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of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is,
boni judicis est ampliare jurisdictionem," and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has elected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and cosovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them, if the president fails to supply the place of a judge, to appoint civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their mandamus or distringas to no executive or legislative of ficer, to enforce the fulfillment of their official duties, any more than the or legis
lature may issue orders to the judges, or their officers. Betrayed by English example, and unaware, as it should seem, of the control of our constitution in this particular, they have at times overstepped their limit, by undertaking to command executive officers in the discharge of their executive duties; but the constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions; because the laws of meum and tuum, and of criminal action, forming the great mass of the system of law, constitute their particular department.When the legislative or executive functionaries act unconstitutionally, they are responsi ble to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.
"Pardon me, sir, for this difference of opinion; my personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles. If the three powers maintain their mutual independence on each other, it may last long, but not so if either can assume the authorities of the other. I ask your candid reconsideration of this subject, and am sufficiently sure you will forin a candid conclusion. Accept the assurance of my great respect."
Now, if the federal courts cannot ex
* Letters, vol. v., p. 542.
ercise authority over property, is it not irrefragible that they are powerless over persons?
And here let us quote a paragraph from Mr. Jefferson's letter, to a confidential agent, which we think will be somewhat a stumbling-block to the inveighers against a higher law :*
"The question you propose, whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is, doubtless, one of the high duties of a good citizen; but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation."
The following extract from Mr. Jefferson's letter would seem to indicate that the decision in the Dred Scott case, by the Supreme Court, would have been considered by him of no avail. If the interpretation we put on it be true, the Supreme Court has merely uttered a speculative opinion, no more binding in law than it is in reason and in the great principles of humanity.t
"The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly, there is not a word in the constitution which has given that power to them, more than to the executive or legislative branches. Questions of property, of character, and crime, being ascribed to the judges, through a definite course of legal proceeding, laws involving such questions belong, of course, to them; and, as they decide on them ultimately and without appeal, they, of course, decide for themselves. The constitutional validity of the law or laws, again, prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves, also, whether, under the constitution, they are valid or not. So, also, as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control for its coōrdinate branches; and, in general, that branch, which is to act ultimately and without appeal on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coördinate authorities. It may be said that contradictory decisions may arise in such case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet, the prudence of the public functionaries, and the authority of public opinion, will generally produce accommodation. Such an instance of indifference occurred between the judges of England (in the time of Lord Holt) and the House of
t Letters, vol. vi., p. 461.
Commons; but the prudence of those bodies prevented inconvenience from it. So in the cases of Duane, and of William Smith, of South Carolina, whose characters of citizenship stood precisely on the same ground, the judges, in a question of meum and tuum which came before them, decided that Duane was not a citizen; and, in a question of membership, the House of Representatives, under the same words of the same provision, adjudged William Smith to be a citizen. Yet no inconvenience has ensued from these contradictory decisions. This is what I believe, myself, to be sound. But there is another opinion entertained by some men of such judgment and information as to lessen my confidence in my own. That is, that the legislature alone is the exclusive expounder of the sense of the constitution, in every part of it whatever. And they allege, in its support, that this branch has authority to impeach and punish a member of either of the others, acting contrary to its declaration of the sense of the constitution. It may, indeed, be answered, that an act may still be valid, although the party is punished for it, right or wrong. However, this opinion, which ascribes exclusive exposition to the legislature, merits respect for its safety, there being in the body of the nation a control over them, which, if expressed by rejection, on the subsequent exercise of their elective franchise, enlists public opinion against their exposition, and encourages a judge or executive on a future occasion, to adhere to their former opinion. Between these two doctrines, every one has a right to choose, and I know of no third meriting any respect.
"I have thus, sir, frankly, without the honor of your acquaintance, confided to you my opinion."
That the federal judiciary was not at all consonant with the views of Mr. Jefferson will be evident from the following extract from his message to Congress, Dec. 8, 1801:
"The judiciary system of the United States, and especially that portion of it recently erected, will, of course, present itself to the contemplation of Congress; and, that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several states, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid.
"And, while on the judiciary organization, it will be worthy your consideration, whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property.
"Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those states where they are named by a martial depending on executive will, or designated by the court, or by officers dependent on them."
points of the day—the question of slavery, and the powers of the federal courts. If we be not mistaken, they show his democracy to have been a real, not a pseudo-creed, and demonstrate the Declaration of Independence not to have been a lawyer's special plea, but the declaration of a philosopher on the subject of the great and immutable rights of man. How, then, can the people of the South place themselves on the broad platform of Jeffersonian democracy, which was so catholic that it fully sustained Lord Mansfield's decisionthat slaves could not exist in England.
These, and other extracts from Mr. Jef. ferson's writings, would clearly enough show his opinion on the two great mooted
The destruction of slavery was the dream of Mr. Jefferson's life. He did not live to see it realized; but as certain as fate itself is its destruction in Virginia. He dreamed through the whole of his life of the destruction of slavery, and under the federation and under the union sought to accomplish it. When the western territory was ceded by Virginia and the other united colonies, soon after the Revolution, the duty of forming laws for the government of the west region devolved on the committee of which Mr. Jefferson was chairman, and Howell of Kentucky and Chase of Maryland were members. They reported a plan of government for the territory, one of the provisos of which, by Mr. Jefferfollows: son, and written out by himself, was as
"That after 1800, of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall be found to have been personally guilty."
On the 19th of August, 1784, Congress, on motion of Mr. Spaight, of N. C., Mr. Read seconding the motion, struck out this proviso, six states voting ay and three nay; and thus (the federal constitution requiring a majority of states) slavery was not admitted, but not prohibited in the territories. In 1787, the continental congress, sitting in New York simultaneously with the convention which formed the federal constitution at Philadelphia, passed an ordinance for the government of the western territory north of the Ohio, which contained, substantially, all Mr. Jefferson's provisos, and concludes with the following perpetual contract :
"There shall be neither slavery nor invol
untary servitude in the said territory otherwise than a punishment of crimes, of which the parties shall be duly convicted."
That Mr. Jefferson looked forward to the certain revival of the anti-slavery agitation, and its final disruption of the federal compact, unless it were prevented in the only way he ever seems to have dreamed the matter could be settled-by the abolition of slavery-is proven by the following letter to his friend Hugh Nelson :*
"MONTICELLO, March 12, 1820.
"I thank you, dear sir, for the information in your favor of the 4th instant, of the settlement for the present of the Missouri question. I am so completely withdrawn from all attention to public matters, that nothing less could arouse me than the definition of a geographic al line, which, on an abstract principle, is to become the line of separation of these states, and to render desperate the hope that man can ever enjoy the two blessings of peace and selfgovernment. The question sleeps for the present, but is not dead."
In a letter to Mr. Rush, he indicates very plainly what he would have thought of the attempt to fasten slavery on Kansas:†
"Nor is our side of the water entirely untroubled; the boisterous sea of liberty is never without a wave. A hideous evil-the magnitude of which is seen, and at a distance, only, by the one party, and more sorely felt and sincerely deplored by the other, from the difficulty of the cure-divides us at this moment too angrily. The attempt by one party to prohibit willing states from sharing the evil, is thought by the other to render desperate, by accumulation, the hope of its final eradication. If a little time, however, is given to both partics to cool, and to dispel their visionary fears, they will see that, concurring in sentiment as to the evil, moral and political, the duty and interest of both is to concur, also, in devising a practicable process of cure. Should time not be given, and the schism be pushed to separation, it will be for a short time only; two or three years' trial will bring them back, like quarreling lovers, to renewed embraces, and increased affections. The experiment of separation would soon prove to both that they had mutually miscalculated their best interests. And even were the parties in Congress to secede, in a passion, the soberer people would call a convention, and cement again the severance attempted by the insanity of their functionaries. With this consoling view, my greatest grief would be for the fatal effect of such an event on the hopes and happiness of the world. We exist, and are quoted as standing proofs that a government, so modeled as to rest continually on the will of the whole society, is a practicable government. Were we to break to pieces, it would damp the hopes and the efforts of the good, and give triumph to those of the bad, through the whole enslaved
* Letters, vol. vii., p. 151.
world. As members, therefore, of the univer sal society of mankind, and standing in bigh and responsible relation with them, it is our sacred duty to suppress passion among ourselves, and not to blast the confidence we have inspired of proof that a government of reason
is better than one of force. This letter is not of facts but of opinions, as you will observe; and, although the converse is generally the most acceptable, I do not know that, in your situation, the opinions of your countrymen may not be as desirable to be known to you as facts. They constitute, indeed, moral facts, as important as physical ones to the attention of the public functionary. Wishing a long career to the services you may render your country, and that it may be a career of happiness and prosperity to yourself, I salute you with affectionate attachment and respect."
