« SebelumnyaLanjutkan »
For the discharge of duties of such unexampled importance, the courts of which we are speaking are necessarily clothed with the 'most extraordinary powers. They have ultimately the power of defining their own powers; of drawing the line of demarkation between the rights of the several states and those of the Union ; between the jurisdiction of the various superior courts belonging to the former, and their own ; and of construing, and interpreting, and applying the provisions of the constitution, in such a manner as to their wisdom shall seem equitable and meet, for the purpose of promptly effectuating all the high purposes of national justice, for which it was originally designed. Should not the official doings of such a body of men be promptly, and extensively made known ? It appears to us, that the publication of the reports of adjudicated cases, from sources and on subjects like these, ought to receive, most liberally, legislative patronage and support, and be diffused as far and wide as possible, throughout our community. If there be any intelligence important to the freedom of our political institutions, it is this.
In the foregoing paragraphs we have referred only to the great questions of constitutional law which come before our national courts of judicature. The discussion of the simpler ones, occurring to them in the ordinary course of their jurisdiction, are also full of interesting matter to gentlemen of the profession. They are often called upon to decree and act on the law of nature and of nations. In many cases, they introduce us to a knowledge of the peculiar local laws of foreign states, as well as of the great international law which connects them all together. They bring also into some practice the civil law, and tend to diffuse a knowledge of it, and gradually to reconcile and incorporate it with our own, and thus give us the use of some of its admirable principles. We ask our readers to consider the cases of frequent occurrence before the courts of which we speak, for the evidence of what we have said. The examination of wrongs committed upon the high seas, or of crimes in any way affecting our sovereignty as a nation ; of revenue and exchequer cases; of questions of admiralty and prize; of all those coming from the various laws of navigation and trade; of the vested or the violated rights arising under the stipulations of a treaty ; of the infractions of the privileges of a patent, or of the sacred security of property contained in the published works of men of literature and science ; of the
VOL. XXVII.--NO. 60. 24
great maritime contracts, growing out of our extended commercial connexions with foreign states, and requiring for their elucidation the great code of mercantile law, now by common consent in force, almost all over the enlightened world ;-the examination of these, we say, has called forth in this country, to a very honorable extent, learning, research, and ingenuity, and furnished a rich variety of fruitful themes for valuable disquisitions, on the most important and interesting points of law; and, for the reason we have already given, the publication of just reports of them must be exceedingly useful in extending the knowledge of that law, and making it more accurate and clear, as well as more generally known.
May we not also look to the publication of the reports of which we are speaking, for making the common law of our country more regular and uniform in its character, than it has been hitherto ? The several courts of the various states are separate and independent of each other. The decisions in one are not considered as having any obligatory force in those of another. Hence it is that they are often at variance and sometimes diametrically opposite. But the courts of the Union are joined. A most powerful bond of association connects them together. The decrees and doings of one would be considered as having something of more influence on those of another, than the mere opinions of learned and intelligent men. They go moreover into every part of the Union, and gather intelligence from the most gifted and eminent counsel of our country, and come together annually for the purpose of hearing, and conferring, and disposing of litigated rights, under circumstances peculiarly favorable to the clear and correct settlement of the law. No party feelings nor sectional views can sway them. Those of one must offset and counterbalance those of another. Their errors are reciprocally corrected. By a judiciary thus composed of the ablest judges, and acting under such advantages, the true principles of justice must be reached, if they are within the reach of human genius. Singly as well as collectively, we say, they may do much to place our common law on a more steady and regular foundation, than it now has. At least, so far as their influence goes, it may be rescued from that inconsistency and variance for which it has been so long and so deservedly reproached.
Is it not therefore to be regretted that the reports of cases adjudged in the courts of which we are now speaking, should be so much neglected as they are ? Questions of much moment, as we have seen, are constantly brought before them ; and far the greater number of their important decisions are final ; yet there is no provision made by law for their encouragement and support. While those of the various superior courts of the several states are brought forward under the avowed patronage of their respective legislatures, and ordered to be circulated throughout the community, those to which we now refer are left to struggle their own way into being, unaided, but by their own intrinsic merit. With the former, therefore, they can hold no fair competition in popular favor or notice. Indeed, when they are published, it is usually, as in the present instance, in consequence of the generous efforts of some enterprising young member of the bar, who, desirous of becoming versed in the learning and practice of the highest branches of jurisprudence, and seeing clearly the importance of the adjudications before him, records them and gives them to the public, though sometimes, we fear, at no little pecuniary sacrifice of his own. What must be the natural consequence of such neglect as this? Why, the reports of the cases settled in these courts are comparatively few in number ; on some of the circuits they are not published at all; and on those where they are so in general, they appear irregularly and without any system. The publication of the present volume contains a remarkable illustration of this fact. It is intended to report the decisions upon a circuit, where very numerous and very important questions must arise. During the whole time which it covers, two of the brightest ornaments of the profession were upon the bench; and yet all the decisions which were gathered from the court, from the year 1810 to the year 1824 inclusive, are comprised in this single volume.
