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by chivalry; and the insolence of victory was subdued, and the rights of conquest were circumscribed and settled throughout Europe by a controlling public opinion. But the customary and conventional law of nations was yet in its infancy. Those intimate relations, commercial and political, which have since bound up all Christendom in one great society, and, as it were, family union, were just beginning to be formed and consolidated. The idea of the balance of power, which had, of course, been familiar to mankind in all ages, wherever the many found it necessary to combine against the strong, but which was not acted on as a standing rule of conduct upon a grand scale, until mighty governments were formed, and distant enterprises became common-gave to treaties the effect of precedents, and clothed them with the authority of law. That of Westphalia, for instance, was considered as the very foundation of the Jus Publicum of Germany. Since Grotius wrote, two centuries more fruitful by far of great events, and magnificent improvement than any equal period in the history of mankind, have been continually adding to the number of such principles, and confirming and consecrating them as they have been ascertained.
It is to combine in one great work these conventional and customary rules, so far as they have been universally acceded to among nations, with the principles of reason and natural law, to which they ought to approximate as much as possible, that some master hand is now called for. As it is, the student of international law is compelled to have recourse to the reports of adjudicated cases. “ Elementary writers,” says Mr. Justice Story, in the case of the Nereide,* “rarely explain the principles of public law with that minute accuracy of distinction which legal precision requires. Many of the most important doctrines of the prize courts will not be found to be treated of, or even glanced at in the elaborate treatises of Grotius, Puffendorf and Vattel. A striking illustration is their total silence as to the illegality and penal consequences of a trade with the public enemy. Even Bynkershoëk, who writes professedly on prize law, is deficient in many important doctrines which every day regulate the decrees of prize courts. And the complexity of modern commerce has added incalculably to the number, as well as to the intricacy of questions of national law. In what publicists are to be found the doctrines as to the illegality of carrying enemy's despatches: or of engaging in the coasting, tishing, or other privileged trade of the enemy? Where are transfers in transitu, pronounced illegal? Where are accurately
9 Cranch, 437
and systematically stated all the circumstances which impress upon the neutral, a general or limited hostile character, either by reason of his domicil, his territorial possessions, or his connexion with a house of trade in the enemy's country. The search would be nearly in vain,” &c.
No one, we are persuaded, however, will have occasion to regret the necessity of resorting to the volumes of reports in this branch of jurisprudence, since, besides the intrinsic advantages of that mode of study (after all that has been said against it, the surest and the best for those who wish to become profound in the science) they hold out other attractions of no ordinary kind. The judicial eloquence of Lord Stowel, is the very copiose loquens sapientia of the great Roman orator, abounding in so many charms and graces, that his decrees deserve to be cited as models of style, and will bear a comparison with the most finished compositions of our English classics, at the same time that it is difficult to treat such subjects with greater ability and acumen, or with a more enlarged philosophy. Nor have we any reason to shrink from a comparison with such exalted excellence. The great man who presides over the Supreme Court of the United States (to confine ourselves to him) does not, indeed, display the same exquisite elegance and felicity of diction, but he is second to no judge that ever lived, in some of the most important attributes of the judicial character ; in depth and comprehensiveness of intellect, in luminous arrangement, in clearness of expression, in a logic, which, in general (for alas! even Judge Marshall has erred) is proof against all sophistry, and against which, no sophistry is proof-in a word, in a large, sound, pervading good sense, which is satisfied only with the fullest and fairest views of a subject, but which, where it is once satisfied, seldom fails to impart its own convictions entirely to others.
2. The constitutional jurisprudence of the United States ! Under this imposing title is presented to us, one of the most striking examples which history furnishes, to illustrate and support an opinion advanced in the course of the preceding remarks. If any one wishes to be convinced how little, even the wisest men, are able to foresee the results of their own political contrivances, let him read the constitution, with the contemporaneous exposition of it contained (even) in the Federalist; and then turn to this part of Chancellor Kent's work, to the inaugural speech of the present Executive of the United States, and to some of the records of Congress, during the memorable session which is just past.
He will find that the government has been fundamentally altered by the progress of opinion—that instead of being any
longer one of enumerated powers and a circumscribed sphere, as it was beyond all doubt intended to be, it knows absolutely no bounds but the will of a majority of Congress—that instead of confining itself in time of peace to the diplomatic and commercial relations of the country, it is seeking out employment for itself by interfering in the domestic concerns of society, and threatens in the course of a very few years, to control in the most offensive and despotic manner, all the pursuits, the interests, the opinions and the conduct of men. He will find that this extraordinary revolution has been brought about, in a good degree by the Supreme Court of the United States, which has applied to the constitution—very innocently, no doubt, and with commanding ability in argument—and thus given authority and currency to, such canons of interpretation, as necessarily lead to these extravagant results. Above all, he will be perfectly satisfied that that high tribunal affords, by its own shewing, no barrier whatever against the usurpations of Congress—and that the rights of the weaker part of this confederacy may, to any extent, be wantonly and tyrannically violated, under colour of law, (the most grievous shape of oppression) by men neither interested in its destiny nor subject to its controul, without any means of redress being left it, except such as are inconsistent with all idea of order and government. Perhaps, he will think with us, that the effect of a written constitution, interpreted by lawyers in a technical manner, is to enlarge power and to sanctify abuse, rather to abridge and restrain them-perhaps, he will conclude that the American people have not been sufficiently careful at the beginning of their unprecedented' experiment in politics, what principles they suffered to be established—perhaps, he may look forward to the future with anxiety and alarm, as holding forth a prospect of a rapid accumulation of power in the hands of those who have already abused it, or on the contrary, with a strong hope that experience will teach wisdom, and diversified interests and conflicting pretensions, lead to moderation in conduct-perhaps, (and surely nothing could be more rational) he might wish to see proper means adopted to bring back the government to its first principles, and put an end to the unhappy jealousies and heart-burnings which are beginning to embitter one part of our people against another we do not undertake to anticipate his inferences—but we have no doubt in the world, that he will agree with us as to the fact—that he will confess Congress to be, to all intents and purposes, omnipotent in theory, and that if, in practice, it prefer moderate counsels and a just and impartial policy, it will be owing, not to any check
in the constitution, but altogether to the vigilance, the wisdom, and the firmness of a free people.
