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proved further, that in 1819 she lived with her mother at a place called Lowry's place, which was reserved to Lowry by the treaty of 1817, and there acted as assistant house-keeper. The object of the plaintiff was to show that this was the place or public house at which his horse was lost. The treaty of 1817 shows that this place, being reserved by that treaty for Lowry, in 1817, was in the Cherokee country up to that time.
Before coming to the principal point, I would briefly remark, that if in 1815 this place, at which she lived in 1819, was not the place of her residence, but some other, then there is no proof that this other was kept by her as a public house, and then this action, which is founded upon that supposition, wholly fails. If the place where she lived in 1819 was the same place at which she lived in 1815, that, we are informed by a public treaty, which is the supreme law of the nation, was in the Cherokee territory. And then the main question is, whether the cause of action arising there, be governable by the law of the Cherokee nation or by the law of Tennessee; for if by the former, then the action should have been maintained upon evidence, showing what that law is, that makes her a public innkeeper, or how far such innkeeper is liable to the plaintiff for a horse lost under the circumstances above stated.
The Cherokees, though living within the limits of Tennessee, and upon lands the dominion of which belongs to this state, and having themselves only the usufruct thereof, are yet an independent nation, subject to laws, both civil and criminal, made by themselves, for the regulation of their internal affairs and exterior relations; as an independent nation, war is declared, peace made, and treaties entered into with the United States, and sometimes with other nations, under the authority of their own great council; though by the international law, which the United States and the European nations, who have had possessions in America, have acknowledged, it has been latterly understood and sometimes openly avowed, that it is unfriendly and to be complained of as disrespectful for any of those nations to make treaties with tribes living within the limits of its neighbors.
By these Indians, war, when lawfully declared, is conducted according to the forms and usages which themselves have established, and when made captives, they are treated as prisoners of war, and not as offenders against the laws of this state or of the United States.
If, under those laws, an Indian be put to death on the Indian territory by another, under circumstances which, by the laws of
this state, would make such homicide to be murder, the slayer is not punishable by the law of this state, though the fact were perpetrated within its limits, for he has acted agreeably to the law of his nation, and is in all other countries as much justified as he is by the law of his own nation.
In a late instance, one of the six nations, and a chief of the nation, was indicted in a court of the state which included their territory, for inflicting the punishment of death upon an Indian belonging to his nation, for an offence not thus punishable by the law of the state, and he was discharged from the indictment, being not amenable to the law of the state for his conduct.
The law of retaliation is in the Cherokee Nation in full force, as much as it formerly was amongst the northern nations of Europe, who assigned by law to the relations of the deceased, the right to revenge his death, or to commute it for a sum to be paid in lieu of its exercise; and as the laws of England even to this day, give to the widow or heir the right to appeal the slayer, of the death of her husband or ancestor.
If war be declared by the Cherokee Nation, and one of them kill one of the people against whom the war is declared, he is not therefore subject to be punished as a criminal, because he is acting under the authority and laws of his nation. He cannot, by carrying on war against us, be treated as a traitor or rebel, and he is only then subject to our law when he comes within the limits of the state, and beyond the territories of his own nation. There he is bound to its observance, upon the same principles and in the same degree, as a Frenchman coming into the country would be. He impliedly undertakes, because of the protection that is given him, to be obedient to the laws which afford it, and like a Frenchman in his own country, whatever cause of complaint begins there, though sued for the same in the courts of this state or of England, his liability is measured by the law of his own country which has been made for the internal regulation of their own affairs. A Frenchman living in France whilst claimed by England as subject to its sovereignty, was always admitted by the English law to be liable for transactions in France according to the French laws, though sued for in an English court. Should an action, for instance, be commenced in an English court for the culpable neglect or omission of duty by a French innkeeper in his own country, the declaration could not allege the law of England as the standard of his right, but only as the means of enforcing it. And the plaintiff could only resort to the law of the French to determine the liability of the defendant, the legality of his own claim, and the extent
of the retribution to which he was legally entitled. Just so was it in all respects with any other and all other, independent nations, and of the Cherokees, as well as others. Their laws must govern the transactions which happen within their own borders, and the legal claims which are founded upon them, in whatever court of other nations the satisfaction for an injury sustained may be demanded. This action is not founded upon their law, but the law of Tennessee, and there is no evidence in this record to show what the Cherokee law is, upon the facts detailed in the evidence given and spread upon this record. Therefore, the verdict and judgment are without foundation.
There is a misjoinder of counts also in the declaration, and that defect may be taken advantage of by demurrer, in arrest of judgment, or by writ of error. Therefore, as the first fault in pleading has occurred with the plaintiff in forming his declaration, and the objections being taken, should be allowed, although the defendant did not avail himself of the mistake at as early a period as he might, yet, where the first fault is, there does the law impute blame, aud requires reformation, and deems it no mitigation that the defendant has been in fault as well as the plaintiff. Judgment must be reversed.
