Sivut kuvina
PDF
ePub

If I should now grant the claimant a certificate, could I say, it satisfactorily appeared that the petitioners, according to the laws of the state of Virginia, now owe him service? Certainly not, because by his removal from that state he has abandoned the protection of its laws. Or if this absurdity could be removed, could the certificate authorize their removal to Illinois, where I am bound to take notice that slavery is not tolerated? This would be still more absurd, because they must be removed to the state from which they fled.

"The same rule that requires me to take notice that the laws of Virginia tolerate slavery, requires me to know that in Illinois it is prohibited. The comity due from us to Illinois, is not less than that which we owe to Virginia.

By the law of nature and of nations, (see Vattel 160,) and the necessary and legal consequences resulting from the civil and political relations subsisting between the citizens as well as the states of this federative republic, I have no doubt but the citizen of a slave state, has a right to pass, upon business or pleasure through any of the states, attended by his slaves or servants; and while he retains the character and rights of a citizen of a slave state his right to reclaim his slave would be unquestioned. An escape from the attendance upon the person of his master, while on a journey through a free state, should be considered as an escape from the state where the master had a right of citizenship, and by the laws of which the service of the slave was due. It is not necessary for me to decide whether an emigrant from one slave state to another would have the right of reclaiming his slaves if they should escape from him while passing through our state, because that is not the case now before me. * * The emigrant from one state to another might be considered prospectively as the citizen or resident of the state to which he was removing; and should be protected in the enjoyment of those rights he acquired in the state from which he emigrated, and which are recognised and protected by the laws of the state to which he is going. But this right I conceive cannot be derived from any provision of positive law.(a)

"The petitioners must be discharged.'

We have seen, in the Indiana Journal of January 27, 1830, the argument of Sewall's counsel.

'(a) Since this opinion was given I have met with a case in the appellate court of Kentucky, 2 Marshall's Rep. 477, 478, where this identical point was considered by the court upon similar grounds, but the court never refer to the constitution or laws of the United States as the foundation of the right. If those who have felt dissatisfied with the notice I took of the intention of the claimant, will take the trouble to examine the passage just referred to, they will find that the court seem to have attached at least as much importance to the intentions, as I have done.'

Written Votes. A clause in the constitution of Massachusetts provides that every member of the House of Representatives shall be chosen by written votes. The supreme court of that state has recently decided, in the case of Henshaw v. Foster, that printed votes are written' votes, within the meaning of the constitution. The correctness of this decision, we presume, will not be questioned, although it had been for a long time the practice to have all votes written. The opinion of C. J. Parker has been published in the papers, but we do not give any extracts, as it will hereafter appear in the Reports.

Law Reforms in England. The following account of what is doing on this subject is taken from the Law Magazine.

of the Common Law Commission we have only to say, that a Report on Pleading is nearly if not quite ready, and will be delivered at an early period of the ensuing session of parliament; and that it is commonly understood that the forms now in use will be very greatly curtailed.

"The Real Property Commissioners are almost exclusively occupied with the question of Registration. On this subject a great deal of evidence has been taken already, and a great deal more is to be procured before the precise plan will be definitively agreed on. That a registry of some sort or other will be recommended, seems certain. The drawing up of the report on this subject has been entrusted to Mr. Tyrrell, whose fitness for the undertaking is sufficiently shown by his suggestions. The official plan, reprinted in this number, was, we believe, compiled from several sources, and put into its present shape by Mr. Duval. With regard to the time when this report will appear, nothing certain can be predicated at present; the commissioners being particularly anxious to have the opinions of mercantile men and landed proprietors, as well as of the profession, and contributors of this sort are not so easily procured. Judging from the quantity of work to be done, we do not expect it much before the end of the session.

"At this rate it will naturally be asked, how long are these commissions to last ?-a question to which, we freely admit, we cannot give a satisfactory reply. The Common Law Commissioners prefaced their inquiry, by stating that they had classed the matters submitted to them under twelve general heads, two of which they disposed of in their first report. Since Messrs. Duval, Saunders, and Tyrrell were added to the other commission, the law of real property has been subjected to a similar division; and, to the best of our information, the number of heads (excluding Registration) is the same. There is, however, one material distinction. Two, or three, or even more of the heads under which

the Law of Actions has been classed, may be included in a single report ; but the twelve grand divisions of Real Property are much too large to be amalgamated; indeed, it is not unlikely that some of them will need subdivision, or that supplemental reports will be required. Allowing, then, that the Common Law Commissioners may finish their task within three years (at present, we believe they anticipate a more speedy conclusion), we do not expect, considering the more unmanageable nature of the subject matter, that the Real Property Commissioners can finish under ten or twelve.

"Our precise object in making this calculation will presently appear, and we ought to add, that, in making it, we assume that the business will be carried on as briskly as hitherto. This, however, is any thing but sure. One member of the Common Law Commission, who might have been, though he was not, an effective one, has been virtually removed from it already. The elevation of Mr. Serjeant Bosanquet, who is all that Mr. Justice Park might have been, is said to be impending; and the wellearned reputation of Mr. Patteson and Mr. Serjeant Stephen, forbid us to reckon upon them as fixtures; whereas, though the Real Property Commission may lose its head, the conveyancers, or even the equity practitioners upon it, are not very likely to move. Nor is this the only disadvantage under which, comparatively speaking, the Common Law Commissioners are laboring. Their zeal, we believe, has outrun the zeal of the ministry, and they seem in a fair way to need the aid of Mr. Brougham to keep them, as he set them moving.

