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Page:EB1911 - Volume 10.djvu/22

 temperate or colder zones where a season favourable to vegetation is succeeded by an unfavourable or winter season, leaves of evergreens must be protected from the frost and cold drying winds, and are therefore tougher or more leathery in texture than those of deciduous trees, and frequently, as in pines, firs and other conifers, are needle-like, thus exposing a much smaller surface to the drying action of cold winds. The number of seasons for which the leaves last varies in different plants; every season some of the older leaves fall, while new ones are regularly produced. The common English bramble is practically evergreen, the leaves lasting through winter and until the new leaves are developed next spring. In privet also the leaves fall after the production of new ones in the next year. In other cases the leaves last several years, as in conifers, and may sometimes be found on eleven-year-old shoots.

 EVERLASTING, or, a plant belonging to the division Tubuliflorae of the natural order Compositae, known botanically as Helichrysum orientale. It is a native of North Africa, Crete, and the parts of Asia bordering on the Mediterranean; and it is cultivated in many parts of Europe. It first became known in Europe about the year 1629, and has been cultivated since 1815. In common with several other plants of the same group, known as “everlastings,” the immortelle plant possesses a large involucre of dry scale-like or scarious bracts, which preserve their appearance when dried, provided the plant be gathered in proper condition. The chief supplies of Helichrysum orientale come from lower Provence, where it is cultivated in large quantities on the ground sloping to the Mediterranean, in positions well exposed to the sun, and usually in plots surrounded by dry stone walls. The finest flowers are grown on the slopes of Bandols and Ciotat, where the plant begins to flower in June. It requires a light sandy or stony soil, and is very readily injured by rain or heavy dews. It can be propagated in quantity by means of offsets from the older stems. The flowering stems are gathered in June, when the bracts are fully developed, all the fully-expanded and immature flowers being pulled off and rejected. A well-managed plantation is productive for eight or ten years. The plant is tufted in its growth, each plant producing 60 or 70 stems, while each stem produces an average of 20 flowers. About 400 such stems weigh a kilogramme. A hectare of ground will produce 40,000 plants, bearing from 2,400,000 to 2,800,000 stems, and weighing from 5 to 6 tons, or from 2 to 3 tons per acre. The colour of the bracts is a deep yellow. The natural flowers are commonly used for garlands for the dead, or plants dyed black are mixed with the yellow ones. The plant is also dyed green or orange-red, and thus employed for bouquets or other ornamental purposes.

Other species of Helichrysum and species of allied genera with scarious heads of flowers are also known as “everlastings.” One of the best known is the Australian species H. bracteatum, with several varieties, including double forms, of different colours; H. vestitum (Cape of Good Hope) has white satiny heads. Others are species of Helipterum (West Australia and South Africa), Ammobium and Waitzia (Australia) and Xeranthemum (south Europe). Several members of the natural order Amarantaceae have also “everlasting” flowers; such are Gomphrena globosa, with rounded or oval heads of white, orange, rose or violet, scarious bracts, and Celosia pyramidalis, with its elegant, loose, pyramidal inflorescences. Frequently these everlastings are mixed with bleached grasses, as Lagurus ovatus, Briza maxima, Bromus brizaeformis, or with the leaves of the Cape silver tree (Leucadendron argenteum), to form bouquets or ornamental groups.

 EVERSLEY, CHARLES SHAW LEFEVRE, (1794–1888), speaker of the British House of Commons, eldest son of Mr Charles Shaw (who assumed his wife’s name of Lefevre in addition to his own on his marriage), was born in London on the 22nd of February 1794, and educated at Winchester and at Trinity College, Cambridge. He was called to the bar in 1819, and though a diligent student was also a keen sportsman. Marrying a daughter of Mr Samuel Whitbread, whose wife was the sister of Earl Grey, afterwards premier, he thus became connected with two influential political families, and in 1830 he entered the House of Commons as member for Downton, in the Liberal interest. In 1831 he was returned, after a severe contest, as one of the county members for Hampshire, in which he resided; and after the passing of the Reform Act of 1832 he was elected for the Northern Division of the county. For some years Mr Shaw Lefevre was chairman of a committee on petitions for private bills. In 1835 he was chairman of a committee on agricultural distress, but as his report was not accepted by the House, he published it as a pamphlet addressed to his constituents. He acquired a high reputation in the House of Commons for his judicial fairness, combined with singular tact and courtesy, and when Mr James Abercromby retired in 1839, he was nominated as the Liberal candidate for the chair. The Conservatives put forward Henry Goulburn, but Mr Shaw Lefevre was elected by 317 votes to 299. The period was one of fierce party conflict, and the debates were frequently very acrimonious; but the dignity, temper and firmness of the new speaker were never at fault. In 1857 he had served longer than any of his predecessors, except the celebrated Arthur Onslow (1691–1768), who was speaker for more than 33 years in five successive parliaments. Retiring on a pension, he was raised to the peerage as Viscount Eversley of Heckfield, in the county of Southampton. His appearances in the House of Lords were very infrequent, but in his own county he was active in the public service. From 1859 he was an ecclesiastical commissioner, and he was also appointed a trustee of the British Museum. He died on the 28th of December 1888, the viscountcy becoming extinct.

