reject bills passed by both houses, and to appoint and dismiss the great majority of the public officers. Practically, each is forced to nominate the ministers whom the houses or the chambers point out to him, to assent to the bills which they have passed, and to allow all public officers, except a few of those who come into immediate contact with the Government, to retain their places for life. The American President names and retains his own Cabinet, rejects any bills which displease him, and displaces all public officers whose continuance is inconvenient to him that is to say, all who do not belong to his party, all whose places he wants for his friends, and all who, whether friends or enemies, do not implicitly obey him. Twenty-five years hence, when the wealth and population of America will be doubled, the President, if the Union, and his powers and patronage continue, will be the most powerful individual in the world. But the provisions of the Articles of Union, which most strongly give to them a national as opposed to a federal character, are those which create the judicial power. The Supreme Court, as the ultimate court of appeal, and the ultimate interpreter of the constitution, sits in judgment on all the acts of the States. It may set aside their legislation as unconstitutional, reverse the judgments of their courts, and declare the acts of their officers illegal. Throughout the Union, its judges make circuits, and its subordinate district courts are established. They are not bound by the laws of the state in which they sit; they are not dependent on its officers for the execution of their process. Every where they exercise over the people a national and immediate sovereignty, before which all provincial power must bend. If the citizens of the local government of a State think that a district or a circuit court, established by Congress, has exceeded its powers, their only appeal is to the Supreme Court. The decision of that court cannot be questioned. The superiority of judges, who are appointed by the President and for life, over the state judges, most of whom are elected by the people, and many hold for short terms, or at will, occasions a general wish to resort to the national courts; and the provision which gives them jurisdiction, whenever citizens of different states are parties, enables this to be done in every important case. It is every day's practice,' says Justice Story, for a citizen of one State to remove to another to become a citizen of the lat'ter, in order to enable him to prosecute suits, and assert interests in the courts of the United States.'* 6 6 *Briggs v. French, ii. Summer, 255. VOL. LXXXIII. NO. CLXVII. N This is, perhaps, a forced construction; but the jurisdiction expressly and intentionally given to the national courts, is decisive of the question. It enables them to enforce obedience to every lawful act of Congress, or of the executive government, and to decide what acts are lawful. Of this power they can be deprived only by the authority which, in every free country, must be practically omnipotent-the will of the people. An Act of Congress impairing it would be void; and, while it lasts, it certainly appears absurd that States, whose highest functionaries are under the control of a superior tribunal, should call themselves sovereign or independent. est. The American constitution was a compromise. Its framers gave to it only a qualified approbation. They believed it to be the best which, in the existing state of passions, prejudices, and interests, could be adopted and obeyed; and they looked forward to its working with an anxiety in which fear was predominant. It has on the whole been successful, but it is an unpleasant symptom that its success has not been progressive. During the period of nearly sixty years which has passed since it was constructed, almost every country in Enrope has changed its form of government; in almost every country the new constitution has been altered from time to time as its defects became manifest, and has been improved almost from year to year. In the British Islands, where the apparent changes have been the least, the real changes, and the real improvements, have been perhaps the greatBut in the constitution of the United States few changes have been made; and most of those have been either unimportant or mischievous. To the latter class belong the extensive powers of appointing public officers, and the universal power of removing them, conferred on the President; and the exemption of a state from being sued. The keystone is the judicial power-but this is now less powerful and less independent than it appeared to be in the first years of its institution. The decision that the courts of the United States have no criminal jurisdiction at common law, has much diminished their power. Congress may give to them, and in many cases has given to them, extensive criminal jurisdiction; but what it has given it can take away. The independence of all, except the judges of the supreme court, has been impaired by the Act of Congress of 1802; which abolished many of the circuit courts of the United States, and dismissed the judges without the slightest compensation. Jefferson, under whose Presidency this was done, belonged to the party which maintains the sovereignty of the States. That party is instinctively opposed to the national judicature; and, with the unscrupulousness of the party warfare of America, used this tyrannical means of weakening it. * The Presidential part of the Constitution is perhaps that which has least answered the intention of its framers. That intention was by a system of indirect election to vest the appointment in a select class. The result has been, that the selection of electors has become a mere form. They have no more discretion than an English Dean and Chapter under a congé d'élire. They are chosen as mere instruments, pledged to nominate a given candidate. In a previous volume, we noticed the mischiefs arising from the re-eligibility of the President, coupled with his short term of office. These are increased by the enormous amount of his patronage, and still more aggravated by the absolute power of removal given to him by Congress, and now uncontrolled by public opinion. Every fourth year the whole Union is convulsed by the struggle which of the two great parties shall have the exclusive enjoyment of the honours, powers, and emoluments of office. And the interval is spent in preparations for the contest, which distorts and misdirects the foreign and the domestic policy both of the Government and of the Opposition. Another great defect in the