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what is least important can be sacrificed, if anything must be taken away. Now, these are the words of our distinguished Chancellor (I: 296)

"The judicial power in every government must be co-extensive with the power of legislation. It follows, as a consequence, that the judicial department of the United States is, in the last resort, the final expositor of the Constitution as to all questions of a judicial nature. Were there no power to interpret, pronounce and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty.

"That the interpretation of treaties, and the cases of foreign ministers, and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the Union, the confusion that different proceedings in the separate States would tend to produce, and the responsibility which the United States are under to foreign nations, for the conduct of all its members.

"The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of domestic tranquility. The want of a federal judiciary to embrace these important subjects, was once severely felt in the German confederacy, and disorder, license, and desolation, reigned in that unhappy country until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquility in the Germanic body."

This calm enumeration of the essential powers which ought never to be taken away from the Court, precedes an equally calm but decisive statement of the result of exercising some of this jurisdiction (I: 297)—

"The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia, 2 Dallas 419, decided in 1793, and in which it was adjudged that a State was suable by citizens of another State, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority."

In a less degree, it is not uncommon now to hear lawyers speak of the Court stretching its powers, whenever some State official fails of his duty, or takes upon him authority committed to the national government.

Of course, an overcrowded docket and the necessity of limiting appeals was not apparent to Chancellor Kent half a century ago; but it is clear that he would have thought the political jurisdiction of that court, in overruling the State courts and avoiding the State laws, and restraining the State officials, to be one of the most important parts of the jurisdic

tion after that which restrains Congress within its sphere. Mere citizenship cases would seem to deserve consideration only as they relate to domestic tranquility.

The interval between 1787 and the publication of the Commentaries, a period of nearly forty years, was passed in a little politics, as a member of the New York Legislature in 1790, 1792 and 1796; in his law lectures at Columbia College in 1794-5 and in 1824; but chiefly as Justice of the State Supreme Court, from 1798 to February, 1814, and as Chancellor until July 23, 1823, when he had attained the Constitutional age for retiring-sixty years.

Perhaps the great service which Chancellor Kent rendered in his judicial capacity, was the habit he set of preparing a written opinion in every case of sufficient importance. It had been the judicial custom to deliver oral opinions, and the habit of delivering written opinions became exceedingly valuable, when he became Chancellor Kent. The powers of the Court were not clearly defined, there was a lack of precedents, and there was only a small coterie of practitioners. All this was altered by Kent's industry, learning, and aptness in conducting the business of the Court. Hence the language of the Bar of New York City, when affectionately taking leave of the retiring Chancellor

"During this long course of services, so useful and honorable, and which form the most brilliant period of our judicial history, you have, by a series of decisions, in law and equity, distinguished alike for practical wisdom, profound learning, deep research and accurate discrimination, contributed to establish the fabric of our jurisprudence on those sound principles that have been sanctioned by the experience of mankind, and expounded by the enlightened and venerable sages of the law."

It is not surprising to know that some have thought that such a man, either from constitutional diffidence, or habits of study, appeared not to feel the confident possession of the powers requisite to insure renown before the bench. For, as a judge, the Bar gave universal testimony of his personal kindness, pureness and gentleness of heart, and uniform and uninterrupted course of generous, candid and polite treatment.

J. B. U.

WHAT IS MERCANTILE LAW

WHICH IS NOT THE LAW OF THE PLACE OF CONTRACTING OR PERFORMING, AND WHENCE IS IT DERIVED?

The rule of the Supreme Court of the United States, that they will pay no attention to the law of the State where the contract is made, as. to its validity, leads to results worth considering. Thus broadly stated, they might question the fairness. But if the rule of law on one subject is to be treated with contempt, why not all? Why is the rule that exacts consideration for a promise to be enforced, while that which authorizes a limitation on responsibility for an agent, is to be flouted?

The ground for this assumption is extremely odd. It is the general commercial, or the general some other kind of law; and it results, that while every nation, whose opinion is important, has refused to recognize any such law, or having once recognized it, has seen fit to change it—this tribunal arrogates to itself the right to disregard such changes!

The particular instance referred to is, the right of a carrier to limit his liability.