His younger brother, Sir (1797–1879), who was senior wrangler at Cambridge in 1818, had a long and distinguished career as a public official. He was under-secretary for the colonies, and had much to do with the introduction of the new poor law in 1834, and with the foundation of the colony of South Australia; then having served on several important commissions he was made clerk of the parliaments in 1855, and in the same year became one of the first civil service commissioners. He helped to found the university of London, of which he was vice-chancellor for twenty years, and also the Athenaeum Club. He died on the 20th of August 1879.

The latter’s son, (b. 1832), was created Baron Eversley in 1906, in recognition of long and prominent services to the Liberal party. He had filled the following offices:—civil lord of the admiralty, 1856; secretary to the board of trade, 1869–1871; under-secretary, home office, 1871; secretary to the admiralty, 1871–1874; first commissioner of works, 1881–1883; postmaster-general, 1883–1884; first commissioner of works, 1892–1893; president of local government board, 1894–1895; chairman of royal commission on agriculture, 1893–1896.

 EVESHAM, a market-town and municipal borough in the Evesham parliamentary division of Worcestershire, England, 107 m. W.N.W. of London by the Great Western railway, and 15 m. S.E. by E. of Worcester, with a station on the Redditch-Ashchurch branch of the Midland railway. Pop. (1901) 7101. It lies on the right (north) bank of the Avon, in the rich and beautiful Vale of Evesham. The district is devoted to market-gardening and orchards, and the trade of the town is mainly agricultural. Evesham is a place of considerable antiquity, a Benedictine house having been founded here by St Egwin in the 8th century. It became a wealthy abbey, but was almost wholly destroyed at the Dissolution. The churchyard, however, is entered by a Norman gateway, and there survives also a magnificent isolated bell-tower dating from 1533, of the best ornate Perpendicular workmanship. The abbey walls surround the churchyard, but almost the only other remnant is a single Decorated arch. Close to the bell-tower, however, are the two parish churches of St Lawrence and of All Saints, the former of the 16th century, the latter containing Early English work, and the ornate chapel of Abbot Lichfield, who erected the bell-tower. Other buildings include an Elizabethan town hall, the grammar school, founded by Abbot Lichfield, and the picturesque

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Hudgins v. Kemp (61 U.S. 54)

THIS was a branch of the preceding case, was argued by the same counsel, and included within the same principles.

Mr. Justice NELSON delivered the opinion of the court.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Hudgins v. Kemp (61 U.S. 54)


text:
Hudgins v. Kemp (61 U.S. 54)/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Virginia.

The bill was filed by the assignee of the bankrupt, J. L. Hudgins, as in the preceding case, against E. W. Hudgins, a son, to set aside two deeds of conveyance of lands, as executed and delivered by the bankrupt to hinder and delay creditors—one dated 6th September, 1839, conveying three hundred acres lying in the county of York; the other dated 1st March, 1842, conveying, by estimation, seven hundred acres, in the same county—the latter for the consideration of $3,000. This deed was made a few days after the one set aside in the case of the assignee against Robert Hudgins. The case depends upon substantially the same evidence. Portions of it, tending to connect this defendant with the conduct of the grantor, in conveying away his property in fraud of his creditors, as respects the deed of the 1st March, 1842, are, if possible, somewhat stronger than that in the preceding case.

