"In cases before it, the Supreme Court has no other jurisdiction over constitutional questions than is possessed by the humblest judicial tribunal, State or national, in the land. The only distinction is, that it is the court of final resort, from whose decision there is no appeal. The relations of all courts to the Constitution arise simply from the fact that, being courts of law, they must give to litigants before them the law; and the Constitution of the United States is law, and not, like most European political constitutions, a collection of rules and principles having only a moral obligation upon the legislative and executive departments of the government. Accordingly, each litigant, having the right to the highest law, may appeal from a statute of Congress, or any other act of any officer or department, State or national, and invoke the Constitution as the highest law. The court does not formally set aside or declare void any statute or ordinance inconsistent with the Constitution. It simply decides the case before it according to law; and if laws are in conflict, according to that law which has the highest authority, that is, the Constitution. The effect of the decree of the final court on the status of the parties or property in that suit is of course absolute, and binds all departments of the government. The constitutional principle involved in the decision, being ascertained from the opinion,—if the court sees fit to deliver a full opinion,—has in all future cases in courts of law simply the effect of a judicial precedent, whatever that may be. Upon the political department of the government and upon citizens the principle decided has, in future cases, not the binding force of a portion of the Constitution, but the moral effect due to its intrinsic weight and to the character of the tribunal, and the practical authority derived from the consideration that all acts inconsistent with it will be inoperative, by reason of the judicial power which any citizen may invoke against their operation."
Our space will not allow us to make further quotations. Among those notes which are especially interesting to the non-professional reader we may mention those on the much misunderstood Monroe doctrine; on naturalization; on the effect of belligerent occupation on slavery, and the President's Proclamation of Emancipation,—in which Mr. Dana maintains the same position that he has heretofore taken in his political speeches, and of the correctness of which there can be no doubt; the very excellent examination of the neutrality statutes and decisions, and the note on the case of the Trent,—a model of calm, judicial dissertation. The recent agitation of the subjects of all of these makes them matters of general interest, and we cannot but think that the timely publication of this edition of Mr. Wheaton's work will aid efficiently in the satisfactory settlement of some of them. True to the principles which he holds of the evidences of international law, Mr. Dana avoids spending much time in discussing questions still unsettled, satisfying himself with a clear statement of the present state of each controversy, and leaving it for the future attention of statesmen and jurists. Attached to the volume is a full and carefully prepared Index,—sufficient for all the requirements of any reasonably intelligent reader.
We cannot dismiss this book without alluding to the newspaper controversy which the editor of the two preceding editions has started, and seems determined to keep alive, even if he have no antagonist. We wish to do full justice to Mr. Beach Lawrence's services to the science of public law. His industry and the extent and variety of his information will always make his writings valuable as books of reference,—much as we think this value is lowered by his method of treatment and partisan views. Some natural disappointment and irritation would be excusable in him on the announcement that a work, of which he imagined he enjoyed a monopoly, was receiving the attention of so formidable a rival; but this does not excuse the bad taste and bad temper with which he has published his complaints. Of the merits of his dispute with Mr. Wheaton's heirs we know little, and shall say nothing, except that they have been guided in their conduct by what they regarded as high legal opinion of their rights and obligations, and that, if Mr. Lawrence has been wronged, the courts of which he talks so much, but to which he seems to be so slow to appeal, will give him redress. But if it be considered becoming to drag ladies and their private circumstances before the public in the manner in which Mr. Lawrence has done it, there must be a grievous decline of the old chivalrous feeling in regard to women. Still more solemnly must we protest against his recent charges against Mr. Dana. In these he impugns the honor of a distinguished contemporary, charging him with gross and impudent piracy of the results of another's labors. If there be foundation for these charges, they ought to be made; but there are two ways of making them, and the course which Mr. Lawrence has taken in bringing them, at a time when Mr. Dana is absent from the country, and leaving them to rest solely on his own unsupported assertion—without citing or referring to any of the facts which he declares exist—is highly censurable. We have found no evidence of the truth of his charges in a cursory examination of a considerable part of both works; and a friend upon whose judgment we place full reliance, and who has carefully compared the labors of the two editors, assures us that there is nothing which at all substantiates them. Mr. Lawrence has needlessly involved his own character in this affair; and the public will demand from him proofs of a most flagrant violation of the rights of literary property, before it will be inclined to admit any palliation for the errors he has committed in conducting the controversy.
