1781 to 1789) and the provisions of the Constitution, which immediately refer to this connexion, must be deemed masterly. Not only is there a very appropriate division, between the powers delegated to the central government, and the rights remaining to the individual States,-so that the general as well as the merely local interests can be equally well provided for; but the weighty and difficult problem,-upon the imperfect solution of which so many State confederacies have been already destroyed, namely, such an arrangement of the persons, to whom the highest jurisdiction of the Union is delegated, that both the elements, the general and the provincial, are provided for and represented by them-is very successfully solved. The House of Representatives is elected, solely according to the numbers of the population, and is consequently the representative of the general will, or, at any rate, of the parties and interests, which divide the people at large; the Senate is elected by the individual State governments, and is so constituted, that the smallest member of the Union has as many voices in it as the most powerful; and, in the election of the President, so far at least, as the number of the electors is concerned, both these considerations are sought to be observed. A long experience, which, in the end, is always the best touchstone, has proved the correctness of these combinations; and if, as could not otherwise happen in a free and manifoldly diversified country, occasional storms of a threatening character have broken out, they have thus far contributed rather to the establishment than to the destruction of the edifice :-as, for example, the different opinions entertained in relation to the embargo-the war with England in the year 1812-the tariff and the mad attempts at nullification. We repeat, that this part of the North Amer ican public law, and, in particular, the highly successful exposition of it by our author, is well worthy of the most earnest study of every publicist, whether the object of his activity be the theory or the practice. This study might be of the greatest utility, to our ultra liberals in Germany, and might, perhaps, reclaim them from the error into which they have fallen, that every attack upon the common bond of our country, be the objection ever so unfounded, or the proposition ever so im

practicable and childish, is always worthy to be deemed a service and an act of patriotism. Would that they might also, from the history of the American national compact, the provisions of which are probably such as they wish, learn to know and to lay to heart, the infamous and destructive position which they occupy, and their own ignominious end. The German Bundestag, as the mere organ of sovereign powers, is very essentially different from the North American Congress; and it need not be proved, that improvements in the arrangement of the compact are very possible and desirable; but it should never be forgotten, that the states of the German confederacy are monarchies, and that to destroy is not to improve.

A similar attentive consideration might be challenged by that provision of the American compact, by which it is made the duty of the courts, not only to inquire into and determine upon the lawfulness of an act of government, (except so far as administrative justice is concerned) but also to inquire, whether a law, regularly and formally enacted by congress and approved by the President, is repugnant to the provisions of the constitution, and if it should be found so, to declare it to be unconstitutional and void. Dr. Story mentions several interesting cases of investigations of this description, which, in part, at least, resulted in a declaration of the unconstitutionality of the law in question. Notwithstanding the highly successful exposition of the author, we are far from regarding this provision as the necessary, and, in its consequences, just, result of the independent character of the judicial power, in every system of law; nor would we, by any means, advise to its imitation:we can only look upon it as one of the boldest and most interesting experiments in the modern public law. It may certainly strike with astonishment and affright those German jurists, who, in the spirited controversy now going on, whether the courts have the right to decide upon the validity of an ordinance, are inclined to deny their competency to do so, inasmuch as they perceive, in the existence of such a right, the destruction of all order, and the certain overthrow of the government. The experience of half a century, and, as the same fundamental principle exists, in all the individual state constitutions, in five-and

twenty different governments, might perhaps afford them some consolation ;-which they might also derive from the fact, that, as an impeachment may be brought against a judge, who abuses his authority, there is consequently some check upon this negative usurpation of the courts. Whether this provision has as yet been productive of any evil in the United States, we have not the means of knowing; though the official authority of the president is far less than that of a monarch, and though the frequent changes of his person far less admit of the following out of a straight-forward and fixed system, by means of the power, which he possesses, of appointment to judicial offices. The subject is besides of too great extent, to be here discussed with any thing like satisfactory fulness; yet would we not omit, at least, to call the attention of our readers to it; since in the above-mentioned learned controversy, no reference whatever has been made to this remarkable institution of the United States.

