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fringed, or misconstrued? Did the people intend, that it should be thus in the power of any individual to dissolve the whole government at his pleasure, or to absolve himself from all obligations and duties thereto, at his choice, or upon his own interpretation of the instrument? If such a power exists, where is the permanence or security of the government? In what manner are the rights and property of the citizens to be maintained or enforced? Where are the duties of allegiance or obedience? May one withdraw his consent to-day, and re-assert it to-morrow? May one claim the protection and assistance of the laws and institutions to-day, and to-morrow repudiate them? May one declare war against all the others for a supposed infringement of the constitution? If he may, then each one has the same right in relation to all others; and anarchy and confusion, and not order and good government and obedience, are the ingredients, which are mainly at work in all free institutions, founded upon the will, and choice, and compact of the people. The existence of the government, and its peace, and its vital interests will, under such circumstances, be at the mercy and even at the caprice of a single individual. It would not only be vain, but unjust to punish him for disturbing society, when it is but by a just exercise of the original rights reserved to him by the compact. The maxim, that in every government the will of the majority shall, and ought to govern the rest, would be thus subverted; and society would, in effect, be reduced to its original elements. The association would be temporary and fugitive, like those voluntary meetings among barbarous and savage communities, where each acts for himself, and submits only, while it is his pleasure.' pp. 287-303.
The author pursues this train of inquiry still further, in what appears to us to be a demonstration that the constitution is what it is declared in the instrument itself to be, a law,a supreme and fundamental law.
We have not left ourselves room to follow the author through the investigation of the provisions contained in the constitution as to the tribunal that is its final interpreter, which of course must be the Supreme Court of the United States, since it is the very object of the establishment of that court that it should interpret and apply the law, of which the constitution is a part, as far as it can be made a subject of investigation between party
and party within the jurisdiction of that court. This is not a matter of mere election and comity or discretionary arrangement among the departments of the government. It is, as we have already intimated, the first and greatest constitutional right of every citizen of the United States, to have all laws as far as they may be applicable to his own case, interpreted, and applied, after a hearing in open court, by the judicial tribunals.
The remainder of this volume is occupied with the rules of interpretation of the constitution, and an analysis of, and a minute and full commentary upon the preamble.
After what we have said and extracted, it is hardly necessary to add, that this work is a masterly exposition of the constitution, so well arranged and so clearly expressed, that a reader in the least conversant with subjects of the sort may, with the greatest facility, penetrate into the depths and recesses of our form of government. It cannot but put at rest some of the constitutional questions that have heretofore occupied the public attention, and if diversity of opinion should still prevail as to others, which will no doubt be the case, the work will necessarily have the effect of giving the discussion a more large and liberal character, for it is quite impossible for any one to read it, though he may dissent ever so widely from the author's views, and then enter into a discussion of constitutional questions with narrow views, querulous exceptions, and frivolous arguments. A patriotic national tone of feeling runs through the work; besides initiating the reader into all the constitutional learning which the most indefatigable industry could collect in the widest range of inquiry with the amplest means for pursuing the investigation, it inspires a love and veneration of our political institutions, and awakens in the reader an exalted and generous national pride.
We have followed the author through the first volume, and intend hereafter to notice the two others.
ART. II-LEGAL REFORM.
If there be any at the present day who believe that the science of law is the perfection of human wisdom, in the literal import of these words, we do not ask them to ponder what follows; for we know it would be useless. But for our part, while we avow our profound admiration of many parts of the common law, we cannot help believing that it has glaring defects. When we consider how it became what it is, we should conclude a priori that such must be the fact. Admitting that mankind are growing wiser from generation to generation, how is it possible that rules, and maxims, and usages, which grew out of the circumstances of a dark and barbarous age, should be suited to the present time? Will not a total change in the habits, manners, opinions, and political institutions of a people, make a corresponding change necessary in their legal rights and duties? We think that these questions admit of but one answer; and consequently that any project of legal reform carries a presumptive expediency upon its face, which entitles it at least to a hearing. The subject is a vast and momentous one, well worthy of the ablest pens in our country. The laws by which we are governed affect so intimately all our relations and interests, that a single defect in the system, from the universality of its operation, swells into a stupendous evil. In the United States, to form a true estimate of a legal abuse, we must multiply its effect in a particular instance by fourteen millions, and anon by still more. The means of legal reform are as simple as the project is plausible. Every state has a body of men elected and paid for this very purpose. To amend a constitution is always a difficult, and often a dangerous attempt. But nothing is easier than to amend or repeal an old law, or enact a new one. We do not ask our legislatures to extirpate the common law, but only to prune it. We want more of the lex scripta, and less of the lex non scripta. The boldest minds might well shrink from the task of supplying by legislation an entire substitute for the whole body of common law; but while the system as a whole is retained, its parts may be altered without danger or difficulty, This is all we wish to suggest. And while we think reform
VOL. IX.-NO. XVIII.
