The New York Herald Newspaper, May 26, 1852, Page 2

THE DECISION ON THE CANAL LAW. OPINION OF JUDGE JOHNSON. In the Court of Appeals. @RORGE W. NEWELL, AUDITOR OF THE CANAL DR- PARTMENT, PLAINTIFF IN ERROR, V8. THE PROPLE, ‘ON THE RELATION OF ERASTUS R. PHELPS, DEPEND- ANTS IN RRROK. F Thomas H. Rodman, appellant, against Alfred Munson, resy lent. Johnson, J.——The ae of the constitutionali- ty of the canal act of July 20th, 1851, is directly Pre ig by these cases, and must necessarily be ided. A decision against its validity will prove injurious to the interests of many persons, and@lis- appoint the earnest wishes of many more. But this consideration, while it occasions regret on my part, detracts nothing from the obligation to preserve the constitution from infraction. The evil consequen- ees to the community from an example of judicial unfaithfulness to that duty, would far outweigh the worst to be apprehended from a decision adverse to the eanal act. Before proceeding to the consideration of the principal Sega involved in these cases, it may not be amiss to advert very briefly to one or two tepies which were urged upon ‘our attention on the argument; for there may be found persons so little iliar withthe course of judicial procedure, ‘sto attach to them much more importance than they really deserve. These topics were presented te usundera great number of distinct heads, but are reducible to two:—the one, that the Governor and other State officers, and two successive Legisla- tures, have been of opinion, and had officially acted wpon the opinion, that the act in question was not yepugnant to the constitution; the other, that several gentlemen, occupying no official station, but of acknowledged learning and ability as lawyers and statesmen, had expressed opinions to the same effect. As to the first ground, although the action of the other departments of the go- Yernment is. always entitled to the respectful con- sideration of the judiciary, it canand ought to weigh nothing when it conflicts with their settled convie- tion of the requirements of the constitution. As to the latter ground, it scems quite obvious that we should be very forgetful of our duty, and of the obli- gation and responsibility officially imposed upon us, if we allowed our judgments to be swayed by the conte of any number of men, however respecta- ble. It is moreover, perhaps, worthy of remark, that all the opinions which were cited to us, save one, were given upon the act as it was proposed be- fore the extra session of the Legislature. It did not then contain the provisions which now form its four- teenth section; und yet the counsel who pressed these opinions upon our consideration, declared that he should not have appeared before us to maintain the constitutionality of the es if it had not con- tained those provisions. > Leaving these matters with8ut further observa- tion, let us turn te the main question which we are ealled upon to examine. The people of this State, in the exercise of their underived and sovereign authority, established the constitution. As part of the machinery of government under it, they created a Senate and Assembly, and vested in them the legislative power of the State. The authority of the Legislature is not inherent, but is entirely derived from and subordinate to the constitution. “The con- stitution is the basis of legislative authority ; it lies at the foundation of all la nd isa rule and com- mission by which both legislators and judges are to woceed, (2 Dall. 804.) If, therefore, an act of the Legislature is contrary to any provision of the con- stitution, it cannot poss the force of Jaw. Ever since the formation of constitutional governments this principle has on all proper occasions been a serted and enforced by the courts, and is now one of the acknowledged maxims and fundamental rules of the law. The provisions of the constitution which bear most immediately upon the qu before us are contained in article 7, sections 3and12. The third section provides, that after p: expenses of the canals, and the sums ‘appropriated hy the first and second sections of the same article, not more than $200,000 shall be pai surplusrevenues annually to def expenses of the State, revcnues of th be applied, in sv direct, to the com ment, and the Genesee Valley canals, until the said canals sh: Section 12 of tt hall be hereafter ¢ 2? (c v 1 be completed article provides, that ‘no debt If of this on under coi luw impos provide such law te ; 1 ul election, be horized by et project of carried into ¢ was substanti the work, thus fu pursued until ent course wa cons ering 1 ing from scheme was When tl two financ of every on not formal, b dered results whieh ak completed in thiity y sult on the princi ‘ 1 of $8.00 é the section in ques- nd the people did tion show ment between ustitution gwith ther we are considerir parties, a statute . OF 2 ¢ to its interpretation, the thi x thonght which it expresses. ‘To w first resort in ail cases is to the of the words employed, in the eal arrangement in' which the framers of the instra- ment have placed them. If thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different Parts ofidhg same writing, then that me rent upok the face of the instrument, which alone we are at liberty to sey was intended to be conveyed. In euch a case there is no room for construction. That which the words declare, is the meaning of the instrument d neither courts bor any olger persons or power have the right to add to or take away from that meaning This | is true of every. instrument, but when we | aking of the most sol and delibe- rate all human writir which or- law the rule It must at the peor hoy have em- t a third | fact that such restrictions ar | ; ating, continuing, altering, or renewing any body Tolilig or corporate.” The attempt im that cdse was ‘ F , and there is not a syllable in the whole instrument bag.” in the slightest de- gree to limit or qualify the universality of the lan- guage. If the clause can be so constraed that it not extend alike to all corporations, whether public or rca, it may then, I think, be set down as an established fact that the English languge is tno peor for the framing of fundamental laws which 8] limit the powers of the legislative branch of