« PreviousContinue »
far advanced in years, presenting to the rising generation the most admirable and instructive lessons of unremitting industry. How often have we listened to the familiar but truthful saying, that an individual is just fit to commence the world when he is going out of it! Have we any thing at all to justify our belief, that the mind necessarily wanes with the body? On the contrary, does not Bishop Butler insist upon the circumstance, that on the bed of sickness and of death, the mind is frequently clear and unclouded, as a practical refutation of materialism, and a convincing proof of the soul's immortality.
It is said of Cyrus, according to Xenophon, that in his last moments, being then at a very advanced stage of life, he remarked, that he was never able to perceive that his old age was in any degree more imbecile than his youth. And we read, moreover, of a certain Appius, who, although old and blind, conducted his affairs with wonderful success, and commanded universal respect and admiration. Did old age dampen the ardor and enthusiasm for their studies, in the bosoins of Homer, Hesiod, Simonides, Stesichorus, Isocrates, Georgias, or those princes of philosophers, Pythagoras, Democritus, Plato, or Xenophon, or after them, Zeno, Cloanthus, or the stoic Diogenes? We frequently find, that far from languishing and decaying, a prudent old age is busy in adding to its previous knowledge. Solon prided himself on his verses, and boasted that though stricken in years, he continually increased his store of information; and Cato Major says of himself, that in his old age, he commenced the study of the Greek, which he seized upon with all the eagerness of one desirous of satisfying a daily thirst, that when he heard Socrates perform upon the lute, he was desirous of trying the same instrument also. We have the same authority for the position, that extreme bodily vigor is not indispensable to the efficient discharge of the highest and most important duties, and such as require the most patient and laborious exercise of the mind. In labours of this description, he says, "I experience no great necessity for bodily strength. I seek the society of my friends, and frequently visit the senate chamber, and there of my own accord propose measures requiring long and serious meditation, but these I defend with the faculties of my mind rather than the body." The same author passes a beautiful eulogy upon this period of man's life. We cannot, he says, all be Scipios or Maximi, and
call to mind our storming of cities, our numerous engagements by sea and land, our wars and triumphal honors. There is beside all this, a placid and tranquil old age, consequent upon a properly spent youth; such for instance as we hear, was that of Plato, who wrote at his eighty-first year; or that of Isocrates, who informs us that he composed the work, entitled Panathenaicus, in the ninety-fourth year of his age, and lived for the space of five years after, whose master Leontinas Georgias, completed his hundred and seven years, and did not relax in any degree in his labors; and when he was asked by his pupil, how he could possibly wish to live so long, replied that he was unable to find any fault whatever in old age. It is therefore not altogether correct to say, that at this period, we are not fit for the discharge of the responsible duties of life; we might with equal propiety, deny the usefulness of the pilot to the labouring vessel, who, whilst some are climbing the masts, others running along the deck, and others busy at the pumps; sits quiet at the stern with helm in hand. He does not, indeed, perform the same duties as the more youthful, but far greater and more important duties. These matters which are really great, are accomplished not so much by the strength and activity of the body, as by the wisdom and experience of the mind, of which, old age so far from being deprived, usually abounds. At this period of life, we certainly are unfit for engaging in the jostling occupations of the world; and these, together with the ordinary pleasures and amusements, present but little attraction; but gravity and authority, as consequent upon presumed wisdom, have ever belonged peculiarly to this season.
We have thus far noticed the objection, that the individual who is advanced in years, is necessarily incapacitated from the proper discharge of his duties, in consequence of that circumstance. We have seen the sentiments of one of the most learned and philosophic minds of antiquity, on the subject, a mind that must ever command the admiration of the world, for its profound and varied acquirements; its extensive observation, and intimate acquaintance with human nature in all its phases; as well as for the ethical precepts it has inculcated; which as a code of natural justice and inorality, although originating from the light of unaided reason, constituted the most unexceptionable rule of human action. We would not be supposed to believe, that cases might
not occur, where the removal of a Judge from office in consequence of a debilitated intellect, would be highly neces sary. We only suggest, that in our humble opinion, no general rule can be laid down, which would not be almost as prejudicial as beneficial in its operation, and banish the matured wisdom of the sage, equally with the drivelling nonsense of the dotard. We are told by Cato Major, that at the very age, when it is supposed the mental powers are declining, with a firm voice and unabated strength, he advocated the Vocenian law. When therefore, such mischief is to be apprehended from the operation of the general rule, we should pause and consider, whether so rigorous a measure was by any means indispensable. Besides, we should bear in mind, that the Judicial honors are of the highest dignity; and that distinguished abilities are not to be made use of and carelessly laid aside, whenever it pleases us to suppose them no longer serviceable. We should reflect, that such treatment could scarcely be otherwise, than prejudicial to the Bench itself; for we would simply ask, with the author of the Letters with which we have headed our article, what member of the Bar, qualified by learning and ability to be raised to the Bench, and enjoying a lucrative business, would accept the appointment of Judge, when he was liable to be removed from office at sixty-five years of age, with the legal intendment that he was an imbecile, and unequal to the discharge of his official duties. What authority or influence would a Judge have over the Bar, or what respect in the eyes of the community at large? Suppose for instance, that he was a poor man, with the cares and responsibilities of a numerous family, what must he do after his return from office? Return to the Bar? Would such a practice, if established, have the effect of rendering him an independent character? We doubt it very much indeed. There always necessarily exists a well recognized line of demarcation between the Bench and the Bar, and it is perfectly correct it should be so; but under the state of things alluded to, the fear of the ridicule of the jealous and disappointed among their former associates, the consciousness of the comparative insignificance of their "little brief authority," operating upon their minds, together with the natural bias of their feelings towards those, whose future favors they hoped to conciliate, should make us doubt the policy. of the proposed change. There is an old and vulgar, but VOL. VII.-No. 14.
