kind can be, and well suited to the nation for whom it was made. But I can assure you, that, as far as I have been able to observe, the digests and code of Justinian, the former laws and ordinances of the kingdom, and the immense collection of the works of the civilians and French jurists are not less quoted at present in the lawyers' pleadings than they formerly were, and so it would be with us if we were to abolish the common law. We should still recur to it for principles and illustrations, and it would rise triumphant above its own ruins, deriding and defying its impo. tent enemies. The common law may be viewed under different aspects. Hence the variety of opinions that have been and are still maintained respecting it. There is an ancient and a modern, an English and an American common law, making in some respects a whole system, in some others distinct codes. Viewed altogether, it presents a rude and mis-shapen mass, rudis indigestaque moles. Like certain works of art, its separate parts must be dwelt upon for some time before its beauties or its defects can be justly appreciated. It is not to be wondered at, therefore, if it has warm enthusiasts and violent Lenemies. It would require a consummate artist to delineate it as it ought to be; as I do not possess the requisite talent, I shall content myself with a plain statement of my ideas upon the subject. I admire and I venerate the common law; not, indeed, the common law of the Saxons,* Danes, and Normans, nor yet that which prevailed in England during the reigns of the Plantagenets, the Tudors, and the first Stuarts, but that which took its rise at the time of the great English revolution in the middle of the 17th century, to which the second revolution in 1688 gave shape and figure, which was greatly improved in England in the reigns of William, Anne, and the two first Georges, but which, during that last period and since, has received its greatest improvement and perfection in this country, where it shines with greater lustre than has ever illumined the island of Great Britain. In former times, its present defects excepted, it bore no resemblance to what it is now. If the common law had remained in England as it was in the reigns of Elizabeth and James, it would not have deserved the high encomiums that have been justly bestowed upon it, nor would it have been worth being claimed by Americans as their birth right. England, it is true, had a kind of representative government, but so had almost every other country in Europe. As England had I shall cite only two of the laws of Alfred, the greatest of the Saxon kings, to shew how far they are deserving of the eulogies that have been lavished upon his times, and what liberty and equality there was in England under his reign. "If a man have connection with the wife of one worth 1200s he shall pay 1208.; if with the wife of one worth 600s. he shall pay 100s; and if with the wife of a yeoman, 40s. for the redemption of his head. This fine shall be levied on the chattels of the delinquent, and he shall not be sold for it.”— LL Elf. c. 10. "If any one shall strike his man or his maid servant, and he or she do not die the same day, but live two or three days, he shall not be equally guilty, because his slave is his money; but if he or she die the same day, then the guilt shall rest upon him."-LL, Elf. c. 17. her parliament, other nations had their States, their Cortes, and their Diets, but all weighed down by the supreme authority of the sovereign, by virtue of the dispensing power, borrowed from the example of the emperors and popes, and strengthened by the famous maxim of the imperial law, Quod principi placuit, legis habet vigorem. The celebrated writ of habeas corpus was a part of the English code, but the civil law had also its title, De liberis exhibendis,* and neither of them was adequate to the protection of the subject against the attempts of arbitrary power. Even trial by jury was no safeguard to the innocent, when powerful men thirsted for his life; the history of those ages offers no example of those independent juries who distinguished themselves in later times by the noble stand which they made against tyranny and oppression. All the firmness and eloquence of William Penn would have availed him but little in former reigns, and, indeed, when we consider the power which the Courts had and exercised even at this time, we cannot withhold our astonishment from the result of this prosecution. The trial of William Penn is one of the brightest examples of successful virtue and courage which History affords. The civil jurisprudence was a complex system in which the Judges lost themselves in refinements and distinctions without end. The method of reasoning by induction, which Bacon recommended and exemplified, and which the celebrated Stewart *ff. lib. 43. tit. 30. De liberis exhibendis, item ducendis. and the philosophers of the Scotch school have so elegantly elucidated, was then unknown, or not understood; the logic of the schools prevailed, and every thing was discussed by syllogisms in Barbara and Baralipton. A highly complicated system of litis contestatio, or, as we call it, pleading, overdriven to excess, excluded plain reason and common sense from the bar and from the bench, and a great majority of the cases brought before Courts of justice were decided upon some nice point of form. This artificial logic produced the same effects in England, which the *The great Lord Mansfield has said, that “the substantial rules of pleading are founded in strong sense, and in the soundest and closest logic." This is undoubtedly true; but Lord Mansfield does not tell us what are those substantial rules, while at the same time he confesses that even those "by being mis"understood and misapplied, are often made use of as instruments of chicane." Robinson v Raley, 1 Burr. 319 In the same manner the substantial rules of the Aristotelian system of Dialectics are founded in strong sense, and in the soundest and closest logic. There is nothing better than syllogistic forms to bring a controversy to a point or to prove the fallacy of an argument. Yet we all know how these forms have been abused. In fact they are, as well as the English system of pleading, nice and delicate instruments, excellent in the hands of those who know how to use, and are not disposed to abuse them; but too dangerous to be entrusted to every one, when great inconveniences may arise from their unskilful or designed perversion. While writing this note, I find in a late English newspaper an extract of a speech of the Lord Chancellor of England in the House of Peers, on the 6th of March last, which is so appropriate to my purpose, that I cannot help inserting it here: "He took the opportunity," he said "of observing upon the "intricacy of legal pleadings. In former times, these pleadings were extreme"ly simple, but by modern practice, they had been rendered most complica"ted. It had been thought advisable to assimilate the pleadings of Scotland, "the length and intricacy of which had been much complained of, to those of "England; but it appeared to him that the pleadings of this country were now "nearly as intricate as those of Scotland, and therefore little would be gained by this assimilation." The editor who reports this extract adds these emphatical words: "We rejoice most unfeignedly that the CHANCELLOR has enlisted "himself on the side of COMMON SENSE.-Lond. Morn. Chron. March 8, 1824. Aristotelian Dialectics had produced in Greece and at Rome; sophistry became in vogue, and Seneca, if he had lived in those times, might have applied to the English lawyers and Judges what he says of the Roman sophists in his eighty-second letter to Lucilius. The plain rules of right and wrong were lost sight of in the midst of a sea of metaphysical subtleties. The greatest talents were misapplied in endeavouring to find reason beyond the bounds of common sense. As theology had had her Thomas Aquinas, so jurisprudence had her Coke; both men of great mental powers, superior to most of their cotemporaries, but not to their age. One man alone arose, whom no country and no age ever surpassed, who held up the torch of truth to a generation whose eyes were too weak to bear its resplendence. This was the great BACON : Qui genus humanum ingenio superavit & omneis I invite you, my dear fellow students, to read with the utmost attention and to compare with the writings of the other jurists of those times, his admirable treatise "De justitiâ universali, seu de fontibus juris." It is at the end of the third chapter of the eighth book of his celebrated work "De dignitate & augmentis scientiarum." It is divided into ninety-seven aphorisms, every one of which ought to be studied and meditated on by every lawyer and statesman, and by every student who aspires to become either. * Lucret. |