the government.” ‘In this way a solomn instru- ment, for so I think the constitution should be con- sidered, is made to mean one thing by one man, and something else by another, until in the end it is in danger of being rendered a mere dead letter, and that, too, where the language is ro plain and explicit that it is impossible to make it mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the boundless field of specula- tion. For one, I dare not venture on such acourse. Written constitutions of government will soon come to be considered of little value, if their injunctions may be thus lightly overlooked ; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the constitution or the people who adopted it did not understand the force of language.” The judgment thus dissented from was reversed in the Court for the Correction of Errors, and Senator Paige, in his opinion in that Court, says:—‘‘For one I cannot consent to palter ina double sense with any part of the constitution. Through no agency of mine shall it be made to keep the word of promise to the ear and break it to the hope. I trust that the Court will not hesitate to array itself in favor of the old and revered doctrine of strict coustruction—which is the only sound and safe doctrine for the governance of either judges or le- gislators. If courts are allowed to depart from it, und venture upon the perilous experiment of sub- stituting, for the clear language of the instrument, their own notions of what it ought to have been, or what its framers intended, there will be an end of written constitutions, and of all attempts to fix limits to legislative and judicial power.” Applying these principles to the section in ques- tion, we are unable to sce that the words ‘in each fiscal ”? are not placed in such connection with the residue of tho sentence, as to convey the mean- ing which the conveution and the people intended. We sco no ground for thinking that a different arrangement of the worda ofthe clause would be better calculated to express that meaning, and no round for altering the arrangement, except a dis- ike of the meaning which it now clearly conveys. The words in question, placed where they are, are full of significance, and say as plainly as language can, that the application of the remainders of reve- nue to the enlargement and completion of the canals, is to be made in each fiscal year, until their comple- tion. The convention and the people have then chosen between the two schemes of finance ef which we have spoken, both of which had been tried and their results ascertained. Taught by experience, they selected that scheme which they saw ensured success, avoided debt, and facilitated economy—the scheme of paying as the means of payment should be produced from the revenue of the canals. Ir is, howe contended that, conceding the words “ in each fiscal year” to be so placed as to convey the meaning which the people and the convention in- tended, the whole clause en together, confers upon the Legi etion over the man- ner of applying the revenues to the enlargement and completion of the canals. ‘That although this appli- cation is directed to be made in each fiscal year, yet the scheme of the canal act is one mode of thus applying these revenues. That, therefore, as the whole subject of the manner of application is within the discretionary power of the Legislature, the par- ticular manner idopted in the act 1s necessarily con- stitutional. If the words of the constitutional provision had been “in h manner as the Canal Board s direct,”? no one would supposed that board trusted with the power to up such scheme as the act in question contain: would have doubted that the clause first place, the thing to be appli i revenue; the obj applied, the enlargement and completion ; and next, the time of application 3 until the cana. all be com- no one would have | ‘ction conferred nner as the C to other points th en fixed. Now, it was ne that the character of the to do with extent or nat ferred upon him. That de; in ¥ 8 1 upon th 1 upon the eh term ve power of the ect ® of the State, the ted by the people with un- ~ the li to e called for and he convention. of the constitu- sh would otherwise be unre- ictions, it is to be remember- n power upon one of ernment. e We aig not at libert the pewer of the Le y. The ie e Nor can we stitution und that the h we whi I my j | regard t d en- lightened pe R be evaded or con- strucd otherwi according to the spirit and the , then the latter The pol bo applied —mon somethi nds which we think it proper ‘ther this act does ation of a debt , Within the meaning of the prohi- harticle of the constitu. question, we will for the count the latter part of nal act, because if that has to it by the counsel who matntain ynulity of the law, then it matters not restion Ww o1ize the the residue of the act seems to be the ineurring of a debt in the ct and uncquivoeal form. Even if the he certificates cont positive promise da pledge fe c ment of the faith of nd of al this clause in the would, in their view, prevent the act neonstitutional. Ce “g our atten- present, however, to the inquiry, what ob! » if any assumed by the State in ense he act are constitutional, let us aud nature of those obligations, es any obligation which is to be within the meaning of the con- if we might have thought the of appli hin the meaning », looking at that theless be bound to her, and hold that orize what the vO sectic r, the legal effect of ‘© much of the plus re as shall actually be r 1 after 1854 tion of a fand.to pay r 1 revenue and th nterest his cau be done in r ‘dd to one f revenue, we seo no reason why the same 1 not be rd to every source of " he § not only all revenue wh rise from property, but also all revenue be realized by the exercise of the power ‘uch an ant tion ho More ereate a debt than this bill does. ipation of revenue would Itwway be objected that there is a distinction be- tween a pledge of the revenues of property owned 1 purpose to assign | If that poliey | ' the State is drawn upen; for the substantial effect upon the financial condition of the State isthe same in either case. If the constitutional provision agginet incurring debts permits such a scheme as 8 to be effeo- tual, it is of small moment to inquire