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pope, are the pope and the council of the minority; just as in civil wars, the treason which is successful, exchanges names and characters, as it does places, with the exiled dynasty and its suffering loyalists. The people of these States—that is to say, the majority in the name of the whole-declared, on the fourth of July 1776, that they owed no allegiance to the British government--that it had been ipso jure extinguished by the infractions of the political compact there set forth and the object of the declaration was to announce this indisputable fact to the world. By what authority can Courts of justice, acting under this very government, affect to question the truth of the declaration ? And, if they admit it, then how can they deny to the majority of an independent, sovereign people, the right of deciding for the whole ? The English courts, according to Folliot vs. Ogden,* can look no further back than to the treaty, because their government did not acknowledge the independent existence of the States before. A different rule has been deduced from the same principle in this country. Our judges, in a question of property, did not hesitate to deny to the British antenati the rights of any supposed inter-community of allegiance from the date of the Declaration. The consequences are inevitable in all analogous cases. We may lay it down, without hesitation, that all who were born and domiciled here at that time-(we might go further, but it is not necessary)-all who were parties to what Mr. Hoffman calls the social compact, as contra-distinguished from the constitutional-owed a natural allegiance, not to the government, but to the body-politic, of their respective States, and are presumed to have assented to the separation which the majority of that body-politic declared to exist. If this position be not maintained, then we are forced to adopt the principle of arbitrary, unrestricted self-expatriation. There is no other alternative. If severing a federative or colonial union-if changing the form of the executive power, is to release every citizen from his duties to his country, there is no change in the laws that might not have the same effect. For instance, we doubt whether any act of legislation or constitution-making whatever has produced a more decided effect upon the character of society and its destinies in South-Carolina, than the Statute of Distributions. If a convention were called, and every article in the constitution, (except perhaps the representation of the parishes in the Senate) changed, it would not be so much felt at the end of a generation or two. In a word, there seemis to be no colour of reason in the theory, that, by a revolution in the form of its political constitution, society is resolved into the state of nature, and * 3 Term. Rep. p. 726.
1 Dawson's Lessee vs. Godfrey, 4 Cranch.
every individual rendered independent of the body-politic, of which he is a member by birth. Suppose the tories, having taken possession of some districts in each State, had elected to adhere to the old government and to exclude the jurisdiction of the new, within their territory?
We will add but a few observations upon this subject.
There is a class of philosophers who consider all government as founded o:) a compact, to which it is necessary that every individual should assent for himself. Thus, according to Locke," a child is born a subject of no government, and it is not until he is arrived at years of discretion which means, we suppose, until he is sui juris-that he is capable of binding himself by giving in his adhesion to the constitution of his country. Such a principle to be sure, might be engrafted upon the institutions of a people--but it would not be left to doubtful inference. Some apt solemnity-some consecrated formula, would be prescribed for so important an act. The oath of allegiance would be administered. The name of the young citizen would be added to the roll of his tribe or his ward. The declaration of his election would be a condition precedent to his enjoying the jura civitatis. The contract would then deserve its name—it would have equal respect for the rights of both parties, and could not afterwards be dissolved, except by mutual consent, or by some breach of its conditions. But the question in most countries-certainly in this-turns upon a mere presumption. We admit the principle of Locke in our declamations, and lay great emphasis upon its reasonableness and equity. But when we come to put it in practice, we then for the first time discover, that it is casus omissus in all our constitutions—that it is in direct conflict with the maxims of our common law-and that without mentioning the speculative difficulties that surround it, the common sense of mankind and the uniform practice of society, (our own included) are altogether irreconcileable to it. We find ourselves
every step, embarrassed by our fine theories, and are forced by a cogent policy to presume away the whole substance and spirit of our grandiloquent concessions to the "new philosophy." If an infant, for example, were hanged as he might be, long before he arrived at years of discretion, for treason to the government to which (on the hypothesis we are examining) he owed no allegiance, or for disobedience to the laws which he is incapable of comprehending, he would be presumed” to have waived his privilege and to have submitted to the jurisdiction, by committing the crime. Malitia supplet ætatem. So it is only
On Government, Ø 118.
against a government de facto, that treason can be committed. Although such a government have been in fact erected by the most violent of usurpations upon the ruins of the legitimate constitutional compact, yet it is presumed by the law to have been regularly instituted. Why is it so presumed? On obvious principles of mercy and policy. It is because this vaunted compact is, after all, found to be merely the will of the majority—the right of the strongest—the command of a superior, that is to say, of him or of those who wield the physical force of society. This is the plain English of all the technical and mystical jargon of lawyers and publicists. It is what they disguise upder such sounding and learned appellations as the Eminent Domain and the Original Compact of society. How far any positive restraints have been imposed upon this inherent and necessary power of the majority by the fundamental constitutions of a people, is another question: but unless such restraints have actually been imposed, courts of justice cannot safely listen to the common-places of sophisters declaiming about the “state of nature,
any more than they would tolerate a fanatic raving about the kingdom of the saints on earth, or discharge a Don Quixotte from arrest for his tavern-bill, on the principles of the most ancient and venerable institution of knight-errantry.
