Page images

ly small compass. It did not fix and settle the law forever; no code could do that. On the contrary it became the basis of essays, comments, and annotations; but is it not better that they should have such a basis, than that they should, as in England, be founded on a thousand volumes of ancient and modern statutes, essays, digests, reports, and decisions of greater or less authority, more or less obsolete, and proceeding from judges of all degrees of power and reputation, from the Lord Chancellor delivering an elaborate opinion in his own court or the House of Lords, to a puisne judge or commissioner at Nisi Prius? Prejudice and bigotry cannot deny, and do not deny, that the Napoleon Code is a decisive instance of the success of the principle for which we contend. Fas est ab hoste doceri.

We are not wholly without the benefit of experience in this country in relation to this subject. We have already hinted at the division of the law into two heads, namely, that which binds by force of a statute or the will of the legislature, and that which is derived from all other sources. This distinction is not very precise, because much of the law consists in authoritative decisions on statutes, which are often very distinguishable from the statutes themselves, but it is sufficiently accurate for our present purpose. Now we believe that the experience of most of the states has shown the expediency, not to say the necessity, of an occasional revision of the statutes to a greater or less extent. Statutes, in pari materia, as they are called, that is, upon the same subject, have been revised, collated, amended, and reduced into one. Saving the offensiveness of the term, this is nothing else than legislative codification. It has been found not dangerous but beneficial, aud we cannot but think, that if an English jurist would take a hint from a young country, he would not be long in discovering that it would be no small service to his own kingdom, if the numerous volumes of her statutes had been reduced into order and compass; if the game laws, the laws relating to apprentices and the poor, the bankrupt laws, and, above all, the criminal laws, had been revised and brought within the limits of memory and investigation.

The statute law is quite inconsiderable in comparison with the enormous mass of the common or unwritten law, that law of which the evidence is to be found in books of reports of

the English and American courts, and the books made from them, with an occasional though rare reference to the opinions and decisions of the jurists of other countries. If then the benefit of digesting the statute laws into something resembling a code has been so great and so apparent, what reason is there why a similar advantage may not be expected, by subjecting the larger and more discordant mass of the common law to a similar operation?

But there are still higher and more illustrious precedents to be adduced in support of our argument. We allude to the constitutions of the several states of this Union, and to the federal constitution which holds them all together. What are these but a digest or code of fundamental principles on constitutional law? They have not excluded doubt or discussion; no human instrument could do that; language is not competent to such an effect. But they have done much and infinitely more than those will readily believe, whose thoughts and studies have not led them to be conversant with subjects of this nature. We have had many constitutional discussions; in the infancy of this system, before its organisation had become perfect, and its parts were adapted to each other, this was unavoidable; but our written constitutions have furnished a comparatively easy and definitive test, for the resolution of doubts and decision of controversies. In England also there have been constitutional disputes, and the disputants have appealed to theoretic reasoning, vague maxims, obsolete charters, ancient usages, half forgotten statutes, concerning which it has been matter of doubtful discussion, whether they were or were not in force, and finally, there being no other absolute test, to the sword of the strongest.

The administration of justice is beyond all comparison the most important part of the government and polity of a country. An enlightened jurisprudence supposes a great advance in national character, and, more than anything else, tends to aid its further progress. That the judiciary is honest and learned denotes only a low degree of improvement in this most important of all arts. The laws should be as simple as is consistent with the multiplied relations of society, they should be homogeneous, and adapted to the existing state of things, they should be intelligible, that they may be understood, and just, that they may be approved, and they should be carried

into execution in a direct, economical, expeditious, and effectual method. How far the English system of the law remains distant, not only from theoretical, but easily attainable perfection, any one may perceive, who has studied this subject. with any degree of philosophical attention. Americans will not long believe, and the inhabitants of many of these states do not now believe, that there is any necessity that the forms of conducting a legal controversy should be so multiplied and expensive, that the mere costs of suit, without taking into consideration the rewards of professional eminence, should be so great, that none but the rich can indulge in the luxury of the law. This is now the case in England. Enlightened men will not long believe, that it is necessary to have such a system of law, that a vast proportion of the reports relate to distinctions having no connexion with the justice of the case in controversy, and but a doubtful existence in the nature of things, such for instance as the evanescent and scarcely discernible boundaries of the actions of trespass, and trespass on the case. These things will not always remain as they now are, but the day of change is perhaps far distant.

P. S. bubonecass

ART. IX. Die Staats Wissenchaft, theoretisch und praktisch dargestellt, &c.

