« ПретходнаНастави »
Art. II.-Legal Outlines, being the Substance of a Course of Lec
tures now delivering in the University of Maryland, by David HOFFMAN. In three volumes. Vol. i. Baltimore. Edward J. Coale, 1829.
We could not help exclaiming as we opened this book, and cast our eyes hastily over some of its pages, Dii immortales ! quàm tu longe juris principia repetis. But if the objection presented itself to us at the first glance, it has only been confirmed, and sanctioned by a deliberate perusal of the whole work. We doubt, very much, whether Atticus himself who was good enough to waive this objection in the Dialogue de Legibus, in consideration of what he is pleased to regard as the very interesting character of Tully's adscititious or subsidiary speculations, would have digested the enormous mass of irrelevant matter which has been huddled together in the volume before us. exceedingly, that this first part of Mr. Hoffman's work is so grievously obnoxious to this criticism, as (we fear) not a little to endanger its reputation for usefulness and “cast ominous conjecture on the whole success." We regret it, because we can say, with perfect candour, that-grave as this objection undoubtedly is to the value of the book as a book-we have conceived, even from this faulty performance, the highest respect for the learning and ability of the author, and been led to entertain no inconsiderable expectations in regard to the forthcoming volumes. Wherever he has touched, in the course of these pages, upon any strictly legal question, he has shown himself thoroughly versed in all the learning connected with it. We shall take occasion to exemplify this remark in the sequel. Indeed, we make no scruple of predicting that-should the remaining titles of the works be executed as well as from the specimens alluded to, we are induced to hope they will be, Mr. Hoffman's contribution to the fund of elementary education in the law, will be preferable to any thing of the kind that has yet seen the light on this side of the Atlantic. His views are distinguished by a comprehensive philosophy, and his analysis conducted with a logical and scientific method, rarely to be met with in works of this class. Even in the discussion of those topics which seem to us out of place here, or unworthy of a place any where, he has done as much as is generally expected of elementary writers. Our objection is not so much to the manner or the guise in which they appear as to their appearing at all. We think it a fatal defect in them, that neither directly nor indirectly, neither in business nor in speculation, neither at the bar nor in the closet, nor yet in the moot-club, can they be made to answer any one practical good purpose. Nihil ad edictum prætoris. They have no sort of connexion with edict, decree or rescript—they throw no light upon principles—they lead to no consequences—they furnish no topics of argument—no illustrations by analogy-no helps or ornaments, in short, of forensic or philosophical discussion in the law. “Legal Outlines” is a misnomer. They are
. “ not more legal than they are any thing else. If they were completely filled up they would cover a large segment of the circle of science. For an institutionary treatise in jurisprudence, we really think this part of the work looks rather too much like the vade-mecum of one of those literary knight errants, who used a few centuries ago to roam about from university to university in quest of disputes de omni scibili.
Before we proceed further, however, with our remarks on this head, we will let our author open his own case :
“ The volume here offered to the public, and two others by which it will be followed, are designed to contain the substance of an extensive course of lectures on law, which the author is delivering in the University of Maryland. The present publication embraces only the initiatory title of the course, of which the entire scheme was stated in a syllabus, published in the year 1821, which contains eleven titles. It is far from being intended, however, to test the indulgence of the public, or add to the redundancy of the press by a proportionate number of volumes. The work is presented with unaffected diffidence, being dedicated more especially to students, to whom its utility will be more manifest, it is hoped, when the publication of the remaining volumes shall display the whole design. The work will contain, it is beheved, the only analytical outline which has yet appeared of the entire body of jurisprudence proper to be studied in this country, and may thus prove advantageous in rendering the student's transition to the Commentaries' less abrupt than usual. Though there are many excellent elementary works on the laws of England, none of them have aimed at presenting a coup d'ail of the entire science of jurisprudence. The object of these 'Outlines' is to furnish the law student with a concise and orderly view of every branch of that vast system, the details of which are to occupy him through life. His future studies may, perhaps, be facilitated by a survey, as it were, of the geography of a vast region; with its numerous boundaries, divisions and subdivisions; its minute and devious paths, in which it may be consoling to know that if he wanders long, it is not without method and aim.
“In this preliminary volume, the student will find the elements of NATURAL, POLITICAL and FEUDAL JURISPRUDENCE. These may serve as a basis to his future researches, not only into the laws and institutions of England and of this country, but in that great code which regulates the communion of nations; as well as that vast body of written reason,' the Roman Civil Law, together with the various systems of continental jurisprudence erected, in part, on its foundations. The topics have been treated in a method not so strictly concise and analytical as will be necessary in discussing those which are embraced in the remaining volumes. This difference in the mode of treating the two great divisions of the work has been preferred because the important and extensive learning of ethical, political and feudal law is too apt to be neglected by the student, who scarcely thinks he has commenced bis legal studies till he begins the perusal of his Blackstone and Coke, his Hargrave and Preston ; authors, indeed, eminently distinguished in the peculiar municipal jurisprudence of England, but who, with many others on like subjects, aré by no means sufficient to make a 'ripe scholar' in the law. These subjects have been treated by a large class of writers, many of them entitled, not merely to his passing respect but to his serious study. The student, if he finds no more in these volumes, will at least find pointed out to him the purest sources of information, in every department of bis science.
" The second and third volumes will treat of the elements of the Municipal Law, in its most extended sense; including various titles of British, American and Roman law which have been scarcely alluded to by the profound and accomplished commentator on the laws of England; together with several auxiliary subjects. To embrace the analysis of a subject so extensive within the limits of two volumes, will necessarily require much condensation, and a manner considerably different, as before remarked, from that which is adopted in the present volume. In an analysis of this kind, nothing is to be omitted, yet nothing, however important and difficult, can be very fully explained. The classification must be comprehensive, natural and clear; the definitions ample but. cautious; the examples frequent and illustrative; so that the whole may present a philosophical contour of the entire system.” Pref. v.-vii.
