into the criminal law this one provision' that persons standing to the accused in the relation of parent, child, brother, sister, husband or wife, shall not be deemed accessaries after the fact, unless for resisting officers and others by force, or menaces, in the legal discharge of their duty." The impression made upon the mind of the writer by the arguments of Mr. Livingston upon this subject, in his plan of a penal code, presented to the legislature of Louisiana in 1822, will never be effaced. Indeed it seems astonishing that this relic of a barbarous, and even savage age, should be permitted to disfigure the codes of any people in the middle almost of the 19th century. In conclusion we say to all whom it may concern, that what has been done for the criminal law by the admirable statute of 1829, was exactly what the legislature of 1825 intended should be done for every branch of the statute law. And it was contemplated, if there is meaning in words, that the digest and revision then provided for, should accomplish this most desirable consummation so far at least as method and arrangement are concerned. The digesters were not, it is true, to introduce any new provisions, that was to be left to the legislature, but they were to touch the confused statute book with the wand of harmony, and out of a chaos they were to produce order. Instead of which confusion has been worse confounded. - — ART. VII.-LAW OF PRINCIPAL AND SURETY. A Practical Treatise on the Law of Principal and Surety, particularly with relation to Mercantile Guaranties, Bills of Exchange, and Bail Bonds. By WILLIAM THEOBALD, Esq. of the Inner Temple. 8vo. pp. 290. London. 1832. It has long been a subject of surprise, not to say reproach, that while the two professions of physic and divinity in England have contributed their full share of well digested and elegant treatises for the use of students and professors in their respective sciences, the Law has produced an extremely small number of works 1 Tennessee St. of 1829, ch. 23, § 64. We refer to this statute, as a specimen of what might be done, by the association we propose. which have been worthy of a place in either of those classes. After naming Blackstone's Commentaries, (which adopt Lord Hale's arrangement of subjects) Jones on Bailments, and, recently, the admirable work of Mr. Stephen on Pleading, we are not aware of any one so conspicuous as to deserve particular notice for those qualities, however meritorious in other respects. Mr. Evans (now Sir William, we believe,) the translator of Pothier on Obligations, observes, in his introduction, to that work, (p. 81,) that it cannot be pretended,' that the study of the law in England had been conducted upon the principle of considering it in itself as a liberal and general science,' until the era of the publication of Blackstone's Commentaries; the success of which work he justly considers as a convincing proof,' that if the science of English law has not been often presented in an elegant form, the defect has not been occasioned by the nature of the subject.' This learned writer then observes, that it is to be regretted, that several other productions, which, without affecting to challenge a competition with the admirable composition already mentioned [Blackstone] are very extensively calculated to promote the same desirable purposes, have not met with a reception proportionate to their merit and importance;' and he enumerates, as the works which more particularly call for this observation, the Lectures of Mr. Sullivan and Mr. Wooddeson, Reeves' History of the law, the pleasing' Dialogues of Eunomus, and Yorke's Law of Forfeiture; a truly meagre list of works in a most noble science, and a science of daily application-in a free government especially -to the innumerable rights of property and persons which are the objects of civil society. We are sorry to be obliged to add, that during the period which has elapsed, since Evans published his translation of Pothier's work, very inconsiderable additions to his select list have been made of works which have any strong claims to scientific arrangement and neatness of execution. In general we may apply to the professed treatises, which have since appeared, what he says of the works on a particular branch of the law that they are the productions of writers who are yet for the most part, at no advanced period of life;' they are in fact, generally, mere 'bead-rolls of cases,' strung together, without examination or investigation of their principles, and in a method not quite so useful for the practitioner of ex perience as the common alphabetical order of a good Index or Digest, while to the student and the inexperienced they are almost useless, if not sometimes worse.' The truth is, that in England the law has been more exclusively a mere trade than it has upon the continent of Europe; and most treatises in it have been made as manuals of business, or the recipes of an art; it being considered of little consequence, whether he who uses them is acquainted with the principles of the law as a science or not. In the trade of the law, as in other trades, the mere practice, or knowledge of what has been done in past cases, is supposed to give a readiness sufficient for the ordinary business transactions of the trade. With this narrow view of the subject we have accordingly heard one of our own practisers seriously express the opinion, that the statute book and the reports of our own state would be a very sufficient library for a Massachusetts lawyer! If, however, as Sir William Jones observes, law be a science, and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason; but if it be merely an unconnected series of decrees and ordinances, its use may remain, though its dignity be lessened; and he will become the greatest lawyer who has the strongest habitual or