the political system. The existing representative democracy with its distribution of powers, was assumed. The propositions were to equalize the represen. tation, which is not exclusively according to population, but modified by the element of town corporations, wbich are less populous in the interior than near the seaboard ; and to introduce the later developments of democracy existing in other States, viz., popular election of all officers, judicial and administrative, with many other subordinate points. Most instructive are the proceedings which involve this development of the democratic principle, both as indi. cating the extent of its operation, and how its strictly logical consequences were occasionally sought to be avoided, sometimes on the ground of impracticable and mischievous results, sometimes as interfering with par ticular party-policy. Thus the distinctively so-called

democratic' party was in some embarrassment in two instances : to maintain the system of town-representation against the numerical equality principle of democracy ; and, again, to elude the claim of suffrage for women, which is the unavoidable consequence of their principles, but repugnant to their common sense.

“ The conservatives were no less at a frequent disadvantage in not venturing to impugn the principle that in a democracy the people are not only the source of power and entitled to an administration of it, agreeable and responsible to themselves; but, what is more, that they ought to take as direct a share as possible in all parts of government. On all such occasions, the question, Do you then distrust the people?' was thrust before them like a Medusa's head. It is hardly to be doubted, that, although not sanctioned by the popular vote in this case, the more democratic development will ultimately prevail even in Massachusetts. But it is no less probable that, at

some future day, the practical results must lead to a reexamination of the premises. Not certainly that democracy, as such, will cease to be acknowledged, but it would seem necessary that some acknowledgment of the coexistence of other principles should be obtained. It may then be seen that no less in a democracy than in other governments, the exercise of political functions, such as the suffrage, is not a bare right, but in the nature of a public trust, to the discharge of which certain qualities may properly be required; that a competent judgment of the qualification of candidates depend upon a knowledge of affairs and of men, and is not to be expected of the generality of persons, except in relation to their more local concerns.

" It lies unfortunately in the nature of the case, that nothing less than some signal calamity or a continuous succession of sensible evils can produce so general and strong a persuasion of the fallacy of the present views, as to be of any avail. It is the misfortune of the democratic form, that it is much more difficult than in any other to effect peacefully any limitation of the principle of the government; since this can only proceed from a perception on the part of the masses of their own incompetency, and of the errors into which they have fallen. There is no powerful pressure from without, such as the national will, or an influential class brings to bear upon a monarch. To resign from the modesty of increased self-knowledge what we have once assumed as rights, is not a light matter, least of all in a democracy where the doctrine of a mysterious capacity for and an eternal title to self-government on the part of the masses, is elevated into a formal article of faith by the rival flatteries of competitors for their power and favor.

Notes of Cases in New ¥ork.

Circuit Court of the United States. In Admirally.

Opinions by Nelson, J.
September 15, 1856. The COLOMBO.

Bill of lading Contents unknown. Goods were shipped at Hamburg for New York, in packages slightly made, in the form of barrels or hogsheads, bound round with maiting and well secured with cords. Upon arrival, one of the packages was broken, and the goods damaged. It was proved that the damage might probably not have been discovered upon an ordinary inspection of the package, nor upon lowering it into the hold of the vessel. There was no evidence of the condition in which the goods were shipped, excepting the bill of lading, which said, “ Weight and contents unknown." Held, that there was not sufficient evidence to prove that the package was whole when delivered on board the vessel.

September 25. Griffith v. Wortman.

Admiralty Maritime contract Jurisdiction. Nelson, J. delivered the opinion substantially as follows:The libellant is the owner of a ship-yard, together with apparatus, consisting of a railway cradle and other fixtures and implements, used for the purpose of hauling up vessels out of the water, and sustaining them while the repairs are being made. Certain rates of compensation are charged, regulated by the tonnage of the vessel, for hauling her up on the ways, and a per diem charge for the time occupied while she is undergoing the repairs, in cases where the owner of the yard and apparatus is not employed to do the work, but the repairs are made by other ship-masters, as in the present instance.

'The main controversy in the court below related to the terms upon which the service was to be rendered. Judge Hall, who heard the case, settled the amount, upon his view of the evidence, at $631.97, and I am not disposed to interfere with it. The proofs are conflicting, and not very clear either way in respect to the agreement.

The doubt I have had in the case is upon the objection taken to the jurisdiction of the court, a point not taken in the court below. It is claimed by the counsel for the respondents, that the agreement for the service rendered is to be regarded, simply, as a hiring of

« PreviousContinue »