The court, on the 18th May, 1843, decreed that the deed was fraudulent and void, and that the assignee in bankruptcy take possession of the property as a receiver; and, further, that the deed of the 6th September, 1839, was not made in fraud of creditors, but was valid as against the complainant. The court also directed an account of the rents and profits, from the time of the petition in bankruptcy to the time of the receiver taking possession. The master subsequently reported rents and profits to the amount of $659.72; and on the 27th June, 1855, a final decree was entered.

The court decreed that the defendant, Elliott W. Hudgins, pay to the complainant $659.72, with interest from 2d June, 1848; and that, if the proceeds of the property directed to be sold in the case of the plaintiff against Robert Hudgins and others, should not be sufficient to satisfy the debts proved against the bankrupt, then the plaintiff is authorized to sell the lands in question, as particularly specified and directed in the said decree.

The only question arising on the master's report in this case, and the decree in pursuance thereof, is, that the rents and profits should not have been charged prior to the decree in bankruptcy. The answer to this objection is, that no such exception was taken to the report, and cannot, therefore, be noticed here. The case, in all its essential parts, falls within the views presented in the preceding one of this plaintiff against Robert Hudgins and others, and must abide the like result.

The decree of the court below is affirmed.


text: Talk:Hudgins v. Kemp (61 U.S. 54)

title: Talk:Hudgins v. Kemp (61 U.S. 54)


text: Talk:Hudgins v. Kemp (61 U.S. 54)/Opinion of the Court


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In the Matter of the United States v. Booth (59 U.S. 477)

Mr Chief Justice TANEY delivered the opinion of the court.


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In the Matter of the United States v. Booth (59 U.S. 477)/Opinion of the Court

The court proceed to dispose of the motion made by the attorney general to docket the case of The United States v. Booth, to stand for argument in this court at the next term.

In support of this motion he has produced a copy of the record of the proceedings in the supreme court of Wisconsin in the above-mentioned case, certified by the clerk under the seal of the court, by which it appears that Booth was indicted in the district court of the United States for the district of Wisconsin, for aiding a fugitive slave to escape from the custody of the marshal the marshal having the said slave at that time legally in his custody; and that upon that indictment the said Booth was tried and found guilty, and sentenced by the court to be imprisoned for one month, and to pay a fine of one thousand dollars. That while he was thus imprisoned he obtained a writ of habeas corpus from the state court; and, upon a hearing in the supreme court of the State, was discharged from imprisonment by that court, upon the ground that the imprisonment under the sentence of the district court of the United States was illegal.

It further appears, that a writ of error afterwards issued from this court, at the instance of the attorney-general in behalf of the United States, returnable to the present term, and directed to the judges of the supreme court of the State of Wisconsin, in order to bring the said proceedings and judgment here for revision, according to the provisions of the 25th section of the act of congress of 1789, ch. 20. But no return has been made to the writ; and it appears by the affidavit of the district attorney, filed with the motion, that the writ of error was duly served on the clerk of the supreme court of the State, and that he was informed by the said clerk that the court had directed him to make no return to the writ of error.

Upon this state of facts the attorney-general has made the motion above mentioned.

The writ of error, without doubt, was rightfully issued from this court, to carry into execution the appellate powers confided to it by the constitution and laws of the United States; and it was the duty of the clerk to obey it, and to send a transcript of the record and proceedings therein mentioned, together with the writ of error, to this court at the present term. And certainly the order of no other tribunal will justify an officer in disobeying the process of this court lawfully issued.

The refusal of the clerk, however, cannot prevent the exercise of the appellate powers of this court; and the court will take such order in the case, as will enable it to fulfil the duties imposed upon it.

But in a matter of so much gravity and importance, we deem it proper, before any other proceeding is had, to lay a rule upon the clerk to make the return required by the writ of error, on or before the first day of the next term of this court; or to show cause, if any he hath, to excuse or justify his neglect or refusal to obey the writ.

The motion to docket the case is, therefore, continued over to the next term, and the court will make the following order:——

Rule.

