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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 ciements 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 domestie 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,
for instance, to the Emperor's interest in the property of Jews, who were considered in Germany as servi fisci ?* Did the estate in such cases, vest in the king by way of escheat or forfeiture? a question of great importance with reference to the distinctions taken in Burgess vs. Wheate. Suppose a conveyance from an alien who dies before office found; is the title of the purchaser good as against the king? Chancellor Kent answers this question, in conformity with the English authorities, in the negative. Yet the reason of the law seems scarcely intelligible, unless it be assumed, that aliens were allowed to acquire solely for the benefit of the crown, whose revenue in feudal times, depended very much upon fines and forfeitures. If this be the principle, to hold the title good in the case proposed, would be to defeat the very object of the law, in allowing the alien to take a title at all. Accordingly, it is laid down in Dyer, (26 in margin) that an alien cannot take a copy-hold, and the reason given is, because the king shall not have it-a position which, we have no doubt is good law, some authorities, seemingly, to the contrary notwithstanding. But whether this conjecture is well founded or not, the omitting all remark upon matters of so much curiosity and importance, appears to us a great defect in an elementary treatise.
The work of Chancellor Kent, as far as it is perfected in these volumes, is divided into five parts. The first, which embraces nine lectures, is devoted to the law of nations. The second, presents a view of the government and constitutional jurisprudence of the United States. The third, treats of the various sources of American municipal law. The fourth and fifth, which occupy the whole of the second volume, are an exposition of the rights of persons and the law of personal property. We shall devote the rest of this article to some observations suggested by our author's discussion of the subjects under the first and second heads.
1. We are by no means so well satisfied with the execution of the first part of Chancellor Kent's work, as with the rest of it. It is little better than a digest of the cases in prize law, decided in England by Sir W. Scott, and in this country by the Supreme Court of the United States; interspersed with a few general principles from the common elementary treatises. Presenting, therefore, as it does, (and, indeed, as it pretends to do) only a hasty sketch and brief outline of the system of international law, although it may be convenient enough as a book of
Pfeffel, v i. P:-, rémarques particulières sur les empereurs de la maison de Franronie. Cf Molloy, v. ii. p. 283. Feudor. lib. ii. Tit. 56.
+ Molloy, J. M. v. ii. p. 320. Thom. Co. Litt. Citing Styles, 20,
occasional reference, or a manual for young students, it cannot be considered as forming a very valuable accession to the library of an experienced jurist.
It may still be affirmed that an elementary work, worthy of the present condition of international law, is a desideratum in jurisprudence.
It will have been perceived by our readers, from the brief abstract which has been given of the arrangement of the civil law, according to the system of Justinian, that no separate place is allotted in it to the law of nations; for their jus gentium had a far more comprehensive signification. Indeed, when we reflect that the Roman Empire extended over the whole civilized world, (for to be conquered by that people was, in those times, the only means to become civilized) and when we consider, moreover, the cruel maxims of all ancient warfare, we shall be less surprised at this omission. Their system was calculated for perpetual success: they did not contemplate the possibility of their wanting the protection of such a code. As soon as a Roman citizeu fell into the hands of an enemy, he was capitis minor and dead to the commonwealth. The Senate sometimes even refused to ransom their countrymen, when they could do so on easy terms, lest it should impair their military virtue and discipline in future wars. We are aware of the noted
of the oration for Balbus (c. 6.) in which Cicero commends Pompey for what he calls singularis quædam laus ejus et præstabilis scientia, in fæderibus, pactionibus, conditionibus, populorum, regum, exterarum nationum; in universo denique belli jure et pacis. But it would be a gross error to infer from such a rhetorical flourish that the Romans bestowed upon the rights of nations, with regard to each other, any thing like the same pains with which they cultivated their municipal law. Their jus belli et pacis was excessively simple-extending no further than to the fair interpretation and religious observance of treaties, and to such other obvious and necessary usages as must exist even among barbarians and outlaws, as for example, the immunity of ambassadors and the like: nor, indeed, do the words of Cicero strictly imply any thing further. This accounts more sensibly than some conjectures which we have seen, for Grotius' adopting that title for his great work. He wrote Latin with too much purity to deviate from the best standards, and that language did not express, in any other way, the idea of international law.
* Jus Feciale was precisely the same thing. See Cic. de legib. ii. 9. De Ofic. i. 11. And cf. the whole 19th chap. of the Vth against Verres, which affords a good illustration of the remarks in the text. Condillac supposes Grotius adopted that title to excite euriosity.
It is to the genius and learning of that extraordinary man, that the world is indebted for the first successful effort to reduce to a system, those principles upon which alone the intercourse of independent nations, in an enlightened state of society, can be carried on. Jeremy Bentham finds fault with this great work, as not being of a sufficiently definite and practical character. “Of what stamp," says Jeremy, "are the works of Grotius, Puffendorf and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial? Sometimes one thing, sometimes another; they seem scarcely to have settled the matter among themselves.” There is, undoubtedly, much truth in this criticism-and so far as it applies to Puffendorf and Burlamaqui-although Sir James M’Intosh speaks of the former in terms of high praise-we must confess that we are disposed to concede to it even more, if possible, than its author would demand. We own with D’Aguesseau, que nous n'avons jamais pu achever la lecture du gros livre de Puffendorf-but it is impossible to reflect upon the æra at which Grotius wrote, in the midst of the horrors and atrocities of religious persecution and of civil war-calamities, of whose utnost bitterness he had himself been compelled to taste-without acknowledging that this treatise De Jure Belli et Pacis, in wbich enlightened reason, refined humanity, immense learning and elegant scholarship, mingle their winning and varied attractions, and where strong sense and convincing argument are rendered still more persuasive and venerable by the authority of great names, was at once a most noble monument of that day, and the herald of one yet brighter and more auspicious. In spite of the "march of mind," we believe no one has ever attentively studied it without being the wiser for it, and although the author, had he lived in our times, would, perhaps, have blotted out half of it, as cumbersome and superfluous—we doubt whether the public would have been, either in profit or amusement, a gainer by it. In short, we perfectly concur in the eulogium bestowed upon it by Sir James M’Intosh, that Grotius “produced a work which we now, indeed, justly deen imperfect, but which is, perhaps, the most complete, that the world has owed, at so early a stage of any science, to the genius and learning of one man.”
Still there can be no doubt that it has many defects-partly because so little had been done before it-partly and still more, because so much has been done since. The new law of nations was, indeed, even then known in practice. The merciful and benignant spirit of Christianity had made itself visible, amidst the carnage of Smithfield and St. Bartholomews, in its effects upon modern civilization; courage had been refined and softened