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mankind, precisely as a scholastic divine-" he that hight irrefragable," would argue upon an unintelligible thesis in ontology or pneumatology. 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 jurisdiction 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 inankind to them?
M'Cullough's case established a doctrine sufficiently latitudinarian. 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, but 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 necessary 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 Congress may do any thing, provided they declare that it is done 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. Peck, that the motives of the lawgiver cannot be looked into by the judges, unless he 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. Drayton's motion to that effect however, at the last session, seems to have been scouted, and this outrage
ous enactment (for we are unwilling to call it a law) comes before the court, and is treated by it as 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 Publicum 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 Mansfield 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 do 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 limit-it 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 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 rem are in the exchequer according to the course of the common 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 and complained of on the part of this country at the commencement of the Revolution.
"Whatever admiralty and maritime jurisdiction the 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 apprehend 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 reference 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 judg
2 Gall, p. 398.
ments of foreign admiralty courts and proceeding in rem upon bottomry bonds executed in foreign parts) the authority of the admiralty has been admitted in the most ample manner, and in a recent case of bottomry, triumphantly upheld against every objection. These melancholy remains of 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 immoveable."* 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, and 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 dextrâ, &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,t 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 cognisance. 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 meerly 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
2 Gall, p. 444.
+ Chap. xxii.