The Science of Political Economy, theoretically and practically explained and illustrated, by Examples out of the modern financial History of European States. By LEWIS HENRY VON JAKOB. 8vo. 2 vols. in one. Halle. 1821.

THE author of this valuable work is one of the many German scholars, whose merits have been latterly acknowledged by the cheap reward of nobility. This might be understood from the particle on prefixed to his name, which, although very ancient and truly historical, is not one of those feudal epithets indicating an aristocratic origin. What honorable station the ennobled author fills, the titlepage does not designate, but from the book it appears that he is a professor in the University of Halle, is respected in Germany as a writer and translator of various works on political economy, and has arrived to the advanced age of seventy years or more.

His style

consequently partakes of the excellencies, as well as the imperfections, of the period in which it was formed, thirty or forty years ago.

In the introduction to this treatise it is called a text book, and it appears to have been designed as a guide for the author's lectures on political finance. The first volume is successfully devoted to unfolding the true principles of taxation. The author leaves nothing unexplored, and traverses every country in which this branch of political economy has been cultivated, within the memory of the present generation. For although he also glances at more remote periods, and even at the financial management of the Greeks and Romans, \he justly observes, that until lately the only care of financiers was, to devise means of extorting money or services for the necessities of government, without any regard to the justice or equality of taxes, and that consequently the community, and chiefly the lower orders, were oppressed beyond bearing. After enumerating what has been done and written in England, France, Italy, and Germany, as preparatory to developing the principles of political finance, Mr Von Jakob justly ascribes to Adam Smith the honor of having discovered a firm foundation for the sciences connected with political economy, and though his doctrines may not have been universally or unconditionally adopted, still he and his successors, Torrens and Ricardo in England, Say in France, Sismondi in Italy, and Sartorius, Kraus, Soden and others in Germany, are represented as the fathers of a revolution in opinion, which had become practically indispensable by the uncommon expenditures of the late war. The enormous debts thus caused could not be met by the old slovenly method of an unequal and unjust taxation.

The author, after having explained at length the objects of political finance, treats of the science under three distinct heads; first, as relating to the means of defraying the public expenses; secondly, the public demands or expenditures; thirdly, the mode of regulating income and expenses, with comparative views of the two. We do not mean to notice the judicious illustrations with which the author has adorned each of these heads. In two or three instances his arguments do not appear to possess their usually convincing power, but he is generally strong and pointed. The following remarks pertaining to this topic are sound and of general application.

< The principles,' he observes, by which the imposition of taxes are regulated, are partly dictated by justice, partly derived from political economy, and partly discovered as beneficial by the science of finance itself. Justice demands, that the taxes be indispensable, or that without them no provision can be made for the real wants of the Commonwealth; that they are useful for those who are taxed, or that no one be subjected to a tax for purposes from which can result no advantage to him either directly or indirectly; that there shall be equality, or a just proportion in the division, so that the share of each individual be measured by his participation in the general advantages thus obtained for the Commonwealth, which will be according to the extent of his abilities, or of his property, protected by the salutary regulations of the state; and that no person be a loser in a greater amount by the payment of his tax, than that which he is to gain by the same. Political economy requires, that neither the whole sum of the taxes to be imposed encroach upon the capital stock of the nation, nor that the capital stock of each individual be affected by his share of the taxes, but that they may be paid out of his clear income; that the tax do not operate against the creation or augmentation of the public wealth, by weakening or destroying its causes; that it take from the citizen as little as possible above the receipts of the treasury, consequently that the collection be easy, cheap, and as direct as possible; that it interfere no more with personal liberty than is unavoidable; that the amount of the taxes be not demanded in such large sums as to take a long time for, the contributors to collect them, and that the taxes be, as rapidly as may be, received, and expended for their purpose, so that they shall not linger in private or public hoards to a large amount, but quickly return into circulation. The science of finance prescribes for itself as rules of beneficial tendency in levying taxes, that their amount and the time when they will be received may be foreseen with exactness and certainty, such taxes having the preference as are certain and determined in quality and quantity, and whose pay days are fixed and coincide with the times, when payment becomes easy and convenient to the contributor; that no opportunity or temptation exist for evading the taxes or smuggling; and that they may be collected by as few persons, and with as little cost as possible. All these principles, dictated by justice, political economy, and the science of finance, are in complete harmony, and reciprocally aid and support each other.'

In the application of these principles the author examines, as an experienced political economist, the funds out of which taxes may be paid. Under this name he comprehends the aggregate of all useful things possessed by man, and distinguishes the internal funds, or his faculties and powers of

« PreviousContinue »