Sketch of the character of Montesquieu's Spirit of Laws, from the London Foreign Quarterly Review. In the work of Dumont on Judiciary Organization, he introduces a parallel between Jeremy Bentham and Montesquieu. The London Foreign Quarterly Review, for November 1829, in noticing this part of Dumont's volume, gives the following just sketch of the Spirit of Laws and its author:
Montesquieu 'having no fixed principle or standard, flying from subject to subject, despatching doctrines on which the well being of nations depends, with an epigram or comparison; mixing his treatise with historical discussions and incredible stories from his favorite Jesuits; defending all established systems, and rather accounting for laws than examining their merits or defects; while his doctrine on climates enables him to prove that what is beneficial to one people is hurtful to another, seems rather to inquire what government is, than what it ought to be; and his work has a nearer resemblance to a speculative history than a theory of politics. The true character of the Esprit des Lois, was given by Madame Deffand when she called it de l'esprit sur les lois. The writer is constantly struggling after neat sayings and lively paradoxes; and the discovery of the means best suited to promote the happiness of
man in a community, is so very subordinate to the display of the ingenuity of the learned president, that we cannot consent to call his work a valuable political treatise, though it has undoubtedly given an impulse to political speculation; and no one can read it without gaining much important information on matters of fact, or conceiving great admiration for the genius of the author. As a speculative work it is certainly inferior to the earliest treatise on government, the Politics of Aristotle, and it must now be considered rather as a subject of literary history, than a living oracle of political wisdom.'
Double Replications, Rejoinders, &c. The commissioners appointed in England to inquire into the practice and proceedings of the superior courts of common law, in their second report propose that the plaintiff shall be allowed to reply several matters to each plea, and the defendant, again, to rejoin several matters to each replication; and so on, through the subsequent pleadings, without the permission of the court, the liberty to be restricted however, to cases in which the several matters of replication, rejoinder, &c. are really distinct.
Double replications are permitted by a law recently passed in Delaware, and noted in our abstract of legislation of that state in our present number.
Civil and Common Law. It was not without reason that Sir John Fortescue's zeal was excited in defence of the Common against the Civil law; for the influence of the Roman law on that of England has been much more considerable than most lawyers are aware. "Inasmuch as the laws of all nations," said Lord Chief Justice Holt, are doubtless raised up out of the ruins of the civil law, as all governments are sprung out of the Roman empire, it must be owned that the principles of our law are borrowed from the Civil law, and therefore grounded upon the same reason in many things." A similar opinion is delivered by Dr. Wood, who was both a civilian and a common lawyer. "Upon a review, I think it may be maintained, that a great part of the Civil law is part of the law of England, and interwoven with it throughout." According to Dr. Cowell, the Common law of England is nothing else but a mixture of the Feudal and the Roman law. And, in reference to the Pandects, Sir William Jones has hazarded the subsequent opinion: "With all its imperfections it is a most valuable mine of judicial knowledge; it gives law at this hour to the greatest part of Europe, and, though few English lawyers dare
make such an acknowledgement, it is the true source of nearly all our English laws that are not of a feudal origin." Many other testimonies might easily be added: —Of these Roger North remarks, that " besides history, there are other sorts of learning most reasonable for a lawyer to have some knowledge of, though even superficial, as of the Civil law. A man of the law would not be willing to stand mute to the question, what is the difference between the Civil and the common law, what is the Imperial law, what the Canon, what the Pandects, Codes, &c.? It is not at all needful to study questions in these laws; but the rise and progress of them in gross is but a necessary knowledge, and so far taking up but little time, and had by mere inspection of some books, and perusing their introductions." But higher still, and more express, is the opinion and the example of Sir Matthew Hale upon this subject. We are informed by his biographer, Bishop Burnet, that Hale set himself much to the study of the Roman law, and, though he liked the way of judicature in England by juries, much better than that of the Civil law, where so much was trusted to the judge; yet he often said, that the true grounds and reasons of law were so well delivered in the Digests, that a man could never understand law as a science so well as by seeking it there, and therefore lamented much that it was so little studied in England."'
The right to kill a mischievous dog. Wells v. Head. "This was an action of trespass, for shooting a dog, tried at the last Aylesbury assizes, before Mr. Justice Alderson. It appeared that the plaintiff and defendant were respectable farmers residing at Ellesborough. That the plaintiff kept a pointer dog, which was often found chasing and worrying the defendant's sheep, of which the plaintiff had been apprised. On the 11th of December 1830, the dog again worried the flock, and just as it was retreating across a field belonging to the defendant, and adjoining that in which the sheep were, the defendant overtook and shot the dog. Plea, a justification. The learned judge decided, that a sufficient justification was not made out, observing that, "if the defendant had found the dog worrying the sheep, and had no other mode of protecting his flock at the time, he would have been justified, but, as the dog had ceased to worry them, and had gone a field's distance at the time it was killed, the defendant had no right, in point of law, to follow it for the purpose of killing it." Verdict for the plaintiff, damages one guinea.
'Now it is submitted, that there is no decision on the point of
VOL. VI.-NO. XII.