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tion of valleys, &c., and the Geology of England and Wales, we are obliged to take leave of Mr. Bakewell, acknowledging in conclusion the high gratification which his very able and interesting work has afforded us, and wishing it all the success in this country which it has met with in his own.
Professor Silliman's additions consist of quite an able and spirited sketch of the leading principles and general views of the science, intended, as he says, for an outline of the philosophy of geology. It bears traces of a mind of no ordinary calibre, full and glowing with its subject, and pouring out its conceptions in free, strong, and eloquent language. In theoretical matters, he declares himself to be “neither Wernerian, nor Huttonian ; Neptunian, nor Plutonist;" and we readily give him the praise of acting up to his declaration, and concede to him the still higher merit of an acute, untrammelled, and original thinker. We must be allowed, however, to express our regret that so much of this valuable sketch is taken up in endeavouring to explain, upon physical principles, that great revolution on the surface of the globe, which is recorded in Scripture, and recognised at the present time by its geological effects. This is a subject, we know, on which geologists, in the absence of all clear and well-understood facts, seem to enjoy a prescriptive right to give up the reins to fancy, and indulge, ad libitum, in the wildest and vaguest speculation. But it is time for this idle child's-play to be done away with, and geologists to be reminded, that their field of inquiry is ever bounded by the clear horizon of true facts, and sound philosophy. Why, in the name of common sense, torture our brains in accounting by the known laws of nature, for an event which was confessedly the result of miraculous interposition, and of course, in direct opposition to the action of those laws? Natural causes might, indeed, have had some share in bringing about this event, but is it for us to say, with the slightest chance of being right in our conjectures, what the means were which the Deity, in his infinite wisdom, chose to adopt? The very fact of its miraculous nature is sufficient to destroy at once all probabili. ty which we might be disposed to attach to any system of means whatever. To acknowledge the deluge to have been the result of a miracle, and in the same breath endeavour to account for it by the action of natural causes, we humbly consider to be a palpable absurdity. Professor Silliman supposes that many immense cavities existed in the interior of the earth, filled with water and communicating with the ocean, and that, by the agency of aerial fluids, vapours, and gases, the water was expelled from these cavities, and carried over the surface of the earth, even to the sum mits of the highest mountains. Now, this might have been so
-we see nothing in the physical constitution of the globe to render it impossible—but all the probability in the world does not
prove that such actually was the case. On a matter about which we are so ignorant as this, any theory, ingeniously and ably developed, may carry with it a certain degree of verisimilitude, and considering the event, as we do, the result of a miracle, one theory is just as probable as another. That the occurrence of a terrible deluge is equally supported by the testimony of the Bible, and the appearance of the earth's surface, all are agreed; and here, we believe, is the utmost limit of our knowledge. Any thing farther than this, constitutes that “male-sana admixtio" of philosophy and religion, which incurred the most thorough reprobation of Lord Bacon, and which the rational friends of each have too much cause to regret at the present day.
ART. V.-A Contre-projet to the Humphreysian Code, and to
the Projects of Redaction of Messrs. Hammond, Uniacke, and Twiss. By John James Park Esq. Barrister at Law. London: 1828. pp. 260.
It is an observation of Beccaria, not unfrequently quoted, that that country is truly happy in which the law is no science. Many of these grave apophthegms, which from their apparent simplicity are always received with emphatic approbation by the unthinking, sink into their native nothingness the moment they are exposed to a rational investigation. It is undoubtedly one of the first qualities of a good system of laws, to contain as few and as simple regulations as the subject matter will permit. But this quality must always be comparative ; and where is the nation, the laws of which have long remained within the reach of all its citizens? If we appeal to history, that truest of all teachers, we shall find that the progress of every country has necessarily extended the objects of jurisprudence, and of course, its operation. The law of Moses was sufficient for the wants of the Jews while they were wandering in the desert, or fixing the first foundations of their empire: but after civilization had begun to mark its progress, the weight of commentaries made it a burden which neither they nor their fathers were able to bear.” The laws of the Twelve Tables supplied all the requisitions of the military possessors of a small portion of Italy, but the successors of Augustus found their courts overwhelmed by a camel's load of cases, whenever the simplest question was offered for adjudication.
It can scarcely be supposed that Beccaria contemplated a state of national happiness existing without freedom: yet it is impossible to conceive how justice can be administered by the judici
ary of a free people, (and every free people must have a judiciary,) without rendering the law a science. It is one of the essentials of liberty, according to Tacitus, that the law should be fixed and certain. The rules established either by former decisions, or the Responsa Prudentum, must therefore be regularly preserved ; and in time, they become by gradual accumulation the great body of jurisprudence. These rules must necessarily be more or less perfect, according to the correctness of the reasoning by which they are deduced from first principles of justice and policy; and thus the beneficial power of philosophy must be sensibly felt in every act of judgment. From these operations of the human mind, is derived what is emphatically styled the Science of the Law. *
But it is beyond the power even of despotism, in any country in which the civilized relations of life are established, to exclude Science from the practical operations of the law. Natural rights require only a few simple regulations, easily deducible by natural reason : but no human laws can be made so complete as to embrace all those adventitious rights, which derive their sanction solely from the social compact, and are as numerous as the communications of mankind. A finite rule can never suffice for a subject-matter in its nature infinite. Supposing, therefore, a code formed without the least regard to principles, and dependant only in its enactments upon the mere will of a tyrant, yet when an unprovided case presents itself, it becomes the duty of the judiciary to combine analogous dispositions, to extract the object of the will by which they were established, and to apply that object to the new subject matter. What is this, let me ask, but the application of the Science of the Law?