"But it is not from this branch of government we have most to fear. Taxes and short elections will keep them right. The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. This will lay all things at their feet-and they are too well versed in English law to forget the maxim, ' boni judicis est ampliare jurisdictionem.' We shall see if they are bold enough to take the daring stride their five lawyers have lately taken. If they do, then, with the editor of our book, in his address to the public, I will say, that 'against this every man should raise his voice; and, more, should uplift his arm. Who wrote this admirable address? Sound, luminous, strong, not a word too much, nor one which can be changed, but for the worse. That pen should go on-lay bare these wounds of our constitution-expose the decisions seriatim- and arouse, as it is able, the attention of the nation to these bold speculators on its patience. Having found, from experience, that impeachment is an impracticable thing-a mere scarecrow-they consider themselves secure for life; they skulk from responsibilities to public opinion-the only remaining hold on them. Under a practice first introduced into England by Lord Mansfield, an opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid assocates, by a crafty chief judge, who sophisti cates the law to his mind by the turn of his own reasoning. A judiciary law was once reported by the Attorney General to Congress,
t Letters, vol. vii., p. 182.
requiring each judge to deliver his opinion seriatim and openly, and then to give it in writing to the clerk, to be entered in the record. A judiciary, independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government."
These extracts bring us down almost to the date of the death of Mr. Jefferson, who, as we have seen, was spared the excitement of other days, when party prejudices became far greater. On the 4th of July, 1826, when the nation was everywhere rejoicing, and when countless ears were hearing read his grand Declaration of Independence, the spirit of the old patriot passed away. His colleague, Mr. Adams, was
the companion of his last journey, and meet it was that those two men should die together. They, as much as any other two, had built up the nation; they had piloted the ship of state through many a storm, and, full of honors and of years, were entitled to rest. Were they with us to-day, is there a doubt that they would unite in the most determined resistance to the effort which some of our countrymen are now making, to establish among the normal institutions of this nation a custom which they considered to be wholly an evil, and for a speedy extirpation of which their hope was coördinate with their faith in the progressive civilization of mankind?
HOUSE-BUILDING IN AMERICA.*
WITHIN the last six months, several
works on building have been published in this country, and although no one of them is of any very great importance, we shall make them the text of some words on the general subjectso far, at least, as it concerns us Americans.
The two books, whose titles are given below, are the most recently published. Mr. Cleaveland's is a pleasant little volume, written in a clear, unambitious style, and containing many excellent hints and suggestions; but the illustrations are very poor, and the designs do not appear to be well-considered. Indeed, on looking over the plans and exteriors with care, it must appear surprising that the authors of the book should have fancied themselves proper guides of the public taste-for there is not a single house presented for our examination which has not some ugly feature predominating-scarcely one whose proportions are not bad-while the plans are of the most meagre and inconvenient description. Narrow and winding halls, cramped stair-cases, bedrooms and kitchens opening into parlors, and without other means of access,
the kitchen and parlor opening upon opposite sides of the hall directly you open the front door; all these minor miseries abound in these places, and present themselves as well in the costly as in the cheaper structures. It is evident that house-building has never been studied as an art by these gentlemen, at least this decision would be the result of an examination of the engravings, but the letter-press which describes them, and comments upon them, shows not only feeling and enthusiasm, but judgment and honesty of purpose. Perhaps this is the result of triple authorship; we do not pretend to account for the discrepancy; it most certainly exists.