demanded in a great variety of particulars, we shall confine ourselves in the present article to one class of personal actions, namely, actions ex contractu.
Our doctrine is that the three actions of contract at present recognised, namely, debt, covenant, and assumpsit, may easily and safely be reduced to one general action of contract.
If such a consolidation can be effected without harm, it is certainly desirable, because the law would thus be simplified to an immense extent. Let us see, then, how it can be done.
1. A law might advantageously be passed, abolishing the use of seals in private contracts; which would at once annihilate the substantial distinction between covenant and assumpsit.
2. A law might advantageously be passed, declaring that in all cases where debt, covenant, or assumpsit would lie, the proposed action of contract should lie, and should be the only action. Let us examine the first proposition, as to the abolition of seals. This, we are sensible, will startle those who have not reflected upon the matter. But if they will follow us through a short discussion on the subject of seals, we are confident they will come over to our side.
First, then, what is a seal in the eye of the common law. Let its great oracle answer:-Sigillum est cera impressa, quia cera sine impressione, non est sigillum.' (3 Inst. 169.) Thus saith Lord Coke :-'A seal is wax impressed, because wax without impression is not a seal.' But these requisites, wax and impression, are already dispensed with in many of the states, particularly the western; and according to Chancellor Kent, the great virtue of a seal is thereby destroyed. 'In the western states the impression upon wax has been disused to such an extent, as to induce the courts to allow a flourish with the pen at the end of the name, or a circle of ink or scroll, to be a valid substitute for a seal. This is destroying the character of seals, and it is in effect abolishing them, and with them the definition of a deed or specialty, and all distinction between writings sealed and writings not sealed.' (4 Com. 445.) The encroachment, here complained of, upon the venerable definition of a seal, is not, as above intimated, the mere effect of usage. The legislature of Ohio has had the hardihood to enact, in so many words, that in all cases where a seal is required by law to be affixed to any instrument of writing, and the seal so
required is not specific, a seal either of wax, wafer, or of ink, commonly called a scrawl seal, shall be alike valid and sufficient.' (29 O. L. 349.) Now although we regret that the effect of such an enactment is not what Chancellor Kent asserts, namely, the annihilation of the distinction between writings sealed and unsealed; yet we know the fact to be, that the same legal consequences follow in the west from making a scrawl, as elsewhere from the most orthodox seal. The truth is that the legislature of Ohio, not wishing at once to make so great an inroad upon the common law, as to abolish seals and all their consequences, and yet being convinced that the formality of sealing was utterly useless at the best, judiciously determined to make it as little troublesome as possible. Now a Aburish of the pen is the easiest apology that could be made for a seal; and the very fact that it answers all the legal purposes of a seal, proves how utterly insignificant seals are.
Let us now look into the history of seals, and see if this view does not lead to a similar conclusion. We take the account given by Blackstone. The method of the Saxons was for such as could write, to subscribe their names; and whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do for the most part to this day keep up, by signing a cross for their mark when unable to write their names.' Now there is some sense in this, and it increases our respect for our stern old Saxon ancestors, to know that while they evinced their religious feeling by signing the cross, they did not originate the empty punctilio of sealing. But the account continues:-'In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names; which custom continued when learning made its way among them, though the reason for doing it had ceased. At the Conquest, the Norman lords. brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross. And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals.' (2 Bl. Com. 305, 6.) Now here we have the true origin of seals. The Normans used