Слике страница
PDF
ePub

is amply secured, and the interest and convenience of the importer greatly promoted. But any other construction would be interposing greater restrictions and embarrassments, with respect to the importation of teas than any other articles, .which was clearly not the intention of the law.

The duties were, therefore, in my judgment, secured by the general bond of the importer, and the deposit of the teas in stores according to the provisions of the act, as found by the special verdict. And if so, where is the ground of forfeiture? No fault has been imputed to the owner. Forfeiture, throughout the act, is visited only upon fraud, misconduct, and gross negligence, in the party or his agents. Admitting the lien for the duties still continues, and that the government has a right to reclaim the possession, and enforce the payment of the duties, (which, by the by, are not yet due;) that would seem to be all that justice would demand, or policy require against an innocent party. But to follow this up with the penalty of forfeiture, under such circumstances, is what I should be very unwilling to sanction. I find no special provision in any act of congress calling for the application of such a severe rule, and it is, certainly, at variance with the general principles of law. All that can be claimed out of property pledged or mortgaged, is satisfaction of the debt, for which it is held as security, and the expenses incurred by reason of a non compliance with the condition upon which it is so held.

It was said at the bar, that the same principle which is expressly adopted in the 5th section of the act of the 20th of April, 1818, (6

vol. L. U. S. 354,) with respect to wines and distilled spirits, is by implication applicable to the teas in question. Should this be conceded, (which, however, is not,) it would not draw after it a forfeiture in the present case.

That act adopts substantially the same provisions with respect to the deposit of wines and distilled spirits, as are contained in the 62d section of the collection law, with respect to teas. And then the 5th section declares, "That if any wines or other spirits, deposited under the provisions of this act, shall be embezzled or fraudulently removed from any store wherein they shall have been deposited, they shall be forfeited. And the person or persons so embezzling, hiding, or removing the same, or aiding therein, shall be liable to the same penalties, as if such wines had been fraudulently unshipped, or landed without payment of duty.”

This forfeiture here, can only arise upon the embarrassment or fraudulent removal by the owner, or some person for whom he is responsible. It would surely not be incurred by the acts of mere strangers, or the inspectors of the revenue, who are the agents of the government.

The rule I have before referred to, would apply with peculiar force to such a case, "that the law is not understood to forfeit the property of owners on account of the misconduct of mere strangers, over whom such owners would have no control."

Upon the whole, then, after the most mature and deliberate examination of this case, I am of opinion, that no forfeiture of the teas in question has been incurred, and the sentence or decree of condemnation must be reversed.

.

LAWS CONCERNING DIVORCES.

The following case of DIVORCE was decided in the state of Tennessee, at the Supreme Court of Errors and Appeals.

Mary Dickson petitioned for dower in the estate of her late husband, John Dickson. She had been previously married to Benjamin May, of Kentucky, from whom she had been divorced by the laws of that state, which prohibit a second marriage between parties divorced during the lifetime of either of the parties. The petitioner removed to Tennessee, and there was married to John Dickson, during the lifetime of her late husband, Benjamin May. The The heirs at law of John Dickson, by a former wife, resisted the demand, on the ground that the second marriage was unlawful. The following is the reluctant opinion of the

court:

The inquiry with this court is not, nor cannot be, whether the laws of Kentucky have been violated by this second marriage-but have our laws been violated? The act of 1820, ch. 18, against bigamy, declares it felony for any person to marry, having a former husband or wife living. Mary May had no husband living, and is not guilty of bigamy by our statute; nor has she violated the sanction of any penal law of this state.

No principle of comity amongst neighboring communities can be extended to give force and effect to the penal laws of the one society, ex-territorially of the other; and for many reasons, it would be equally inconvenient, not to say impracticable, to adopt the principle among sister states of the American union; for which this court has the conclusive authority

of the supreme court of the United States, in Hutton vs. Moore, 5 Wheaton, 69.

Therefore, Mary Dickson was lawfully married to John Dickson, and is entitled to dower.