what it prohibits; for it provides no oumal re straint whatever upon the power of the Legisle- lature. To attribute such an intention to the con- vention orto the people, as to permit the one and robibit the other, is to attribute to them an entire incapacity to comprehend the subject on which they were acting, and the effect of their own language. It is construing the constitution as if it wore a penal statute, or a disfavored iB egean in conflict with ublic policy, rather than as being the supreme jaw of the State, prescribed by the immediate source of all authority, setting bounds to the power dele- gated to its agents. We might on this branch of the subject rely wholly upon the plain sense of the constitutional provision in question; buts brief ex- amination will serve to show that the obligations which purport to be created by,this act, constitute in its ordinary sense a State debt. National or State debts assume a great variety offorms. Sometimes they take the most usual form ef private debt—an obligation to pay the principal at a specified period, with interest in the meantime. Sometimes the period of payment of the principal is wholly at the election of the govern- ment; while at others, the government is at iberty to pay at any moment after a fixed period. Some- times the peer is not to be paid at all, but only & perpetu: aout, and sometimes only an annuit; dependant on a life or lives, or for years. In 8} these obligations assume every form which can tempt the possessor of money to part with it to the goverrment, and are varied from time to time, ag one or the other seems most likely to accomplish the urpose of putting out promises and getting money in return. In all these forms, one common attribute is found, and one only, viz: that in consideration of money advanced to the State, the State promises whatever is thought will be most likely to procure money tobe advanced, it matters not what; and that which is thus promised isa debt. It may relate only to the income of particular parperty: or it may embrace the whole resources of the State. The extent of the obligation does not affect or qualify itsnature. So long as there is en obligation as- sumed by the State, it constitutes a debt—some- thing due from the State Again, if in the natural and expected course of events a period will come when the promises made by the certificates in question wil ripen into a perfect obligation on the part of the State, then the issue of them conflicts with the prohibition of the constitution as clearly as if the debt arose immediately upon their being signed. When re- iainders of revenue from the canal shall have been received into the treasury of the Stato after 1854, the obligation of the State will have become perfect to pay upon these certificates the amount so received. Itis true the payment cannot be made without fur- ther legislative action, nor could it be if the certi- cates were immediate and general obligations on the part of the State. An appropriation is always necessary to effect actual payment, but the obliga- Sue as complete without the appropriation as with it. ‘There is another view in reference to the obliga- tions assumed by the State, which clearly shows that they amount to adebt. The 9th section of the act appropriates $540,000 to pay interest during the first two years. Wehaye then the certificates con- taining, in conformity with the 2d section of the act, a promise to pay interest semi-annually, and an appropriation to pay that interest. If this does not make acomplete ard perfect. obligation, I am ata loss to conceive what would. It is true that the constitution authorizes approy ious for two years, but it does not authorize the creation of debts, and we are not at liberty so to construe the power to make appropriations a8 to bring it into conflict with the pro- ition against creating debts. The appro- priation in this case isto be taken in connection with the promise to pay contained in the cer- tifiertes, and the scheme of raising money in which they form part of the machinery. Thus viewed, the certificates, so far as the two years’ interest is concerned, are as comptete obligations of the State to pay me the promissory note of an individual isan obligation upon him to pa . It is, however, to fa observed that the 9th ‘h makes the appropriations in question nent of interest, directs the payiment to be mace out of the avails of the sale of the certifi- cates, the premiums thereon, and the interest which may have acerued on the deposit of such avails. On the other hand, the 8th section, which eontai yropric ) cts the pa an for the pay indirect. proce arising from the salo of cer‘ific receivcd, the property of the St he pa ont only in virtre of The persons State for certificates, no | cst in or control over them, such pay- refunding part of the | to ihe purchaser. Besides the an- | s nt the tran: n was not originally | of the certifi , (for an advance of money uttering of an obligation for the e of the obli- ficient to say, d by the pr h is to Wi, ition, but always a 1¢ t the ground taken is isions of the act. The o the purebaser nF thed by these payments under the question, [tis not part of what h sis receiving back, buta of what he advance being payable debt within the narrow which v appropria- 2 advanced mpensation for This compensation sas ful- ued under the act be so construed a ate any ¢ the people thereof, with twelve, article seven, of the constitu oi the constitution rof should 3 the State, or the ive provision of this sort was the prote m of that instrument. om inquiring wh money market, with a ises, ecemingly ¢ wholly ualawtul Iright, and | advance of m eto the Ley 4 moment td the is only a of the cox f tilution, and upon the courts to construe the ac ingly. If it were to be regarded by us, and such etfest given to it as 4s contended for, then the mos nt legislative violatioug of the coustitution I sereened from the scrutiny of the courts addition of this simple clause. A sine gle ilivetration will suftice to make the position plain that (his clause is not to be regarded, in considering the validity ofthe act. Let us suppose an act of the ure directing that A may make his certifi- cute stating that a mortgage from B to C is satia- fied, and that upon