for instance, to the Emperor's interest in the property of Jews, who were considered in Germany as servi fisci ?* Did the estate in such cases, vest in the king by way of escheat or forfeiture? a question of great importance with reference to the distinctions taken in Burgess vs. Wheate. Suppose a conveyance from an alien who dies before office found; is the title of the purchaser good as against the king? Chancellor Kent answers this question, in conformity with the English authorities, in the negative. Yet the reason of the law seems scarcely intelligible, unless it be assumed, that aliens were allowed to acquire solely for the benefit of the crown, whose revenue in feudal times, depended very much upon fines and forfeitures. If this be the principle, to hold the title good in the case proposed, would be to defeat the very object of the law, in allowing the alien to take a title at all. Accordingly, it is laid down in Dyer, (26 in margin) that an alien cannot take a copy-hold, and the reason given is, because the king shall not have it—a position which, we have no doubt is good law, some authorities, seemingly, to the contrary notwithstanding. But whether this conjecture is well founded or not, the omitting all remark upon matters of so much curiosity and importance, appears to us a great defect in an elementary treatise. The work of Chancellor Kent, as far as it is perfected in these volumes, is divided into five parts. The first, which embraces nine lectures, is devoted to the law of nations. The second, presents a view of the government and constitutional jurisprudence of the United States. The third, treats of the various sources of American municipal law. The fourth and fifth, which occupy the whole of the second volume, are an exposition of the rights of persons and the law of personal property. We shall devote the rest of this article to some observations suggested by our author's discussion of the subjects under the first and second heads. 1. We are by no means so well satisfied with the execution of the first part of Chancellor Kent's work, as with the rest of it. It is little better than a digest of the cases in prize law, decided in England by Sir W. Scott, and in this country by the Supreme Court of the United States; interspersed with a few general principles from the common elementary treatises. Presenting, therefore, as it does, (and, indeed, as it pretends to do) only a hasty sketch and brief outline of the system of international law, although it may be convenient enough as a book of * Pfeffel, v i. p. -, rémarques particulières sur les empereurs de la maison de Franconie. Cf Molloy, v. ii. p. 283. Feudor. lib. ii. Tit. 56. + Molloy, J. M. v. ii. p. 320. Thom. Co. Litt. Citing Styles, 20, occasional reference, or a manual for young students, it cannot be considered as forming a very valuable accession to the library of an experienced jurist. It may still be affirmed that an elementary work, worthy of the present condition of international law, is a desideratum in jurisprudence. It will have been perceived by our readers, from the brief abstract which has been given of the arrangement of the civil law, according to the system of Justinian, that no separate place is allotted in it to the law of nations; for their jus gentium had a far more comprehensive signification. Indeed, when we reflect that the Roman Empire extended over the whole civilized world, (for to be conquered by that people was, in those times, the only means to become civilized) and when we consider, moreover, the cruel maxims of all ancient warfare, we shall be less surprised at this omission. Their system was calculated for perpetual success: they did not contemplate the possibility of their wanting the protection of such a code. As soon as a Roman citizen fell into the hands of an enemy, he was capitis minor and dead to the commonwealth. The Senate sometimes even refused to ransom their countrymen, when they could do so on easy terms, lest it should impair their military virtue and discipline in future wars. We are aware of the noted passage of the oration for Balbus (c. 6.) in which Cicero commends Pompey for what he calls singularis quædam laus ejus et præstabilis scientia, in fœderibus, pactionibus, conditionibus, populorum, regum, exterarum nationum; in universo denique belli jure et pacis. But it would be a gross error to infer from such a rhetorical flourish that the Romans bestowed upon the rights of nations, with regard to each other, any thing like the same pains with which they cultivated their municipal law. Their jus belli et pacis was excessively simple-extending no further than to the fair interpretation and religious observance of treaties, and to such other obvious and necessary usages as must exist even among barbarians and outlaws, as for example, the immunity of ambassadors and the like: nor, indeed, do the words of Cicero strictly imply any thing further. This accounts more sensibly than some conjectures which we have seen, for Grotius' adopting that title for his great work. He wrote Latin with too much purity to deviate from the best standards, and that language did not express, in any other way, the idea of international law.* *Jus Feciale was precisely the same thing. See Cic. de legib. ii. 9. De Offic. i. 11. And cf. the whole 19th chap. of the Vth against Verres, which affords a good illustration of the remarks in the text. Condillac supposes Grotius adopted that title to excite curiosity. It is to the genius and learning of that extraordinary man, that the world is indebted for the first successful effort to reduce to a system, those principles upon which alone the intercourse of independent nations, in an enlightened state of society, can be carried on. Jeremy Bentham finds fault with this great work, as not being of a sufficiently definite and practical character. "Of what stamp," says Jeremy, "are the works of Grotius, Puffendorf and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial? Sometimes one thing, sometimes another; they seem scarcely to have settled the matter among themselves." There is, undoubtedly, much truth in this criticism-and so far as it applies to Puffendorf and Burlamaqui-although Sir James M'Intosh speaks of the former in terms of high praise-we must confess that we are disposed to concede to it even more, if possible, than its author would demand. We own with D'Aguesseau, que nous n'avons jamais pu achever la lecture du gros livre de Puffendorf-but it is impossible to reflect upon the æra at which Grotius wrote, in the midst of the horrors and atrocities of religious persecution and of civil war-calamities, of whose utmost bitterness he had himself been compelled to taste-without acknowledging that this treatise De Jure Belli et Pacis, in which enlightened reason, refined