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actions and rights are to be regulated. If the laws are wisely framed and well administered, with some political guaranty of their continuing to be so, the government is a good one. Laws to be good must be certain, and rights to be enjoyed and vindicated must be defined and known. In our constitution we have a sufficient guaranty that public opinion will always be consulted; so it was at Athens, and yet no man's person or rights were safe in that republic. To make this of any avail, it is necessary that this opinion should be guided by some intelligence and discretion; it must also have convenient instruments and organs by which to operate; legislatures, judicial tribunals, executive, military, and civil officers, whose powers and functions must all be justly apportioned and clearly limited and defined. No government is a good one in which all the powers and rights of the rulers and the ruled are not well assigned and well understood. In the United States, every citizen is a subject of two governments, that are, in some measure, independent of each other. To settle the boundaries of these two governments, and then to adjust all the powers, rights, and relations under each, though it may not require a scheme of government so complicated as that of the Germanic confederacy, yet certainly cannot be done by some simple plan conceived without labor, and that may be understood without study, and explained and applied without doubt or difficulty. Such a system must be in some measure complicated; and we apprehend that no good government can be very simple in its


The remaining part of this volume is occupied with a general account of the sources of municipal law, namely, statutes, the common law, and the civil law. The English reports, and earlier treatises and digests being the fountains of knowledge of the common law, constitute the subject of two lectures, in which the author gives a cursory sketch of those of greatest authority and most frequent reference. The outline of these works is, as might be expected from a man who has spent so great a part of his life in perusing and consulting them, very just, and will be very useful to the student in directing his studies. Perhaps one exception ought to be made, for it seems to us the author somewhere gives too high a character of Lord Chancellor Thurlow, whom we have not been accustomed to rank among the most accurate, learned, and profound lawyers.

Respecting the authority of the courts to decide upon the constitutionality of a law, the author makes the following remarks;

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The principle in the English government, that the Parliament is omnipotent, does not prevail in the United States. In this, and all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. It must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its own state, and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the constitution, is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend, that the law was superior to the constitution, and that the judges had no right to look into it, and to regard it as the paramount law.' pp. 420, 421.

After recapitulating the several earlier cases on this question, Chancellor Kent says,

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The power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any state legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration.

The question, said the chief justice, was, whether an act, repugnant to the constitution, can become a law of the land, and it was one deeply interesting to the United States. The powers of the legislature are defined and limited by a written constitution. But to what purpose is that limitation, if those limits may at any time be passed? The distinction between a government with limited and unlimited powers is abolished, if those limits do not

confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. If the constitution does not control any legislative act repugnant to it, then the legislature may alter the constitution by an ordinary act. The theory of every government, with a written constitution, forming the fundamental and paramount law of the nation, must be, that an act of the legislature repugnant to the constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow, in fact, what was established in theory, and to make that operative as law which is not law. It is the province and the duty of the judicial department, to say what the law is; and if two laws conflict with each other, to decide on the operation of each. So if the law be in opposition to the constitution, and both apply to a particular case, the court must either decide the case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law. If the constitution be superior to an act of the legislature, the courts must decide between these conflicting rules, and how can they close their eyes on the constitution and see only the law?' pp. 424, 425.

This doctrine has been sometimes doubted, and remarked upon with asperity, by the more superficial and less experienced legislators. But since every citizen is entitled to the protection and privileges guarantied by the constitutions of the United States and the states, he has a right to demand that the courts in applying the laws to his person, his property, or his interests, should be controlled and guided by those constitutions. And what renders the contrary doctrine absolutely impracticable is, that the Congress and the states may pass, and in fact in some instances have passed, laws inconsistent with each other, and therefore, if the courts could not look beyond the law into the constitution, but were bound to accept as constitutional and valid whatever the Congress or state legislatures might enact, this would not only deprive the citizens of the benefit and protection of the constitutions, but would also involve the judicial tribunals in the absurdity of applying and administering inconsistent and contradictory propositions.