such certificate being filed in the County Clerk’s office, where the mortgage is re- 1, the sume should be satisfied and discharged of record; and further adding, that the said certifi- cate should not he construed to impair the obligation of a contract within the meaning ofthe constitution of the United States. Does any one think that such « law could be enforced, or ¢ such a certifi- cate would be any more efficacious to discharge the mortgage than a sheet of blank paper? Its absurdity is too plain to admit of argument. Yet this is the very case which we are considering. In conclusion, we have seen that the act under ideration, in its material provisions and general conflicts with the constitution of the State. Its provisions constitute a single financial sch and must stand or fall together. We have not b entrusted with the power of determining whether me, the policy of the constitution is wise er not; nor has any discretion been given to us to enforce its pro- Visions, or to refrain, a8 we may think the public Welfare demands, Our duty is simply to declare what we believe to be the law, viz.: that the act in i tea being repugnant to the constitution, is void The judgment of the Supreme Court in the ease of the people ex vel. Phelps, v. Newell, should there- fore be reversed, and the mandamus refused, and the judgment in the cage of Rodman y. Munson ehould be affirmed. Rervsan oF Gov. Hunt To Parpon Aytoxto.— Governor Hunt has refused to commute the punishment of Antonio, the Portuguere, who was convicted of mur- der some time ago in Rochester, and sentenced to be bung on the ddof Jung neat, reas, and confirmed by te loeality, of the severe distress which is wasting away the lives of the suffering peasantry of the Hebrides. It does indeed seem, ‘that the double scourgo of famine and uent pestilence has fallen upon these poor people quite as cruelly, though their remoteness and co. ive fewness of nufabers has made their distress less notorious, agin tho dark year 1847 it fell upon the people of Ireland. There is the more need, for those desirous to relieve the calamity, to exert their influence to bring it before the English public, who must not be allowed to overlook the affliction of their distant fellow-creatures. The inhabitants of the islands feeling this destitution with peculiar aggravation. The immediate cause of it, 80 far as they are concerned, was the failure in the potato crop in 1846. Those who were so fortunate as to possess boats and nets of their own have been able rtly to support themselves by fishing. A benevo- nt clergyman of Skye, in his letter, says:—‘‘ Kind friends have enabled me to give four good fishing boats to four erews of four men each. These are all doing well; they willingly bind themselves to repay the money by instalments within a limited term.” This statement shows tho self-helpful dis- position of this hardy and humble Penson hy, by the way, have been lately slandered in a way that seems a bitter, though unintentional, mockery of their present sorrow. : Now, let us look at the actual miserable condition ‘of this population, as Proved by the most respectable witnesses. In the Hebrides, there are about 3,100 families, who are existing in a state whichis a pity and a shame for human nature. They crawl out by hundreds, in the morning, half naked and faint, to grope along the shore for shellfish, or any other wretched food cast up by the tide. This various and écanty nourishment, disputed with the wild birds of the coast, isto many of the opts their ‘incipal support. Some of them havelittle plots of lund, but have no seed to put into the soil, and no hope from that. What can be more sad than this? for these people are not a savage tribe, used to share with the biute animals the rough hospitality of un- cultured nature ; but they are a Christian civilized race, who have been accustomed to work in a va- .tiety uf ways—who have been habituated to human decencies, and an orderly domestic life. Yet they lie now as the outcasts of the world. In one cot- tage, we are told, eight persons laid up sick of the fever were found, “ and there’ was not a grain of meal or any descriptien of food in the house, but some sort of shell fish; and these eight had but three rags of blanket to coverthem; the mother and three children lay on a bed on the floor. Can there be worse than this? Yes; it is worse to ob- serve how a common affliction sometimes shuts up the heart of compassion. ‘No one will enter an infected house;” and again, “They will not be al- lowed to beg, owing to the fever; their very appear- ance on the roads would excite alarm.” ‘The lad; of a medical gentleman, says, speaking of sucl cases:— “here ia another man who has a wife and five sons, and for want of bed clothes they all sleep in one bed, About five weeks ago one of the boys had a sore upon hi and for fear of being hurt by his numerous bed- they put him upon some straw on the floor, and split an empty meal sack to cover him. Fever broke out in the family, and since then one morsel they have not ate but what they have got from here, The fever which has become so prevalent is the natural consequence of the famine ; and the medical authorities say that no human art can enable the sick people to recoverfrom their malady, unless they be supplied with suflicient wholesome nourishment. It bas been proposed, and we believe offered by government, to assist the people to emigrate to Australia; but many of them are in such a low and helpless state, that immediate relief is indispensable before they can be remoy: and for others, there is room to earn their own livelihood at home, if they had only the requisite means to labor on the soil or on the sca, A clergyman of the Free Church, wri- ting from Tobermory, in the Isle of Mull, says: Many families have subsitted for some time past on the reanty earnings obtained by the sale of wilks, and many of our poor fumilies are desirous to. be employed in knit- ting. Every year adds numbers to the destitute class; D of their crofts. it is not possible for the poor of this village to maintain their families. Work is scidom to be had, and when itis, the wages are alto- getberinadeqnate, Scores of crofts, on which the people intained themrelves pretty comfortably previous