endeavor to discover the causes, and point out a For an iron sleep hath bound them in its passionless emremedy. Without going into an examination of brace; ing place!" the correctness of the sentiment above advanced, We may woo, but cannot win them from their dreary restwe shall take its truth upon trust, believing as we do in the quaint old axiom, "What all acknowledge, Peace to their ashes-immortality to their famemust be so." "The voice of the people is the repose to their gentle spirits!-And what can we voice of God," saith Jefferson,-and what autho-say for those of our native bards who, though lirity have individuals to controvert the language of ving, are yet lost to the world in the spheres of Divinity? usefulness and honorable distinction which they What, then, are among the prominent causes were wont to occupy ?-who have abandoned the which have led to such a result? It must have Muses, to woo the favor of the "god of this world," been evident to the observation of all, that in re- and have turned from the calm shades of Castacent years the public mind, especially in this coun- lia, to dream golden dreams in the counting-house, try, has been the theatre of alternate excitement or to muse amidst the primeval groves of paper ciand depression, engendered by the prevailing spi-ties, and prospectively wield the sceptre of comrit of mammon. Catching the strange infection, mand in States and nations yet to be! Stillthe man of science has left his laboratory, the stu- though they have gone out from us-we will redent his books, the lawyer his "briefs," and too vere their memory, and cherish their fame; but often, alas! the minister at the altar, and the poet worthy of double honor shall be he who shall ultiat his lyre, have left their high and honorable call-mately succeed in winning them back to their ing, to engage in some reckless scheme of self-ag"first love." grandizement! How many intellects which have Another cause for the decline of poetry, may given evidence of superior culture, and whose ear- be found in the lack of a just and discriminating ly literary efforts gave fair promise of lofty achieve- criticism. Nothing can be more fatal to the proments, becoming debased by this sordid desire for per development of the talent and genius of a peogain, have disappeared from the firmament like ple, than the supremacy of an ignorant, illiberal, bright stars obscured or eclipsed in the zenith of irresponsible, cringing, class of reviewers. Indistheir glory! How many warm hearts have been seared-robbed of all their gushing sympathies and finer emotions-by the same unhallowed influence! And how many, too, whose harps were ever tuned to the cause of goodness and virtue, are silent now, or wake their numbers to the melody of a higher sphere! "They, the young and strong, who cherished criminate praise, on the one hand—and unqualified and universal condemnation on the other, seem to us to be the prevailing characteristics of the system of criticism now in vogue. The consequences of such a state of things, may be clearly read in the history of the past. The reader has not forgotten the "iron age" in British literature, when a few self-constituted censors of the periodical press in the father-land, established, and for a while maintained, the most complete and systematic model of a literary despotism, which the world has ever witnessed. By affecting a disinterested Clarke, Mellen, Hillhouse, Thatcher, Bacon, Miss zeal for the cause of letters, and under the speHooper, and others, whose writings have been cious pretext of guarding the public from the imjustly regarded as ornaments to our national lite-positions of ignorant and ambitious pretenders, rature, have gone in rapid succession from a world they succeeded in gaining an influence infinitely consecrated by their genius, and made better by above their real deserts. Their praise was regardtheir influence and example, to the land of shadows ed as a sure passport to fame, while their censure and silence. With their harps in their hands, and was looked upon, by both author and reader, as ina song on their lips, they passed away. And who dicating the surest and nearest way to a premature are they that are to fill the places of the lost ones, oblivion. Few could contemplate appearing beand the dead in the great arcana of literature? fore the world in the character of an author, withWhither shall we look for the rising and increas-out shrinking appalled at the prospect of being ing lights which are to render less apparent the compelled to pass this fiery ordeal; for few, indeed, absence of those "bright orbs of song" which-and they the especial objects of favoritismhave been quenched in the vortex of worldliness, were suffered to pass unscathed. Now and then, or darkened by the shadows of death? Those de- one among the many aspirants to the honor of auparted minstrels-how the remembrance of their thorship, animated by a stern, unyielding spirit, inspiring words steal over our thoughts in the determined to run the venture, and, like the haughcalmness of solitude, like the sweet echoes of ty Byron, hurled defiance at the shafts of his advoices beloved and cherished in happier years! versaries, and finally came off conqueror. But But they come not back!