It having been suggested and shown to this court by the attorney general of the United States, that the writ of error heretofore allowed and awarded by the chief justice of the supreme court of the United States, and which issued out of this court, pursuant to the several acts of congress in such case made and provided, directed to the supreme court of the State of Wisconsin, requiring the record and proceedings of the said supreme court of the State of Wisconsin in the matter of Sherman M. Booth, for a writ of habeas corpus and to be discharged from imprisonment, to be sent to this court, has not been returned pursuant to the exigency of the said writ:——

It is thereupon ordered, that the clerk of said supreme court of the State of Wisconsin do make due return of the said writ of error, pursuant to the mandate therein contained, and according to the laws of the United States in that behalf, on or before the first day of the term of this court next to be holden at the city of Washington, on the first Monday of December, in the year of our Lord one thousand eight hundred and fifty-six, or then and there show cause why such return has not been made in conformity to law. And it is further ordered that a copy of this rule be served on the said clerk on or before the first day of August next.


text: Talk:In the Matter of the United States v. Booth (59 U.S. 477)/Opinion of the Court


text: Talk:In the Matter of the United States v. Booth (59 U.S. 477)


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Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 460)

THIS was a case of original jurisdiction upon the equity side of this court, and was a sequel to the preceding case between the same parties.

Mr. Charles W. Russell, as the solicitor for the Bridge Company, filed a petition praying leave to file a bill of review of an order of this court, made at the December term, 1851, respecting the costs, in the original case between the parties. The petition set forth that this court had no power to condemn either party to a suit originally brought in this court to pay the costs of the suit; or if it had the power, then the amount of costs must be regulated by some previous act of congress or rule of this court. It also set forth that the report of the clerk, which was confirmed by an order, was liable to objection, and prayed that the report might be reopened.

Mr. Justice NELSON delivered the opinion of the court.


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Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 460)/Opinion of the Court

This is an application made on the part of the defendants, for leave to file a bill of review, so far as respects the orders and decrees for costs heretofore rendered in the above case against them.

The court have already determined that the decree rendered for costs against the defendants was unaffected by the act of congress passed August 31, 1852, and with which determination it is entirely satisfied.

It is suggested, however, on the part of the applicant, that there is no act of congress expressly conferring power upon this court in the case of original jurisdiction, to award costs against either of the parties. This may be true, but it is equally true in respect to the circuit courts of the United States, and yet no one has doubted the power in those courts since their first organization; 1 Blatchford R. 652; and the grounds upon which that power rests apply with equal force to the supreme court in the cases mentioned. In the distribution of original jurisdiction between the supreme and circuit courts, there is nothing peculiar in the nature or character of that conferred upon the former, to distinguish it specially from the latter. Indeed, a large portion of this jurisdiction is concurrent with that of the circuit courts. It is exclusive only in a few cases having regard to the sovereign character of the party to the suit, or in cases where the interests of our foreign relations may be concerned, and principles of international law involved.

In the nature of the jurisdiction, therefore, or in the character of the suits in this court of original jurisdiction, we perceive nothing that should lead us to distinguish, on the question of costs, between this court and the circuit courts. And, as we have already said, the grounds for the exercise of the power namely, the repeated recognition by acts of congress of the right of the prevailing party to costs—is as applicable to the one court as the other.

It would be an endless task to refer to the various acts of congress passed from time to time recognizing the right of the party to costs in proceedings in the courts of the United States, and, of course, including this court. It will be sufficient to say, that they will be found in the laws of congress, running through its entire legislation on the subject of judicial proceedings, and regulation of the power and authority of the federal courts and its officers. Among the first acts is that of May 9, 1792, 'An act for regulating processes in the courts of the United States, and providing compensations for the officers of the said courts and for jurors and witnesses.' 1 Stats. at Large, 275. The compensation here provided for, on behalf of officers and persons concerned in the administration of justice, not payable out of the treasury of the United States, was recoverable as costs of the suit. § 6, p. 278.

The act of July 22, 1813, (2 Stats. at Large, 19,) 'An act concerning suits and costs in courts of the United States,' provided, (§ 1,) that where several actions against persons who might be joined in one action touching a demand in any court of the United States, if judgment be given for the plaintiff, such party shall not recover the costs of more than one action, &c. And the 3d section provided, that where causes of like nature, &c., shall be pending before a court of the United States, it is made the duty of the court to make rules or orders to avoid unnecessary costs, and consolidate the causes. It is also provided that if any attorney or person admitted to conduct causes in a court of the United States shall appear to have multiplied proceedings in any cause, so as to increase costs vexatiously, such person may be required to satisfy any excess of costs so incurred. But we shall not pursue this inquiry. We could multiply instances of similar recognition of the right of the party to costs, and power of the court to award them, to almost any extent. The instances we have referred to are but samples, and, we think, sufficient for the purpose designed.

