and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA.

Vol. I.

SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TẸN CENTS.

Copyrighted 1889. Entered at the Post Office at Philadelphia as second-class matter.

December 15, 1889.

JOHN RUTLEDGE.

Born September, 1739; died July 23, 1800.

No. 12.

This distinguished South Carolinian was one of the Colonial lawyers whose legal education was, in part, obtained in the Temple, London, England. There he became a barrister, and then (1761) returned to Charleston and began the practice of the law with a breach of promise case. His eloquence astonished his hearers, and at once he stepped into difficult and profitable retainers. But the Revolution was approaching, and in the vital preliminary work of bringing South Carolina into concerted action with the other colonies, John Rutledge played an important part.

The necessity and the difficulty of such union may be inferred from the reported language of a member of the Colonial Assembly

"If you agree to the proposition of composing a Congress from the different British colonies, what sort of a dish will you make? New England will throw in fish and onions; the Middle Colonies, flaxseed and flour; Maryland and Virginia will add tobacco; North Carolina, pitch, tar and turpentine; South Carolina, rice and indigo; and Georgia will sprinkle the whole composition with sawdust. Such an absurd jumble will you make, if you attempt to form a union among such discordant materials as the thirteen British provinces."

The eloquence of Rutledge strove valiantly against such prejudices and his labors were not only crowned with success but rewarded with a larger field in the Continental Congress of 1765. This assemblage was caused by the Stamp Act, so soon repealed.

In the ensuing lull, Rutledge continued the practice of the law and also served as a member of the Colonial Legislature; in each, renowned as a public speaker whose ideas were clear and strong, whose voice and energetic action forcibly impressed his sentiments upon his hearers, and whose reply was prompt and telling, alike with argument and with wit.

Then came the Tea Bill of 1773, and the Boston Port Bill of 1774, and full need of Rutledge's eloquence to produce concerted action at home and with the other colonies.

Sent as delegate to the Continental Congress, Rutledge served there until March, 1776, when he became the executive head of his own State and immediately showed his decision and good judgment by his laconic note to General Moultrie, shortly before the famous fight against the British fleet, which attacked what is now well-named Fort Moultrie.

The note read

"General Lee wishes you to evacuate the fort. You will not, without an order from me. I would sooner cut off my hand than write one."

The day after the fleet had been beaten off, our Governor visited the fort and presented his own small sword to the brave Sergeant Jasper.

Rutledge remained President of his State until March, 1778, when he presented his resignation, along with the veto of the Constitution proposed by the Legislature for South Carolina. He preferred a mixed form of government to the democracy then proposed, and, moreover, he thought the change premature. In February of the next year Rutledge was again called to be Governor, and in the dire necessity from British invasion, he and his Council assumed the extraordinary power delegated by the Legislature-to do everything that appeared to him and them necessary for the public good. This full delegation of power came near to a treasonable end, for when Charleston was closely besieged the first time, the Governor and his Council actually desired to obtain neutrality until the issue of the war with the other colonies decided to whom the State should belong. Fortunately, the British general would treat only with the military authorities, and the first secession movement came to a speedy close by the retreat of the British.

When the British returned, next year, and captured Charleston and made the State a theater of war for the next two years, the Governor exerted all his skill in keeping up the resistance until his term of office expired. Deprived of the privilege of re-election by their Constitution, the Legislature next elected Rutledge to the Continental Congress, and then, in 1783, Senior Judge of the new Court of Chancery.

In 1787 Philadelphia became the scene of the labors of that Convention, whose labors resulted in the formation of the present Constitution of the Union. Rutledge, with the two Pinckneys and Pierce Butler, represented South Carolina.

Naturally his war experiences made him favor a single executive, whom, he thought, should shoulder the responsibilities of the office, with the advice of his Cabinet only, and not be allowed, as some proposed, to shift off them onto an advisory council of Supreme Court Judges. He would have the President elected by Congress and ineligible for re-election.

He was broad enough to oppose a property qualification for voters, as well as for the President, Supreme Court Judges, and Members of Congress, though he did favor unequal representation of the States in the Senate, and a representation in the House, based upon property and not votes. Representatives, he thought, should be elected biennially, by the State Legislatures and not by the people, and not be eligible to office during their terms, and one year after.

