as to emulate the reasonings of the geometricans. Thus, Puffendorf made his debut in the learned world by a work, entitled "Elements of Natural Law, according to a Mathematical Order." Heineccius also, who has been pronounced by a high authority, the first of elementary writers, adopts the same precise method in his popular commentaries upon the Digest and the Institutes. His way is to begin with a definition, which is made as comprehensive as possible. He then proceeds to deduce from it, what he calls axiomata, or clear, indisputable propositions. These he again applies to more complicated questions, and runs them down to all their consequences, with wonderful exactness and logical connexion.

It is, no doubt, such examples that suggested to Dugald Stewart some very just and striking observations, which as they are connected with the subject of elementary institution in the law, we shall present to our readers. They serve also to illustrate and confirm a position advanced in the course of the preeeding remarks, that with the single exception of mathematics, jurisprudence is that department of knowledge, of which the principles are best settled, the reasonings at once the most refined and the most exact, and the conclusions the most safe and satisfactory.

"In those branches of study," says the Scotch philosopher, "which are conversant about moral and political propositions, the nearest approach, which I can imagine, to a hypothetical science analogous to mathematics, is to be found in a code of municipal jurisprudence; or rather might be conceived to exist in such a code, if systematically carried into execution, agreeably to certain general or fundamental principles. Whether these principles should or should not be founded in justice and expediency, it is evidently possible, by reasoning from them consequentially, to create an artificial or conventional body of knowledge, more systematical, and, at the same time, more complete in all its parts than, in the present state of our information, any science can be rendered, which ultimately appeals to the eternal and immutable standards of truth and falsehood, of right and wrong. This consideration seems to me to throw some light on the following very curious parallel which Leibnitz has drawn (with what justness I presume not to decide) between the works of the Roman Civilians and those of the Greek Geometers. Few writers, certainly, have been so fully qualified as he was, to pronounce upon the characteristical merits of both.

"I have often said, that after the writings of the Geometricians, there exists nothing which, in point of force and sub

tlety, can be compared to the works of the Roman lawyers. And as it would be scarcely possible, from mere intrinsic evidence, to distinguish a demonstration of Euclid from one of Apollonius or Archimides, (the style of all of them appearing no less uniform than if reason herself were speaking through their organs) so also, the Roman lawyers all resemble each other like twin-brothers; insomuch, that from the style alone of any particular opinion or argument, scarcely any conjecture could be formed with respect to the author. Nor are the traces of a refined and deeply meditated system of natural jurisprudence any where to be found more visible or in greater abundance. And even in those cases where its principles are departed from, either in compliance with the language consecrated by technical forms, or in consequence of new statutes, or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity which excites admiration. Nor are these deviations from the law of nature so frequent as is commonly imagined."*

In order fairly to appreciate the justness of the comparison instituted in the preceding paragraphs, between jurisprudence and the exact sciences, it would be necessary to go at large into Mr. Stewart's theory of mathematical evidence. This our limits will not permit us to do-but it is worth while, with a view to make the illustration of our own remarks more perfect, to state his general principle. It is, that in all other sciences, the propositions which we attempt to establish, express facts, real or supposed, whereas in mathematics, (and we may add, in jurisprudence also) the propositions which we demonstrate, only assert a connexion between certain suppositions and certain consequences. The premises which we proceed upon are altogether arbitrary-we frame our definitions at will and reason from them. Thus all the properties of a circle aré deducible from the assumed equality of the radii. Our reasonings, therefore, in mathematics and in law, are directed to objects essentially different from those of the other sciences-not to ascertain truths with respect to real existences, but to trace the logical filiation of consequences which follow from an arbitrary hypothesis, and, if from this hypothesis, we reason with precision, the evidence of the result is of course irresistible. Scotch philosopher, it is true, takes too much for granted, when he speaks of its being possible to devise a set of arbitrary definitions in jurisprudence that shall be as precise as those of * Philosophy of the Human Mind, v. ii. p. 147.

Which he took from Hobbes without acknowledging the obligation.

The

geometry-a notion, by the way, which ought to be particularly acceptable to the reformers of the Jeremy Bentham school, but which is unfortunately not quite just. But the fact, that such a degree of accuracy may even be approximated, is sufficient to shew that the logical method of the Civilians, is not mere formal parade and idle affectation.

Blackstone ascribes the neglect of the common law, as a branch of a liberal education, and, therefore, a good share of the defects adverted to in the preceding remarks, to the influence of the Romish Clergy, who had an absolute control over the English schools and universities. The discovery of the Pandects at Amalfi, which is supposed to have taken place early in the century after the conquest, he adds, had nearly occasioned its total ruin, and, indeed, nothing seems more probable. England was at that time overrun with foreign ecclesiastics who engrossed all the little knowledge of the age, and had an unbounded influence over the opinions of mankind. Being the only persons that had any acquaintance with the Latin language, they alone had access to these long hidden treasures of ancient wisdom and civilization, and to make their devotion for them more exclusive and bigotted, Pope Innocent IV., it seems, forbade them so much as to look into the volumes of the common law. Independently, however, of any undue influence of this kind, it is easy to imagine what an impression the sudden appearance of such a volume as the Pandects must have made in the midst of the darkness and barbarism of the twelfth century, when we consider that, according to the forcible expression of a late writer, it was the very first book which spoke the language of reason to the modern world. All Christendom resounded with its praises-there sprang up among the nations a general emulation to understand and to adopt its principles― and in less then half a century after Irnerius began his lectures at Bologna, a professorship of civil law was established at Oxford, under the patronage of the Norman Archbishop of Canterbury, to which Vaccárius, a dependent of that Dignitary, was appointed. The common law was, in the mean time, left to barons and barbarians, and upon the whole, we ought rather to wonder how, under such disadvantages, that venerable code should have come down to us in so perfect a state as to present upon the whole, as noble a scheme of pratical liberty and justice as the world has ever seen.*