The judge superadds the following striking remarks, well worthy the attention of legislative and judicial tribunals:

If the petitioner is permitted, by the judgment of this court, to marry after her divorce in Kentucky, which restrained her from doing so there, without being subject to pains or forfeiture of any kind in this state, the consequence will be an invitation to every divorced man or woman, who has been the offending party, and is disabled from marrying at home, in every state in the union, and all other countries, to impose themselves as adventurers upon the population of this state; which, in a few years, will run the hazard of becoming the receptacle of the refuse, proscribed, and prostituted vagabonds, outcasts from a population of fifteen or twenty millions in our sister states. The wretch who, for an infamous crime, has been for years confined in a state prison, and his wife divorced from him for this cause, may emigrate to the state of Tennessee, a single, free, and every way an unshackled man, with every privilege that the proudest possess, and here marry in safety! whereas, had he done so a few yards north or south of an ideal boundary, death, perhaps, would have been the consequence of the act.

OBITUARY.

CHARLES C. PINCKNEY.
August 16, 1825.

At Charleston, South Carolina, general Charles Cotesworth Pinckney, a distinguished officer of the army of the revolution. General Pinckney was the son of chief justice Pinckney, of the province of South Carolina, and was sent by his father at an early age, to England to be educated. At Westminster school, under the superintendance of that distinguished scholar Markham, after wards archbishop of York, he laid the foundation of future eminence, by his progress in the attainment of classical literature. He held a high rank in the school, and early manifested that strength of character and firm adherence to principle which was his distinguishing characteristic through life.

He afterwards removed to Oxford, and thence to the Temple, where he entered as a student. After completing his education, he returned to Carolina in 1769, with a mind richly stored with learning, and with an attachment to his native country, which had not been diminished by his residence abroad. Here he devoted himself to the practice of the law, which he followed with eminent success, until the encroachments of Great Britain, and her manifest determination to reduce the colonies to unconditional submission, called him,

with most of his professional brethren, in all parts of the country, from the forensic profession to that of arms.

The law was at once renounced for the study of military tactics; and his genius and industry soon became conspicuous by his attainment of the knowledge to which he aspired. He was first appointed a captain of the line, and speedily promoted to the command of the first regiment of Carolina infantry.

When the south was freed from the danger of immediate invasion by the successful defence of the fort on Sullivan's island, colonel Pinckney, eager to be in active service, joined the northern army, and was appointed aid de camp to Washington.

In this capacity he was present at the battles of Brandywine and Germantown; and by his decision, firmness, activity, and courage, acquired the entire confidence of his general. When the scene of danger was transferred to the south, Pinckney returned to the defence of his native state.

On the approach of the army and fleet which captured Charleston, the fort on Sullivan's island was intrusted to his care; but profiting by the lesson which had been given to sir Peter Parker's squadron, instead of attacking the fort, the British fleet merely delivering their fire as they rassed, took advantage of

a favorable wind and tide, and sailed into the port of Charleston, beyond the reach of his guns. His post being thus rendered less important, he hastened with a part of his garrison into the city to defend the lines.

On this occasion, in a most signal manner, he manifested that determined spirit and heroic selfdevotion, which was his peculiar characteristic. After a long and obstinate defence, the garrison was reduced almost to extremity. Diminished in numbers; exhausted by fatigue and famine; in an unwalled town merely defended by field fortifications; with a superior beseiging army, pressing them on every side, and preparing for an assault, escape became hopeless, and resistance seemed unavailing.

In this juncture, a council of war was called, to deliberate on the propriety of surrendering the city. Pinckney being asked for hisopinion, calmly said, "I will not say if the enemy attempt to carry our lines by storm, that we shall be able to repel them; but I am convinced that we shall so cripple their army, that though we may not live to enjoy the benefits of our resistance, yet to the United States they will prove incalculably great. Considerations of self are out of the question. They cannot influence any member of this council. My voice is for rejecting all terms of capitulation, and continuing hostilities to the last extremity." This proposition, although seconded by the gallant Laurens, was not adopted; and Charleston was surrendered to the British. After the capitulation, Pinckney was detained as a prisoner, until all opportunity of gaining fresh reputation in the field had passed.

