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TO HON. JAMES KENT, LL.D.
Cambridge, December 22d, 1836. MY DEAR SIR :
I had the pleasure, a few days ago, of receiving your address before the Law Association of New York, for which I sincerely thank you. The testimony which, in the introductory remarks, you give as to the dignity and importance of the law, is doubly valuable from the right which you of all men have, to speak on such a subject, from your vast experience and brilliant career in it, and from the power and eloquence with which every topic is urged. But your sketches of the great lawyers, who have adorned the Bar and Bench of New York in your day, and who have departed to another and a better world, are to me not less interesting. Of Hamilton, in an especial manner, I admire your warm and characteristic eulogy. I have always believed that his title to renown was as great as you have portrayed it. I never knew him, but I have deemed him a giant among his contemporaries, of whom it might truly be said toto vertice supra est. I shall place this new discourse among my choice pamphlets, to be studied as well as read. I rejoice that you still continue to cheer and encourage the profession by your untiring labors in the high path of duty, and an unconquerable love of the law.
My health is now good. For a day or two I was unwell with a severe cold; but I never was either dangerously, or even seriously ill.
With my truest regards to Mrs. Kent and your family, I pray you to believe me with the highest respect, Very affectionately, your friend,
PROFESSORIAL AND JUDICIAL LIFE.
CONSTITUTIONAL QUESTIONS AT WASHINGTON “ NEW YORK v.
MILN" _“Briscoe v. BANK OF KENTUCKY” — “CHARLES RIVER BRIDGE v. WARREN BRIDGE” – MR. WEBSTER'S OPINION OF THIS CASE – LETTERS RELATING TO IT — CONSTITUTIONAL VIEWS OF THE COURT PROPOSES TO RESIGN STRICTURES ON THE COMMENTARIES ON THE CONSTITUTION BY MR. JUSTICE BALDWIN MEMBERS OF THE COURT — VIEWS ON INTERNATIONAL COPYRIGHT - LETTER ON LIEBER'S POLITICAL ETHICS CORRESPONDENCE with Miss MARTINEAU ON HER “ SOCIETY IN AMERICA”. LABORS OF THE YEAR – LETTERS FROM WASHINGTON RIGHT OF THE UNITED STATES TO CEDE TERRITORY IN THE States ILLNESS AND DEATH OF DR. BOWDITCH - PUBLICATION OF EQUITY PLEADINGS NoticES OF IT — · ADDITIONAL LABORS — PUBLICATION OF AGENCY -Its RECEPTION — LETTERS RELATING TO IT FROM MR. JUSTICE COLERIDGE, MR. JUSTICE Patteson, G. J. BELL, Esq., J. W. Smith, Esq., WILLIAM BURGE, Esq.
In January, 1837, my father went to Washington, as usual, to attend the session of the Supreme Court. The principal cases tried at this term, were three involving questions of Constitutional Law, upon all of which he delivered dissenting opinions. The first was “ The City of New York v. Miln, (11 Peters's R. 103,) involving the constitutionality of an act of the Legislature, “concerning passengers and vessels arriving in the port of New York.” This law required, among other provisions, that the master of every vessel arriving at the port of New York, from any other State than New York, should report the names, ages, and last legal settlement of every person on board, under a penalty. The questions were, whether this act was a regulation of commerce or of police; and if the former, whether it was unconstitutional or not the latter question turning upon the point whether the clause in the Constitution conferring power upon Congress“ to regulate commerce with foreign nations and among the several States,” gives exclusive jurisdiction to the United States, or concurrent jurisdiction to the States. The Court held, that the act was a regulation of police; and that if it were a commercial regulation, as it did not come in direct collision with any regulation of commerce actually made by Congress, it was constitutional. Upon both these questions, my father dissented; insisting that this act was a regulation of commerce, and that the power of Congress is exclusive, and not concurrent. The judgment is not very long, but it is very cogent and clear, and is stated by him to be in entire coincidence with the opinion expressed by Chief Justice Marshall upon a former hearing of the same case.
The next case is Briscoe v. The Bank of the Commonwealth of Kentucky, (11 Peters's R. 257.) This was a question, whether the act of Kentucky, establishing this State Bank and authorizing it to issue bank notes in the usual form, was unconstitutional, as infringing the clause in the Constitution prohibiting the States from issuing “ bills of credit.” The Court held (Mr. Justice McLean delivering the opinion) that the act was constitutional, and that to constitute a bill of credit, it must be issued by a State, and contain a pledge of its faith, and be designed to circulate as money. In his dissenting opinion, my father goes into an elaborate historical review of “ bills of credit” in the Colonies and during the Revolution, to prove that a bill of credit “ signifies a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society,” according to the definition given by Chief Justice Marshall, in Craig v. The State of Missouri, (4 Peters's R. 426,) and that it is not essential that they should be a legal tender, nor that their circulation should be enforced by statutable provisions, nor that they should contain any express promise by the State to pay them, on which credit is given, nor that they should be issued directly by the State and in its own name. He also argues with great force, that as the charter in this case was for the sole benefit of the State, by whom all its officers were appointed and removed, and under whose direction the whole affairs were carried on, and as the State owned all the funds and securities of every kind belonging to the bank, — the bank was the mere agent of the State, and the fact that the notes were issued in its corporate name, did not at all prevent them from being an issue by the State on its credit, and therefore an unconstitutional issue. This opinion is very able and finished. There is a glow of conviction in its tone, and an animated warmth of expression, when vindicating the constitutional views of Chief Justice Marshall, which render it peculiarly interesting. It concludes with the following paragraph:
“I am conscious that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this Court, in its intrinsic importance. I have done so, because I am of opinion (as I have already intimated) that upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the Court, and the reasons of his dissent. I have another and strong motive; my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional, I have felt an earnest desire to vindicate his memory from the imputation of rashness or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown that there were solid grounds on which to rest his exposition of the Constitution.”
The third case in this volume in which my father delivered a dissentient opinion on a question of constitutional law, is “The Charles River Bridge v. The Warren Bridge,” (11 Peters's R. 420.) The circumstances of this case were as follows: The Legislature of Massachusetts, in 1650, granted to Harvard College the liberty and power to dispose of a ferry between Charlestown and Boston, over Charles River. Under this grant the College continued to hold this ferry until 1785, in which year, upon petition of Thomas Russell and others, stating the inconveniences of the transportation by ferry, and the public advantages of a bridge, and praying to be incorporated for the purpose of building a bridge over the place where the ferry then was, the Legislature passed an act incorporating a company, under the name of “ The Proprietors of the Charles River Bridge,” authorizing them