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which we have been long indebted to the enlarged philosophy of our jurists, and our national freedom from that false pride styled “the dignity of permanent institutions."* Dr. Reddie's work contains quotations from the discourses of Mr. Duponceaut and Mr. Ingersoll
. † It will be seen by the following examples, that Mr. Park, with the usual candour of the truly learned, can fully appreciate the merit of others, without distinction of nations.
In page 32, after praising the progress of mercantile law, he says:
“In ex parte Wackerbath, 5 Ves. 574, the judgment of Lord Loughborough was delivered in the following words, which one might imagine to have proceeded from a Trans-Atlantic Judge.”
We perfectly understand Mr. Park's allusion. Mr. Ingersoll had said, that “ British Commercial Law was, in many respects, inferior to that of the continent of Europe ;” and this opinion had been reiterated and exemplified by Mr. Duponceau. The sentiments of our English author are strikingly exhibited by this remarkable mode of expressing a high encomium.
“The English disciples of codes, hitherto represent the pictures as finished and ready. The entire corpus of the laws of property, both real and personal, is comprised in five hundred and eighteen moderate octavo pages,' &c. What says the American jurist, Doctor Du Ponceau ? "Abolish the Common Law, and not all the codes of all the Benthams will suffice to fill up the chasm."" p. 131, in notâ.
“It is partly owing to the perception of the quality of malleability, above considered, that the preference has been awarded by North America to the Common Law, as opposed to a written code. The flexibility of the Common Law,' (says the North American Review for October 1825,) is a quality of vast importance to us, as a young and improving nation. Similar is the testimony of the very able writer, Dr. Du Ponceau, the Provost of the Law Academy of Philadelphia.” p. 161.
In the long quotation from Mr. Duponceau's work that immediately follows, the application of the term “malleability,' is for the first time made to the most important quality of the Common Law. This very forcible and descriptive expression is now generally used by the English writers, and it may be henceforward considered as inseparably connected with the character of our system.
“It will be seen, from the above passage, that this able jurist contemplates the ultimate reduction of the Common Law, when it shall have attained its highest degree of perfection,' to a written text.” p. 163.
* The known liberality of Dr. Du Ponceau, will, I hope, induce him to possess us more fully with his views upon this interesting subject." p. 164.
See the singular expressions of the present Lord Tenterden, in Abbot on Shipping, p. 263, well commented upon in Mr. Duponceau's Dissertation, p. 125.
† À Dissertation on the nature and extent of the jurisdiction of the Courts of the United States, &c., by Peter S. Duponceau, Esq. LL. D., Provost of the Law Academy of Philadelphia.
# A Discourse concerning the influence of America on the Mind, being the Annual Oration delivered before the American Philosophical Society, by C. J. Ingersoll, Esq. Reprinted, London, 1824. Dr. Reddie styles this gentleman, with great justice, s one of the most intelligent American lawyers." VOL. VI.-N0. 11.
“ The public are aware, that since Doctor Du Ponceau's discourse was published, the state of South Carolina has determined upon the experiment of redaction,' and is now engaged in carrying it into execution. This is an experiment which cannot be looked to without much interest, from the nearer relation which it holds to the question in this country, than any thing that has taken place on the continent." p. 165.
Mr. Park strongly disapproves of the opinions contained in Mr. Wilson's speech on this subject, to the legislature of South Carolina. A long passage is extracted, to show that the plan recommended by him is the same as those of some of the English reformers.
Mr. Park is also somewhat severe upon the correspondence between Mr. Sampson and Mr. Dupin, contained in the Jurist, No. IV. He advises American lawyers “not to content themselves with writing letters to Mr. Dupin, or any other individual advocate, to know the opinion of such advocate as to the merits of codification. They will never become masters of the subject by such means.
pp. 169, 170. He assures “Mr. Sampson, that there are plenty of advocates in London, who would give quite as flattering an answer to any inquiries as to the happy and flourishing state of the law of this country; and those, too, lawyers of as much eminence here, as Mr. Dupin very justly is at Paris.” pp. 169, 170, in notâ.