—they answer not to our multitudes, giving way to that timidity which is call! too often the accompaniment of real merit, either withheld their works altogether from the public, or, having once thrown themselves upon the "tender mercies" of the merciless, bowed to the storm, nor dared to rise even to witness its effects upon those around them. Thus, under the guidance of Jeffrey and his leagued associates, the office of the reviewer, instead of being regarded as a nursery and defence of the good and true in literature, became, as it were, the great slaughter-house of genius; and the press, instead of teeming with the light and life of truth, was incessantly reeking with the blood of the murdered reputations and crushed hopes of its victims. Perhaps there is far less danger of reaching such a state of criticism in this country, than there is of running into the opposite extreme. But it would be well for our reviewers to bear in mind, that the distance from Scylla to Charybdis is short, and the voyage quickly made, and the dangers of the latter far more sure and calamitous. Other reasons for the declension of the spirit of poetry among the people of the present day, might be mentioned, and various remedies suggested, and we trust other and abler pens will do justice to the subject. It is a fitting theme for the essayist, the orator, and the poet; for whatever tends to raise and purify the thoughts, affections, and fancies, of the multitude, adds indeffinitely to the aggregate of human happiness, and deserves the gratitude of mankind. December, 1842. WOMAN. (Written for an Album.) When the world frowns with angry scowl, And find in female charms relief. A sunshine, which those tears can dry. She watches with a sleepless eye. When man resigns thee, bids adieu, And cheats the grave of half its gloom. CONSIDERATIONS W. P. S. ON THE CASE OF THE CREOLE. To the Editor of the Southern Literary Messenger. SIR,-The following considerations were not written for publication, as your readers will at once perceive. But the great importance of the subject, the interest attached to it by recent events, the comparative novelty as matters of diplomatic discussion, of some of the doctrines propounded, together with their incontrovertible truth, as principles of public law, will recommend them, I flatter myself, in a very special manner, to some of the readers of your Journal. These doctrines have recently received from a most mit of, and indeed require further illustration. A French able hand, a clear and forcible exposition. But they adReview of leading influence, has ventured to controvert the positions laid down by Mr. Webster, in his correspondence with Lord Ashburton, in the case of the Creole. I affirm, with confidence, that those positions cannot be sha ken. The memoranda I send you, present them in another aspect, and fortify them by other topics, and the most venerable authorities. If you do not think such a matter too grave for your agreeable Journal, I will answer for the service you will render to students of public law, as well as to the great interests of the South, by giving these reflections to the public. In another paper, I shall collect a number of cases, in which the law (in all its departments) of civilized States, considers the necessity imposed on vessels of neutral or friendly countries, by the dangers of the seas, of entering prohibited ports, or free ports with prohibited articles or persons, as a protection against forfeiture and penalty. These cases should seem to put an end to the whole question: for, if an absolute and proclaimed prohibition, does not, under such circumstances, authorize a State to enforce its municpal laws against foreigners, who violate that law involuntarily, how should it be authorized to do so, in a case where the entry of its ports is not even by implication, forbidden? and where, on the contrary, it is presumed to be permitted on the principles of common humanity? If England were to proclaim that certain property should be confiscated, if any attempt be made to import it into her territories, it is her own adjudged law that a case of necessities from dangers of the seas, would save the forfei ture, on the ground, that such a compulsory entry acknowledged by foreign and friendly States, it is is not an importation, and the property not in legal that which regards personal capacity or status. contemplation within her jurisdiction. She might, The continental lawyers almost universally mainit is true, carry the principle of territorial sovereign-tain, that such laws follow the person every where. ty so far, as to proclaim, that ships with prohibited Qualitas personam sicut umbra, sequitur. The property or persons on board, should go down at French code (article 3d) lays down the principle sea, rather than be allowed a momentary asylum broadly. Les lois concernant l'état et la capacité on her coasts, or in her roadsteads; but, would des persounes régissent le francais méme residant such proclamation be consistent, I will not say, en pays étranger. with her character among nations, but with any nation of comity or civilization, or peaceful relations to the rest of mankind? But it may be argued that slaves are, in the eye of the English law, not things, but persons, and have a right to the protection of that law. Minors, married women, prodigals under interdict, idiots, madmen, apprentices, &c., are, say these jurists, every where to be treated as laboring under the incapacities to which they are subjected by the laws of their own country. I am aware that these principles can seldom be It is conceded that a Government which prohi- enforced in practice, and are even in theory liable bited the importation of slaves, while it recognised to many qualifications and exceptions. I know the relation of master and slave, could not be what a conflict of opinion exists with regard to justified in seizing a ship driven into one of its them, and that the common law of England and of ports by stress of weather; but it is maintained this country, is particularly stubborn in refusing that having abolished that relation itself, the implied its help to any right springing out of mere posiprohibition of such an importation, gives it a right tive legislation in foreign countries, and inconsisto do what the express prohibition in the other case, tent with our ideas of policy or obligation. did not, viz to take possession of a ship in distress, and set the persons on board at liberty. I confess I am unable to perceive any difference between these two cases. But I mention the doctrine of continental jurists to show, that interference with persons on board foreign ships, on the ground of personal capacity or status, is, to the full, as gross a violation of international' comity, as any interference with property or contract. It must not be lost sight of, that what we are now considering, is not the right of the master to use the legal process, and the Executive power of