Constitution is the exclusion from Congress of all official persons. This is an error into which the framers of democratic constitutions seem naturally to fall. Their jealousy of the executive leads them to exclude its officers from a seat among the representatives of the people. To a certain degree we ourselves suffer under it. The law which vacates a seat in the House of Commons by the acceptance of office under the Crown, and that which declares the holders of offices under the Crown, created after the 25th of October 1705, to be incapable of sitting, are examples. We evade these laws, partly by the appointment of Peers, partly by creating offices held nominally not under the Crown, but under some other functionary, or under a public board, and partly by Acts of Parliament excepting new offices from the statute of Anne. Still, however, they are the sources of perpetual inconvenience. In America, where these expedients cannot be used, the mischief is felt in its full force. The President and his ministers escape the responsibility of having to defend their measures in Congress. The members of Congress, with no administrative functions to occupy their time,-removed, in the miserable straggling village to which they are banished, from their usual labours, and duties, and pleasures,-have nothing to do but to criticise in its absence the measures of government. They form themselves into committees, each of which assumes the supervision of some branch of administration. They have * Vol lxxxi. p. 34. to act on information, which in many cases must be imperfect, and under the influence not only of their own passions and interests, but of the instructions of their constituents-instructions. which a Senator finds it difficult to resist, and a Representative impossible. That under such circumstances the affairs of the Union have been conducted as tolerably as they have been, is owing partly, without doubt, to the general intelligence of the people, and their long habits and traditions of self-government; but also partly, and perhaps principally, to the happiness of their position, in a vast territory far exceeding their wants, though apparently not their desires; with neighbours only on the South and the North,-the first incapable of resistance, and the second anxious only for peace and commercial intercourse. With such advantages, it is difficult, as M. de Tocqueville has well remarked; to commit irreparable mistakes. ART. VII-A Supplement to Hume's Commentaries on the Law of Scotland respecting Crimes. By BENJAMIN ROBERT BELL, Esq., Advocate. Edinburgh: 1844. THIS HIS is a very useful addition to the great work of the late Mr Baron Hume. That work was first published in 1797, and was carried on by the author, in two successive editions, till the year 1829. Mr Bell has now continued it, by these supplementary notes, till the year 1844. In doing so, he has had to make himself master of the whole proceedings of the supreme and of the circuit courts, and of all the statutory and other changes upon our criminal practice, during the last fifteen years; and to compare kindred cases, to reconcile or point out contradictions, and to clear obscurities. He has discharged these duties of a legal annotator very creditably-interfusing all his details with pertinent remarks-given in a style, both of writing and of thinking, marked by the plain distinctness befitting legal statement. He has the rare merit of never being too long; and, indeed, is occasionally rather too short. But, on the whole, he has performed his task with considerate industry and judgment; and has produced a Supplement indispensable to all consulters of the original work. That work has proved, and will probably long continue, of literally incalculable practical usefulness. Prior to its appearance, almost every thing connected with our criminal proceedings was involved in great obscurity. There was no proper book on the subject. The short and antiquated Laws and Cus'toms of Scotland in Matters Criminal,' by Sir George Mackenzie; the solitary, and not well-considered, chapter on Crimes by Erskine, in his admirable Civil Institute;' and the insignificant Institute of the Criminal Law' by Forbes-which were our only Manuals, were not only imperfect, but, even to the extent they went, were quite unsuited for business. Criminal cases had not begun to be regularly reported. And, above all, the records of the court, where alone the proceedings were to be truly found, were so ill kept, so ill indexed, and in such general disorder, as to be nearly inaccessible even to the antiquarian. In this situation, though a system of law existed, it lay something like the statue in the quarry. Tradition-understanding-official experience—all called into action upon the excitement of some difficulty; these were the authorities on which too much depended. Every thing was a mystery. Hume carried the torch into all the recesses of actual practice. He not only made himself familiar with all the scattered matter that had been published, though much of it lay hid in places not commonly explored; but he was the very first who went systematically to the records, and filtered these fountain-heads. Mackenzie and Erskine had sketched a good arrangement, upon which, however, he improved. It includes the whole subject-both the Law of Crimes, and of the Forms and Proceedings for their investigation and trial. The explanation of practice being his chief object, he never (or at least far too rarely) withdraws his eye from the actual business of the court; and therefore fixes and illustrates every point by positive authority. The result was, that, in as far as ordinary practice was concerned, he at once changed night into day. Few Institutional writers have ever done more towards the elucidation of any department of practical law. Those who only live now, in the familiar enjoyment of the light which he diffused, cannot properly appreciate the value of his exertions. For above forty years he has been the relief and the guide of all Judges and Counsel acting within his sphere; insomuch, that there is probably not one of them who, if called to act now, under an extinction of all that Hume has produced, would not feel like a person who was required to see, after the windows he had been accustomed to trust to had been suddenly closed. And his light is not only clear, but, in general, it is remarkably correct. There is only one important subject-that of sedition and its punishment-on which there has always been a decided division of opinion among lawyers as to the soundness of his doctrines. This is a matter into which it would be useless |