English Travellers and Italian Brigands. A Narrative of Capture and Captivity. By W. J. C. Moens. New York: Harper and Brothers.
Prison-Life in the South: at Richmond, Macon, Savannah, Charleston, Columbia, Charlotte, Raleigh, Goldsborough, and Andersonville, during the Years 1864 and 1865. By A. O. Abbott. New York: Harper and Brothers.
The narrative of Mr. Moens, so far as it relates to the general subject of brigandage in South Italy, will hardly present anything novel to those who have at all studied the history or character of that scourge. In fact, Italian brigandage is a very simple affair, about which it is hard to say anything new. Given a starving, beaten, superstitious population in a mountainous country, destitute of roads, and abounding in easy refuges and inaccessible hiding-places, and you have brigandage naturally. Given centuries of weak, cruel, and corrupt government, and you have the perpetuation of brigandage inevitably. From time immemorial, the social and political conditions in Naples have been deprivation and oppression; and cause and effect have so long been convertible, that it is often difficult to know one from the other. The prevalence of brigandage demands measures on the part of the government compared with the severity of which martial law is lax and mild; and the crime which provokes these harsh measures has revived again from the disaffection which they produce. All authorities on the subject are agreed that brigandage finds its shield and support in the fears of the people, and the complete system of espionage which the robbers are enabled to maintain through their accomplices in society. These are sometimes priests and persons of station, but more commonly peasants whose friends or relatives are brigands. During the French-republican rule of Naples, when Manhès was at the head of the troops assigned the duty of extirpating brigandage, the robbers were for once destroyed by the terrible measures taken against their accomplices. No one suspected of communicating with them in any way was spared. Men were shot for selling them food. Women and children taking food into the fields to eat while at work were shot, under an order forbidding this custom lest the provisions should fall into the hands of the robbers. For once, the authorities outbid the brigands for the terror of the wretched inhabitants, and annihilated them. But it was natural, in a country where every peasant is a possible brigand, and only waits for a lawless impulse or lawless deed to make him an actual brigand, that brigandage should flourish again as soon as the rigid procedure against it was relaxed. The returning Bourbons found it on every hill; and though they combated it with fitful severity and unremitting treachery, they left it essentially unimpaired to the Italian government in 1860. It is by no means true—as Mr. Moens asserts upon the authority of Murray's Guide-Book—that the late Bourbon government did anything towards effectually suppressing brigandage. The brigands were put down in one place to spring up in another, and they swarmed everywhere after a lean harvest. They never were effectually suppressed, except by Manhès; and, as the Italian government has mercifully refused to adopt his course for their destruction, it is probable that they will exist until the country is generally opened with roads, and the people educated, and, above all, Protestantized. For it must never be forgotten that, since the union of Naples with Italy, brigandage has been fostered by the Bourbons and the Papists, and that the Italians have had to fight, not only the robbers in Naples, but Francis II. and Pius IX. at Rome.
To the readers of the newspapers, the name of Mr. Moens is known as that of the English gentleman who was taken by brigands in May of last year, on his return from a little pleasure excursion to Pæstum. He and his party—consisting of his wife and the Rev. Mr. Aynsley and wife—had trusted too implicitly in the notice given by their landlord that the road from Salerno to the famous temples was free from brigands, and guarded by troops. Near a little town called Battipaglia, the military having been withdrawn temporarily to permit the families of some captives to negotiate their ransom with the band of Giardullo, the band of Manzo swooped down upon the unhappy tourists, and carried off both the gentlemen of the party. The troops appeared almost immediately after the capture, but the brigands escaped with their prisoners, one of whom they released a few days later, that he might return to Naples, and raise the ransom demanded for himself and his friend. The book, from this point, is the relation of Mr. Moens's trials and adventures with the bandits, and Mrs. Moens's hardly less terrible efforts and anxieties for his release. It was decided by the band that their captive was a Milord, and they demanded a ransom of $200,000 for him, subsequently reducing the sum to $30,000, which was paid them in instalments, and which having received in full, they released their prisoner after a captivity of four months. All the negotiations for the ransom of Mr. Moens had to be carried on in defiance of Italian law, and by indulgence of its officers; for to supply the brigands with food or money is an offence punishable with twenty years in the galleys. Generous English friends at Naples interested themselves in the affair, and the aid which Mrs. Moens received from Italians in private and official station was no less cordial and constant. Indeed, the business of Mr. Moens's recapture became of almost international importance. All the Italian troops in the region were employed in pursuit of Manzo's band; and a British man-of-war was sent to a certain point on the coast, in the hope that the bandits could be induced to go on board by the promise of impunity, and transfer to England.