The extracts we have made sufficiently illustrate the general style of the execution of this work, and would, of themselves, be a sufficient recommendation of its character, if any other recommendation were needed than the reputation of the author. We have noticed a few instances of defectively constructed sentences, on pages 122, 142, and 163, which would be less

1827.] Service of Indians in civilized Warfare.


worthy of notice, were not the work intended more particularly for readers of the younger class in the profession; they would, however, be blemishes in any work, for whatever description of readers intended. But, in general, it is written with great ability, and, when completed by the publication of the additional volume promised, will doubtless supply the student with the best outline of the law within his reach; and we can entertain no doubt that a book which was so much needed will be very favorably received.

ART. V.-Indian Treaties, and Laws and Regulations relating to Indian Affairs; to which is added an Appendix, containing the Proceedings of the Old Congress, and other important State Papers in relation to Indian Affairs. Compiled and published under Orders of the Department of War. Svo. pp. 529. 1826. Washington. Way & Gideon.

We have placed the title of this work at the head of the present article, not only because it is a valuable compilation, judiciously executed, but because it contains many important documents, exhibiting the general policy of our government in its intercourse with the Indians. The true character of this policy has not been well understood, even in this country, and abroad it has too often furnished the motive or the pretext for grave accusation and virulent invective. This subject we now propose to examine, and in connexion with it briefly to review the conduct of the two rival nations, whose general measures in peace and war had produced the most permanent effects upon the manners, and morals, and condition of the Indians, previously to the existence of the American government. The operation of the British policy has been so much more extensive and durable than that of the French, that in the observations which we shall submit to our readers, this relative importance will be kept in view.

The peace of 1763 terminated the long contest between the French and British, for superiority upon the North American continent. During its continuance, which exceeded a century, the Iroquois were in the English interest, and the other

tribes in the French. We speak in general terms, and without adverting to the inconsiderable exceptions, occasioned by the local residence of some small tribes, and by other partial causes. The great contending parties availed themselves of the passions and wants of the Indians to harass their enemies, and employed them without scruple, wherever their services were useful; and each was more successful in arraigning the conduct of its rival, than in defending its own, for this atrocious practice, equally repugnant to their duty, as civilized and as christian nations.

We feel no disposition to look back upon the revolting scenes of these times gone by. The Indians were employed with a full knowledge of their habits and propensities; and many a traditionary story, as well as the more permanent memorials of history, has brought down to us, even through successive generations, afflicting details of these enormities. The cupidity of the savages was stimulated by pecuniary rewards, and human scalps, as proofs of death, were bought and sold in christian markets.*

As the fortunes of the French waned, and the superiority of the British became more and more manifest, the zeal and exertions of the Indians in the interest of the latter gradually relaxed, and they became spectators rather than actors, in the great drama, which was rapidly approaching its termination. The Iroquois appear to have become sensible, that in exalting one power and annihilating the other, their policy had been directed by very limited views, and that it would convert an ally into a master. Even as early as the reign of Queen Anne, their deputies, in an address to that sovereign, portrayed, with

*In the year 1754, the war assumed a very serious aspect, and the French government, in order to stimulate the savages to cruel and merciless depredations, provided a large premium for the scalp of every Anglo-American, which the Indians should produce. This open cruelty was not retaliated by the English government upon the French inhabitants of Canada, but a bounty was offered of £100 on the scalp of the Indians.'-Sullivan's History of the Penobscot Indians, Vol. IX. of the Mass. Hist. Col.

"The Indian strings the scalps he has procured, to be produced as testimonies of his prowess, and receives a premium for each scalp from the nation under whose banners he has enlisted.' Wynne's History of the British Empire in America. Vol. II. p. 57.

'In the war between France and England, and their colonies, their Indian allies were entitled to a premium for every scalp of an enemy.' Buchanan's Sketches; Introduction, p. 19.

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