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the professional part of the public, and all critical jurists especially, have been struck with a novelty and peculiarity in the manner of Mr. Peters' marginal notes, or abstracts, as they are denominated, of cases determined in his reports. These notes are not the pure chemical extracts of the cases decided, if we may use that expression. They are not confined to those mere statements of points, either actually decided, or essentially involved in the judgments, and which constitute the placita of the elder books and abridgments. But they are large and copious extracts, in the literal sense of the word, setting forth, paragraph by paragraph, frequently in the very phraseology, ipsissimis verbis, and that not always the most purely judicial diction, the sentiments of the Court, and not unfrequently the identical train of reasoning of the individual judge, who is called upon to deliver the opinion of the Court. The inference which we have rather been led to draw from this habit of the reporter, is, that there is nothing strictly extrajudicial understood by him to be contained in the opinion pronounced in the name of the Court ; that the premises are settled as well as the conclusion, and that deliberate expressions, gravely adopted and approved, are not to be treated as mere obiter dicta, in any future discussions on the same subjects. We are not disposed to insist absolutely, or very strongly, on the soundness of such a deduction. But in this mode, it is very obvious, that supposing the train of opinion coming from the Court, to be uniform and consistent, the most elaborate and authentic exposition would be obtained of the true constitutional law of the country, as well as of its general municipal system. Such a work, it is evident, might be in a great measure made, if, indeed, we might not already deem one completed, by the employment of such materials; and by this means, were there no signs nor circumstances to the contrary, we might now be deemed to be already in possession of a very respectable system of constitutional hermeneutics.
It must be owned, that the idea of such a constitutional harmony, must be a good deal marred by the appearance of the present volume. Nor is it to be inferred, that there has been any absolute monotony to the present moment. There are some general remarks, of Mr. Justice Baldwin, in one of the reported cases, touching a diversity, which he conceived to exist between certain decisions of the Court, on which
we have here no occasion to comment, that it may not be out of the way to quote.
“I freely admit that a court may and ought to revise its opinions, when, on solemn and deliberate consideration, they are convinced of their error. It is often done, though never without the fullest investigation ; even then, one decision does not settle the law; when they are contradictory, the matter is open for future research. There is no more certainty that a last opinion is more correct than the first. Generally speaking, a construction of a law nearest the time of its passage, is most respected ; and is adhered to, though there may be doubts about it, on the principle of 'stare decisis. But it is believed to be unprecedented, to consider a subsequent decision that omits any reference to prior ones, and from some cause overlooks them, though they are in point, and by a court of the last resort, as having settled the law. If, however, such is the rule, it necessarily follows, that it can only remain until another last decision shall be made, restoring the old law, or making a new version of it.
“ A judge who, in 1835, was at liberty to make a last construction of a law, is certainly as free in 1837, as he was two years before. The very principle of this case is, that the prior decisions, though unanimous, are not binding; the next, in point of time, by a divided court, can then be of no more authority; and a fortiori, one such opinion cannot outweigh three contrary ones, unless every last decision has the same effect, whenever a present majority may think fit to make one." - p. 400.
It cannot be concealed in point of fact, that we have fallen under a new dispensation in respect to the judiciary. It cannot be disguised that it has taken a new and decided direction, or rather departure. The difference amounts to something more than ordinary variation. The loadstone has lost something of its polarity. New points of observation have been discovered and pursued, distinct from the astronomical north. Whether the judiciary has any proper volition or not, it is quite plain that it has acquired a new inspiration and impulse. What was the law of the court upon some important points remains so no longer. Within a brief space we have seen the highest judicial corps of the Union wheel about in almost solid column, and retread some of its most important steps. It is quite obvious, that old things are passing away. The authority of former decisions, which had long been set as landmarks in the law, is assailed and overthrown, by a steady, destructive NO. 98.
