ing principles of universal application; as to the meaning of the parties, the extent to which their responsibility goes, the effect of fraud, mistake or duress, the rights and liability of sureties, &c. In all such matters, the writings of the Civilians are a neverfailing source of light and instruction, and we have no hesitation in saying, that in many most important enquiries, we have derived, in the course of our own experience, much greater assistance from Voet and Cujacius, or Domat and Pothier, than from our own books. Indeed, the juridical history of England furnishes illustrious examples of the same fact. The boasted essay of Sir W. Jones, on the law of bailments, contains very little that is not familiar to every student of the corpus juris civilis, and if his classification is inore complete, and his discussion of the subject more satisfactory than that of Lord Holt in Coggs v. Barnard, it is, no doubt, owing altogether to his familiarity with the works of the Civilians. The same thing may be predicated of the still more boasted improvements of Lord Mansfield. That great judge invented nothing. He was called upon to expound the contracts of merchants, and he did so, with the assistance of special juries at Guildhall, by the lights of the jus gentium. He had before him, besides the monuments of the ancient civil law, and the learning of the commentators, the French ordonnance de la marine and the commentary of Valin, and he did no more than sanction by the authority of judicial decision, and accommodate, in some few instances, to the usages of his own country, the principles which he found developed in those great repositories of wisdom and equity.

It is foreign from our present purpose (even if we were prepared) to express any opinion as to the comparative merits of the common and civil law. Each has, no doubt, its peculiar excellencies and defects,-points in which it approximates more nearly to, or deviates more widely from, the common standard of right reason, than the other, and the comparing them together, even in these particulars, affords one of the most profitable exercises that can be imagined for a reflecting mind.. We will just remark, by the way, however, that we think the civil law will be found, in general, to study a refined equity more than the policy of society, whereas the common law seldom departs from its stern maxim, that a private injury is better than a public inconvenience. It is very important to keep in mind this point of difference between them. Thus there is something captivating in the equity of the principle, that a sound price implies a warranty of the soundness of the commodity; but it is certain that this rule is productive of great practical inconveniences, and we believe that in this State, where we have had

ample opportunity to witness its operation, there are very few experienced lawyers, but would gladly expunge from our books the case which first introduced it here.*

But whatever may be the comparative merits of these two systems of jurisprudence, considered per se, it is certain that the civil law has greatly the advantage of ours in the manner in which it has been expounded and illustrated. This, indeed, is a difficulty, for which allowance must be made by the readers of the volumes before us. They are another attempt to arrange and to develope the elements of a branch of knowledge that has never yet been taught as it ought to be. In comparing what the Civilians have written upon any subjects that have been treated of by English text writers, or discussed in the English courts, it is, we think, impossible not to be struck with the superiority of their truly elegant and philosophical style of analysis and exposition. Their whole arrangement and method-the division of the matter into its natural parts, the classification of it under the proper predicaments, the discussion of principles, the deduction of consequences and corollaries-every thing, in short, is more luminous and systematic-every thing savors more of a regular and exact science. Even Blackstone, with all his prepossessions in favour of whatever is English, admits that before his time "the theoretical, elementary parts of the law had received a very moderate share of cultivation," and although his own Commentaries have abridged and facilitated the studies of professional men, and made a certain knowledge of legal principles accessible even to mere amateurs, yet we think, that they have, by no means, superseded the necessity of future labours in the same vineyard. There is, in spite of all the pompous eulogies that have been passed upon that work, a great deal of justness in Horne Tooke's remark, that "it is a good gentleman's law book, clear, but not deep." The truth is, "the learned commentator" was any thing but an original or philosophical thinker. He has done nothing more than fill up the outline sketched by Sir Mathew Hale, and with all his perspicuity, and precision, and comprehensiveness, one is continually tempted to say of it, as D'Aguesseau does of the Institutes of Justinian-quoique l'ordre de ce livre ne, soit pas vicieux, vous souhaiterez néanmoins plus d'une fois qu'êl eût pu être tracé par M. Domat au lieu de l'être par M. Tribonien. If Lord Bacon had lived in the reign of George III. and accomplished the great work which he was so desirous of undertaking, even * See also Abbott on Shipping, 299.