Their call for 100,0001. a year for compensation money, has been by no means well received at the treasury; a new palace being of much more consequence just now than a new capias or latitat. The judges, too, it is said, do not approve the proposed amendments relating to bail. The Attorney-General, from a natural, if not commendable partiality, does not like to see the northern circuit impaired in lustre by division; and a persevering stand will probably be made in parliament on behalf of the judicial dignitaries of Wales.

When the first batch of Real Property Commissioners was announced, consisting, as our readers well know, of iwo eminent, but not first-rate, conveyancers; two equity practitioners, who however distinguished, could not have devoted an undivided attention to the subjects submitted to them ; and a nisi prius advocate (a very clever one undoubtedly) for president; nearly all the old school of conveyancers, including most of the celebrated names in that department of law, were loud in their expression of mortification and disgust; and these feelings, we are sorry to say, they thought fit to manifest after a fashion which cannot be too severely reprobated. They met, we hear, in solemn conclave; VOL. III.-NO. VI.

52

and not merely resolved on yielding no effective assistance themselves, but on preventing, so far as in them lay, the good intentions of others. Their scheme was counteracted by the general good sense and good feeling of the class of which these gentlemen have been reputed the chiefs; but not before they had undergone the disgrace of instituting a personal canvass for the furtherance of their patriotic designs. We knew this long ago, and it more than justifies the exposure which sundry learned contributors to the Appendix have experienced at our hands; one, it will be recollected, of their avowed modes of crippling the exertions of the commissioners being, the giving in of inconclusive and puzzling replies. The gentleman who has gone the greatest length in this way, has recently condescended to say that he thought the inquiry a piece of foolery, and that he went to play his part with the rest. Credat Judæus,—but if it be so,h e certainly played his part to admiration. To prevent mistakes, it is but fair to add, that we have no grounds for believing that Mr. Preston went further than joining in the resolution not to aid the commissioners. He has, however, drawn up an act of a sufficiently innovating character to render nine-tenths of Coke upon Littleton useless; but it has been intimated on his behalf to the government, that they must make up their minds to have all or none; to adopt his suggestions, verbatim, or do without him altogether; which, he firmly believes, they will not be mad enough to try. We are stating facts, and speaking seriously; and we must stand excused for adding a hope that this, decidedly the most erudite and experienced conveyancer of his day, may yet awake to the impropriety of refusing to contribute to a great national object, except on wholly inadmissible terms. With this, and perhaps another exception or two, the dissentient party has come round; the solemn league and covenant is broken ; the holy alliance is dissolved. But another is forming, or formed, to crush in its more matured state what it was found impossible to nip in the bud. All the law lords are hostile to change, with the exception of the lords Plunkett and Lyndhurst; the first of whom has turned sulky, because he cannot get the Irish Chancellorship, and he refuses, on that account, to come over and help; whilst the latter candidly avows himself to be a very lazy fellow, not particularly well versed in the laws of Real Property and with a great disinclination to cram: 'Here I am (he says, like Sheridan), (a) tell me what to say, and I will say it: but my own opinion is, that we must make up our minds to wait till some of these old humbugs drop off.' He thus falls in with the views of

(a) · He has been known to say frankly to his political friends, when invited to take part in some political question that depended on authorities, “ You know I'm an ignoramus; but here I am ; instruct me, and I'll do my best.”Moore's Sheridan, p. 377.

the enemy-we might well say the arch-enemy-Lord Eldon, by whom the main battalion, the heavy troops and mercenaries, will be led.

His sagacious Lordship has got hold of and intends making a stand on the following passage, in the commencement of the report:

“The whole law of Real Property is so connected, that alterations to be recommended in one branch cannot be definitively arranged without an understanding as to the manner in which others are to be regulated ; and if any legislative measures are to be founded upon our suggestions, it may be expedient that they should all be brought forward at one time, as part of a systematic reform."

"There is, unhappily, the same want of precision about this paragraph as we have been so often compelled to point out in the course of our analysis of the report. The commissioners have expressed two inconsistent opinions, in endeavoring to reiterate one; and it is impossible to decide whether, according to their opinion, a single set of propositions may be passed into laws, so soon as we have a sufficiently clear understanding of the manner in which others are to be regulated; or whether we are bound to wait, not merely till the way appears clear, but till all legislative measures, founded upon their suggestions, are in a state to be brought forward at once. For instance, we now know enough of the sort of remodelling the system requires, to be quite sure that such of the suggestions in the first report as are worth adopting at all, may be safely adopted at once. Accordingly, therefore, as the above paragraph shall be understood, we may live ten, twelve, or fifteen years, under our present laws of Inheritance, Dower, Curtesy, Fines and Recoveries, Limitation and Prescription; or may bid adieu to them in 1830. Lord Eldon, of course, insists on the procrastinating sense; and, as parties are constituted, he may carry the point. Now, the mere forms of Fines and Recoveries have been shown to cost about 70,0001. a year, over and above what deeds operating in the same manner, would cost; and a round sum must be allowed for the litigation which doubts on these assurances are yearly occasioning. It is thus made manifest that in this article alone, a confused paragraph may cost us a million. For our own parts, we are so well convinced of his Lordship’s aptness at being not merely doubtful bimself, but the cause of doubts in others, that we have already made up our minds to the delay; but we do not, on that account, despond. Our great law-lords may do their worst; but they may depend upon it, le bon temps viendra; and they must move on with the rest:

“If you give way,
Or budge aside from the direct--forthwith,

« EdellinenJatka »