aim, from the summit of that strong-hold, within which they had been entrenched and established. For it is a notable feature in this judicial revolution, that it goes not merely to shake the authority of former opinions, but to subvert that of former judgments in constitutional cases. A single, or perhaps a second decision, of a somewhat different type or complexion from that of former opinions, might not be considered as settling the question concerning a positive change in the character of the court upon these points ; but consecutive opinions, within so short a compass, all of the same cast, — all at least of the same aspect, all certainly imbued with one spirit, --seem to give a determination to the doings of the tribunal, for the time being, that leaves little room for further doubts or conjecture. Upon one or another of the opinions upon constitutional points contained in the present volume, there might be more or less possible variety of individual impression entertained, how far it involved the necessary conclusion of a final abandonment of the former fixed and established constitutional doctrines of the court ; but taking them all together, the matter is left in very little doubt. Whatever difference of judgment there might be as to the detail
, there cannot be much in regard to the sum total. From either two of the rernarkable decisions in this volume there would be no difficulty in deducing the third ; that is to say, in divining, if it would require any divination, what it would be." It is very remarkable, also, that all the principles yielded by these decisions, either have relation to the sovereign powers of the Union, or to the very essence of social obligation. There are obvious reasons enough for not exaggerating inferences of an unfavorable kind, in regard to the present or future condition of the judiciary, but we can hardly avoid the reluctant impression, that it has already capitulated to the spirit of the old confederation ; and that we are fast returning, among other things, to an old continental currency, and to what were once denominated, moreover, anti-federal doctrines. Under the progressive genius of this new judicial administration we can see the whole fair system of the constitution beginning to dissolve, like the baseless fabric of a vision; and we may well seem to say, in view of all the toil, and service, and sacrifice of the past, ibi omnis effusus labor! Nor can we regard it as greatly relieving or consoling this conclusion, that the new set of doctrines, thus broadly pronounced from the same constitutional oracle, should have been enunciated with the dignified weight derived not only from elevated station and official sanction, but from high endowments also of intellectual and moral worth, with large accessions of legal and literary talent, and all the varied accomplishments of polished and profound learning.
It cannot of course escape notice and remembrance, that in two, out of three constitutional judgments in this volume, if no more, as it appears upon the face of them, that of Chief Justice Marshall was different ; and had he survived, it would have been in all probability, and we may indeed say certainty, only to have delivered the dissenting opinions. This duty devolved, in regard to all three of those leading cases, principally upon Mr. Justice Story, to whose lot it thus fell, with a most appropriate felicity, to pay at once this parting tribute to the cherished memory of that great and spotless magistrate, and to pronounce their common sentiments in respect to the cardinal principles of that beneficent and beautiful system, which they had so long and so cordially coöperated together in the same sphere to uphold, and establish, and preserve. This profound and reverential feeling is expressed, not without sufficient modesty, and yet firmness, as well as feeling, in the concluding, and as it were valedictory portion, of the dissenting opinion in the Kentucky case; in which he touches upon the circumstances under which he was left to perform this mournful, but not silent duty, in the following emphatic and expressive strain.
“I am conscious that I have occupied a great deal of time in the discussion of this grave question ; a question, in my humble judgment, second to none which was ever presented to this Court, in its intrinsic importance. I have done so, because I am of opinion, (as I have already intimated,) that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the Court, and the reasons of his dissent. I have another and strong motive; my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional, I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible that I have not done that justice to his opinion, which his own great mind and exalted
talents would have done. But with all the imperfections of my own efforts, I hope that I have shown that there were solid grounds on which to rest his exposition of the constitution."
Art. VIII. – Tales from the German. Translated by
NATHANIEL GREENE. Boston ; American Stationers
This is the unpretending title of a work, given to the public by one of our own townsmen, a few weeks since. Though styled by the translator " Tales,” they might well be called Novels, or Romances ; for the first of the series occupies a whole volume, of as portly dimensions as would suffice for 'a brace of Bulwer's or D’Israeli's manufacture. or the numerous contributions to the stores of fiction, with which the press has teemed of late, we have met with none more to our taste than this, or which is calculated to excite a livelier interest in the reader ; a merit which must be shared between the author and the translator. It is a higher effort to translate well a work of fiction, especially one abounding in colloquial dialogue and local allusions, than a work of sober science, where the terms readily find corresponding equivalents in our own language. The translator of fiction has the difficult task, if he would maintain the interest of his original, of clothing all the peculiar sentiments and images of a foreign nation in the familiar diction of bis own. If he fail in the former particular, the work loses its originality and truth; if in the latter, it will have a forced and formal air, fatal to interest. In whichever way he fails, the flavor of the original, like a fine essence imprisoned in a foul vase, will be spoiled.
A translation, skillully executed, has, to a certain extent, as far as the public is concerned, a superiority over a native composition ; since it makes us acquainted with the peculiarities of the nation to which the original belongs, more intimately and faithfully, than could be obtained from any similar production of our own. It is in literature, what a sensible foreigner who speaks our language fluently is in society, the very best source of information respecting the manners and usages of his own country.