* We have spoken of the discovery of the Pandects at Amalfi, in compliance with Blackstone and custom; though the better opinion is, that no such event ever took place. See Ginguené Hist. of Ital. Lit. c. 3: Pfeffel, v. i. p.It is certain, however, that the civil law began about that time to be generally studied.

The improvements which have been made in it in this country, and to which we have already had occasion to advert, have almost entirely "depurated it from the dregs and feculence" of feudal times. Many of the decisions made within the last twenty years, shew that the spirit of these improvements has not been lost on our courts. We venture to say, that no case in the English books upon the law of corporations, can sustain a comparison with that of the trustees of Dartmouth College vs. Woodward, reported in the 4th Wheaton: and the same decided superiority may be claimed for some other arguments and judgments, not only in the Supreme Court of the United States, but in those of the States. It is true, that owing to something in the state of public opinion here, or the uncertainty of popular elections, the bench in America is not always as ably filled as it might be, and our books of Reports, along with much learning and ability, are often encumbered with disgraceful trash-with truisms pompously elaborated, or with exhibitions of deplorable ignorance. We are also disposed to think, that our lawyers, although they sometimes excel the English in the discussion of great principles and of new points, are not, however, so thorough-paced in their profession, so familiar with "the file," as they. This may, in some degree, be accounted for by the very fact that they are often compelled to look abroad into other systems of jurisprudence and the decisions of foreign tribunals, for assistance and authority, instead of confining themselves, as is the case in Westminster Hall, to their own precedents and analogies. It cannot be disguised, however, that it is also owing in a good measure to their being less exclusively devoted to their profession, and the facility with which popular talent forces itself into reputation, at the expense of less showy, but more useful acquirements. But this evil will be corrected in the progress of things: and in the mean time, the character which is already stamped upon the profession in this country, of liberal, and enlarged and philosophical enquiry, holds out to us the most encouraging prospects of future excellence.

Nothing can contribute more to strengthen these good dispositions, than the mode of teaching by lectures, (which we are glad to find becoming so common in different parts of the country) and the publication of works upon the elements of jurisprudence. We have already illustrated this truth by the example of the civil law, but it is sufficiently evident of itself. Under the pressure of business, neither advocates nor judges have time to digest philosophical methods. It is quite as much as can generally be expected of them, that they should apply established

principles, and shew that "the principal case" is analogous to others already decided. Extraordinary occasions, indeed, will lead-as in this country they frequently have led-to a more profound investigation of principles in the courts-but this can obviously be done to much greater advantage by a lecturer who confines himself exclusively to the elements of the science. In the present state of our law, especially, the task of arranging and developing its whole system, according to the plan alluded to in the foregoing observations, must, of necessity, devolve upon speculative men. Accordingly, if we have any fault to find with the excellent work before us, it is, that it is too much of a mere index or compilation-it is not such a book as Chancellor Kent would have produced, had he been all his life, like Cujas or Pothier, a professor of law, instead of a judge, although the bench would seem to be more favourable to enlarged and systematic thinking than the bar.

Chancellor Kent, however, has rendered an essential service to the profession. The two volumes before us, contain an excellent summary of the general rules of law, as it is practised in this country. Some of the subjects are better treated than they have been by English text-writers, while there is always this advantage in favour of the work, that it presents that view of them which must be taken in American courts of justice. The lecture on alienage, for instance, strikes us as decidedly superior to Wooddeson's, upon the same subject, and as containing an able and just exposition of that very difficult doctrine in reference to the effects of our revolution upon it. The same thing may be said of the lectures upon marriage, and the domestic relations growing out of it. Even in these, however, we discover some of the defects of which we have already complained so much. For instance, there are many questions connected with the disabilities of alienage, which must have presented themselves to every one who has reflected deeply upon that subject, and which we have known to become important in the course of a judicial inquiry, that have not been so much as hinted at by our author. How comes it, that a principle apparently so contradictory and paradoxical, should have been admitted into the law, as that any one might acquire what he was not allowed to hold-that law, of which one of the first maxims is, that it does nothing in vain? Why did the land purchased by an alien go to the king, and not to the lord, as it would have done, had the alien been made a denizen before he purchased, and then died without leaving any heir but the ultimus heres of the tenure? Was this right of the king, a royal prerogativeone of the jura regalia so familiar to feudal lawyers-analogous VOL. II.-No. 3.

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