In his captivity, however, he

gave additional evidence of his incorruptible patriotism. In order to intimidate others, Pinckney was selected as an object of oppression. Peculiar severities were resorted to. He was confined more rigorously than others, and every exertion of power was employed to crush his lofty spirit. He was even denied the melancholy consolation of attending the remains of an only son to the tomb.

The oppressions, however, of his country's foes, were but little calculated to shake his firmness. Tyranny could not bend nor break his spirit; nor could the offers, which were subsequently made him, to induce him to aid in an effort to reconcile the colonies to the mother country, shake the steadiness of his principles. To the British officer, who approached him for the purpose of engaging him to lend his influence to effect that object, he replied in such a manner; that, as that gentleman afterwards confessed, he felt humiliated by the task he had undertaken.

After the return of peace, he was elected from his native state, as a representative to the convention, which formed the federal constitution; and was very instrumental in procuring the assent of South Carolina to the system of government, which was there agreed upon as the bond of union.

When the father of his country was called to fill the presidential chair, he evinced the estimation in which he held general Pinckney, by offering to him a seat on the bench of the supreme court of the United States. This he declined.

Upon the resignation of general Knox, as secretary of war, in 1793. the vacant place was tendered to Pinckney; and again, upon the

dismissal of Edmund Randolph, the same year, Pinckney was requested to become secretary of state. From private considerations, these offers were declined; but the subject of this notice expressed a willingness to perform any public duty, to which such considerations ought to yield. This occasion soon arrived. In 1796, our relations with France being still unsettled, Mr. Pinckney was appointed, by general Washington, to succeed Mr. Monroe, as minister to France.

The French directory, thinking to treat us still as a dependent nation, refused to receive Mr. Pinckney; until the grievances, demanded of the American government by the French republic were redressed.

At the same time, Mr. Pinckney was informed, that there was a law forbidding foreigners to remain in Paris, without permission from the directory, and that he would probably receive a notice on that subject from the minister of police. He determined, however, not to be placed upon that footing; but, being accredited as the minister of an independent power, and relying upon the protection of the law of nations, remained at his post until the middle of February, 1797, in the momentary expectation of receiving instructions.

After the great and unexpected success of Napoleon, in Italy, was heard at Paris, the directory feeling emboldened by the news, sent, the next day, an official notice to our ambassador, to quit the French territories.

With this order Mr. Pinckney complied, and retired to Amsterdam; and all diplomatic intercourse between the two countries was suspended. Mr. Adams, however, was desirous to remove the

misunderstanding existing between the two countries, and, as a fresh evidence of the amicable feeling of the American government, John Marshall and Elbridge Gerry were united with Mr. Pinckney, as commissioners, for the purpose of terminating all differences between the United States and France. They arrived at Paris in October, 1797, and immediately requested an interview with the minister of foreign affairs. They were informed, that, for the present, they could not have a public audience with the directory, but cards of hospitality were sent to them.

Attempts were then made to engage them in a negotiation with informal agents of the French government; and it was intimated to them, that a subsidy, in the shape of a loan, would be expected by the government from the United States, as an equivalent for the aid which was demanded from the American government under the treaty.

To this humiliating proposition, Pinckney indignantly made the celebrated reply, which has been adopted by the American people, as a national sentiment, “Millions for defence, not a cent for tribute.'

Finally, the French government commenced a negotiation with the commissioners; but finding the commissioners well acquainted with the rights of the United States, and resolved to maintain them, its minister (Mr. Talleyrand) intimated a desire to continue a negotiation with Mr. Gerry alone, as the one "whose opinions were presumed to be more impartial, and promised more of that reciprocal confidence which was deemed indispensable." A dignified and suitable re

« ПретходнаНастави »