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recollections and hereditary feelings-their literary associations and philosopical tenets-nay, even their very religious doctrine and discipline, which was the motive that determined so many of them to quit their homes-were essentially European. Nor was there any thing in their situation here, to sever these strong ties—to give a new impulse to opinion in matters of philosophy and learning, or, in short, to influence in any material degree, their own intellectual character and pursuits-much less to produce a sensible effect upon the general condition of the human mind. It is, on the contrary, our misfortune, in one sense, to have succeeded, at the very outset of our career, to an overgrown inheritance in the literature of the mother country, and to have stood for a century in that political and social relation towards her, which was, of all others, most unfavourable to any originality in genius and opinions. Our good fathers, piously spoke of England as their home. The inferiority-the discour aging and degrading inferiority-implied in a state of colonial dependence, chilled the enthusiasm of talent, and repressed the aspirations of ambition. Our youth were trained in English schools, to classical learning and good manners; but no scholarship-great as we believe its efficacy to be-can either inspire or supply, the daring originality and noble pride of genius, to which, by some mysterious law of nature, the love of country and a national spirit, seem to be absolutely necessary. We imported our opinions ready-made-" by balefuls," if it so pleases the Rev. Sidney Smith. We were taught to read by English schoolmasters-and to reason by English authorsEnglish clergymen filled our pulpits, English lawyers our courts and above all things, we deferred to and dreaded the dictatorial authority and withering contempt of English critieism. It is difficult to imagine a state of things more fatal to intellectual dignity and enterprise, and the consequences were such as might have been anticipated. What is still more lamentable, although the cause is in a good measure ceased, the effect continues, nor do we see any remedy for the evil until our youth shall be taught to go up to the same original and ever-living fountains of all literature, at which the Miltons, and the Barrows, and the Drydens drank in so much of, their enthusiasm and inspiration, and so to cast off entirely that slavish dependence upon the opinions of others which they must feel, who take their knowledge of what it is either their duty, their interest or their ambition to learn, at second hand.
But in politics and jurisprudence, the American people were compelled by the very novelty of their situation to think for
VOL. II.—NO. 3.
themselves. Nature, which is explained by philosophers and imitated by the artist and the poet, is every where the same, and it is not impossible, that our literature and science, to however exalted a pitch of excellence they may ultimately attain, may never exhibit any strictly national peculiarities. But the case is very different with the civil and juridical institutions of a country. These are, in a great degree, the work of man, and may be moulded, and have been moulded into endless varieties of form, to suit his occasions or his caprices. In this respect, our founders could not, if they would, be mere imitators. They could bring with them from the mother country, only the general principles of government and jurisprudence-the great outlines of a free constitution, and the invaluable maxims of the common law. But its institutions were more or less inapplicable to their present circumstances, and their civil polity had \to be recast and built up anew from the very foundation. Their wisdom was thus tasked from the beginning, in selecting such parts only of the laws of England, as were adapted to their situation, while they were of course studious to preserve what ever had so pre-eminently distinguished them among the institutions of modern Europe, as most auspicious to liberty and justice. That superstitious veneration for English example and opinion, which, in merely speculative matters, led to servile imitation and implicit acquiescence, was here precluded, or at least corrected by the very nature of things, and the stores of useful information which they had acquired in studying the constitution, civil and political, of the mother country, could, in such novel circumstances, serve at most to enlighten speculation and direct experiment. We need scarcely add, that those vehement and protracted discussions of all the principles of public law that preceded the war of the revolution, had a strong tendency still more to disenthrall the minds of our leading politicians from any undue influence which the authority or the reasonings of English jurists and publicists may have exercised over them before.
These observations are, however, more strictly applicable to law than to politics; because the former, as we shall presently attempt to shew, is at once the most exact and the most complicated of all the moral sciences, while the latter, in spite of all that has been written and said about it, can, in our opinion, scarcely aspire to the dignity of a science at all. We know that in hazarding this position we shall scandalize many, probably most of our readers. If any thing is taken for granted in
Mr. Brougham's Bill proposes to do in England, little more than was universally done in America, from the beginning.
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 error. 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 administration 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 sysWe 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,‡ 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.