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curate and intelligent opinions of Chief Justice Mellen the character of strong authority. The opinion of the Court is delivered, in almost every instance, by the presiding Judge.
Though a plain case, the opinion of the Court in Frothingham vs Dutton deserves notice. The defendant in that action did not disclose the matter of his defence, but tendered issue, and claimed trial by jury, yet for withholding such disclosure, his right was denied, and he was called. On bringing the cause before the Supreme Court, upon summary exceptions pursuant to the statute, the Chief Justice observed, under these circumstances we are of opinion, that the defendants ought not to have been defaulted. They had a constitutional right to a verdict of the jury, and to call on the plaintiff to prove before them the demand, on which he founded his action. The default was set aside. Now, however excellent a thing a code of the Bar, or the usage of a Court may be, yet when any of the provisions of the one, or the nature of the other, may go to impair a constitutional privilege, few will deny that, by such decisions, they should be virtually abolished. A Court can hardly be supposed to judge of a case, until it is laid before them, and if the party cannot make one out, it is at his own risk that he undertakes to do it. Charles Butler has said, “That the right of interpretation should be vested in Judges, no reasonable person can deny ; but to what extent it should be allowed, or, in other words, to ascertain the exact point, where judicial interpretation should stop, and legislative interpretation intervene, is a question of extreme difficulty.' The observation of this learned lawyer may be very true; but a case of difficulty has not arisen, when we are merely called on to solve the question, is or is not the trial by jury our right, whenever we choose to demand it?' Better, at once, that we have a French jury, such as that distinguished jurist has represented to us, and better that interpretation were declared by arrêts, than that such an invaluable privilege should for a moment be jeoparded.
The case of The Proprietors of the Kennebeck Purchase us Laboree & als, which is the most elaborate authority in the book, is one of more than common consequence, as well from the doctrine of disseisin, which is involved in it, as from the judgment that is passed upon the section of the statute of March 1821, on which the defence is founded. That section contained a provision, declaring in substance, that in all real actions then pending, or which should afterwards be brought, it should not be necessary for barring the action, that the premises defended should have been surrounded by fences; but that, if the possession of the tenant, or those under whom he claimed, had been such as comported with the ordinary management of a farm, and satisfactorily indicative of such an exercise of ownership, as is usual in the improvement of it by the owner, it should be sufficient; thus changing the principles of the law of disseisin, in regard to past transactions, and virtually taking away the rights of the proprietor. The opinion is long, and ably supported by numerous authorities and strong reasoning. We can here introduce but a few passages from it.
The decision has declared that portion of the law retrospective and unconstitutional. After some preliminary observations, the Chief Justice goes on to say ;
• The doctrine of the common law on this subject seems to be plain and well settled ; a possession must be adverse to the title of the true owner, in order to constitute a disseisin; the
possessor must claim to hold and improve the land for his own use and exclusive of others. "We are inclined to believe, that upon examination it will be found, that the principles of the common law are applied in England and New York with more strictness as regards the occupant of the land, than they have ever been in Massachusetts or with us, upon the doctrine of disseisin ; at least so far as relates to the presumption of law in reference to the intentions of the possessor.' The facts relied on to prove the possession exclusive' must, however, be such, as at once to give notice to all, of the nature and extent of the possessor's improvement and claim.' It must be such an open
and visible occupancy, that the proprietor may at once be presumed to know the extent of the claim and usurpation of him, who has intruded himself unlawfully into his lands, with an intent to obtain a title to them by wrong.'
These are plain principles, and well known; nor are they introduced for their novelty, but merely for the directness of their statement, and as preparatory to the train of reasoning which leads to the decision.
According to existing laws,' says the Chief Justice, deeds of conveyance of real estate must be under seal. Such deeds, to pass
a fee simple estate, must contain certain legal terms; viz.-the conveyance must be to the grantee and his heirs. To entitle a widow to dower in her deceased husband's estare, he must have been seized of it during the coverture. Now if our legislature should at the next session pass a law, declaring that all deeds of conveyance of real estate, that had before that time been executed, or should in future be executed, should be considered and adjudged sufficient in law to pass the estate therein described, in fee simple, though such deeds were not under seal, and contained no words of inheritance ; and that a widow should, in all cases be entitled to dower in her deceased husband's estate, where he had died, or might in future die, seized of such estate, at any time before as well as during the coverture ;—will the principles on which a free government is founded—will the principles of common honesty and justice, sanction such a law, so far as to give it a retroactive effect, and thereby disturb, impair and destroy the vested rights of those, who had become the owners of the estates under then existing laws ?'