We must hasten to bring our remarks to a close, lest we might seem to lay claim to an undue share of time and attention, for the consideration of a single subject. The last observation, which we shall offer, is one, indeed, with which every examination of a scientific inquiry ends, or ought to end, namely -how little cause have men as yet to be proud of their own wisdom. It may perhaps seem, from the language of praise, in which we have thus far indulged, that this truth has not always been convincingly present to our minds; but yet, however, the study of the Constitutional law of the United States, in its present condition, furnishes more than one opportunity for its acknowledgment. In the first place, it is matter of astonishment, how many expressions and substantial provisions, in the comparatively brief and simple language of the constitution, admit of well-grounded doubt, as to their meaning, or, at least, as to the extent of their application. This fundamental law is not only itself the work of the most distinguished men, but it rests in part upon earlier institutions, which had been long in use; it was amply considered and elaborated in all its details, in the convention by which it was formed; it underwent the fullest discussion in the deliberative assemblies

of the individual states, at the time of its adoption; time and zeal, therefore, have not been wanting, to the drawing up of provisions, well considered and .properly expressed; and yet the constitution is defective in these respects. To what then can we attribute its imperfections, but to the inability of human efforts to produce any thing perfect? This experiment must at least induce us to pronounce a mild sentence, against the authors of our modern European constitutions, if we find cause to complain of the substance and form of their provisions; and it is well fitted too, to set in the clearest light the advantages (in other important respects equally undeniable) of a fundamental law, which has already existed for a long time unchanged; inasmuch as it is only possible to form and firmly to establish such a fundamental law, by means of a gradual and thorough experience. In the second place, we see to what an extent, experience has shown the innumerable objections, assertions, and threats, which, in the first instance, were brought against the constitution, from all sides, to be wholly wrong and unjust. These objections were urged, not only by the mob, but even by men distinguished for their knowledge and intellectual ability, who abused the defenders of the new institutions, as aristocrats in disguise, and favorers of a despotic government :-a new proof, how little reason, a statesman, whose talent and education place him in a high rank, has to trouble himself, on account of the clamor of the moment, when his conscience and his judgment assure him, that he is in the right path. The time will surely come, when his merits will be acknowledged; and, if his opponents are men worthy of respect, they will only be placed beneath him, in wisdom or strength of character; whilst those, whom their own folly or the agitations of party have arrayed against him, can expect no better fate than an abiding contempt.

L. S. C.

ART. II.-WHAT USE OF CHATTELS ATTACHED WILL MAKE THE ATTACHMENT A TRESPASS AB INITIO.

[The following Report of an interesting case, decided by the Supreme Court of Massachusetts, before the regular publication of their Reports, is from the MSS. of Chief Justice Parsons, and is accompanied by some valuable remarks of that eminent Jurist.]

JAMES DIX, Plaintiff.

versus

AAR JOHNSON, defendant.

Middlesex S. J. C. April Term, 1797.

TRESPASS for taking the plaintiff's horse, saddle, and bridle, and converting them to the defendant's use. General issue pleaded with reservation to give any special matter in evidence and for the defendant to open and close. The defence set up was; that the defendant, having a just demand against the plaintiff, caused a writ to be sued out for the recovery thereof, which was directed to Knight, a constable of Sudbury, who was legally qualified to serve the writ; that Knight by virtue of the writ attached the horse, saddle, and bridle, and delivered them to the defendant as his bailiff for safe custody, that afterwards judgment was rendered for the defendant against the plaintiff, and the horse, saddle, and bridle, were regularly sold by virtue of an execution duly issued on that judgment, and the net proceeds applied to satisfy the execution—which was the same trespass, &c. This defence was regularly proved, and not denied by the plaintiff. The reply was, that after Knight had delivered the horse for safe keeping to the defendant, he rode the horse and used him about his own business, and so became a trespasser ab initio.

Ward, counsel for the defendant, objected to the giving in evidence these facts in this action. His reason was, that admitting them to be true, although they might make the constable a trespasser ab initio, who derived his authority from the law, yet they could have no such operation against the defendant, who acted as servant of the constable and derived his authority from the act of the constable and not from the law.