But, independent of this, the constitution provides that the judicial power of the United States shall extend to all cases in equity between a State and the citizens of another State; and that, in cases in which a State shall be a party, this court shall have original jurisdiction. There is thus conferred by the constitution on this court original jurisdiction over 'cases in equity' between a State and citizens of another State; and this is the jurisdiction we have exercised in the matter now before us.

Original jurisdiction in equity, in a particular class of cases, conferred by the constitution on this court, has been interpreted to impose the duty to adjudicate according to such rules and principles as governed the action of the court of chancery in England, which administered equity at the time of the emigration of our ancestors, and down to the period when our constitution was formed. And when the constitution of the United States conferred that jurisdiction on this court, it cannot be construed to exclude the power possessed and constantly exercised by every court of equity then known, to use its discretion to award or refuse costs, as its judgment of the right of the case, in that particular, might require. The court entertains no doubt of its power to award costs, and deny the application to file a bill of review.

Then as to the bill of costs taxed by the clerk. It is sufficient to say, that the bill as we understand it, consists entirely of the expenses attending the taking of testimony in the case, and of the surveys, examinations, and reports of the engineer, preparatory to the final hearing of the case, and which services were performed under the special order and direction of the court, together with the fees for the services of the officers of the court. And, further, that the bill of costs has been referred to the clerk of the court, with directions to examine witnesses, and resort to such other proofs for the purpose of ascertaining the proper compensation to be allowed the commissioners, and to the engineers and clerks employed by him, and also to ascertain the whole amount of expenses incurred by said commissioner, and the amount advanced by the respective parties, and report on the same; and that either party have leave to except to the report, in writing, as to any of the items or sums of money allowed by the clerk.

This report was duly made in conformity with the order, and the counsel for the respective parties filed at the time a written declaration waiving all exceptions to any part of said account or vouchers, and stating that they do not mean to except to said report, nor desire any further time to examine or except to it; whereupon the report was confirmed by this court.

It can hardly be expected, after this deliberate proceeding by the court to ascertain the costs and expenses attending the trial and hearing of the case, and the opportunity of the counsel for the respective parties at the time, to scrutinize the several items of the account, their attendance before the master, and, after the proper scrutiny, entering into and filing an express written waiver of exceptions to the taxation and solemn recognition of its justice and propriety, that the court will open the question for a re examination, or can desire any further inquiry into or review of the matter thus disposed of. There must be an end of litigation. We are not only satisfied that the party applicant for a review of the question has already had full opportunity to present his objections to the bill of costs, and, indeed, has already availed himself of the benefit of it, but are also satisfied with the order and judgment of the court heretofore given in the premises.

The motion for bill of review, and also for re-taxation of costs, is denied.


text: Talk:Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 460)/Opinion of the Court


text: Talk:Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 460)


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 5 of twenty-four Sovereign and Independent States, — occupying a territory upwards of 2000 miles in extent, — embracing every variety of soil, climate, and productions, — inhabited by a people whose institutions and interests are in many respects diametri- cally opposed to each other, — with habits and pursuits infinitely diversified, — and in the great Southern section of the Union, rendered by local circumstances altogether incapable of change. Under such circumstances, a system, which under a consolidated Government would be merely impolitic, and so far, an act of injustice to the whole community, becomes in this country a scheme of the most intolerable oppression, because it may be, and has in fact been, so adjusted as to operate exclusively to the benefit of a particular interest, and of particular sections of country, rendering in effect the industry of one portion of the confederacy tributary to the rest. The laws have accordingly been so framed as to give a direct pecuniary interest to a sec- tional majority, in maintaining a grand system, by which taxes are in effect imposed upon the few, for the benefit of the many; — and imposed too, by a system of indirect taxation, so artfully contrived, as to escape the vigilance of the common eye, and masked under such ingenious devices as to make it extremely difficult to expose their true character. Thus under the pretext of imposing duties for the payment of the public debt, and pro- viding for the common defence and general welfare, (powers expressly conferred on the Federal Government by the Consti- tution,) acts are passed containing provisions designed exclu- sively and avowedly for the purpose of securing to the American Manufacturers, a monopoly in our own markets, to the great and manifest prejudice of those who furnish the agricultural produc- tions which are exchanged in foreign markets for the very arti- cles which it is the avowed object of these laws to exclude. It so happens, that six of the Southern States, whose industry is almost exclusively agricultural, though embracing a population equal to only one third part of the whole Union, actually pro- duce for exportation near 40,000,000 annually, being about two- thirds of the whole domestic exports of the United States. As it is their interest, so it is, unquestionably, their right, to carry these fruits of their own honest industry, to the best market, without any molestation, hindrance, or restraint, whatsoever, and