Mr. Vaux's book presents us with a similar inconsistency, for he offers us a collection of designs and plans, many of them worthy a careful examination, but his comments upon them do not please us. Nevertheless, it is very evident that Mr. Vaux fully understands his profession, so far as all technical matters are concerned; for there has been no book published in America, on the subject of architecture, which is more thorough than this one. The plans are the best part of the book, and
*The Requirements of American Village Homes considered and suggested; with Designs for such Houses at moderate cost. By H. W. CLEAVELAND, WILLIAM BACKUS, and SAMUEL D. BACKUS. New York: D. Appleton & Co., 1857.
Villas and Cottages. A Series of Designs prepared for Execution in the United States. By CALVERT VAUX, Architect. New York: Harpers, 1857.
degeneracy of their bricks and mortar, the most charming piece of burlesque since Gulliver; but, generally speaking, other writers take a milder and less relentlessly virtuous view, and seem to think, that though matters are come to a pretty bad pass, yet, if the public will only set to work in the right spirit, and adopt their designs, all may yet go well. Mr. Downing is good-natured in this matter, and thinks there is a good time coming; he does not insist upon his own designs as a panacea, but gives us a collection gathered from various quarters, and recommends the mixture. The other notes in the gamut are sounded by the rest of the choir, and the general result is a chorus of depreciation, ending in a grand hallelujah of anticipatory praise; looking forward to the day when the public, driven by an æsthetic fury, shall pour into their offices with unlimited orders and the most gratifying surrender of individual feeling and sentiment to the superior taste and knowledge of these artistic gentlemen.
This, in seriousness, is the upshot of the whole matter. Mr. Ruskin believes, and all the others whom we have mentioned believe, that a love of good building is to be created by an influence from without, rather than by a movement from within. Mr. Ruskin, especially, speaks of this age, and the men who live in it, and the work it is doing, as no man, were he Paul himself, has a right to speak of his fellow-men. Nay, a man with the brain and heart of Paul could not speak so; his greatness of intellect would forbid his so misapprehending the thought of his century, and the largeness of his heart would prevent such overweening conceit as such wholesale condemnation of his fellows must imply. But, after this hopeless commencement, Mr. Ruskin proceeds everywhere to urge, that we should do good and great things; or, if not great, at least good and sincere things, as if that were possible with creatures so debased and material. He does not once see, nor do any of these men, that beautiful building is no longer the law of the time, because the thought and energy of the time spend themselves elsewhere; that it is the product of peace-outward and inward. Peace in the state, peace in the heart and brain of man. That the work of this age is revolution, and that while freedom is wrestling for her life, and a deathless struggle is impend
constitute its real value, the exteriors for the most are clumsy and unimagin ative. His book is a striking contrast to those of his old partner, Mr. Downing's, in many things. The plans are better, and there is evidently more familiarity with the conventional rules of the architect, but these advantages cannot balance the charming simplicity of Downing's style, and the evident sincerity and singleness of his purpose. Mr. Vaux's book-and we wish to do him no injustice—is too full of egotism. In strong opposition to this, stands Mr. Downing's modesty, which never allowed him to speak an unnecessary word about himself, and which touched even his satire with good-nature. Indeed, none of these books have impressed us with the belief that Mr. Downing's volumes are to be immediately superseded, and we shall continue to think that they sufficiently fill the field which they profess only partially to occupy, and that, from their point of view, they leave very little to be said on the subject of which they treat.
Yet we must still ask ourselves-" of what use are all these books? To what end are they written?" For it seems to us, that from Mr. Downing to the last comer in blue and gold, a fatal error has seized all among us, who have written on this subject of building; and even Mr. Ruskin has failed to perceive that his conclusions do not follow from his premises. All these writers, small and great, begin by urging that the art of building has fallen into languishment and decline, that, if not dead, it cannot be said to be alive; that those who build, build carelessly, slavishly and knavishly, and that those for whom they build are cold, indifferent, ignorant, and often knavish, too. These opinions are not expressed in the same way by all writers upon architecture. Mr. Ruskin, indeed, swings himself about in awful fury, and hurls every sort of pitch and defilement upon the unhappy gentlemen who venture to sqeak, when he treads upon their cherished corns; he becomes almost Pythian in his prophetic ecstasy of denunciation, when he speaks of the impiety of building railroads and warehouses instead of cathedrals and cloisters, especially if the warehouses should happen to have a Greek rosette upon them anywhere; and, indeed, we think his lectures to the people of Edinburgh, about the