to have been taken from them and thrown into large . at much reduced rents, while the poor dthcm, are now, with their families, aving in this village. We do not with to give any countenance to a mis- taken prejudice against extensive operations of agri- cultural improvement ; if the system of large farms and tautial investments of capital be the most efiective in producing a large return from the soil, it will alse, inthe ultimate result, i of the peor; but, surely, aweeping eh character o io be made with ion of tbe i dependent on which, ia many in- uries. And where, id districts, a vast addenly out of eultivas may felch a higher rent we do not hesi- legal title to do happened in some fi tinct of country is thrown tion, merely in ‘order that i as a moor for shoot ] Il. Chappel, minister of the Lutheran Church, has forwarded us the followin Sir—The condition of the peasantry in many parts of Germany, has, chiefly through the failure of the t year, at length become one of such bable distress, that I feel sure a , pecting it will prove a subject of painful interest to many of your readers. Poor Southern and Central Germany, still suffering from the baneful effects of the late political convulsions, have now, in addition, been visited by dearth,disease and famine. Truly heart-rending accounts continue to arrive from many parts well known to and much frequented by English tourists for the beauty of their cccnery; so from Wurtemberg, Bavaria, the Grand Duchy of Baden, Nassau, and more pecially, from the Vogelsberg and the Odenwald, rough moutainous districts, the one situated in the northeastern part of the Grand Duchy of Hesse, the other to the north, aed forming part of the ‘Dorgstragse,” a road extending from Darm- stadt to Heidelberg, within thirty-eight hours’ reach of Lendon, and traversed generally by ex i on their way to Switzerland. In these local villages are being deserted for waut of wood unfortunate inhabitants, who, in time of ¢ tive prosperity, eke out bata seanty and ese their npara- vable existence, have been wanting their staple food—po- | tatoes. In other parts trade standing.still ; of | 15,060 looms, in a single province of Bavaria, al- mort exclusively inhabited by weavers, not half are at full work. ‘The people axe deprived alike of the productions of nature and the fruits of indw mate wretched nd despai an extreme dearth of provisions, whole“herds 0 tle and sheep are killed by a rapidly spreading d e All feelings of human nature begin to bem ed and conyulsed. The neat infested by muri heoine food, gerly sought after; in some instances dogs have been slaughtered and ravenously devoured by a fumishing population. Ta one case, in Wurtemborg, a dog, buried for some days, has been dug up, and, what will scarcely appear credible, the flesh in. its advanced ec of decomposition has been actually made use of as food. ‘To satisfy the cravings of hunger, the Just miserable remuant of furniture i not untrequently disposed of. And what kind o food is it which, to suetain their mere life and unen- viable existenec, these wretched people are forced to and but too glad to procure? Wholesome meat is out of the question—a luxury rarely obtained. Bread made of bran must supply its’ place, and bran soaked with water, in which salt has been dissolved to give it a taste, and the skin of po- tatoes, and coffee boiled over and over again to extract the least remaining particle of nourish- ment. Unfortunately, six, there is little or no pros- pect of an immediate, or even of an approximate, alleviation of such harrowing misery. The most abundant harvest will but slowly counteravt its de- structive effeets, and altbough vigorous humane ex- ertions have been made in various quarters, by gov- ernment and private individuals, their result is wholly inadequate to meet in any degree this fear- ful amonnt ot distress. You will, no doubt, gir, un- derstand it now more readily why Germans, in yet unheard of numbers, are literally besieging ever: ort available for emigration, oth here and Abroad: Hunger knows of no ties of pa.riotism, and “sauve qui peut?’ is, alas! the anxious ery repeated from village to village by hundreds and thousands in at) districts ot iny native land, and driving them recklessly and helplessly, away from their peaceful home in search of another in foreign and distant countries. Tne New.y s ; LAkt.—Some doubts having been expressed as to the existence of the luke re« Ly reported to have been di 1 near the falls of Anthony, the St. dnthony Eapress gives the following cireumstanUal aceount of the discovery:—Calvia A. Tut. tleand John I, Stevens, two of the oldest and most 1 able settlers in Minnesota, together with reveral others, including the writer hereof, some two weeks since spent three days in the exploration of this lake, ‘They found it to be thirty or forty miles inlengih, and full fifteen miles in width, containing an area of four hundred and fifty miles. ‘They also found numerous islands in this lake, many of which they virited, and one in particular, that will be found on survey to measure full 3,000 actos. ‘The explorers, furthermore, found the lake to contain an innumerable multitude of fish, and to be tho resort of myriads of wild fowl, countless as the sands of the sea shore, ‘They found its rcenery indescribably beautifM, They found, moreover, arplendid belt of timber skirting the borders of the lake, to the width of from three to five malles, rich im every variety of hard wood, ry Art and the Artists, To Tas Epiror or THs Hexatp:— In this age of “gold seeking,” almost every thing which has a tendency to reform man’s heart and exalt the character of the nation, is totally for- gotten or neglected. The men whose pursuits and | studies, during their past lives, have eminent! ualified them as ‘“‘caterers for intellect | thi gs,” are left, after yours of deep study and toil, | and the star of hope still glittering in the distance, but which alas, destiny forbids their reac! hing, are | left, as the sere and yellow leaves gather and | fast around their brows, to pine in want and unre- | warded toil. I am speaking, sir, of the painter, who, with the exception of a few golden hear and noble men, are neglected by the rest of their rich fellow citizens ; and many