Page images

this subject as to the character of this publication? And if any member of this honorable Court believes this paper to be a libel, both in fact and intention, much more if a considerable number so regard it, must not all admit that Judge Peck might have so regarded it? I do not perceive that it is possible to come, with candor, to any other conclusion.' pp. 552-554.

After Mr. Wirt had concluded, Mr. Storrs and Mr. Buchanan spoke in support of the impeachment. Having already far exceeded our usual limits, we have no room for extracts or even comments upon the learned and able arguments of these gentle


On January 31, 1831, Judge Peck was acquitted by the following vote:

[ocr errors]

Those who pronounced him "Guilty" are Messrs. Barnard, Brown, Clayton, Dickerson, Dudley, Ellis, Forsyth, Hayne, Iredell, Kane, King, Livingston, McKinley, Poindexter, Robbins, Sanford, Smith of Maryland, Smith of South Carolina, Troup, Tyler, Woodbury.-21.

"Those who pronounced him "Not Guilty" are Messrs. Barton, Bell, Burnet, Chase, Foot, Frelinghuysen, Grundy, Hendricks, Holmes, Johnston, Knight, Marks, Naudain, Noble, Ruggles, Seymour, Silsbee, Sprague, Tazewell, Webster, White, Willey. 22.

'Whereupon, the Vice President declared that "James H. Peck, Judge of the United States District Court for the District of Missouri, is ACQUITTED of the Charges contained in the Article of Impeachment exhibited against him by the House of Representatives."

Shortly after the acquittal of Judge Peck a statute was passed by Congress, and approved by the President, March 2, 1831, entitled 'An act declaratory of the Law concerning Contempts of Court.' This act was originally reported by Mr. Buchanan of the Judiciary Committee of the House. It provides, that the power of the several Courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts,

party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts' and 'That if any person or persons shall, corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, or impede, or endeavor to obstruct or impede the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictments, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.' p. 592.

The volume which we have been noticing contains a great amount of learning in regard to contempts of court, libels, and impeachments, subjects upon which the counsel on both sides exhibit proofs of very diligent research. It will be a valuable repository of authority and argument, in future cases in which the right of courts to punish for contempts may be brought in question.

Though we are far from being dissatisfied with the result of the trial, yet we think the statute which we have just cited has placed the law in regard to contempts of court on its proper footing. It is only cases like those stated in the first section of the statute, where the preservation of the authority of the court obviously renders a prompt action necessary, that any person should be allowed to judge and award punishment in his own case. Let it once be recognised as well settled law, that every judge could punish written publications or spoken remarks, which he considered injurious to his judicial character, as contempts of court, and it would inevitably lead to frequent arbitrary and oppressive exercises of power. Such a right of punishing these constructive contempts, is no more necessary for the protection of the character of a judge, than it is for that of any other person. A judge of established reputation has nothing to fear from the assaults of a libeller. He can find in the press ample means of defence, wherever an attack may require an answer; and he can resort to indictment or action, like any other citizen, if he thinks that course advisable. It is idle to suppose that the dignity and usefulness of a court of justice is

to be broken down by the clamors of rash and passionate men in the newspapers; but it is not at all unlikely that an indiscreet exercise of an arbitrary power will excite odium against a judge, and weaken the foundation of public opinion upon which his authority rests.



A policy was underwritten as follows: Four thousand dollars upon effects on board schooner Ann from Marblehead to Havana and until said effects shall be safely at and from thence in any American vessel to any port in the United States of America as mentioned below; two and a half per cent. from Marblehead to Havana to add three per cent. if said effects are shipped from Havana to any port in the United States of America either in that or in any other American vessel and until safely landed.' The schooner arrived in the voyage at the Havana, the effects were landed and the proceeds shipped from the Havana to the United States in three American vessels, in different proportions, viz. in said schooner Ann, in schooner Friendship, and in brig Hav. Packet. The Ann and Packet arrived safe without damage. The Friendship arrived but the effects were damaged a sum less than five per cent. of the amount of the effects in all the three vessels - but more than five per cent. of the amount laden in the Friendship. Is the insured entitled to recover for a partial loss, the policy containing the usual memorandum to be free from losses under five per cent?