“ They should, to do justice to that active and enlightened spirit which now characterizes the American Bar, and its Schools of Law, go to the fountain heads, and draw their views from an extensive and sound acquaintance with the legal literature of the continent, and, above all, with that of Germany.
“They will then abundantly learn, that, notwithstanding the absolute necessity which has existed in the continental states, of purchasing uniformity of national jurisprudence at the price of codification, that price has been sorely oppressive, and that its results form an awakening lesson to all countries which are not under the same compulsion. They should learn also, how far even the codetutored jurists of France are from thinking that the world has yet arrived at the true understanding of the science of code-making." p. 170.
The next paragraph is a striking example of candour and good feeling:
“But while I regret the very imperfect light which appears to exist in America on this question, I am equally impressed with the conviction how much the jurists of this country have to learn from America, with regard to her existing law. I fully agree with Dr. Du Ponceau, that the honour of carrying the common law to its highest degree of perfection, is probably reserved to the United States ; and I arrive at this conclusion, because in that country, the common law, sitting lighter and casier upon the material of jurisprudence, is more capable of emancipating itself from the thraldom of obsolete redundancy, and because I see the American jurists, unlike the Confuciusian professors of this country, constantly seeking to inform and enlighten the common law, by comparative examination of the laws of other countries, and by keeping up an intercourse with the jurists of those countries and their legal literature.” pp. 171, 172, 173.
Another long quotation from the “learned Philadelphian Provost's work” immediately follows. It contains an account of the progress of legal literature in this country, enumerating our va
rious works, both translated and original. Mr. Park then continues in the same strain of liberality :
“ It augurs well for the prospects of this country, that our jurisconsults have already begun to follow the sieps of their Trans-Atlantic brethren. Translations have already appeared, or been announced, of several juridical works of the continent; and the periodical entitled The Jurist, recently established, bids fair to compete with the journals of any other country, in talent, information, and spirit.” pp. 174, 175.
After protesting against the sweeping abuse heaped by the Jurist on all existing institutions, he adds :
“But, however this may be, I sincerely hail the appearance of such a journal as The Jurist, in this country, as an auspice better times, and as an event which, though it will for a while increase the public influence of delusive principles, will, by the amount of juridical information which it will disseminate, arouse the attention of lawyers to the proceedings of other countries, and dissipate the torpor which has hitherto peculiarly characterized the profession of the law in England.” pp. 175, 176.
Much space is allotted in Mr. Park's book to the consideration of the writings of our jurists. It contains upwards of seven pages of extracts from Mr. Đuponceau's dissertation, besides long quotations from the publications of Mr. Justice Wilson, formerly of the Supreme Court of the United States, and Mr. Wilson of South Carolina. Frequent allusions are also made to Mr. Sampson and other writers.
It is evident to all those who have diligently watched the signs and motions of the times, that a great era is now approaching in jurisprudence. There is a spirit abroad, which never can be appeased until the sacrifice is consummated of every thing that is pernicious. Its progress in England may be marked, not only in the writings of jurists and speeches of legislators, but in the deep agitation pervading all classes from the meanest suitor to the chancellor on his woolsack. Their eyes are now turned to the legal profession of this country, as those who were the first to advance into the great field of philosophic jurisprudence; and it becomes us to render ourselves still worthier of affording that assistance which will be soon eagerly invoked.
Maternal pride has long prevented England from receiving lessons from her offspring. With the usual error of a parent, she could not conceive that the weakness of infancy had gradually ripened into the vigorous strength of manhood. On our part, we shall never forget that it is to England we owe the true life of a nation, its instinctive freedom; and in the day of her calamity, it is to be hoped that she will derive her best and most legitimate support from our pious gratitude.
The reader must not suppose that we intend to claim perfection for the legal institutions of our own country. Though our progress has been undoubtedly great, when compared with the advances of other nations, there is still room for important improvements. But where shall we seek them? Not in the schemes
of the Benthams, for they are full of doubts and contradictions. Not in the specious power of a code, for a change so vital would shake our institutions to the centre, and create an amount of litigation almost as intolerable as intestine war. We must seek it in that accommodating principle, which has hitherto rendered the Common Law the best practical system of jurisprudence invented by man. And we must finally seek it in a gradual series of cautious reforms, which shall not merely provide a remedy for present difficulties, but shall prevent their recurrence by eradicating the cause.