We have no room now to speak as we could wish and as we intended, of the particular merits of this collection of cases. Mr Paine is a judicious and a very able reporter. It is a sufficient recommendation of the volume, that it is filled almost entirely with the written opinions of Judges Livingston and Thompson; for the facts in the cases, and the arguments of counsel are stated very succinctly, and yet very clearly and satisfactorily, and the book therefore is encumbered with no useless or extraneous matter. Judge Thompson is still upon "the bench. Many years of his very laborious public life have been spent in the discharge of the highest judicial duties, in the
courts of his own state as well as in those of the Union, and, we feel assured, to the great satisfaction of those who have fallen under his administration. In his knowledge and application of the common law, which is our favorite theme at present, we know him to be peculiarly accurate and unexceptionable. It is hardly proper for us, however, to dwell longer upon his judicial character now. But we hope to see more of it hereafter in the same manner in which this volume presents it to us.
In the death of Judge Livingston, the American public sustained an irreparable loss. As the volume before us contains the latest of his published judicial labors, it affords us a favorable opportunity, which we have long sought for, and which we now gladly embrace, of offering to our readers some slight sketches of his life and general character. The private as well as the public virtues of such a man ought to be made known and recorded.
The father of Judge Livingston was Governor William Livingston, of New Jersey, a distinguished lawyer and a revolutionary patriot, whose memoirs and a sketch of whose character may be found in Allen's Biographical Dictionary.
Judge Livingston was born on the twenty-fifth of November, 1757, and died at Washington on the 23d of March, 1823. His literary education he received at the College in Princeton. In the revolutionary war he served with distinction, and was aidde-camp to General Arnold, at the battle of Saratoga, and indeed in the defeat and capture of Burgoyne's army. After this he studied law, and was a contemporary at the bar with General Hamilton, Mr Harrison, Judge Benson, Mr Troup, Mr Burr, and others, all of whom were very eminent lawyers. As an advocate his rank was among the highest. In fact, his talents were always thought more peculiarly adapted to the bar than to judicial duties. In his temperament he was very ardent and earnest, so that he was hurried on by the most implicit confidence in his client's cause, and identified himself in devotedness with all his views, and felt an interest in his success almost as if the cause were his own. The same traits of intellectual character sometimes marked his decisions from the bench. Boldness and rapidity of thought, and energy of mind and feeling, always accompanied them. On these occasions he was luminous and striking, far beyond the originality of the counsel in the case, the most eminent of whom were left behind him in the reasons given on their side of the question, when the judge decided in their favor.
We said, these pages show Judge Livingston to have been a scholar and a man of letters. And from a variety of other sources we understand this to have been remarkably the case. In the early part of his professional career, he stole many an hour from the forum, and from the severer studies of the law, and even from the nobler sciences of national and general jurisprudence, and gave them to the works of fine literature and taste. Of the ancient classics he was particularly fond. To the latest period of his life he read them with the greatest ease and delight. We understand that he never travelled on his long, laborious law circuits without taking some one of them as a cheering companion upon his journey. Most people would have said, that every moment of his time, which the pressing calls of duty on the bench did not extort from him, must be given to relaxation and repose.
And so in fact it was with him. For to such minds as his, literature becomes, as it always ought to be, nothing but relaxation and repose. It is not surprising therefore, as has been well remarked, that he possessed a most copious and chaste and elegant diction.
The eloquence of Judge Livingston was fervid, impressive, masculine, and persuasive ; his power of research uncommon; his zeal untiring ; and his command of illustrative topics most rapid and comprehensive. He had a very powerful influence therefore with juries. On these occasions, indeed, he was always truly delightful ; for with all his ardor, he mingled a delicacy and courtesy, a courage and constancy, a facility of changing his ground and returning to the charge, after defeat or discomfiture, which surprised and sometimes astonished his audience.
In the modern languages, too, Judge Livingston was an accomplished scholar. By his travels and his early residence in Europe, he learnt to speak the French and Spanish with as much fluency as his native tongue.
His manners were uncommonly winning. In his general deportment he was affable, buoyant in spirit, and gentle to a most remarkable degree, unless roused by severe provocation.
We are told that he was full of candor and kindness; of a liberal and benevolent spirit, an enlarged charity, a disposition to aid the humble and the oppressed; and that he was a steady and bold asserter of the principles of civil and religious liberty. In the general diffusion of intelligence, he took an active interest. He aided the public schools personally ; and for