personal pride and relative duty, and the Moorish female, chaste only through fear and necessity; between the lady of Christian States, living, acting, speaking freely and openly, in the presence of the community, and diffusing her soft, yet commanding influence over the hearts and manners of all above, around, beneath her, and the Arabian female, a prisoner and a slave, the property of her lord, the object of jealousy, rather than of love; between the pure and faithful devotion of the Christian knight, and the sensual, wandering attachments of the Mussulman; between the love of the former, a virtue and a sentiment, purifying, exalting and remodelling the character of the soldier and the man, and that of the Mahometan, a passion, destitute of modesty and delicacy; who that comprehends the vast difference between these elements of personal and social character, of domestic and public life, but must acknowledge that Provençal poetry is eminently original, the child of northern institutions and manners, sentiments and feelings, and deservedly entitled the poet to the proud yet significant name, Troubadour (Trouveur) Inventor? The first Sanscrit verse, say the traditions of Hindostan, was uttered in a burst of resentment, by Valmic: and, we can well imagine, that the earliest poetry of Provence flowed from a heart, alive to the honour of knighthood, the dignity of woman, the purity and faithfulness of sentimental love. The fountain of Vaucluse, the lovely and virtuous Laura, the sonnets of Petrarch, his passion so respectful, so tender, so delicate, are not so much the first fruits of amatory and sentimental verse among the Italians, as the last monuments of Provençal poetry, erected in the enduring forms of a nobler and more accomplished language. The love poetry of Petrarch, is, indeed, the beautiful, * Pasquier declares, that Dante and Petrarch are, indeed, the fountains of Italian poetry; but fountains, which have their sources in the Provençal poetry. Bouche, in his History of Provence, says, it was there that Petrarch learnt the art of rhyming, which he afterwards practised and taught in Italy; and Tassoni tells us, "il Petrarca molto prese da rimatori Provenzali." Petrarch speaks of Arnaud Daniel (born in Perigord, in the twelfth century) as the most celebrated of all the Provençal poets: and calls him "The great master of Love." He even imitated and borrowed a verse from one of his sonnets, the only Provencal, to whom he did the honour.-Lit. Hist. Troub. p. 13. Dante, in his treatise on the Eloquence of the Vulgar Tongue, says that Arnaud excelled all other writers in the Romance dialects, in tender verses and in prose.-1 Sism. p. 76. In the 26th Canto of Purgatory, he says of Arnaud, "Fu miglior fabbro del parlar materno: "Versi d'amore e prose di romanzi "Soverchiò tutti: e lascia dir gli stolti "Che quel di Lemosi credon ch' avanzi." And when Arnaud speaks, he is represented as addressing Dante, not in Italian, but in Provençal, “quòn rencontre" says Sismondi, "avec etonnement dans un poëme tout Italien." The curious anecdote of Frederick the Great, Voltaire and the English Gentleman, who overheard Voltaire's poem, finds its prototype in the adventure of Arnaud with a jongleur, at the English Court.-Hist. Troub. p. 217. affecting apotheosis of Troubadour literature, perishing by fire and sword in the bloody crusades against Raymond VI. and VII. It is the youthful, majestic Phoenix, springing aloft to a new career of glory, from the fiery grave of its parent. "O felix, hæresque tui! Quo solvimur omnes, "Per cinerem. Moritur, te non pereunte, senectus.” We have thus finished the task, which we had allotted to ourselves, of examining the claims of Arabic literature, to be accounted the author of rhyme, in the poetry of Christian Europe. We should have been well pleased, could we have embraced in the same article, the additional claims of the early verse of England, Germany, and France, and of the Latin rhymes of the cloister and the schools. But we have already consumed our morning and our noon, and have trespassed too far towards the evening of the longest summer's day, assigned as the period of a single article. ART. III.-Commentaries on American Law. By JAMES KENT. Vol. I. 1826. Vol. II. 1827. 8vo. O. Halsted. New-York. It is quite a matter of course that "the influence of America upon the mind," (to borrow a convenient, though somewhat pedantic phrase) should become first and chiefly, if not exclusively perceptible, in the department of politics and law. We are not aware that any new and peculiar sources of poetical enthusiasm have been revealed to us, nor have we as yet seen any thing in our history or condition, to justify the belief-so confidently inculcated by many of our prophetic fellow-citizens—that some great revolution in the abstract sciences and in speculative philosophy, is to be reckoned among the probable consequences of the declaration of independence. The adventurers that first peopled this continent, were not a race of barbarians, whose character was yet to be formed or developed. They brought with them the manners, the knowledge, and the modes of thinking, which belong to a highly advanced state of social improvement. Cœlum non animum, &c. All their historical recollections and hereditary feelings-their literary associations and philosopical tenets-nay, even their very religious doctrine and discipline, which was the motive that determined so many of them to quit their homes-were essentially European. Nor was there any thing in their situation here, to sever these strong ties to give a new impulse to opinion in matters of philosophy and learning, or, in short, to influence in any material degree, their own intellectual character and pursuits-much less to produce a sensible effect upon the general condition of the human mind. It is, on the contrary, our misfortune, in one sense, to have succeeded, at the very outset of our career, to an overgrown inheritance in the literature of the mother country, and to have stood for a century in that political and social relation towards her, which was, of all others, most unfavourable to any originality in genius and opinions. Our good fathers, piously spoke of England as their home. The inferiority-the discouraging and degrading inferiority-implied in a state of colonial dependence, chilled the enthusiasm of talent, and repressed the aspirations of ambition. Our youth were trained in English schools, to classical learning and good manners; but no scholarship-great as we believe its efficacy to be-can either inspire or supply, the daring originality and noble pride of genius, to which, by some mysterious law of nature, the love of country and a national spirit, seem to be