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 NOTE.

writing the Introduction to this Appendix, the Translator has been able to consult "The Vocabulary of the Oji Language, by the Rev. H. N. Riis, Basle, 1854," and "A Grammar of the Akra or Ga Language, by the Rev. J. Zimmermann, Stuttgart, 1858," both which excellent works prove beyond all doubt, not only that these "West Indian Ananzi stories are spider stories, but that similar tales called by the same name still exist in abundance on the west coast of Africa. These two languages, and others closely akin to them—of which the Yoruba is one—are spoken by the tribes now settled on the Gold Coast, but which reach inland as far as the Kong mountains. The Asánte—once so formidable to the ear of the British public under the term Ashantee, and still so odious for their slave hunts—are the most powerful race among them, and have reduced most of their kindred to subjection. The following passages from the works of Messrs. Riis and Zimmermann sufficiently prove the connection between the West Indian "Spider Stories" and those of West Africa. They also show that the true spelling of the word should be Anánsi.


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 61 It is true, that in ratifying the Federal Constitution, the States placed a large and important portion of the rights of their citizens under the joint protection of all the States with a view to their more effectual security; but it is not less true that they reserved a portion still larger, and not less important under their own immediate guardianship, and in relation to which their original obligation to protect their citizens, from whatever quarter assailed, remains unchanged and undiminished. But clear and undoubted as we regard the right, and sacred as we regard the duty of the States to interpose their sovereign power for the purpose of protecting their citizens from the un constitutional and oppressive acts of the Federal Government, yet we are as clearly of the opinion, that nothing short of that high moral and political necessity, which results from acts of usurpation, subversive of the rights and liberties of the people, should induce a member of this confederacy to resort to this in terposition. Such, however, is the melancholy and painful necessity under which we have declared the acts of Congress, imposing protecting duties, null and void within the limits of South Carolina. The spirit and the principles which animated your ancestors and ours in the councils and in the fields of their common glory, forbid us to submit any longer to a system of legislation, now become the established policy of the Federal Government, by which we are reduced to a condition of colonial vassalage, in all its aspects more oppressive and intolerable than that from which our common ancestors relieved themselves by the war of the revolution. There is no right which enters more essentially into a just conception of liberty, than that of the free and unrestricted use of the productions of our industry. This clearly involves the right of carrying the productions of that industry wherever they can be most advantageously exchanged, whether in foreign or domestic markets. South Carolina pro- duces, almost exclusively, agricultural staples, which derive their principal value from the demand for them in foreign countries. Under these circumstances, her natural markets are abroad; and restrictive duties imposed upon her intercourse with those markets, diminish the exchangeable value of her productions very nearly to the full extent of those duties. Under a system of free trade, the aggregate crop of South


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126 understood to impeach the motives by which the State has been governed, or to intimate that it has been actuated by any other purpose, than that of procuring relief from a supposed grievance. The Committee are well aware, that the purest patriots and wisest statesmen may be led, under the influence of mistaken views and excited feelings, into very dangerous measures. The present proceedings in South Carolina are, in their opinion, of that description. But the Committee indulge a confident hope, that by the exercise of the necessary firmness and discretion, on the part of the General Government, the danger may be averted, and that South Carolina herself, recovering from the delusion under which, for some time past she has appeared to labor, may continue to maintain her accustomed place among the most enlightened and patriotic States in the Union.