quite expressive saying, that we should be content to let well enough alone. We have found, that matters are very well conducted under the present state of things; and when the good consequences of a change are at all questionable, it is always serviceable to remember the familiar maxim of the logicians, that in dubiis pars tutior est eligenda.
In conclusion, if it should be asked, whether we are of opinion, that the public interest should be permitted to be prejudiced, we unhesitatingly answer by no means. We only advocate that course of conduct, which will enable us to enjoy the matured and sober wisdom of the sage, and reject the wandering intellect of the driveller. It was a practice among the ancient Greeks, to enquire into such instances of heads of families, that were unable to attend properly to their duties: we read that Sophocles was summoned before the judges for some such offence, by his own children; and a similar custom was not unknown to the Romans, even in cases of unexceptionable character, who were improperly conducting their affairs, in both instances, the parties were liable to be removed from the personal management of their property, on a proper case shown.* In some of the States of the Union, the Governor is authorized and empowered to remove the Judges from office, at any time on the address of two-thirds of each house of the general Assembly; in others, a similar power is given to the Senate, on the recommendation of the Governor, for causes to be stated in such recommendation. In the State of South-Carolina, we have all that can possibly be properly demanded or accomplished in this respect. The State Constitution has been altered, in reference to the Judicial and other civil officers; and permanent bodily or mental infirmity, in the incumbent, is sufficient ground for the Legislature to declare his office vacant:
"If any civil officer shall become disabled from discharging the duties of his office, by reason of any permanent bodily or mental infirmity, his office may be declared to be vacant by joint resolution, agreed to by two-thirds of the whole representation in each branch of the Legislature; Provided, that such resolution shall contain the grounds for the proposed removal, and before it shall pass either House, a copy of it shall be served on the officer, and a hearing be allowed him." 6 Stats. at Large, 356 and 7.
This would seem to be abundantly sufficient for all pur*Cic. de Senec. Cap. 7.
poses. Let the superannuated Judge be summoned before the Legislative body, and the fact inquired into, whether or not he is incompetent to the discharge of his official duties, precisely in the same manner as a Jury would proceed to try an individual on a writ de lunatico inquirendo.
We think such a course, for the reasons above suggested, would be much more rational and serviceable than that which would attempt, reasoning a priori, to lay down any arbitrary rule, dictating a precise and limited period of time, beyond which all men should be deemed incapable of discharging the Judicial functions. E. M.
ART. VII.-MR. HOAR'S MISSION: Documents relative to the recent Mission of the Hon. Samuel Hoar, of Massachusetts, to South-Carolina, including
1. Letter of Mr. Hoar to the Governor of South-Carolina, of 28th Nov., 1844.
2. Message of the Governor of South-Carolina to the Legislature, of 30th Nov., 1844.
3. Report of the Committee of Federal Relations on the Governor's Message.
4. Message of the Governor of Massachusetts to the Legislature of that State, of 6th January, 1845.
5. The Hon. Samuel Hoar's Statement of his Reception in South-Carolina.
6. Resolutions of the Legislature of Massachusetts, passed January, 1845.
THE above documents embrace a case of considerable interest, and one which has produced much excitement and agitation throughout the country. The case is this: On the 29th day of December, 1835, South-Carolina passed the following act :
"That it shall not be lawful for any free negro, or person of color, to come into this State, on board any vessel, as a cook, steward or mariner, or in any other employment, on board such vessel; and in case any vessel shall arrive in any port or harbor of this State, from any other State or foreign port, having on board any free negro, or person of color, employed on board such vessel as a cook, steward or mariner, or in any other employment, it shall be the duty of the sheriff of the district, in which such port or harbor is situated, immediate