that

in his own time, his profound and systematic understanding had left us, no doubt, a novum organon of jurisprudence, worthy of the science and the age. The other elementary writers of our law-the compilers of institutes, abridgments, &c. even down to the present day, are, with few, if any exceptions, liable to the same criticism. The most than can be said of them is par negotiis, neque suprà. None of them stand upon that "vantage ground," of which Bolingbroke speaks. They are mere pragmatici-who treat their subjects in a strictly technical manner, and whose whole system of logic consists of a case in point. They seem to dread nothing more than generalization, or the stating a proposition in the form of a theorem. They string together cases from which it is often difficult to extract any distinct, general principle, and which are determined to be analogous, or otherwise, by circumstances comparatively immaterial. Let any one reflect upon the confusion into which the courts of England were betrayed in their attempts to reconcile the necessity of words of perpetuity to carry the fee in a will, with the rule that the intention shall govern, and the figure which a digest of these decisions makes as part of a scientific system! So of the controversies occasioned by Porter vs. Bradley, and the other cases on that point. Would it be believed that stress has been laid by grave lawyers upon the verbal distinction between "leaving issue" and "leaving issue behind," as if issue could be left any where else. Compare Chitty on Bills with Pothier's Traité du Contrat de Change, or any other elementary book in our law with a corresponding treatise of that admirable writer, and it will be impossible to dispute the justness of the preceding observations. In a word, the remark of a celebrated French jurist,† in reference to the law of his own country as it stood in his day, is entirely applicable to the appearance which our jurisprudence makes in these very inelegant and unphilosophical compilations: It seems to be a mass of irregularities and incoherencies, which consists rather in particular usages and occasional decisions, than in immutable principles, or in consequences deduced immediately from the rules of natural justice.

*It is such things as these that Hottoman alludes to in a passage which seems to have scandalized Mr. Butler excessively, and which he misinterprets in quite a laughable manner. Stephanus Pasquerius &c. libellum mihi Anglicanum Littletonium dedit, quo Feudorum Anglicorum jura exponuntur, ita inconditè, absurdè et inconcinnè scriptum ut facilè appareat, verissimum esse quod Polydorus Virgilius, in Anglica Historiâ, de jure Anglicano testatus est, stultitiam in eo libro, cum malitia et calumniandi studio, certare. That is to say, was a mixture of foolishness and cavilling. Upon this, Mr. Butler gravely remarks-"Hottoman, if he had read it, might think it (Littleton's Tenures) inelegant and absurd; but he could not think it malicious or indicative of a disposition to slander !"-Pref to Coke upon Littleton, 13th edit.

+ Euvres de D'Aguesseau. Tom. 1.e 395.

There was a time when the same complaints were made about the civil law. Cicero repeatedly touches upon the subject, and urges the necessity of introducing into it the light and the order of a philosophical arrangement. In his treatise De Legibus, (i. 5) he exhorts his young friends to elevate their views to loftier objects than were commonly aimed at by men engaged in forensic pursuits. "The science of jurisprudence ought to be drawn," says he, "not from the edict of the Prætor, as is usual nowadays, nor from the Twelve Tables, as was formerly the practice, but out of the very depths of philosophy-penitus ex intima philosophia." His remarks upon the character of his distinguished contemporary, Servius Sulpicius, also deserve to be cited as very apposite and striking. He does not scruple to prefer that jurisconsult before Mutius Scævola, who was generally considered as the first lawyer of the age. In accounting for the preference, he admits that Scævola was as thoroughly versed in the laws as a man can become by long practice and assiduous study. And so were other lawyers who made a figure at that time. But he declares that he knew no one besides Sulpicius, who was master of that higher art, as he calls itvery distinct from mere technical skill, and not to be acquired by the experience and discipline of the forum-which discovered itself in a lucid order, in precise definition, in sound interpretation, in a systematic developement of the whole doctrine in question, and a logical deduction of all its legitimate consequences, at the same time that everything false or irrelevant was rigorouly excluded by the analysis. In another passage, which throws great light upon the subject of the preceding observations, he expresses himself still more fully and precisely to the same effect.*