* Let us further suppose that the action had not yet been tried, but was to be tried at this term. Let us further suppose that the legislature, at their last session, had passed a law declaring that in all actions, then pending or that might be commenced after the passing of such act, no adverse, notorious, and exclusive possession of the demanded premises, although surrounded with fences, should be a bar and constitute a good defence in such action; unless such possession and disseisin has, or shall have been continued for forty years, next before the commencement of such action. Now would the tenant, or any other man, understanding and respecting principles, consider such a law constitutional ? On the contrary, would it not be at once pronounced unjust and void ? If such an act of the legislature could be sanctioned, not only the tenant, in the circumstances we have supposed, would be deprived of his estate by a destruction of vested rights, but a large class of citizens, similarly situated, would suffer under similar deprivations. The more the principle of the section in question is exainined, the more distinct become its objectionable features.' 'In a word, the whole section taken together appears to have been enacted with a view, and for the purpose, of abolishing the distinction, well known to have then existed between a possession under a claim of title on record, and a possession without any such claim or pretence of title.'
Again he observes;
"The section is certainly retrospective as well as prospective. It professes to establish principles by which causes then pending, as well as those which might in future be commenced, should be decided. It professes to operate on past transactions, and to give VOL. XXII.-N0. 50.
to facts a character, which they did not possess at the time they took place ; and to declare that in the trial of causes depending on such facts, they shall be considered and allowed to operate in the decision of such causes, according to their new character. fesses to settle rights and titles depending on laws, as they existed for a long series of years before the act was passed, by new principles, wbich for the first time are introduced by its provisions. It professes to change the nature of a disseisin, and thereby subject the true owner of lands to the loss of them, by converting into a disseisin, by mere legislation, those acts which, at the time the law was passed, did not amount to a disseisin. It professes to punish the rightful owner of lands, by barring him of his right to recover the possession of them, when, by the existing laws, he was not barred, nor liable to the imputation of any laches, for not sooner ejecting the wrongful possessor.'
After illustrating his subject by a few examples, the Chief Justice concludes in the following independent strain.
• It is always an unpleasant task for a judicial tribunal, to pronounce an act of the legislature in part or in whole unconstitutional. We agree with the Supreme Court of the United States, in the case of Fletcher vs Peck, that “the question whether a law be void for its repugnance to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. But the Court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the obligation which that station imposes.” We cannot presume that the legislature, which enacted the law, considered the section in question, as violating any constitutional principle, or in any manner transcending their powers. Be that as it may, the oath of office, under which we conscientiously endeavor to perform our duties, imposes upon us as solemn an obligation to declare an act of our legislature unconstitutional, when, upon mature deliberation, we believe it to be so, as it does to give prompt and full effect to all constitutional laws, in the administration of justice.'
ART. IV.-Demosthenis Opera, ad Optimorum Librorum
Fidem accurate Edita. Lipsæ. Excudit Car. Tauchnitz.
By the great majority of the literary world, from his own time to the present, Demosthenes has been considered as unsurpassed, if not unequalled in eloquence. While, however, there has been so little difference of opinion respecting the degree of his merit, the peculiar nature of it seems to be, at least in this country, very imperfectly understood. Our knowledge of the character of his oratory rests principally on secondary evidence. With Cicero, American students are, comparatively, well acquainted. Their acquaintance with him in early youth, though short and compulsory, is sufficient to give them some general impressions respecting his distinguishing characteristics, and what is of more consequence, to facilitate a more thorough and general perusal of his works in maturer years. Demosthenes is removed one step farther from our reach, by the language in which he writes; and his concise and idiomatic phraseology is so embarrassing to an inexperienced student, as to leave him little leisure to observe and relish the beauties of his author, till after repeated perusals. Few among us have the disposition, or the leisure, to read Demosthenes in the original. He has indeed been ably translated by Leland, but we may observe of translations of ancient authors, what bas been remarked of engravings of fine buildings, that they seldom become objects of interest, till after the originals are generally known and studied. We judge of Demosthenes, therefore, from certain vague remarks respecting the fire, the boldness, and the magnificence of his speeches, and the errors into which such language is apt to lead us, are strengthened by an impression, which generally prevails respecting the oratory of the ancients. It is often said that modern orators speak to the reason, ancient orators spoke to the passions, a remark which, if founded in truth, is susceptible of great qualification. From the rank which Demosthenes held in the opinion of all ancient critics, and more particularly in that of his great competitor Cicero, we naturally expect to find what we consider to be the peculiar features of Grecian and Roman eloquence, displayed in the greatest force and abundance in his works. We look for extravagant declamation, for perpetual appeals to the feelings, for a crowd of similes and metaphors; in short, for a style bearing a greater resemblance to the Irish, than to any other modern oratory, and far too bold to be adopted with propriety in a modern assembly.