In reading this book we were occasionally struck with some minute errors and improprieties, but they are too few to require any detailed notice. The use of “cunning" in the old sense, is objectionable in a didactic work. “ The Georgics of the mind have become so comparatively enlightening and universal,” p. 876. If we understand this expression, we venture to recommend it to our prophets and illuminati, instead of “the march of intellect,” which, as somebody in Shakspeare says, of “being in one's element," is "rather overworn.” A law of Augustus is said, at p. 239, to have been continued by Tiberius and Sylla. This, we presume, is an error of the press. And quære as to the Horatii in p. 123. In general, however, the style of Mr. Hoffman is correct and appropriate.
We are sorry that he has fallen into the common mistake of confounding the jus civile, in the restricted sense attached to it by the civilians, with “municipal law” properly so called, (p. 263.) Having exposed this error on a former occasion, we will do no more here than refer to our remarks.* We think too that the important distinction between escheat and forfeiture, is overlooked at p.510, though in a subsequent part of the same lecture, it appears not to have altogether escaped Mr. Hoffman.
* Review of Kent's Commentaries, Southern Review, No. 3, Art. III.
Art. III.- Fine Arts. A Reply to Article X. No. LVIII. in
the North-American Review, entitled “Academies of Arts," &c. By SAMUEL F. B. MORSE, President of the National Academy of Design. New-York. G. & C. Carvill. 1828.
To what extent the improvement of the Fine Arts is desireable, involves an inquiry as interesting to the patriot as to the man of taste. It has so happened that the era of the arts, in most countries where they have flourished, has been also that of political decline and downfall, as if genius had reserved her choicest distinctions to be the memorials of departed or at least of departing greatness-a "gilded halo hovering round decay. While the amateur, therefore, appreciates the arts as sources of the purest intellectual gratification-as diffusing taste and elegance over the social system, and imparting refinement to its pleasures and elevation to its sentiments and manners ; the statesman although impressed with kindred views, may not unwisely regard them in reference to the history and experience of other nations, and the destinies of his own. If he looks into antiquity, he will find that the liberal arts have been always most successfully cultivated amidst the luxuries and refinements produced by external and domestic prosperity.
Whilst Athens, for instance, was revelling under the festive and brilliant administration of Pericles, the arts of ornament were carried to a degree of excellence never after surpassed perhaps, never equalled. But amidst the excess of liberty that characterized that great intellectual carnival, the rigid virtue of the days of Solon began to decline, along with the laws and institutions which had disciplined and fostered it. During the period of degeneracy that intervened from that epoch to the fatal victory of Cheronea-amidst the vicissitudes and agitations of a turbulent and corrupt democracy, painting and sculpture attained to their greatest perfection. The names of Phidias, Polycletus, Paraxiteles and Lysippus, of Zeuxis, Protogenes and Appelles adorn that era. After surviving the liberties of the country, and devoting to posterity the monuments they had raised to its glory, the arts themselves declined. “Cessavit deinde ars."
In Rome too, during the ages of her simplicity, there was but little scope for the exercise of art. Its highest effort was a column or an urn to perpetuate the memory of some favourite leader, in which, durability was more regarded than beauty. Indeed, for many ages the Roman, or rather the Etruscan sculptor employed by the Romans, for they had none of their own, had no other occupation than what was furnished by the military character of the people. But when their enterprize began to be directed to distant conquest, and the splendour of the East was transferred to the banks of the Tiber-when the wealth of the republic marked her as the prey of ambitious men, the arts of ornament were cultivated, and continued to decorate the imperial city, and to spread the gorgeous drapery of luxury and refinement around her decaying form.
The treasures of Carara,* (the Paros of Italy) as famous then as it is now, ministered to the extravagance of the Romans, till at length, not satisfied with such a base material, they substituted gold and ivory for marble. Julius Cæsar was a decided patron of the arts, and evinced his devotion to them by paying eighty talents for a single picture. One of the salaried officers of Augustus, was an inspector of statues—which must, indeed, have been an arduous post, for Rome at that period, in addition to the numerous offspring of the Jus Imaginum, may be said to have had a marble population of her own, of foreign origin however, but naturalized to her empire and her walls.
Although in this view, the arts be considered in those countries as effects resulting from the superabundance of national wealth; yet in their turn they must have exercised considerable influence upon public character and manners. The materials for their display, the subjects upon which they were employed, and the feelings and sensibilities to which they were addressed, could not fail to impart to them an agency of the most decided and important character. They were not like the labours of the philosopher, confined to the learned, nor like the discoveries of the mathematician, enveloped in abstruse science. They were not like the exhibitions of the orator, circumscribed by the extent of his audience, nor like the maxims of the jurist, accessible only to study and research. Their language was universal, and intelligible to every mind. Their eloquence was the voice of nature, and the sentiments to which they appealed, existed in every bosom. They were employed in the service of religion, and consecrated to the fame of heroes. They inspired devotion, animated public virtue, and furnished lasting memorials of fame to poets and philosophers.
If it be said that these examples are too remote for any influence upon the opinions of the present day, and that the circumstances and character of modern society render them inapplicable to the arts as they now exist, those who maintain this
* Ancient Luna in Liguria,