It seems very clear from the cases of Henchman v. Offley 2 H. Bl. 345, note (a); S. C. Marshall (2d edit.) 173; and Keuley v. Ryan, 2 H. Bl. 343, cited in Park (5th edit.) 19; and in Marsh, 174; that an insurance on any ship or ships is valid in law. In the first case it was held that where two such policies were made for the same voyage, if goods are laden on board of two ships, the insured may, if he please, previous to a loss, appropriate the amount to be considered as risked on each policy. In the second case, it was held that if two policies are

underwritten on goods for the same voyage, the one on goods in a specific ship, and the other on goods in any ship or ships, and the former arrive safe, and the latter be lost, the insured shall apply the policy on goods on board of any ship or ships to the goods lost, without any reference to the other policy; 'for the insured had clearly a right to apply such an insurance (i. e. on any ship or ships) to whatever ship he thought proper, within the terms of it.' It should seem that the conduct of the insured was considered as equivalent to an appropriation.

Marshall (172) is of opinion that if two insurances for different sums be made each on goods on board any ship or ships for the same person for the same voyage, and goods amounting to the value of both policies but in different proportions be put on board two ships and nothing be done to appropriate either policy to the goods on board either ship, if one of the ships be lost, the whole ought to be considered as but one insurance on the entire goods by the two policies and the underwriters on both ought to contribute to the loss. This doctrine seems very reasonable. Emerigon (vol. 1, p. 174, cited in Marshall, 176,) states a case where an insurance was made for 13000 livres on goods on board of the Amphitrite from Marseilles to the French West India Islands; and from the French West India Ialands to Marseilles or other port in France, upon goods and merchandises to be laden on board any French ship or ships. The Amphitrite arrived safe in the West Indies, where the captain loaded on board five different ships, in different quantities, to the amount of 25832 livres. Three of the ships arrived safe, but the other two with goods on board to the value of 15259 livres, were captured by the English. The insured insisted that the 13,000 livres insured should be considered as part of the 25832 livres laden on board of the five ships, and that the underwriters should pay in proportion. The underwriters insisted that the value of the goods which arrived safe was more than the sum insured, and therefore the policy was satisfied. The court held that the insured were entitled to recover 54 per cent.

By the terms of the present policy, effects are covered on board of the schooner Ann or any other American vessel. But it should seem that the insurance did not extend beyond a single vessel. Effects were laden on board the Ann, and the policy would not seem therefore to extend to the other vessels, although

[blocks in formation]

the effects on board of the Ann were less than $4000. If the policy had been on goods on board any American vessel from Havana to the United States, as the insured had made no appropriation he might, according to the doctrine in Kewley v. Ryan, (2 H. Bl. 343) have had a right to apply it to either vessel. He might, as one vessel only would be within the policy, have selected the Friendship, and as the loss was more than 5 per cent. of the effects on board of her, might have recovered as for a partial loss. If, however, the policy had been on any American vessel or vessels, so as to have covered all three vessels, I should have thought that in case of loss, the amount ought to exceed 5 per cent. of the value of the entire effects in all the vessels to have entitled the insured to recover. But the terms of the present policy seem confined to the Ann or any other American vessel, and as effects were on board of her which might be covered by the policy, she alone is included, and the effects on board the Friendship and the Hav. Packet were not within the policy, and consequently there can be no partial loss recovered on account of the damage sustained by the effects in the Friendship.



ART. V.-CHRISTIANITY A PART OF THE COMMON LAW. MR. JEFFERSON, in a letter to Major Cartwright, recently published, insists that the maxim, that Christianity is a part of the common law, has no foundation in the cases cited to support it, they all referring to the year book 34 Henry 6, 38, 40; which he says has no such meaning.

The substance of the case in 34 Henry 6, 38, 40, is this. It was a quare impedit against the bishop and others; and the bishop pleaded that the church was in litigation between the plaintiff and his co-defendant, as to the right of patronage. The argument in one part of the case by counsel was that every advowson and right of patronage depended upon both laws, viz. the law of the church and the common law; for every presentment commenced at the common law and took effect by he law

« PreviousContinue »