ART. VI.- A Year in Spain. By A YOUNG AMERICAN. Bos
ton : 1829. 8 vo. pp. 395.
HOWEVER man constantly pants and struggles after happiness, scenes of undisturbed peace and of growing prosperity interest and please him less, and generally far less excite his curiosity, than those where ruins of departed grandeur, are but dimly lit up by the last sparks of existence, hope, or enthusiasm, piercing through their decay. A completely happy mortal would be, we apprehend, as unprepossessing a being as a real sir Charles Grandison. It is a great pity, we admit, that these speculations of ours can never be put to the test of experiment in this poor world. At any rate, such as this world is, the unfortunate complain of a want of sympathy from their fellow-men, whilst those who are better treated by fate, imagine they need the excitement of pity, to escape probably one of their worst evils—ennui. Doubtless with the fairest portion of our species, misfortune is a great auxiliary to win its affection, and Desdemona, like most of the delineations of the great painter of human nature, is not only an individual character ever true to itself, but also a combination of the leading features of its class—the swarthy Moor subdues her heart by a long tale of “most disastrous chances and moving incidents.” Next comes the speculative moralist, who is scarcely less prone to ponder with a secret complacency, rather on the mournful than on the cheering aspect of all earthly things. In this latter division of mankind, we include the greater number of tourists, who, like the "philosophe sans le savoir," unconsciously observe with that sentimental disposition, which Sterne merely assumed in his celebrated “Journey.” For this reason, Greece, Italy, and Spain, are more visited than the United States, and were Brazil to-morrow the happiest empire of the New World, still, wasted and bleeding Colombia, with its earthquakes, its poverty, its many-colour
ed armies, and a chief, who after a long exercise of supreme authority, seems yet uncertain in his choice between the pure immortality of Washington, and the equivocal renown of a mere conqueror and a military leader-Colombia would be more tempting to the taste of the curious, who venture to cross the ocean. Such, too, is, if not the principal, yet one of the most powerful attractions of a journey through Spain, in particular. Its clear sky, its orange and pomegranate groves, the broken and varied nature of its soil, its lofty mountains and romantic valleys, its ferti'ity and its fields, here and there enclosed with the large and thick-leaved aloe, or covered with flocks and herds, nay, the dark and soul-subduing eyes, and the fairy forms of its fascinating daughters, would be insufficient to outweigh the difficulties of travelling in that country, did it not promise an almost uninterrupted exhibition of fallen grandeur, together with that of universally known, wide-spread, and unequivocal suffering. One likes to enter upon such a theatre to censure: another to sadden, or to wipe away a tear at the sight of ruins which testify the existence of the Phænicians—the gigantic enterprises and power of Rome, now no more—the elegance of taste and the splendour of the Saracens, who no longer live but in history-or the powerful efforts in war of the sturdy Goths. Others, lastly, are fain to contemplate the splendour and also the decay arising from abuses of all kinds; of religion, as well as of political power; of the spirit of discovery, as well as of an exemplary regret for the past; of means of advancement in every career of prosperity, as well as of the qualities and graces most fit to captivate the heart and to delight the fancy. In one word, errors and their fatal consequences, are what man is the most curious after, especially when he can extend his survey beyond his ordinary boundaries, and such will perhaps be found to be the cause of the preference, which is given to visiting rather a decayed than a growing people, to witnessing a tragical rather than a comic representation, and generally to the pathetic, over the gay, and the laughable. Not malice, but a gentle melancholy, is, in our humble opinion, the secret origin of that disposition ; and there would be less harm, notwithstanding the pains it inflicts, if the power of deep observation, with which that infirmity of the mind is usually accompanied, always led to fortunate practical results; to the melioration, not only of individuals, but of communities.
The disposition to which we refer, is more common to the Teutonic race than to any other. Hence British and German travellers surpass the French. The latter are too fond of the present, and look too much to what is brilliant, and turn away too quickly, perhaps too instinctively, from the ungainly. Although the most sociable beings, and highly capable of kindling feeling, even when they themselves are but scantily endowed with it; gay, quick,