Before concluding their Report, the Committee deem it a duty to themselves and to the Legislature, to advert very briefly to some remarks which have been made upon the tendency of the Resolves accompanying their former Report, and adopted by the almost unanimous vote of both branches of the General Court. In certain quarters of high respectability, where the Resolves have been brought under discussion, it has been intimated that they favor the doctrine of Nullification, because they express the sentiment that the Legislature is not bound, silently, to acquiesce in measures considered by them as subversive of the spirit of the Constitution; and this in the way of instruction to the delegation of the Commonwealth in Congress, for the purpose of preventing the adoption of these measures. The difference between a proceeding of this kind, and an attempt to annul and prevent the execution of existing laws, is too obvious to be overlooked. That the General Government may adopt an unconstitutional measure, is of course possible; and no one can doubt that any portion of the people have a right, in an orderly and peaceable manner, to express their opinion upon the character of any of the measures of the General Government. But when this is done in advance, for the purpose not of denouncing an existing law, but of preventing a threatened mischief, it is not easy to see how the most fastidious judge can find any thing at which to take offence.

But were it even true, that the Legislature of this Common-


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 178 liberty and general welfare." — Elliott's Debates, vol. 4, p. 41. Now it must be recollected that the articles of confederation were, in point of fact, and in terms, a compact between the different States as sovereignties. The instrument itself purports to be such, and is described in the preamble as "Articles of confederation and perpetual union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations," &c. As Governor Randolph's proposition was merely to correct and enlarge those articles, if it had been adopted, the nature of the compact would have been the same, and it would have continued to stand on the footing of an agreement among the States as sovereignties. The very point now at issue was therefore brought at once, and directly before the Convention. On the same day the Convention resolved to go into Committee of the whole, on the State of the Union, and the propositions of Governor Randolph were referred to that Committee. On the following day, May 30th, these resolutions were taken up for consideration, and the particular one in question being the first in order, was, on his own motion, postponed; and another, offered likewise by him, was, after debate, adopted as a substitute, in the following words: "Resolved that a National Government ought to be established, consisting of a Supreme Legislative. Judiciary, and Executive." On this question, six States, namely, Massachusetts, Pennsylvania, Delaware, Virgin- ia, North Carolina and South Carolina voted in the affirmative; Connecticut voted in the negative, and New York was divided. Elliott's Debates, vol. 4, p. 49. Mr. Yates, a member of the Convention from New York, who was opposed to the present Constitution, and afterwards withdrew from the Convention because he thought they were exceeding their powers, kept minutes of the debates while he was there, which are published in the fourth volume of Elliott's Debates, and has thus thrown much light on the questions that were agitated; and may be considered for that purpose, as of the highest authority. In his minutes of the debate on that day, he observes, "this last resolve had its difficulties, the term supreme required explanation. It was asked whether it was intended to annihilate the State Governments? It was answered only so far as the powers intended to be granted to the new government should clash with the States, when the


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 260 course, — still at any rate it must be construed in some way; and the force of any grant, in respect of the powers conveyed by it either expressly or impliedly, is and must forever continue to be a question of coaistruction. That construction is a process of definition, dependant upon the same rules of law, philology, and common sense, which settle the construction of other instruments; and if any doubts arise thereon, the Constitution itself provides for the mode by which such doubts are to be removed, namely, by means of the Supreme Court of the United States. To assemble a Convention for the purpose of making such construction, would not only be contrary to the tenor of the Constitution itself, but would serve to defeat its own object, because every definition or explanation, which a Convention should undertake to give concerning questions which now exist, would of necessity furnish the materials of new questions, just as difficult to decide as the old ones, and just as much requiring the interposition of a Convention. Your Committee are of opinion that the Constitution, as it stands, is a model of clear, exact, intelligible specification and limitation, admirable for the distinctness of its language, remarkable as well for legal precision of expression, as for the profound political wisdom which characterizes it; and they have no hopes that in these respects it could be improved as a whole by the labors of a new Convention. Your Committee, with all due respect for the Legislature of Georgia, feel bound to say they are not conscious that Congress has frequently shewn a disposition "to act under assumed powers" — provided the Legislature of Georgia understand by those words what alone the Committee can understand by them, — powers not conferred by the Constitution. Congress acts on the people through the medium of legislation, and it cannot so act without the concurrence of the Executive; and the rules of conduct which Congress and the Executive conjointly prescribe in the form of laws, are subject to the revision of the Judiciary, by whom their constitutionality, and of course their validity, is to be judged. Your Committee deem this mode of redress amply sufficient, in the ordinary course of affairs, to protect the people against the actual exercise of usurped powers;