Capacity or status is generally matter of fundaa foreign State to enforce his right. We concede mental public law, and if there is any particular that he who calls on a foreign court to enforce his whatever, in which a country may claim that forights in a matter of conflict of laws, must be con-reigners should not directly or wilfully interfere tent to accept the assistance of that court, with with her legislation or institutions, it is surely her the qualifications and conditions imposed upon such public law. Considered as matter of mere muniiuterposition by foreign policy and laws. But the cipal right and authority, the domestic relations are | question here is, not how our municipal law is to not less, but more sacred than contracts, which inbe enforced by Great Britain, within her undoubted dividuals may make and modify at their discretion. jurisdiction, but whether her municipal law is to be I repeat-I do not pretend with the foreign juenforced without any invitation from us, but against rists, that the personal qualities impressed upon our will, within our jurisdiction. For we main-men, follow them every where, and are to be entain, that our ships, driven upon her coasts, or into forced in foreign countries, by foreign courts, or her harbours, by dangers of the seas, are not to be even in regard to what passes in foreign countries, held accountable for what they contain, when they by their own courts. Sir William Scott, indeed, are driven in, the entry or importation being invo- in a famous case, solemnly ruled that an English luntary, and so considered as not made at all. We marriage cannot be dissolved by a sentence of any protest against the interference of her authorities foreign tribunal founded upon foreign law. My and people, to enforce her municipal law, in respect proposition does not go to that length. All I mainto one of the domestic relations of life in such a case, and we affirm that she has no more right to do so, than to interfere in any other matter of municipal law, or private property. tain is, that within our own jurisdiction, these relations are as sacred as contract and property, and more sacred too, and that in no case has a foreign nation a right to interfere with them, where it has no The relation of master and slave, exists even right to interfere in matters of contract and property. now, in most countries, and was, until recently, as But we have seen that in all cases of importauniversal as that of parent and child, husband and tion of merchandize, breach of blockade, prohibitwife, guardian and ward. In the New Testament ed entry, &c., the dangers of the seas exempt a fothe only word for servant, with scarcely an excep-reign ship from the application of municipal law, tion, is slave, (dovdos.) and treat her as if she were still on the high seas. But, if there is any part of the municipal law of I insist, therefore, that on every principle, a fortiori, a nation, which she has a right to insist on being is this exemption from the municipal law, secured to foreign ships in that predicament, with regard to ed since his arrival in port, to justify any interferpersons and their personal capacity. This is indeed the universal practice of nations, and I venture to say, that were it not for the peculiar feelings with which all questions connected with domestic slavery, are treated, it would command the assent of all mankind. A ship, though at anchor in a foreign harbor, preserves (independently of the ground of being driven in by stress of weather,) its jurisdiction and its laws. Marten's B III, c. 3, s. 8, Vattel, and 1 c. 19, s .216. This, with regard to men-of-war, is familiar doctrine. They stand on precisely the same footing as the persons, suite and residence of foreign ministers, or of sovereigns themselves, in the territory of a friendly power. All access may indeed, in strict law, be refused in these cases, but the presumption is the other way, and if admitted at all, these persons and things are supposed to be admitted with the immunities that belong to them, by the usage of nations. Case of the Exchange 7. Cranch 116. But merchant vessels enjoy the same privilege of a fictitious extra-territoriality, though not in the same degree. It is admitted, that though they keep, to many intents, their own laws and jurisdiction, still that these are not exclusive. Certainly, for any thing that happens after they arrive in port, or for any previous breach of the laws of the country where they happen to be, they are answerable to its laws. But persons aboard of her, may, in certain cases, for the same thing be held responsible to their own Governments. There is, in this respect, divisime imperium, and the ship's company are like the old feudal tenants that held of two lords ad utriusque fidem, but for every thing that happened on the high seas, before her entry into port, or in other countries, for all the personal relations and responsibilities existing in a ship, at the time she entered a port, and established, or permitted by the laws of her own country, her authorities are answerable only at home, and to interfere with them in the discharge of the duties imposed upon them, or the exercise of all the powers vested in them by those laws,* on the ground of their being inconsistent with the municipal legislation of the country where the ship happens to be lying, is to assert for that legislation, a superiority not acknowledged by the law, and inconsistent with the independance of nations. Admit that in such cases a habeas corpus would be allowed to bring up a man, would it not be a sufficient return to say, that he had been always kept on board a ship belonging to the United States, by whose laws the Captain had an undoubted authority to keep him, and that nothing had happen * It must be remembered that a ship's master is treated as a quasi military officer, and is armed with despotic power under the jus gentium; in short, is a public authority. ence of the local authorities, with the authorities of the master? Put the case of a murder committed on the high seas, and the murderer brought into a British port in