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examen, and to be sentenced by the judge of the admiralty according to the civil laws."
This statement rather than argument, in our opinion, exhausts the whole subject. All that is necessary to be done by the defenders of the common law and the trial by jury in this matter, is, to explain the text of Coke, and refute the cavils (for they can be nothing more) of his adversaries. But the light in which he puts the controversy is entirely satisfactory to men of plain sense. Suppose, without having regard to precedents, one were asked, whether, from the general spirit of the English law, he thought it probable that such an anomalous and foreign jurisdiction were tolerated by it? Could he possibly doubt about it? Surely he would suppose that the jurisdiction of the common law courts was co-extensive with the realm and all its social concerns, wherever that jurisdiction could be effectualwherever every right could be protected, and every wrong redressed by it. He could not conceive how a people who have been in all ages so jealous on the subject of their own institutions-especially so stout and heroic in defending the trial by jury, and the principles of magna charta-could think of admitting an exception of so important a kind, and that too without the smallest occasion for it. For, as to the notion of its being so advantageous to have maritime cases disposed of velis levatis, according to their phrase, that would go too far to be entertained even for a moment. Speedy justice is, doubtless, a very good thing, but pure justice and public liberty are still better-at least so have thought the people of England in all ages. Why, we repeat it, should there be more than one system of law in a country, where that law is competent to do perfect justice? Why should the authority of a tribunal depend upon the ebbing and flowing of the tide in a river within the body of a county any more than upon the changes of the moon. As to the divisum imperium on the sea-shore, there is reason in that, because if the jurisdiction is to stop at the bounds of a territory, as it must somewhere, and if the sea be assumed as the proper boundary, the extent of its waters is a good-enough practical line of demarcation. At all events, being settled, it is not worth while to disturb it for the purpose of establishing another that may not be a jot better. But is there any sense in the pretension of exercising jurisdiction in one river, or one part of a river, and not another, because the tide flows or does not flow there, while there are tribunals open that can do ample justice whether it flows or not? The analogy of chancery is really against the friends of the admiralty, who so confidently rely upon it. The 'true theory of our jurisprudence is, that that court entertains
jurisdiction only where the complaint is remediless at law. We are, of course, aware that there are cases of concurrent jurisdiction, and that even where the common law courts adopting the principles of equity, have administered the same remedies, the jurisdiction of the latter is not considered as necessarily ousted. But these are mere abuses. Mr. Brougham has, we perceive, in his scheme of reform, declared war against trusts, and we shall, on a future occasion, make some further remarks upon the excesses or superfluities of the Prætorian jurisdiction. As for the case of hypothecation, it comes within our principle, and is a fair exception, because the common law courts do not afford the stipulated remedy. The other exception of seaman's wages, is, as Lord Holt considers it, a mere indulgence, and a very convenient way of settling such small matters.
Another important consideration,and one that greatly strengthens (if any thing were wanted to strengthen) the decided opinion of Lord Coke, is, that the authorities cited on the other side are mostly taken from barbarous and unsettled times, or from foreign law. Suppose it could be shown that the statutes of Richard II. do not mean what that illustrious lawyer says they do, and that there were, at remote periods, even stronger and more numerous precedents in favour of the admiral's usurpations, than judge Story's indefatigable researches have yet discovered. How much ought they to weigh, at this time of day, against the reason of the thing, the analogies of the law, the genius of the constitution, and the almost unbroken current of authorities for a century and a half together. Nearly all that has ever been done to make England what she is, and to lift up the common law to its present just supremacy in that realm, over the tyrannical forms and principles of other systems, has been accomplished since Lord Coke's time. His commanding authority and virtuous efforts and example eminently contributed to bring about these improvements. When Mr. Justice Buller is quoted to shew that the first of our common lawyers was inimical to the admiralty, it ought to be remembered that he was equally so to every thing else that savored of arbitrary power and of hostility to the liberties of Englishmen. Some indulgence may be extended-perhaps an especial degree of authority concededto that incorruptible and undaunted champion of magna chartathe author and proposer of the Petition of Rights, and one of the founders of that very freedom which we now enjoy. Those who overthrew the Star Chamber, and the High Commission Court, would scarcely tolerate the pretension of the admiralty-while on the contrary,
Qui Bavium non odit, amettua carmina Mævi.
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 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 excess. The master of a ship and other persons in authority, have a right to correct those who are subject to their controlis 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