The work of Mr.. Park is an example of a far more enlarged operation of this important philosophy. In despotic countries, the investigations of jurists are chiefly confined to the existing law; but where the mind expands itself in freedom, science may assume a wider range, and impart its aid to the important subject of improvement.
The great body of jurists, in all free countries, have regularly divided themselves into two parties. The first and more numerous division includes those who consider the established law, with all its imperfections, as near to excellence as human means can make it, and who dread the least change, as opening the gate to revolutionary innovation. Among this class are usually the ex
* Lord Kames, who was not much addicted to unreasonable enthusiasm, has allowed himself to be carried away by this plausible error. “Law religion were originally simple, because man was so. They will again be simple, because simplicity contributes to their perfection.” Law Tracts, VII. p. 300. This is beautiful in theory, but it will never be practically true, until law and religion are one. VOL. VI.-NO. 11.
perienced practitioners of the legal profession, who have grown grey amid ancient forms, and from long habit, identify them with that justice of which they are only the usual administrators. The second party comprehends all those who are more addicted to active but superficial thinking, than to studious investigation of practical consequences. To such as these, every deviation from first principles appears to be an abuse, that has communicated its corruption even to the more healthful parts of the system: and they propose to remedy it, not by a judicious pruning, but by laying the axe to the root of the whole tree, and substituting in its place a new and vigorous scion.
Within no very remote period, a third class has been gradually arising, preserving what we shall term the safe middle between the two great extremes. Those who compose this division are neither idolaters nor iconoclasts. They admit the existence of serious inconveniences in the established systems, but they consider every sudden innovation as entailing greater evils than any it can be expected to remove. According to them, the improvement of the law should be slow, gradual, almost imperceptible. When time has pointed out the evil, a remedy should be sought for in those eternal principles which lie at the foundation of universal jurisprudence; and it should be only applied by the hands of those who know how easy it is to destroy, and how difficult to rebuild.*
The discussion of these various opinions could only be tolerated in a country enjoying civil liberty; and indeed it is not likely to arise, except where the law, as the unalienable property of every individual, is an engrossing subject of attention. The reader, therefore, will not be surprised to hear, that in this field our jurists have taken a distinguished lead; and that all the prominent arguments had been already exhausted, before the subject began to attract the attention of Europe. The rapid advance lately made on that continent in the great knowledge of natural and civil rights, has introduced a free and rational investigation of abuses, which is sometimes momentarily checked by power, but, marching with the irresistible spirit of the age, becomes in the end too strong for its oppressors. The subject of improvement in the administration of justice, has of course attracted that attention to which it is entitled by its paramount importance. In some countries, new codes have been the result of the spirit of investigation thus excited : in others the changes have been more limited. With the French writers, our readers are probably already familiar.
Among the Germans, we are informed that Professors Savigny, Thibaut, Eichhorn, and Hugo, have treat
“Les Codes des Peuples se font avec le temps; mais, à proprement parler, on ne les fait pas.” Discours preliminaire sur le Code Civil.
ed the subject with that close and profound reasoning, for which the literature of their country is so conspicuous. *
It may be considered as somewhat in opposition to the principles advanced in this article, that the jurists of a nation like England—where every thing may be made the theme of the freest discussion-should have been among the last to investigate the necessity and modes of improvement. Mr. Park says of them, “I state boldly that the English writers, who have advocated the subject, do not appear to me as yet to understand it,” and he refers them for information to the jurists of other countries. The cause of this exception is to be found in the very peculiar distribution of the various branches of the science, which there prevails in the legal profession. The business daily transacted by an American lawyer, is divided in England among attorneys, barristers, solicitors in chancery, doctors of the common law, conveyancers, special pleaders, and a host of others that might be enumerated: and every man of ability in any one of these branches, is soon overwhelmed by a quantity of employment which engrosses his whole attention. We have Mr. Park's authority for saying, that “a jurisconsult in active practice, feels every other pursuit a snare, from the seduction of which his conscience must be his guard.” Even a liberal view of the whole science is considered incompatible with a profound knowledge of its parts; and accordingly every English judge, from Bacon to Mansfield, whose judgments have been guided by enlarged views of jurisprudence, has been regularly accused of ignorance by the deepread professors of the common law. The natural consequence is, that English lawyers, however able in their particular departments, (and none can be more so,) have generally failed as philosophers and statesmen. To use a familiar comparison, the "operative" who employs his time in the manufacture of the heads of pins, can scarcely be expected to furnish any important hints for improving the whole of those useful articles.
It may be said that this peculiarity of character is only chargeable upon the old practitioners, who are constantly engaged in active duties; and that there are at the English Bar, a number of young men, whose minds have never been exposed to any dan
The public will shortly be gratified by the appearance of one of these publications in an English dress. Among the annunciations of new works in press, there is the following. “On the aptitude of the present age for legislation and jurisprudence. Translated from the German of F. C. Von Savigny. By a Barrister of Lincoln's Inn."
The lethargy of the English lawyers has been remarked by the writers on the continent. “En Angleterre, la plupart des juris-consultes renfermés dans leur greffes, et ne connaissant que leurs archives, paraissent à peine s'aperçevoir du bruit de nos sectes; la loi n'est pour eux qu'une profession.” Annules de legislation.