an artist may cry in despair, with the Moor, ‘“ Othello’s occupation’s one!’ indeed, it would be far better for him, were e qualified to rush with the world in search of this “mighty mammon,” and throw away the pencil in disgust, not with his ‘divine art,” but with those whose manifest duty it is to encourage that art. If they feel one spark of desire, one wish to elevate their city and country to the standards of other cities and other countries, it is vain that we say, “‘we have artists equal to those of foreign coun- tries;” it is false in the main; it ney be true that some few, ‘‘ but they are few and far between,” who ean take rank Arita healer artists ; but even these few, perhaps, are not dependent soley on the liberal- ity oP thei own countrymen. That art might reach the proudest point of elevationin this country, no one can have a doubt, if our monied men would be liberal. It isa mean and stale subterfuge, “ that there is not wealth enough amongst individuals to encourage art.” It is distressing, Mr. Editor, to the men of genius among painters—nay, it is morti- fying and humiliating—that while other branches of the useful arts and sciences, to say nothing of mechanics, are receiving an impetus, that willin the end distance all Spespattian, (which is well, and every American should feel proud of his country’s cnarpeiee)» it is humiliating, I say, to them, that the wheels of art shoulddrag heavily, through doep ruts and quagmires, to reach their desired desti nation. Should not the fine arts be considered use- ful too? Ah! yes. Does it not embellish domestic life?— does it not afford food for thought and study? How many young hearts in that lovely family circle may be influenced by its ever opening beauties ?— how many yocsns may have implanted in their hearts, by the study of those beautiful pictures, moral principles, which may carry them safely Ase this stormy and tempting world? Are not the fine arts useful? Every man and woman who will study a good picture well, will rise from their seats better men and better women. I have said, sir, that the star of hope still glitters inthe dis- tance; but with many it will set in the evening horizon ofhis own life, behind dark and _lowerin clouds; but still hope lures him on and on, and that star will smile on him in a happier world. But not to sermonise, and in conclusion, would remark that a state of things exists at the present time painful andalarming to the artists. The most perfect apathy exists ; and unless achange takes place, many will be compelled to change their occupation. This will do for the young and single ; but what will those do who have spent their bost youth and their mature life, even to old age? What will they do? It is a very serious matter, Mr. Editor. Goto the artists, and they will tell you that they cannot sell their pictures unless at greatly reduced prices—at prices that will preclude the pos- sibility of any advancement in the profession; andif. not advancement, then a retrograde moyement must inevitably take place. This state of things can be accounted for most satisfactorily, but not now—it would occupy too much room in your valuablo columns. The artist expects not to realize a fortune, but he must have the ordinary comforts of life, and his mind free from cmbarrassments of a pecuniary nature. Give him but a competence, that the smile of con- tentment may drive away the cloud on the brow of the wife and the children who are dear to him. Then, and only then, will happiness enter his dwel- ling. Is this asking too much? He does not ask a boon. He asks nothing more than what he is justly entitled to. D. ‘The German Element in the Democratic arty. [From the New York Abenzeitung, May 14.} There are certain people who endeavor to repro- sent the German element in the United States less than it really is. In the census almanac, asit ap- peared in Boston in 1850, the number of the German inmigrants, and of their children born in America, is set down at 4,800,000. By this statement, it is therefore clear, that the number of Germans in the United States is now more than five millions, make , therefore, a full fifth of the total population. The Irish population isnot much larger, although this may appear surprising to some. Although the | immigzation between the trish and Germans stands in the proportion of five to three, the number of the Irish living in the United States stands not in the same propertion to the Germans, | lity of the former is much greater. » for instance, whe: at 9.000 Trish, verage numbo niong the Germans is from 0 to >, and I CO to 75. at States—New York, Pean —coniain alone about two milli add to this Wi i Jowa, Michig conside es the German po; t i ifth to one-third; then ntucky, » Maryland, New Jersey, Maa- sachusetts, Virginia and Louisiana, in which t isa considerable number of Germans; finally, in- clude the other fourteen States, whi or less inhabited by Germans, and the statement of five ons will not appear at all surprising. ne-tenths of the grown portion of the German population in the United States belongs to the de- mocratic party—a fact that cannot be overthrown, even though the whig party has lately received aa addition from the German element.” It is, there- fore, easily seen what importance the German ele- ment has forthe American democracy, and how its rower and its advantage over the’ whig party is always incontestible, if the democratic party is not in itself divided. Hot headed mex, hungry oflice scekers, ambitious individuals, and venal politi 5 are again preparing euch a breach in the democrati¢ should they euccced ying the di- to the democratic it is certain German element in the United States will r less divided. According to the statements of the press from all ts ofthe Union, it is clear that nino-tenths of tbe mans Will unite to bring about the nomiaatiou General Cass. Neither Buchanan, Doug Stockton, Van Buren, nor any other inaa, can deprive General Cass of the confidence and ecm of the Germans. The nomination of Gen. il. tend to unite the ¢ ns throughout 8, in great numbers, with the national d y. The nomination of any other candidat Mmocracy on the contrary, will only pr | luce among the Ger- | mnans as many factions as there are ambitious and | selfish