humanity, immense learning and elegant scholarship, mingle their winning and varied attractions, and where strong sense and convincing argument are rendered still more persuasive and venerable by the authority of great names, was at once a most noble monument of that day, and the herald of one yet brighter and more auspicious. In spite of the "march of mind," we believe no one has ever attentively studied it without being the wiser for it, and although the author, had he lived in our times, would, perhaps, have blotted out half of it, as cumbersome and superfluous-we doubt whether the public would have been, either in profit or amusement, a gainer by it. In short, we perfectly concur in the eulogium bestowed upon it by Sir James M'Intosh, that Grotius "produced a work which we now, indeed, justly deem imperfect, but which is, perhaps, the most complete, that the world has owed, at so early a stage of any science, to the genius and learning of one man.' Still there can be no doubt that it has many defects-partly because so little had been done before it-partly and still more, because so much has been done since. The new law of nations was, indeed, even then known in practice. The merciful and benignant spirit of Christianity had made itself visible, amidst the carnage of Smithfield and St. Bartholomews, in its effects upon modern civilization; courage had been refined and softened by chivalry; and the insolence of victory was subdued, and the rights of conquest were circumscribed and settled throughout Europe by a controlling public opinion. But the customary and conventional law of nations was yet in its infancy. Those intimate relations, commercial and political, which have since bound up all Christendom in one great society, and, as it were, family union, were just beginning to be formed and consolidated. The idea of the balance of power, which had, of course, been familiar to mankind in all ages, wherever the many found it necessary to combine against the strong, but which was not acted on as a standing rule of conduct upon a grand scale, until mighty governments were formed, and distant enterprises became common-gave to treaties the effect of precedents, and clothed them with the authority of law. That of Westphalia, for instance, was considered as the very foundation of the Jus Publicum of Germany. Since Grotius wrote, two centuries more fruitful by far of great events, and magnificent improvement than any equal period in the history of mankind, have been continually adding to the number of such principles, and confirming and consecrating them as they have been ascertained. 66 It is to combine in one great work these conventional and customary rules, so far as they have been universally acceded to among nations, with the principles of reason and natural law, to which they ought to approximate as much as possible, that some master hand is now called for. As it is, the student of international law is compelled to have recourse to the reports of adjudicated cases. Elementary writers," says Mr. Justice Story, in the case of the Nereide,* "rarely explain the principles of public law with that minute accuracy of distinction which legal precision requires. Many of the most important doctrines of the prize courts will not be found to be treated of, or even glanced at in the elaborate treatises of Grotius, Puffendorf and Vattel. A striking illustration is their total silence as to the illegality and penal consequences of a trade with the public enemy. Even Bynkershoëk, who writes professedly on prize law, is deficient in many important doctrines which every day regulate the decrees of prize courts. And the complexity of modern commerce has added incalculably to the number, as well as to the intricacy of questions of national law. In what publicists are to be found the doctrines as to the illegality of carrying enemy's despatches: or of engaging in the coasting, fishing, or other privileged trade of the enemy? Where are transfers in transitu, pronounced illegal? Where are accurately 9 Cranch, 437: and systematically stated all the circumstances which impress upon the neutral, a general or limited hostile character, either by reason of his domicil, his territorial possessions, or his connexion with a house of trade in the enemy's country. The search would be nearly in vain," &c. No one, we are persuaded, however, will have occasion to regret the necessity of resorting to the volumes of reports in this branch of jurisprudence, since, besides the intrinsic advantages of that mode of study (after all that has been said against it, the surest and the best for those who wish to become profound in the science) they hold out other attractions of no ordinary kind. The judicial eloquence of Lord Stowel, is the very copiose loquens sapientia of the great Roman orator, abounding in so many charms and graces, that his decrees deserve to be cited as models of style, and will bear a comparison with the most finished compositions of our English classics, at the same time that it is difficult to treat such subjects with greater ability and acumen, or with a more enlarged philosophy. Nor have we any reason to shrink from a comparison with such exalted excellence. The great man who presides over the Supreme Court of the United States (to confine ourselves to him) does not, indeed, display the same exquisite elegance and felicity of diction, but he is second to no judge that ever lived, in some of the most important attributes of the judicial character; in depth and comprehensiveness of intellect, in luminous arrangement, in clearness of expression, in a logic, which, in general (for alas! even Judge Marshall has erred) is proof against all sophistry, and against which, no sophistry is proof-in a word, in a large, sound, pervading good sense, which is satisfied only with the fullest and fairest views of a subject, but which, where it is once satisfied, seldom fails to impart its own convictions entirely to others. 2. The constitutional jurisprudence of the United States! Under this imposing title is presented to us, one of the most striking examples which history furnishes, to illustrate and support an opinion advanced in the course of the preceding remarks. If any one wishes to be convinced how little, even the wisest men, are able to foresee the results of their own political contrivances, let him read the constitution, with the contemporaneous exposition of it contained (even) in the Federalist; and then turn to this part of Chancellor Kent's work, to the inaugural speech of the present Executive of the United States, and to some of the records of Congress, during the memorable session which is just past. He will find that the government has been fundamentally altered by the progress of opinion-that instead of being any |