Page images
PDF
EPUB

Blackstone,” in which, he says, they are “ greeted with phrases strange to the ears of freedom ;" and from the perusal of which they imbibe “dangerous principles, concealed by the fascinating eloquence of that author.” Really, one would imagine from this, that the Commentaries of Blackstone were the horn-book of the youth of America ; whereas our young men seldom commence the study of the law, before they have received an academical education, and are, therefore, generally well grounded in republican principles ; so that all this fear of their imbibing erroneous doctrines from Blackstone is ideal. We are afraid, too, that the celebrated work of the “ Vinerian Professor," which has justly been denominated “the most correct and beautiful outline that ever was exhibited of any human science,” will continue to be read and studied by the American student; at least, until we are provided with a better.But, says Mr. Sampson, the author of the Commentaries (whom, by the bye, he “ damns with faint praise”) “ could not make " that a science, which was reducible to no fixed rules or gene“ ral principles ; and the more he brought it into light, the “ more the sunny rays of his bright genius fell upon it, the more “its grotesque forms became defined, the more they proved to “ be the wild result of chance and rude convulsions." Here is strange doctrine indeed. 'The common law no science ! a mere heterogeneous mass of fabulous traditions huddled to. gether without order or method ! Verily, if this be true, then have we been wandering in darkness for ages past, and have now just reason to exclaim, “ Alter e cælo cecidit Bacon !"

Several pages are next occupied with a tirade against Blackstone; and, for all that we can perceive, the “sole head and front of his offending,” is, that he has spoken of the “ pristine vigour” of the common law, as it existed previous to the Norman conquest.

Sir William Blackstone is too argumentative a writer, and adduces too many authorities in support of his opinions to be overcome by a sncer.

Here we are completely puzzled, and must confess our utter inability to follow the thread of our author's reasonings. If there be any logic in it, it lies too deep for our penetration. In one page, we have extracts from Blackstone, showing his plan of an historical account of the law, in another we are treated with some original remarks upon the dignity, the use, and the nature of history ; now, we are made acquainted with the pedantry of Coke, the prejudice of Hale, and the downright absurdity of Fortescue, and immediately thereafter are told what posterity will say of us, who ignoranțly and superstitiously bow

Vol. I. No. I.

4

down before, and worship “ the common law, a mysterious essence,” an “enigina, a “metaphor,

"966 an idol that evermore sits cross-legged and motionless upon its antique altar !!!! But we feel ourselves unable to do justice to the author's eloquence, and shall therefore take the liberty of quoting his words.

“ Let us keep in mind, that we too must become ancestors and be judged by posterity. We cannot altogether foresee what may be said of us, but part we may imagine. These people, [it may be said, ) long after they had set the example of self-government upon principles of perfect equality, had reduced the practice of religion to its purest principles, executed mighty works, and acquired renown in arts and arms, had still one pagan idol to which they daily offered up much smoky incense. They called it by the mystical and cabalistic name of Common Law. A mysterious essence. Like the Dalai Lama, not to be seen or visited in open day; of most indefinite antiquity ; sometimes in the decrepitude of age, and sometimes in the bloom of infancy, yet still the same that was, and was to be, and evermore, to sit cross-legged and motionless upon its antique altar, for no use or pur. pose, but to be praised and worshipped by ignorant and superstitious votaries. Its attributes were all negative, its properties all enigmatical, and its name a metaphor.” p. 17.

Having thus disposed of the origin and progress, the author now takes a “rapid view” of the antiquities of the common law. There is a great parade of learning to prove, what nobody ever doubted, that the ancient Britons were not many removes from barbarism. But, the connexion between this formidable display of quotations from outlandish authors, and the common law, we leave for those who have had the patience to plod through this part of the Discourse, to discover. Supposing all that is asserted of the ancient Britons, Picts, and Scots to be true, to what does it all amount? Has the most enthusiastic admirer of the commmon law ever contended that all its principles had their foundation in the days of the “ Jutes, and Angles, and Saxon princes, and Scandinavian sea-kings ?" To prove, therefore, that these nations were barbarous, is of little avail, unless the Counsellor will also prove that the English nation has been barbarous from the period of the Romans down to the present time; and in fact, that the whole history of England is one long dark night of ignorance and barbarism. This curious but useless parade of learning occupies the greater portion of the Discourse, and the author then relapses into his old strain of abuse, in which, of a truth, he seems to be very much at home. The legal profession will surely be under great obligations to one of their brethren, who asserts that the law. yers have not been the ornaments of their country ;" but have degraded their faculties, and wasted their energies upon a sci

ence of “ entangled jurisprudence, incapable of improvement or advancement." * Our Marshalls, and Kents, and Storys, and Websters, will be gratified with the compliment of being called ignorant and infatuated worshippers of a “Pagan idol," laborious plodders in absurdities and nonsense, servile and degraded “ copiers of Norman subtleties and Saxon barbarity," who spend their days in cultivating a tree “ of sickly and exotic growth, that has no sap nor freshness ; upon whose withering branches some faint pale blossoms may appear, but rich fruit cannot ripen."

In the 52d page we have a beautiful picture of the state of legal science, as it would exist if our author's ideas were adopted. Then we should have a plain and simple code, capable of being easily explained and understood by the meanest capacity; then our lawyers, “no longer forced into the degrading paths of Norman subtleties,” would“ resolve every argument into principles of natural reason, universal justice, and present convenience,” &c. &c.

All this is very pretty ; it is the beau ideal of law; but we conceive, is much better adapted to the people of Utopia, than to us, with all the imperfections of our human nature. At all events, before our author's plan can go into successful operation, one of two things must occur;-either we must go back to a natural state of society, when wants are few, and all the complications of commercial intercourse are unknown, or we must wait till the millenial period, when we are taught to believe that men will act with the strictest justice, and live in a state of perfect beatitude.