We are not, indeed, sure but that this conclusion will, in the end, be productive of much good, and that we ought rather te rejoice than complain, that at so early a period of our history, it has been forced upon the public mind—in one part at least of this confederacy-by evidence too strong to be resisted, and with a depth and seriousness of conviction which promises to make it an active, permanent and universal principle of conduct. Our political opinions, it appears to us, have been hitherto in the last degree, wild and visionary. We have been so much accustomed to talk in a high-flown strain, of the perfectionthe faultless and unalterable perfection of our institutions, that we were beginning to think that every thing had been done for us by our predecessors, and that it were impossible to mar their work hy any errors of doctrine, or any defect in discipline among ourselves. We do not sufficiently reflect, what a rare and glorious privilege it is to be a free people, (in the only proper sense of that term) and how difficult it is, even under the most favourable circumstances, to keep so.
We have unbounded faith in forms, and look upon a written constitution as a sort of talisman, which gives to the liberties of a nation “a charmed life” In short, no people was ever so much addicted to abstractions. It is really curious to look into the debates of Congress, when measures pregnant with important consequences are the subject of discussion. The University of Paris, in the hey-day of scholastic divinity, never excelled them in the thorny, unprofitable, and unintelligible subtleties of dialectics. Our statesmen are, in general, any thing but practical men-a fact that may be, in some degree, accounted for by the vast predominance of mere professional lawyers, (not of the first order) and the fact, that we have a written constitution to interpret by technical rules. We look in vain for that plain, manly, unsophisticated good sense—that instinct of liberty, which characterizes the controversial reasoning of the great fathers of the English constitution—the Seldens, the Sidneys, the Prynnes and their worthy descendants and disciples, the founders of our own revolution. A measure is proposed, revolting to the moral sense and the common sense of mankind-unequal and oppressive, inconsistent with the cardinal objects and the whole genius of the government. It is opposed by those upon whom it bears hardest as unconstitutional--that is to say, as unfit to be adopted by the rulers of a free people, because it is unjust, and is not bona fide intended to fulfil the purposes of the federal compact. Immediately a metaphysical disputation ensues, and if by suck
jargon as has immortalized the angelical and seraphic doctors, the constitutionality of the scheme be made to appear very doubtful, it is at once assumed by the majority as demonstrated, and, perhaps, acquiesced in by the minority, because the question, if it should be thought sufficiently important, can be tried again before the Supreme Court. The responsibility of those who pass the law, is shifted upon those who interpret it; and thus the former venture a great deal farther upon questionable ground, than they would were their decision entirely without appeal. If, again, when the law comes before the Supreme Court, that judicatory, from soine defects in its constitution or its administration, will not or cannot pronounce it void--the will of the majority is at once considered as sanctified-its act is of course lawful, is just, is reasonable and proper. The people at large, after a few unheeded murmurs, submit to this imposing authority, and think that their discontents must be unreasonable, because their understandings have been puzzled by sophisters, and awed by the learning of the bench! In short, the constitution is made to have the effect of an estoppel (an odious thing in law) upon their just complaints, and they are expected to suffer, like poor Shylock, any hardship which a subtile interpretation can deduce from their “bond. We will now proceed to make some remarks. upon
the total unfitness of the Supreme Court to act the part of an umpire in questions of constitutional law, from the very principles of construction which itself has established.
It is obvious at the very first view of the constitution, that it confers upon the Government of the United States, in the shape of distinct, substantive powers, many which would now be considered, and which, indeed, seem to be in the nature of things, merely subsidiary and instrumental. For instance, to authorize Congress expressly “to make rules for the government of the land and naval forces," after charging it with the declaration of war, the levying of armies, and the maintenance of a navy, was wholly unnecessary according to the notions of our constitutional lawyers; for such a right would follow of course, and ex necesitate rei. Nay, it would place this subject in rather a striking light to draw up the projet of a constitution, in conformity with the doctrines of the Supreme Court, in the case of McCullough vs. Maryland. Such an instrument would be admirable for its pregnant brevity. All that needed to have been done in the way of express grants of power, was, according to that opinion, to enable Congress,
1. To declare war (subaudi and prosecute it effectually). VOL. II.-NO. 3.