politicians. The Germans will theu opp no more a division, if the candidate’ who has the | confidence is not nominated. | Should it happen that Cass was not nominated, | the consequence will be that a greater numbe | | the German votes will be in favor of the whig didate. There are no G | Weeklies from Pennsyly Buchanan. The whole German press in Phila- delphia is opposed to this friend of the Jesuits. | There is none tor Douglas, except two from Lllino | Of Martin Van Buren, Marcy, Stockton, or Hons ton, there is no mention w rn | all for General © That is as far as the German democracy povs | The General Assembly of the Presbyterian Chureh of the United Sintes, [From the Charleston Mercury, 21st inst.) | This distinguished body commenced its annual | session, yesterday at 11 o'clock, in the Glebe street chureh. After the usual exercises, in which the Rey. Mr. Rice, of Va., officiated, a sermon $ pronounced by Rey. Dr. Humphrey, of Louisville, Ky. It was in all respects a production of a very high order. He reviewed and illustrated with great force, the more striking points of the Calvanistic creed. At times he became indeed eloquent, and the audience throughout evinced their appreciation, by an un- wearied attention. The Assembly was then organ- ized, and after the customary routine of verifying members, it adjourned to meet in the Second Pres- byterian Church., at 4 o’clock in the afternoon. At the hour appointed the Assembly met in'the Second Presbyterian Chureh. About two hundred membors were present, rep- resenting Presbyterians imi all parts of the Union. We observed a large number of ladies and citizens in attendance, who had availed themselves of the publicity of the deliberations of the Assembly. After a few preliminaries, the clection of Modera- tor was entered into, which resulted in the unani- mous choice, by acclamation, of tho Rev. J. C. Lord, D.D, of Buffalo. We take much pleasure in announcing this result. To the distinction of a learned and zealous divine, Dr. Lord has also added that of a bold and able advocate of the con- stitutional rights of the South. He has wrestled strongly with the accysed errors of abolition fana- ticism, and in the midst of its votaries stood forth in hehalf of equity and good faith. For his noble ser- vices he has, of course, be assailed by revilings andabuse. But, in being elected to preside over so memorable a body, we have most ample tribute to the unimpeachability of his character and conduct It is, moreover, no ttl to this Assembly to say that itknew how to aud honor such a ¢ opinion, ypre y. Mr. Lowrie, of Now York, was chosen Clork. come conversation relative to the hour regular necting and reierred to a committe of uljournment, the subject wae A prayer was then offered up by the M tor, andthe Asscmbly adjourned to meet to-day al nine o'clock. except a few | favorable to | ‘The New Opera Houses, IN NEW YORK, TO THE EDITOR OF THE HERALD. . From your well known and uniform advocacy of the establishment of Italian opera in this city, upom permanent and popular basis, it is evident that the objections in your valuable paper of Tuesday, to the location selected for the proposed Academy of Music, were not dictated by any desire to throw obstacles of a frivolous nature in the way. It is always easier to tear down than to build up; and as opera houses do not build themselves, it ig Necessary to offer some inducements to those who are wiling to come forward and risk their money in enterprises of this kind. a In a house like the Astor Place, containing, ex- elusive of the gallery, less than 1,000 good seats, it was an objectionable feature to give over 200, or nearly one-fourth, of the best seats to the subseribers, and which does rot apply to a house that will hold from 4,000 to 5,000 persons. Besides, according to the present plan, the stockholders aro excluded from securing seats in the proscenium boxes, or in boxes haying saloons attached. Neither will they take seats except in alternate sections of the house, which will give them no other advantage over the ublic than that of having a fixed an: permanent Necatiom for the season; and when we reflect that the ehareholders will con ey. but 250 seats out of 5,000, it is presumed that tho public will not view with an unfavorable eye this small concession, in order to secure the establishment of a people’s opera. Pith regard to the location, it is considered by those who have looked into the matter seriously, ag one of, if not the very best, that can be found. The reat majority of the resident opera goers live on a fine with and above the present site; ® great num= ber of our principal hotels are clustered about this location; and by strangers who visit our city it is easily reached by omnibuses in Broadway, and rail- way by the Fourth avenue, and is only three mi- nutes farther off from the lower parts of the city than the present Astor Place Opera, whichis gene« poly acknowledged to be an excellent location. ‘ourteenth street is 100 feet wide, and a covered way, for carsiages, will be erected, to enable ladies to get out andin to their carriagas under shelter from the weather, so necessary in our climate. Irve ing Place is one of the most quiet and respectable streets in the city; and this leads me to speak of tho disadvantages of Broadway, especially for Italian opera. The incessant noise of passing vehicles, and the difficulty of approaching the house with private carriages, with comfort and safety, are objections which can never be removed; besides, the difference of cost between the present location and the same quantity of land on Broadway, would of itself be sufficient to prevent the house from Bette built, and would exceed the amount of capital (200,090) aue thorized by the charter. A Susscriper. IN PHILADELPHIA. {From the Pennsylvania Enquirer, May 24.