« AnteriorContinuar »
this country, as a truth better established than all others, it is, that in matters of government we have found out the philosopher's stone-and are now in possession of an infallible secret to make men free and happy, and to keep them so forever, even in spite of themselves. The first lesson we inculcate upon our young politicians, (and most of our politicians are young) is, that a true statesman, like a true philosopher, is quite independent of circumstances, and can pull down the whole fabric of a government and put it up again, as easily as Owen of Lanark would lay out a parallelogram, and with the same absolute certainty of improving the condition of the people. Now, we are heterodox enough to think this not only an error, but a most pernicious
We believe that no constitution in the world is worth a straw but public opinion and national character, and that it is altogether impossible for mortal man to predict what is to be the result of any important change in the distribution of political powers. In a word, that no general principles in politicsexcept.such as are too general to be of much practical utilitycan be safely depended upon in the adıninistration of affairs. But we must reserve this topic --which, however, we seriously believe to be one of the most important that can be pressed upon the consideration of the American public—for some future remarks.
To address ourselves more particularly to the causes which affected the condition of jurisprudence in this country in the manner alluded to above. In all the Provinces, as is well known, the common law of England was adopted, but only so far forth as it was not inconsistent with the genius of their institutions, and the letter and spirit of their own statutes. The latter, as we have seen, were necessarily very numerous and important. The whole law of tenures, once constituting with its various incidents and consequences, so vast a department of English jurisprudence, was omitted entirely. The forms of conveyancing were materially altered and simplified, as were those, also, of judicial proceedings. All that was local and customary_all that, in England, was preserved because antiquity had hallowed it, or prescription turned it into property, was discarded ; and wherever these and such like changes left any chasm in the system, it was filled up by positive legislation, or by judicial decisions, founded upon the analogies of the constitution and the laws. Here, at once, we perceive a vast field opened up for original speculation and reasoning. Every case might present a twofold difficulty; first, to decide what was the law in England, and secondly, whether it were applicable here. The latter question it was impossible to answer without going into the true
grounds and reasons of the law; and Burke's lawyer, who was at a loss “whenever the waters were out,” and “the file afforded no precedent,” would often find himself as much embarrassed in an American court of justice, as in our deliberative assemblies. Indeed, this single circumstance is sufficient to shew that that great man's notions upon the effect of a legal education, must be received—if they are to be received at all—with many grains of allowance—so far, at least, as concerns the profession on this side of the Atlantic.
Another important point in the judicial history of this country is the effect of its separation from England by the war of the Revolution. This great event took place at what may be considered, with a view to our jurisprudence, as a very critical juncture. Lord Hardwicke had not many years before resigned the great seal, having greatly amplified and improved the Chancery system begun by Lord Nottingham, without, however, exhausting the complicated subjects that fall within it. Lord Mansfield was, even then, at the head of the King's Bench introducing those innovations (real or supposed) into the law, which alarmed Lord Kenyon and other narrow-minded men so much, but which, by his own account of it, threw Mr. Justice Buller into a perfect extacy of wonder, at the depth, the comprehensiveness, and the acumen of that powerful and ruling understanding. The jurisprudentia nova," which dates about Lord Holt's time, was still in a state of progress and improvement. Many important principles were yet to be settled, many obsolete errors or hasty opinions to be exploded, many fundamental statutes to be interpreted and applied, and the whole law merchant, and the whole law of prize, to be sanctioned by decision and reduced to a system. We need only refer to the vast accessions that have been made to the body of English law-the jurisprudence des arrêts from the publication of Douglas' Reports to the present day. Our courts have, thus, had an opportunity of reconsidering many matters, after they had been disposed of in England, and in coming to their conclusions, have had all the benefit of the argument without being bound by the authority of the cases in Westminster Hall.
It was natural, also, that in order to assist them in making up their judgments upon matters of new impression, as they are called, they should not confine themselves to the English Reports and text books, but should have recourse to other systems of cultivated jurisprudence, and especially to the writings of the Civilians. We were very happy to find our own opinions upon
• Gravina Orig. J. C. p. 86.
this subject expressly sanctioned by the authority of Chancellor Kent, and, indeed, it may be observed, that among the benefits conferred upon his country by that venerable and learned man, it is not the least, that he has exemplified in his own brilliant success, the use that may be made in our courts of the enlightened equity of the Roman jurisconsults. “It may be observed,” says our author, “that a very large proportion of the matter contained in the old reporters, prior to the English Revolution, has been superseded, and is now cast into the shade by the improvements of modern times; by the disuse of real actions and of the subtleties of special pleading; by the cultivation of maritime jurisdiction ; by the growing value and variety of personal property; by the spirit of commerce and the enlargement of equity jurisdiction; by the introduction of more liberal and enlightened views.of justice and public policy;
and, in short, by the study and influence of the civil law."*
The English lawyers, on the other hand, have entertained a strange jealousy of the corpus juris civilis, and have studiously disclaimed and deprecated the idea of being under any obligations to it. The answer of their “sturdy ancestors" at Merton, has been always repeated with approbation, and even with triumph, as their example has been faithfully followed (with some distinguished exceptions, however) in all succeeding times. Perhaps it was erring on the safe side in England to discountenance every attempt to interpolate their own common law with the doctrines of a foreign jurisprudence; but situated as we are in this country, we do not see why the Reports of Westminster Hall, since our Revolution, should be in such request as to be found in all our libraries, while the works of the Civilians are banished from most of them like a contamination. To be sure, as long as feudal tenures subsisted in all their rigour, and land property was the exclusive object of the law, there could be no great intercommunity of principles between systems so opposite in all their essential characteristics. Feuds were altogether of positive institution, and as far as possible removed from the common standard, which we shall presently advert to, of the law of nature. It is worthy of remark, however, that it is evident from Bracton,t who often uses the very words of the Justinian collection, that the maxims of justice, taught by Proculus and Capito, by Gaius and Papinian,
* Vol. i. pp. 453, 454. + LEGES LEGUM ex quibus informatio peti possit, quid in singulis legibus bene aut perperam positum sit.-Bacon de Fontib. Jur. 6.