If the common law be a “ Pagan idol,” it has the honour to enrol among its worshippers many enlightened men, who have been the glory of their age ; in England, Bacon, Mansfield, Hardwick, Sir William Jones; and in our own conntry, such men as Hamilton, Pinckney, Marshall, Story, and our late Chancellor Kent, the last of whom is, even now, by the light of his powerful intellect, and the splendour of his various learning, illustrating and upholding that very science which Counsellor Sampson would fain teach us to be nothing but a chaotic mass of absurdity. We have been accustomed to look up to these men with some degree of reverence ; and before we condemn them as foolish expounders of a blind science, we should like to see some shadow of evidence in support of the charge which has been brought against them. For this we look in vain, in Mr. Sampson's Discourse.

[blocks in formation]
[ocr errors]

The last particular we shall notice, is the opinion expressed concerning the English Reports, which the author would not allow any longer to be quoted, or even referred to for illustration. We should be sorry to see the law reduced to so narrow a system as this. Is it any objection to the enlightened legal opinions of our greatest judges, that they have had recourse to the civil law, and the maritime codes of the different nations of Europe, to illustrate their arguments? We would rather see our lawyers and judges forcing into their service all the learning which it is possible for man to attain ; and the legal profession would not suffer, if it contained many more than it does, of such men as Sir William Jones, who was equally versed in the laws of the Hindoos and the code of Justinian. Let our jurists then dive into the mine of the common law-let them ascend the chivalric heights of the feudal system-let them drink deep at the pure fountains of the civil law, and the result will be honourable to their profession, and glorious to their country. But the best answer we can give to this notion, is in the words of one of our most learned judges, when, in the argument of a certain cause involving important principles of equity, it was urged that the English Reports since the revolution, not being of binding authority, ought not to be quoted, or listened to with any attention. Adverting to this, in the course of his decree, the Chancellor observes :

“Far from me and from my friends be such frigid philosophy,” or such unreasonable pride, as may turn us with indifference or disdain from the decisions and the wisdom of other nations. It is to be recollected, that we have very little domestic precedent in matters of equity to guide us. A question of this kind has, probably, never before arisen in our courts. We must resort for information to the courts of that nation from which our jurisprudence, as well as the hest of our institutions, are derived ; and we can do it with uncommon advantage. It cannot, I presume, be seriously expected, or even wished, that I should confine my researches, to the more loose and scanty repositories of equity learning of a date prior to our revolution, and that I should shut my eyes upon the improvements and lights of the present age."

99*

Upon the whole, this Discourse appears to us to be one of the most rambling and incoherent we have ever seen. Almost every page exhibits a non sequitur ; and we challenge the production of any treatise, in which there is more of what is technichally termed "travelling out of the record." The style of the work is in general diffuse and declamatory; frequently careless, and occasionally eloquent. As a specimen of the latter

* Johnson's Chancery Reports. vol. 3. p. 263.

quality, we select the following passage ; only taking the liberty of inserting a single word:

“ Our (common) law is justly dear to us; and why? because it is the law of a free people, and has freedom for its end, and under ït we live both free and happy. When we go forth, it walks silent and unobtrusive by our side, covering us with its invisible shield from violence and wrong. Beneath our own roof, or by our own fireside, it makes our home our castle. All sexes and conditions share its protecting influence. It shadows with its wing the infant's cradle, and with its arm upholds the tottering steps of age. Do the smiles of the babe give gladness to the mother's heart, her joy is perfect in the consciousness that no tyrant's power dare snatch it from her arms; that when she consigns it to repose, its innocent slumbers are guarded by a nation's strength, and that it sleeps more free from danger than kings amid their armed myrmidons. And when life's close draws near, we feel the cheering certitude, that those we love and leave shall possess the goods that we possessed, and enjoy the same security in which we lived and died." p. 60.

Who would imagine that the author of the preceding could have written the following paragraph, in which he seems to have exerted himself to show with how much ingenuity old Priscian's head might be broken:

“ The views of the Norman jurisprudence he [Blackstone] exposes with no tender hand. The trial by battle, the forest laws, the curfew, the depend ence of the nobles on the crown, and their tyranny over the commons: the feudal exactions and forfeitures ; the 60,000 knights bound upon pain of confiscation to quell all resistance ; the enslaving of men's consciences by sour ecclesiastics, who were themselves exempt from the secular power, and who had imported the farrago of superstitious novelties engendered in the blindness and superstition of the times between the first mission of St. Augustine the monk, and the Norman conquest. The administration of both the prayers of the church and the law of the land in a foreign and unknown language : the frittering both law and divinity into logical distinctions and metaphysical subtleties, till what ought to be a plain rule of action, became a science of the greatest intricacy: the interweaving by the scholastic reformers, as he calls them, of their dialect and finesses into the body of the judicial polity, so that they could not be taken out without injury to the substance; and that, though statute after statute was made to pare off the excrescences, and restore the common law to (what he calls) its pristine vigour, the scars remained still deep and visible : how the liberality of modern courts was frequently obliged to have recourse to unaccountable fictions and circuities to recover that equitable and substantial justice which was long totally buried under the narrow rules and fanciful. niceties of the metaphysical Norman jurisprudence. p.9, 10.

The plain truth is, that Mr. Sampson has undertaken a work which is too mighty for him. It is the easiest thing in the world to make loose charges, and indulge in a satirical strain against any existing system; but, if we mistake not, the character of a true reformer calls for the most sublime exertion of

« PreviousContinue »