} We have already published the act passed by the last Legislature, which authorizes a Roar fai to erect an ‘* Academy of Music,”’ or Opera House, in Philadelphia. The commissioners are Messrs. Jos. R. Ingersoll, Geo. M. Dallas, Henry D. Gilpin, John M. Scott, Charles Henry Fisher, Joseph Swift, Ro- bert Morris, M. D.. John Rhea Barton, J. Price Wetherill, George Cadwalader, Edward S. Buckley, J. V.S. De Havilland, Charles Harlan, Charles Wells, Hartman Kuhn, Junior, Aubrey H. Smith, Charles E. Smith, George McHenry, George H. Boker, Emlin Physick, Wm. Parker Foulke, James C. Fisher, James McMurtrie, Frederick Lenning, Gideon G. Westcott, J. K. Mitchell, M. D., John B. Myers, J. Pemberton Hutchinson, John H. Hugunell, and John Siter. They have organized, and have opened books of maar at the office of Charts lenry Fisber, No. 7 Library street, whither all who feel an interest in an undertaking of this kind, and so calculated to promote the musical taste of Phila= delphia, should repair. We learn that the contemplated building is to ba ofample dimensions in all its parts, and with aw audilorium capable of seating with perfect comfort. five thousand persons, each person throughout the house having a stuffed arm-chair. The front of the building is to be used for the entrances to the pare quet and lower tiers of boxes, having a carriage way under the building, so that visiters who ri may entirely avoid exposure to the weather; the entrance to the upper portions of the house being on the side. Exit doors are to occupy the entire front. and both flanks of the building asfaras audience portion of it extends, s0 that, when filled to its ut- most capacity, it may be emptied without difiewty in less than ten minutes. Four grand stairways ara to facilitate communication with all parts of the house. External lobbies or vestibules on the en- trance floor are to protect the internal lobbies from. the noise and air of the ets, aud afford comforta- ble and abundant waiting or ‘crash’ rooms for parties retiring to their carriages. The parquet lodges and the parquet, are to ho entered on a level with the street. Viewed front the parquet, the houses are to b sent the front of cach tier of boxes, retreating behind the oae imme- diately below it, each having, therefore, its oper balcony, and the whole forming a magnificent am- phitheatre; to the splendor of which, it is believed, no theatre of the world will afford a paraliel. In order to meet the tastes of all classes of visiters, the house will contain boxes with elegant drawing- rooms attached to each, private enclosed boxes, open private boxes, public boxes, single chairs and sofas, aud the boxes varying in capacity from four up to twelve seats. The form of the house and the inclination of the tiers are to be so planned that a of the stage will be commanded from any part it, and the performer in front of the curtain line will be as fully in view of the remotest as of the nearest spectators. Equal attention will be given ta the accoustic properties of the house. The proprietors of this enterprise havo also in view the construction of the stage department upom the same plan as the. Academie Royale ot Paris, so that the scenic representations avd changes may be produced with the admirable illusion aud rapidity which render that estublishment remarkable above every other in Europe. It is proposed, also, by the use of iron for the stairways, and in other parts of the building for which it may be available, and by | coating all the stage frame work with the recently: | discovered incombustible paint, to render the whole structure more nearly fireproof thaa any other theatre. | We are of the opinion that an opera house, thus | constructed and n ged, would add greatly to tho prosperity of our city. The governnen | and even'that of our r of N ve to the p ses to be doe | om making their cilies attractive to stran- | gers. Jn Paris, the government spends upwards | of Europe, w York, are ofa million of dollars annually on gardens, thea- | tres, and other y of aimusemcnt; and this systematic outlay has been found, by move thar | # century of experiences, to be repaid four-fold | by the strangers who are thereby attracted to the | place. New York hus, h ont time, no less | | | than five sue ful th 1 establishments, the least of which is superior to the best of ours in point of comfortable acc odution for the spectators, and of themin the general character of the peri ees. We would earnestly draw the atten- m: tion of the bu men of this community to this | fact; for the: y rest assured that as long as this is the case, even if they sell their goods at the same price, and afford equally ditious and cheap transportation tothe different points of the Union, | the Western its will give the sthem the cheap Tho $ are natural 1 by the citizens of the rest of our country as the 8 of superior refiacmen! and enjoyment, and the merchautaiways busine in his ure as well as contemplates ple semiannual trips to tho: re ree rd the proj : erchants, ho keepers, and busi are moro nterested th: Tun New ave far from being querulous] sre some things that are too much, e bear silently. How it is we know not, but for the last few months searcely a day has passed that we have not had good cause to complain of some de= lay or neglect on the part of the New Orleans and Washington Telegraph Company, but except on one or two occasions have put up with the inconvenience rather than make our columns the vehicle for our complaints. But it scems the greater the patiencs exhibited by us, the greater is the neglect that oc- curson the line. Yesterday morning two despatehos wore forwarded from Baltimore for this taining the Africa’s intelligence—one4nte another party at 9.4 A. M., and the other for us at 9.10 A. M.—six minutes later. The first despatel i M_. but ours did not make jts ape pearance until 4.45 P. M.—three hours and twenty minutes behind the other—to the great inconve nience of owr evening contemporary, whom we sup ply with telographic despatches, and our commorei friends generally. This is evidently # caso of gros neglect on the part of some ofe, aud in justice to the public, we call upon the President to iavestigate the circumstances. Charleston Courier, May 2h. RAVH inline: n for us to r stono of uaty, Hemprrerna Cou new coliego has heen nia was chartered and located ago f the townr lef The ceremony a cetimated at front f U to t in longth, ©. variously 1 embrace t cours ical or col. 2. A preparator A “‘tonahera 1 doy entific, or ‘ 8A: firmer niifie ¢ rieulture, ‘The institution he anda half RUCCERE. denomination, —Hbany , for nd has met with aa oncouragla care of the German, Refora Evening Journal, 2h inst,