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 354 relates to the requisition of an oath of allegiance. The following motions to amend having precedence, were first put and adopted, to wit: that the words "or appointed," should be added after the word "elected;" the word "such" be inserted after the word "any," in the first line of the last paragraph, and the words "heretofore elected, or hereafter to be elected," be stricken out. Mr. Barnwell's motion being now again before the Convention, on motion, it was ordered, that when the question should be taken, it should be by Ayes and Noes. A discussion arose, in which Judge O'Neale, Judge Harper, Mr. Turnbull, and Mr. P. Phillips, took part. Mr. Wilson proposed to amend the Ordinance, by striking out, after the words "We further ordain," and inserting the following, to wit: "That no person, who shall be hereafter elected or appointed, or who has heretofore been elected, but who has not yet taken the oaths of office required at the time of his election or appointment, to any office, civil or mili- tary, within this State, (members of the Legislature excepted) shall enter on the execution of such office, or be in any respect competent to discharge the duties thereof, until he shall have taken, in addition to the oaths of office now required, at the same time and in the same manner, that such oaths are required to be taken, the following oath of allegiance. "I declare myself a citizen of the Free and Sovereign State of South Carolina; I declare that my allegiance is due to the said State, and hereby renounce and abjure all other allegiance, incompatible therewith; and I will be true and faithful to the said State, so long as I continue a citizen thereof: So help me God. And it is further Ordained, That if any officer heretofore elected, shall refuse or neglect to take the aforesaid oath, within the time that other oaths of office are required by law to be taken, such office shall be considered as vacant, and the Governor of the State shall proceed (except in the instance of Judges of the State) to fill such vacancy by appointing an officer, to serve until another officer shall be elected and qualified." This amendment was ordered to be printed. The Convention then took a recess of two hours.


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 356 ent Commonwealth, in a tone of candor, confidence and affection. Appreciating thus sensibly, both the motives and objects which influenced the General Assembly of Virginia, to despatch at a moment so interesting, her Commissioner to this State, whose mission, even if the recent modification of the Tariff had not been adopted, would have challenged her high respect and profound consideration, she cannot permit the occasion thus offered, to pass, without making a few declarations which she regards as due to herself and the public liberty of the Country. In the first place. South Carolina desires to stand acquitted, and believes, on a calm and dispassionate reflection by her co-States, she must stand acquitted, of the charge of having acted with any undue precipitation, in the controversy hitherto pending with the General Government. For ten years she peti- tioned, protested and remonstrated, against that system of unjust and unconstitutional Legislation, which had equally received the reprobation of Virginia, before she resorted to her veto, to forbid its enforcement within her limits. In exercising this fac- ulty of her sovereignty, she believed she rested on those doc- trines which, in 1798 and 1799, had conferred on Virginia and her distinguished statesmen a renown so unfading. She now refers to this subject in no invidious spirit of controversy: but when Virginia asserted, in those memorable Resolutions of her General Assembly, "that she viewed the powers of the Federal Government as resulting from the compact to which the States are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, 'and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights and liberties, appertaining to them" — we conceived she had done nothing more or less, than announce the remedy which South Carolina has resorted to, through her State interposition. It is moreover asserted, in the Report explanatory of those Resolutions, that this right is a Constitutional, and not a Revolutionary right; and by the whole context of the powerful argument em-


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 180 ONE'S OWN CHILDREN ARE ALWAYS PRETTIEST.

went out once into a wood to shoot, and he met a Snipe.

"Dear friend," said the Snipe, "don't shoot my children?"

"How shall I know your children?" asked the Sportsman; "what are they like?"

"Oh!" said the Snipe, "mine are the prettiest children in all the wood."

"Very well," said the Sportsman, "I'll not shoot them; don't be afraid."

But for all that, when he came back, there he had a whole string of young snipes in his hand which he had shot.

"Oh! oh!" said the Snipe, "why did you shoot my children after all?"

"What, these your children!" said the Sportsman; why, I shot the ugliest I could find, that I did!"

"Woe is me!" said the Snipe; "don't you know that each one thinks his own children the prettiest in the world?"