From the tenor of these remarks, as well as from the heads or titles of the different chapters, we certainly laid our account with finding, in this part of the work, a treatise à la Puffendorf and Burlamaqui. But Mr. Hoffman, although far from wanting, in a due respect for those very worthy and approved good masters of trite morality and orthodox twaddle has occasionally deviated, and that in no slight degree, from this primitive standard. The first lecture, for instance, turns upon the origin and nature of man, and of his physical and moral constitution. In the outset of it we are informed that "man is evidently a being composed of a growing, vital and sentient substance, denominated body, and of a subtile and immaterial something called soul.” The adventurous novelty of this proposition calls for the strictest proof, and accordingly it is presented to us in various lights, and the opinions of philosophers in regard to it are adVOL IV.NO. 7.
duced and censured with all the elaborate formality of a scholastic diatribe. Physiology and psychology, natural history and natural religion, liberty and necessity—“fixed fate, free will, foreknowledge absolute,” &c.—such are the grim shadows that flit about the portals of Mr. Hoffman's forum.
Primum ante vestibulum, ipsisque in faucibus orci ?
The young student who is supposed to have finished his academical course, and is now aspiring to tread in the footsteps of Mansfield and of D'Aguesseau, sets out with Kant and Richerand, with Cuvier and Haüy, with Jonathan Edwards and Thomas Aquinas for bis guides. We own ourselves utterly at a loss to perceive how “it becomes so essential [for a lawyer) to ascertain correctly the criterions which distinguish mind from matter, animal life from vegetable life; animal instinct from vegetable instinct ; animal and vegetable life from intellectual life ; instinct from
; sensation, and sensation from perception or intelligence.” For all practical purposes, surely these distinctions are obvious enough even to the vulgar eye, as they are, indeed, assumed or slighted by the majority of the learned themselves. Or does Mr. Hoffman-can he really persuade himself that “false theories and crude notions in physics, generate false theories in morals, and consequently in jurisprudence;" and, “that this very neglect or want of properly distinguishing between beings organized and unorganized, animal and vegetable, intelligent and unintelligent, has proved a fruitful source of mischievous error ?" If Mr. Martin, the Wilberforce of brutes, who has done so much to meliorate the condition of our dumb fellow-creatures in England, were to insist upon a belief in the metempsychosis and a profound study of the Pythagorean philosophy as an indispensable qualification for a seat in Parliament, we should only smile at a peace of extravagance, very naturul and therefore very pardonable in a fanatical homme-à-système. But what should we say of a lecturer, who, in the cool shades of academic life, should be “infected with like heat,” and gravely exact a compliance with that fantastic notion, as an essential requisite of a generous, practical discipline for the future hopes of a nation ?
To shew that we are not exaggerating the importance which Mr. Hoffman attaches to his opinion upon this subject, it is only necessary to mention a few of the topics which he has touched. upon. Thus at p. 14, a saying of the celebrated Linnæus," “that minerals grow, vegetables grow and live, animals grow, live and feel,” is quoted and pronounced "rather euphonic than sound." Then follows a system of classification, of which the
object is “to assist the student's [the law student's] future inquiries (what is to become of Coke and Plowden?] by presenting him an outline, which at a proper season (in term time, we suppose) he may fill up by his own researches.” It is true that, as our author himself confesses, "the criterions which distinguish the mineral, vegetable and animal creations from each other, are at this time (at what time were they not?] pretty well understood.” But as young inquirers after truth, especially young students of law, are apt to be afflicted with an impertinent curiosity about “things remote from use, obscure and subtle," which ought to be gratified, he pursues the subject a little further into its details, and indoctrinates his readers as follows:
“As to the instances in which it has been found difficult to say with certainty whether they were mineral, vegetable or animal, we shall enumerate only a few to serve as exainples of the nature of the doubt.
“First, then. Corals and sponges were, at one time, referred by Beaumont and Woodward to the head of mineral substances; by Ray and Lister to that of vegetables; and finally, under the patronage of of the learned Mr. Parkinson and others, they have assumed the rank of animais.
“Secondly. On the other hand some vegetables bare for a time been regarded as minerals. Of this we have an example in the Fontinella Antepyretica, so named from its being a moss of such peculiar hardness as to resist fire, and to be often made use of by the poor in the north of Europe, as a lining for their chimneys, instead of mortar. We find another example in a species of moss called Byssus, which, on being subjected to a red heat, becomes vitrified, instead of consuming, as other
vegetable substances do. “Thirdly. In the Asbestos we find what is called the connecting links between the mineral and vegetable world. The fracture of this mineral is in parallel filaments, not unlike those often found in wood.
“ Fourthly. In the Polypus, on the other hand, we see the being pointed out by some as the link which unites the animal with the
vegetable creation. It is, indeed, a very extraordinary animal, being propagated like a vegetable, by slips or shoots. If cut into any number of pieces, each piece becomes in a short time, a distinct and perfect'animal. It may be turned inside out, with little or no disturbance of its healthy action. It is without sex, and appears to be as regardless of size, as it is of all the other usual harmonies of animal nature, having the power of enlarging or contracting its volume at pleasure, many hundred times its accustomed bulk.
Many other of these anomalies might be enumerated, but enough have been stated for our purpose." pp. 21-22.
As for unorganized bodies, it is no hard matter it would seem, to distinguish them from organized, “ be the latter animal or vegetable,” but the difficulty is to adjust "with unerring