In the mean time Mr. Moens remained with his captors, sharing all their perils and privations, and making perforce the most faithful study ever made of their life. It must be confessed that the picture has few features attractive to people at peace with society. Most of the brigands are men who have placed themselves beyond the law by some hideous crime,—or misfortune, as they would call it in Naples,—and in other cases they are idle ruffians, who have taken to robbery because they like it. They generally look forward to a time when, having placed a sufficient amount of money at interest, they can surrender themselves to the authorities, pass a few comfortable years in prison, and issue forth ornaments to society. To be sure, this scheme is subject to chances. They are hunted by the soldiers, day and night, like wild beasts; and, if taken under arms, are shot without trial. Half the time they are without food, and suffer the agonies of hunger and thirst; and they are always without shelter, except such as trees or caverns can give. When they have anything, they "eat their bread with carefulness, and drink their water with astonishment,"—quarrelling over it a good deal, and trying to steal from one another. When they have nothing, they buckle their belts tighter, and bear it as best they may.
Mr. Moens, who fared no better than the rest, does not seem to have fared much worse. Indeed, he was much more comfortably situated than the ladies of the band, who, being dressed as men, were armed and obliged to fight like their comrades, and yet had no share of the spoils, but received many more cuffs and hard words than we, who have only seen them in pictures, can well associate with the idea of brigandesses.
Being poor ignorant peasants originally, and being afterwards poor ignorant robbers, the brigands inflicted little unnecessary suffering upon their prisoner. Occasionally, to be sure, they struck him; but this was in hot blood, and he was allowed to strike back and restore the balance of justice. These wretched creatures, imbruted and stained with innumerable murders, seem to have had very little idea of the usages of civilized people in regard to captives; and any one who will compare the story of Mr. Moens with the narratives of the prisoners given in Mr. Abbott's book, will see how absurdly the bandits neglected their advantages. After all, it is your high-toned Southern gentleman, compact of the best blood of the Cavaliers and the Huguenots, and presenting in this unhappy hemisphere the finest reflection of the English nobleman's character, who understands best how to use a prisoner. There is nothing like having in your power from childhood a number of helpless human beings, to teach you how to treat a captured enemy; and we cannot help thinking that Mrs. Moens, who will not spare the American Unionists a sneer in the first chapter of her diary, would have understood us better if her husband had been in the hands of Captain Wirz instead of Captain Manzo. Had Mr. Moens been a soldier of the Union, taken while fighting to defend his country against rebellion, he would have been carried into the midst of a people inured to the practice of cruelty by slavery, and all the more abominable because they believed themselves Christian and civilized. There he would have been thrust into a roofless close, already densely thronged with thousands of famished, sick, and maddened men. He would have had no shelter from the blazing sun or drenching storm, except such as the happier wild creatures make themselves in holes and burrows. Guards, emulous in murder, would have been set over him, with instructions to shoot him, if he reached, in the delirium of famine, across a certain line to clutch a bone, or stooped to moisten his lips in a pool less filthy than those at which his comrades quenched their thirst within the bounds. In the mountains of Naples, the brigands gave him to eat and drink of their scanty fare, and shared with him the last crust and the last drop. In Georgia, in the midst of plenty, his keepers would have slowly starved him to death, and would have driven away, with threats and curses, any that offered to succor his distress. If he escaped, they would have hunted him with bloodhounds, and so brought him back; and if he sickened under his torture, they would have left him, naked and unsheltered, to languish with wasting disease and devouring vermin,—to die, or to rot and drop away piecemeal while yet alive.