# Mr. Kent adopts the opinion of Reeve (Hist. English Law, vol. iv. pp. 570-71) that Bracton is the father of the English law, and that what Saunders throws out, arguendo in Stowel vs. Lord Zouch (Plowd. 357) in disparagement of him and Glanville, is a foul aspersion.
had enlightened the understandings and mingled with the opinions and feelings of mankind even in that age, and thus contributed much to form the mores—the common law, which is only the common sense-of the English people.
Independently, however, of any historical connexion of that kind, very little reflection will be necessary to convince us of what vast utility the volumes of the Civilians may be to us in our legal inquiries. As widely as systenis of positive law may differ, there will always be some-frequently many points of coincidence and similarity between them. Besides this, in the progress of things, there is a tendency to a gradual abolition of merely technical rules and arbitrary institutions, and to the adoption in their stead of such as are more simple and rational, and of more universal application. This tendency is, of course, increased by the progress of commerce and the intercourse of nations. Thus, the Lex Mercatoria—the great body of the law merchant, is strictly juris gentium—and there would, at the present day, be very little discrepancy between the decisions of a French, an English, and an American court, upon any commercial question.
The use of the word juris gentium, in this connexion, suggests to us an illustration of this topic, from the writings of the Civilians, which deserves, on more accounts than one, to be brought to the notice of our readers.
The Roman lawyers, besides their first great division of law into the jus publicum and jus privatum, analyzed it into three distinct kinds, or rather constituents. 1° jus naturale, which they described as being common to the whole animal creation, such, for instance, as the union of the sexes, the procreation and education of offspring, &c. 2. The jus gentium, which we must be careful not to confound (as is often done) with what is called, in the language of modern jurisprudence, the law of nations. The jus gentium of the Civilians, comes nearer to what we term the “ law of nature," and was by them distinguished from the jus naturale, in that the latter was common to all animals, whereas the former extended only to the human species. In another place, they have defined it thus—quod naturalis ratio inter omnes homines constituit, id apud omnes gentes peræque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur.-1.9. in fin. ff de just. et jur. To this jus gentium, they accordingly refer most of the usages and institutions, the pursuits and relations of civilized men-among which we find the following particulars enumerated under the same head in the Pandects. Ex hoc jure introducta bella, discretæ gentes, regna condita, dominia distincta, agris termini positi, ædificia collo
cata, commercium, emptiones, venditiones, locationes, conductiones, obligationes institutæ l. 5. eod. That is to say, they class together under this head, those things which are so manifestly reasonable and proper, or so agreeable to the general condition and exigencies of society, as to have found their way into every system of laws. In by far the majority of cases, the jus gentium, as thus defined, would be found to coincide with the law of nature, according to the opinion of Cicero, who affirms, broadly, that omni prorsus in re omnium consensus lex naturæ putanda est. It may happen, however, that an extraordinary concurrence of circumstances, the barbarism of an age, or other similar causes, shall lead to the universal adoption of customs and principles that shall not coincide with the conclusions of right reason, or the feelings of a refined humanity. Piracy was once juris gentium, and so was the seizure of property wrecked. It is in this sense of the word also, that Sir H. Spelman speaks of the feudal system as the “law of nations in our western world”—a system (as has already been observed) as artificial, as far removed from the natural state of society as it is possible to imagine. 3° The third kind was the jus civile, which it were inaccurate to translate "municipal law,” for the Civilians mean by jus civile, not that law which is contradistinguished from international, but only that part of the municipal law of every country, which arises from arbitrary legislation and peculiar customs, and which, therefore, cannot be classed either with the jus naturale or the jus gentium. “Itaque," as it is elegantly expressed in the Digest, “cum aliquid addimus vel detrahimusjuri communi, jus proprium id civile efficimus”-1.6.eod.
If we adopt this precise and philosophical arrangement of the civilians, we shall find that in an advanced state of society, a very large, if not the largest portion of every system of jurisprudence is, what is strictly speaking, juris gentium. The peculiarities of positive law are gradually effaced by the intercourse of nations, and each code approximates more and more to the standard of that_quod naturalis ratio apud omnes gentes constituit. In this respect it will be found to be with the laws as it is with the characters of different peoples; they appear, at first sight, to be infinitely diversified, but very little examination is necessary to convince us that they resemble each other much more in the great, eternal principles of a common nature, than they differ in respect of local or national peculiarities. Thus by our law, the most solemn contract is in the shape of a sealed writing by the civil, it was a verbal stipulation. So far there is a wide difference between them; but for one question that arises about the form of a covenant, there will be, at least, a hundred involv