It is evident from these citations, that the excellencies which have been alluded to as characteristic of the writings of the Civilians, do not arise out of any thing in the nature of that law, but solely from the preparatory discipline and general intellectual habits of its professors. Philosophical studies had made but little progress at Rome before the time when Cicero and Sulpicius flourished. It was, indeed, principally to the beautiful treatises of the former upon the various questions discussed in the Athenian schools, that the citizens of that martial

* De Orat: lib. i. c. 42. Omnia fere quæ sunt conclusa nunc artibus, &c. Ars quædam extrinsecus ex aliò genere quodam quod sibi totum philosophi assumunt, quæ rem dissolutam divulsamque conglutinaret, et ratione quadam constringeret, &c. Si enim aut mihi facere liceret quod jam diù cogito, aut alius quispiam, aut, me impedito occuparit, aut mortuo effecerit, ut primum omne jus civile in genera digerat quæ perpauca sunt, &c. Perfectam artem juris civilis, habebitis, magis magnam atque uberem, quàm difficilem atque obscuram.

commonwealth were indebted for their initiation into such pursuits. It was not to be expected, therefore, that men of business, absorbed in the occupations of the Forum, and attached by habit to its forms, should outstrip their own age so far as to incorporate into the doctrines and method of a practical profession, improvements that were not yet familiar even to men of a speculative turn of mind and of learned leisure. But the subsequent fortunes of the civil law were much brighter. Heineccius states it as a fact, acknowledged on all hands, that the greater part of the ancient jurisconsults of a subsequent period, were very much addicted to the study of philosophy, and employed in expounding and interpreting their own science, those rules and principles which they had learned in the discipline of the Lyceum and the Porch. Indeed, this fact, especially as regards the latter school, cannot fail to strike every one who looks, however superficially, into the Corpus Juris Civilis, many of the reasonings collected there, and even the very maxims and definitions, being strongly tiuctured with the characteristic subtlety, as well as with the severe and elevated ethics of this favourite sect. In modern times, that jurisprudence has enjoyed the same advantage. While in all the courts of continental Europe, it has been consulted as written reason, or enforced as common law from the time of Irnerius even down to the present day, it has been considered in their universities as a necessary part of a regular academic education. It has thus been taught as a branch of liberal studies, and, indeed, most of the great men who have identified their names with it, were, in the strictest sense of the word, mere scholars and philosophers. Gravina‡ mentions Brissonius as a singular exception to this remark. Cujacius, the great coryphæus of the band, was not only himself a scholastic man, but went so far as to declare that, if he had ever acquired any knowledge of the law by practice, he should strive to forget it-"ne a Romano júre distraheratur." Some of these writers it is true, have treated questions of jurisprudence altogether as matters of elegant literature-"flores magis quam fructus attulerant," as the author just quoted, says of Peter Faber, Vultejus, Pacius, &c.§

There are among the Civilians those who have pushed this love of systematic arrangement and close rigorous logic so far,

*Antiq. Jur. Civ. v. i 34.

It is not generally known that the stoics were the most subtle of dialecticians. Cicero says they were so remarkable for this, ut sint architecti pæne verborum.— Brutus. See also Pickett v. Loggon 14 Ves. 229.

Orig J. C. 222.

Ibid. 227. Gravina adds indignantly-quod nostrates pragmatici de universo Jctm eruditorum genere insulsè admodum, ne dicam stultè pronunciant.