chains, and so kept, with a view to be taken for trial to his own country. He too, might sue out a habeas corpus, and might very well allege that he was imprisoned within the territorial jurisdiction of the British crown, for no offence against the laws of England. But is there a judge or a lawyer in England, who would hold him entitled to his discharge on that ground, because all criminal laws are strictly local? Certainly not; he would be restored, as in all other cases, to the place and the condition from which he had been taken. Just as in the report of the English Crown lawyers, in the matter of the Silesian Loan of 1753, it is stated, "that French ships and effects wrongfully taken, after the Spanish war, and before the French war, have, during the heat of the war with France, and since, been restored by sentence of your Majesty's courts, to the French owners. Νο such ships and effects ever were attempted to be confiscated as enemy's property here during the war, because, had it not been for the wrong first done, these effects would not have been in your Majesty's dominions." This is a clear ground, and susceptible, in practice, of various applications. A familiar and very striking illustration of the principle in question, occurs in the case of a prize ship carried with prisoners of war on board, into the harbor of a friendly power. Not only is no interference on the part of the local authorities, allowed in such a case, but the possession of the captor, being regarded as the possession of his Sovereign, the courts of the latter have jurisdiction over her while she is laying in a neutral port, and can change the property in her, by a sentence of condemnation. So far, I have endeavored to show, that a ship, going into a British port with slaves on board, would not, according to the law of nations, in analogous cases, be responsible on that account, to the local authorities, so long as those slaves continued · on board. But I know how far the English doctrine has, in this particular case, been carried by English courts, who, I am quite sure, are not prepared to generalize their principles, by applying them, where even they are in strict logic, applicable. I am willing, therefore, to concede, for the sake of the argument, that in this particular case, ships voluntarily entering into British ports, with a knowledge of the state of British law, may be taken to have voluntarily submitted to the law, (right or wrong,) as it is interpreted there. Still, in the case of a cumpulsory entry, under an overruling necessity, there can be no such presumption of acquiescence, and I maintain, that no authority, nor principle, nor analogy, of the law of nations, will justify the enforcing on board a foreign ship, thus in distress, allowing freight, expenses and demurinvoluntarily within the jurisdiction of a foreign rage to the ship. 1 Rob. 243. The Jonge Jacobi nation, the municipal law of that nation, to the ut- v. Bannerman. ter subversion of authorities and rights, undoubtedly established and guarantied, by the municipal law of its own country. Further. The distinction is plain between calling on the foreigner for help, though even that is not often refused in case of distress, and demanding of him only a temporary asylum. In the former case, we ask him to aid in executing our municipal law in his territory-in the latter, we only ask to be exempted from his municipal law in our territory. The principle is, that if a vessel be driven by stress of weather, or forced by vis major, or, in short, be compelled by any overruling necessity, to take refuge in the ports of another, she is not considered as subject to the municipal law of that other, so far as concerns any penalty, prohibition, | Beyond all question, a ship on the high seas, betax or incapacity, that could otherwise be incurred yond a marine league from shore, is part of the by entering the ports, provided she do nothing territory of the nation to which she belongs, why further to violate the municipal law during her should her being blown, &c., within a marine league, stay. by tempest &c. make a difference? The comity of nations, which is the usage, the common law of civilized nations, and a breach of which, would now be justly regarded as a grave offence, has gone very far on this point. The old law of Europe, barbarous as it was in many respects, e. g. wrecks-furnishes examples of this exemption. See 2 Inst. 57, Coke's Commentaries on Magna Charta, and a citation of ancient Saxon laws. When a ship is driven into port by stress of weather, and there unloads her cargo, she is not bound to pay duties or customs in that place, because she came there by force. Nor is she liable to forfeiture. Neither are duties to be paid on goods forcibly driven into port. Romes Note C. If there is a case in which the excuse of necessity would be regarded with suspicion, and received with disfavor, it is undoubtedly a breach of blockade, one of the extreme cases of the law of war, involving in its own nature, a necessity that could seem to supersede all others. Yet, Sir William Scott admits it to be a good plea, when the facts fully support it. See 5 Rob. 27, The Tortune. Under the English Navigation act, it has been settled, that coming in by stress of weather, could not be an importation, without reference to intention, or mala fides. See the cases collected 1 Chitty's Commercial Law, p. 245. What is this, but an admission by statute, that a ship in that category, is like a ship of war belonging to a friendly power, considered by the law of England, as not subject to the municipal law. This analogy of a ship of war, like that of a foreign Sovereign travelling in the dominions of a friendly power, and of ambassadors of all classes, shows the principle of immunity by reason of a quasi or fictitious extra-territoriality to be familiar to the law. But put it on the ground of comity, it is plainly juris gentium. To shew how sacred the duties of humanity! have been considered in England, even as between enemies, Sir William Scott rejected with indignation, a claim of capture by persons going on board' |