He would have given the Senate equal right to originate money bills.

He favored the creation of the Supreme Court, but not of any inferior ones, so that the State judiciary should act, in all cases, in the first instance: a plan which may yet be adopted, as the cheapest and readiest means of relief for the Supreme Court, dependent, of course, upon the redemption of the State Courts from the political control arising out of the election of their judges and the short tenure of office.

Upon the powers of Congress, he assisted in preventing the grant of a negative power over State statute law by that body; in fastening upon the Constitution the allowance of the slave trade; and in preventing a restriction upon the passage of navigation laws and commercial regulations.

And he favored greater inviolability of the Habeas Corpus than was finally agreed to.

Then he returned home, and labored successfully in securing the ratification of South Carolina.

Washington appointed Rutledge one of the Associate Justices of the Supreme Court, at its organization, but he never served, and finally resigned in 1791, to accept the position of Chief Justice of his own State Court of Common Pleas.

When John Jay resigned the Chief Justiceship to negotiate the Treaty with Great Britain, Washington offered the vacant judicial office to Rutledge; and, without waiting for a session of the Senate to secure confirmation, the Chief Justiceship was accepted and his commission issued under date of July 1, 1795.

But one opinion of Rutledge is reported: the brief one in Talbot v. Jansen (3 Dall. 133), on the subject of expatriation and privateering by an American citizen, under the flag of one belligerent, both of whom are on terms of amity with the United States. The Court held such a thing inadmissible, where the proof established an attempt to enjoy, simultaneously, the rights of citizenship under two governments.

When Congress assembled, Rutledge was not confirmed (December 15, 1795), and this action completed the overthrow of his reason, though he lingered for nearly five years longer, wearing out an exhausted frame. This sudden mental decay is believed to have been the main cause of his rejection by the Senate, though his assault upon Jay's treaty made him many enemies for the time being. Whatever may have been the cause of Rutledge's failure to meet the approval of the Senators, no other Chief Justice has ventured to take his seat until after confirmation.

With a life closing under such circumstances, it is impossible not to look back over the restless, though practical life of the lawyer, patriot, Governor and jurist, without a feeling of sadness that so distinguished and influential a man could not have presided over the early struggles of the great Court of the Nation for its allotted place. JOHN B. UHLE.

ARE WE DRIFTING TOWARDS PURE DEMOCRACY?

In the light of the recent attempts of a number of States to incorporate the doctrines of the Prohibition Party into their Constituions as fundamental law, the inquiry is suggested whether the movement is in the line of a legitimate tendency towards pure democracy. Utopian in character or whatever else the movement may be, it has its origin, and springs from the will of the people,-the real bottom of a pure democracy. It must not be forgotten that a pure democracy can have but little regard for the so-called dignity and character of our organic law, its spirit and essence is to comply with the popular will for the time being. The recent decisions of the Supreme Court of the United States in the Granger cases, in the Liquor cases and in the Oleomargarine cases are closely allied with, and of much interest to our inquiry. From the Granger cases it will be seen that the State legislatures may regulate the charges of public corporations to any extent, short of confiscation of their property. The Liquor cases decided that statutes prohibitory of the manufacture and sale of intoxicating drinks, except for certain special purposes, did not contravene any provisions of the Constitution of the United States. The other cases ruled that a statute of Pennsylvania, which absolutely prohibited the manufacture and sale of Oleomargarine throughout the State, was not unconstitutional. The significance of the cases referred to is in the extent to which they have recognized the broad functions of the States, as governments, to legislate concerning their own internal affairs. The difference between the Granger Cases and the Liquor and Oleomargarine Cases is, that in the former cases the right of State regulation of a public business was extended to limiting the prices to be charged in conducting it, while, in the latter, the right of absolute destruction of the business and of the value of the property invested in it was recognized. While the abstract principle in the Liquor cases and Oleomargarine cases is similar, it is well to bear in mind, that the moral principle involved between the two prohibited traffics is vastly different. For instance, no one would seriously contend that a good article of oleomargarine is equally as in