I do not propose to discuss the question whether it is wise or unwise, to compel the person assuming the business of a carrier, to assume all the common law liabilities. It is, however, a fruitful subject for reflection, that the propriety of imposing any liability at all, for servants who are not slaves, intrusted with the performance of the duties assumed by the master, required what was practically special legislation. The rule which is made by the Courts, has been perverted, not only from its original design, but from all that is naturally just and fair and proper, and here comes a Court, and refuses to the State the capacity to correct the evil, and put things back where they were, before the Courts undertook to legislate.

Grant that I cannot stipulate to be relieved from liability for my own negligence, what on earth has that to do with the doctrine accepted by the Supreme Court, as if a revelation from on high, that I may not stipulate to be relieved from negligence of one I must employ. There is something of truth that lies at the bottom of the first proposition. The real outrage is, that mistakes and even errors of judgment, proved

to be errors only by the result, are accepted as things which an employer cannot contract not to enforce against the master.

Take the case that led to this paper, as an illustration: Liverpool v. The Phoenix, 129, U. S. 397, surely call it by what terms you please, no one can doubt that a skilled person, one ascertained by tests to be competent, did the best he knew how to ascertain where he was in a fog, and he made a mistake. Now, granting that his method of inquiry was negligent, what sort of reasoning is that which says, that the owner of a ship cannot contract that a shipper will look to the man who does the wrong, and not to his employer? If I employ a contractor to build my house, all agree I am not liable for his misconduct in doing the thing. Evidently there must be a fallacy that excludes liability for the acts of one employed to build a house, however negligent or careless, and prohibits the exclusion of liability for the navigator of a ship, when removed from the control of the owner, involving professional skill quite as much in the advising on the meaning of a statute, or what will be the probable result of an appeal. But the point I wish attention to is, that the Supreme Court will find that they have to deal with people that will not be quite so submissive as the authorities of the several States, when this Court undertakes to dictate the law to them: what their own law is or ought to be, and will be treated by a Court professing to administer it, and whose jurisdiction exists, solely because of the person of the suitor, and not because of the subject of the litigation.

There are two things in the language of the Court, that compel one, however plain a point may be to one's self to pause. I therefore venture to lay before the profession, at the peril of being held up to ridicule if I am in error, what seems to me involved in the declared views of the Supreme Court of the United States. My doubt lies in this: there are nine men in that Court, and is it possible that neither Court nor counsel have seen the result of what they declare to be rule of law for that Court. A State adopts a rule on the subject of the effect of a contract. A contract is made there. It is admitted to be governed by the law of the place where it is made. On these postulates a Court of justice refuses to recognize the law of

the place, when declaring the meaning of the contract. They declare a liability arises out of a contract, which, thev admit does not arise out of the contract according to the meaning given to it by the law of the place where it is made.

Why is this? Because, by a system of law, which they are pleased to baptize by the sonorous title of the general mercantile law, a different effect is given to the contract than is given to it by the law of the place where it is made. I do not pause to do more than notice the singular inconsistency of this sort of talk, with the avowed doctrine of the same Court on another system of the same kind as the general mercantile law-but called "the general maritime law." What I want to call attention to is the mortifying avowal that when Great Britain changes the law on this very question, this Court will accept the rescript and yield all dutiful obedience. But when New York adopts the same rule, then no attention is to be paid to it. Is this pleasant? Now this is avowed beyond doubt: on (p. 453) the duty of ascertaining by what law the contract is to be governed is declared. The rule of the English law is stated (p. 447), and this would have discharged the defendant. Now, if the law of England was to be disregarded, as is the law of New York, it certainly was not worth while to go so profoundly into the authorities to prove that it did not apply to the contract. From the foot of p. 447 to the middle of 455, is given up to this inquiry. Am I wrong in assuming that the Court deemed it a vital point? Especially when it was the one thing argued. Having then proved that the contract was not an English contract, they then admit it was a New York contract, and that by the law of that place the rule is the same as by the English law (p. 443): but a rule of the general mercantile law sweeps away that argument or rule. General mercantile law which the Courts of Great Britain do not recognize!! But passing that, I repeat, has not the Supreme Court put itself into a humiliating position, when it declares that a rule of law regulating a commercial contract is so bad that it will not recognize it, when it is the law of the place where the contract is made, unless that place is England or the contract is English; then, of course, we will bow in submission.

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