absolutely necessary. imported our opinions ready-made-“ by balefuls," if it so pleases the Rev. Sidney Smith. We were taught to read by English schoolmasters-and to reason by English authorsEnglish clergymen filled our pulpits, English lawyers our courts and above all things, we deferred to and dreaded the dictatorial authority and withering contempt of English criticism. It is difficult to imagine a state of things more fatal to intellectual dignity and enterprise, and the consequences were such as might have been anticipated. What is still more lamentable, although the cause is in a good measure ceased, the effect continues, nor do we see any remedy for the evil until our youth shall be taught to go up to the same original and ever-living fountains of all literature, at which the Miltons, and the Barrows, and the Drydens drank in so much of their enthusiasm and inspiration, and so to cast off entirely that slavish dependence upon the opinions of others which they must feel, who take their knowledge of what it is either their duty, their interest or their ambition to learn, at second hand. We But in politics and jurisprudence, the American people were compelled by the very novelty of their situation to think for VOL. II.-NO. 3. 10 themselves. Nature, which is explained by philosophers and imitated by the artist and the poet, is every where the same, and it is not impossible, that our literature and science, to however exalted a pitch of excellence they may ultimately attain, may never exhibit any strictly national peculiarities. But the case is very different with the civil and juridical institutions of a country. These are, in a great degree, the work of man, and may be moulded, and have been moulded into endless varieties of form, to suit his occasions or his caprices. In this respect, our founders could not, if they would, be mere imitators. They could bring with them from the mother country, only the general principles of government and jurisprudence-the great outlines of a free constitution, and the invaluable maxims of the common law. But its institutions were more or less inapplicable to their present circumstances, and their civil polity had to be recast and built up anew from the very foundation. Their wisdom was thus tasked from the beginning, in selecting such parts only of the laws of England, as were adapted to their situation, while they were of course studious to preserve what ever had so pre-eminently distinguished them among the institutions of modern Europe, as most auspicious to liberty and justice. That superstitious veneration for English example and opinion, which, in merely speculative matters, led to servile imitation and implicit acquiescence, was here precluded, or at least corrected by the very nature of things, and the stores of useful information which they had acquired in studying the constitution, civil and political, of the mother country, could, in such novel circumstances, serve at most to enlighten speculation and direct experiment. We need scarcely add, that those vehement and protracted discussions of all the principles of public law that preceded the war of the revolution, had a strong tendency still more to disenthrall the minds of our leading politicians from any undue influence which the authority or the reasonings of English jurists and publicists may have exercised over them before. * These observations are, however, more strictly applicable to law than to politics; because the former, as we shall presently attempt to shew, is at once the most exact and the most complicated of all the moral sciences, while the latter, in spite of all that has been written and said about it, can, in our opinion, scarcely aspire to the dignity of a science at all. We know that in hazarding this position we shall scandalize many, probably most of our readers. If any thing is taken for granted in * Mr. Brougham's Bill proposes to do in England, little more than was universally done in America, from the beginning. this country, as a truth better established than all others, it is, that in matters of government we have found out the philosopher's stone-and are now in possession of an infallible secret to make men free and happy, and to keep them so forever, even in spite of themselves. The first lesson we inculcate upon our young politicians, (and most of our politicians are young) is, that a true statesman, like a true philosopher, is quite independent of circumstances, and can pull down the whole fabric of a government and put it up again, as easily as Owen of Lanark would lay out a parallelogram, and with the same absolute certainty of improving the condition of the people. Now, we are heterodox enough to think this not only an error, but a most pernicious error. We believe that no constitution in the world is worth a straw but public opinion and national character, and that it is altogether impossible for mortal man to predict what is to be the result of any important change in the distribution of political powers. In a word, that no general principles in politicsexcept such as are too general to be of much practical utilitycan be safely depended upon in the administration of affairs. But we must reserve this topic-which, however, we seriously believe to be one of the most important that can be pressed upon the consideration of the American public-for some future remarks. To address ourselves more particularly to the causes which affected the condition of jurisprudence in this country in the manner alluded to above. In all the Provinces, as is well known, the common law of England was adopted, but only so far forth as it was not inconsistent with the genius of their institutions, and the letter and spirit of their own statutes. The latter, as we have seen, were necessarily very numerous and important. The whole law of tenures, once constituting with its various incidents and consequences, so vast a department of English jurisprudence, was omitted entirely. The forms of conveyancing were materially altered and simplified, as were those, also, of judicial proceedings. All that was local and customary-all that, in England, was preserved because antiquity had hallowed it, or prescription turned it into property, was discarded; and wherever these and such like changes left any chasm in the system, it was filled up by positive legislation, or by judicial decisions, founded upon the analogies of the constitution and the laws. Here, at once, we perceive a vast field opened up for original speculation and reasoning. Every case might present a twofold difficulty; first, to decide what was the law in England, and secondly, whether it were applicable here. The latter question it was impossible to answer without going into the true |