artificial mem ory,' 2 The English lawyers, accordingly, who are eminently business lawyers, seldom look beyond their own adjudged cases; and, as a profession, taken together, (with some illustrious exceptions) they are not much in the habit of examining, upon principle, the legal questions which come before their tribunals. Upon the Continent of Europe, on the other hand, where every university has its law Faculty, and where in courts legal precedents have not, as in England, a binding force, every case is thoroughly examined on principle; and, by the comparative study of the laws of different countries, as happens in the study of comparative anatomy, philology, or any other branch of knowledge, the professors of the law have been men of more 1 of the recent compilations, we do not recollect a more shameless instance of the trade of book-making, than Chitty on Contracts, which consists, for the most part, of the marginal abstracts of cases copied verbatim from the reporters. 2 Law of Bailments, p. 123. enlarged views than those of England, and have advanced the science of jurisprudence much farther. If we do not deceive ourselves, too, we think it may be said without arrogance, (and we certainly say it with all deference to the professors of the law in our mother country) that, in the United States, that law, which is the common stock of both countries, will be found to have been as much indebted for its advancement to the philosophical views and learning of American lawyers, during the last thirty years, as it has been to the profession in its native soil of England. In support of this opinion, we can,—as might be required of us, if we were addressing English professional readers, cite English authority. The learned author above quoted does us the justice to remark and the remark is at this day more unqualifiedly true than when he wrote that some valuable reports have been published [in America,] which indicate a scientific and enlightened investigation of juridical questions, and which the lawyers of the mother country need not feel a disgrace in resorting to for assistance.'1 The Court of King's Bench, too, in a case decided at Easter Term, 1824, in which an American decision, Blight's Lessee v. Rochester, 7 Wheaton, 535, was expressly cited by counsel - the first one ever cited, we believe, in that court, - remark: It is a great satisfaction for us to know, that this our judgment is conformable to a decision of the Supreme Court of the United States of America upon a similar question.' 92 But, whatever may be the value of American jurisprudence in the estimation of Englishmen, there can be no doubt as to the fact, that American lawyers are more in the habit of resorting to the works of foreign jurists than the common lawyers of England are. It is justly observed by an eminent jurist, who now fills a distinguished place in the highest tribunal of our country, that the English common lawyers (it must be acknowledged with deep regret) have hitherto generally exhibited an extraordinary indifference to the study of foreign jurisprudence; an indifference as little reputable to their characters as jurists, as it is to their judgments as men.' And the learned judge then cites the forcible and free rebuke even at this day too true 1 Evans's Pothier, Introd. 83, Amer. ed. ? Doe dem. Thomas v. Acklam, 2 Barn. & Cresw. 779. - of Dr. Strahan, the translator of Domat's Civil Law, for this indifference of his countrymen; which is well worth the attention of American lawyers, but is too long to be inserted here.' If evidence were required of the justness of the learned judge's remark in respect to American jurists, it may be seen conspicuously in his own able decisions, and in the arguments and opinions of the leading men of the profession in the United States, both on the bench and at the bar." We have been led to these reflections upon the general manner of compiling law books in England, because the work now before us is, in some degree, an exception to the ordinary character of them. It is evidently the result of very considerable 1 Story's Comment. on Bailments, Pref. p. vii. • We cannot withhold our surprise at the extraordinary want of acquaintance with the most common books of the civil law and the writers upon it (or the literature of the law, as it is called by the continental writers) which the English lawyers betray, whenever they take occasion to refer to it, although they are three thousand miles nearer to its sources than we are. Evans speaks of Pothier's Pandects much in the same way that we should mention the Ta Tsing Leu Lee of China. He observes, that the want of method in the Pandects may be in a great measure obviated by the more accurate arrangement of Domat; 'and, I conceive, more particularly by the important labors of Pothier, in his edition of the Digest, of which I have never had an opportunity to obtain an inspection:' (!) and again, of the same work he says. I regret my inability to speak from any personal acquaintance of a work, the merit of which must indisputably entitle it to a more extensive encouragement, and in consequence to a more general publication.' (!) Evans's Pothier, Introd. pp. 59, 87. But this want of acquaintance with the continental jurisprudence is still less excusable in English lawyers at the present day, than it was when the translation of Pothier was published. Yet we find, as a foreign journal observes, that Sir Edward B. Sugden, who undertakes to write about the Theodosian Code, in his letter to Mr. Humphreys, strangely supposes it to consist of a digest of the public laws and partly of the discussions of private lawyers; and Mr. Humphreys, on the other hand, in his letter to Sir Edward, as strangely observes - I have searched the four folios of my Codex Theodosianus in vain' — without being at all aware, that his copy was deficient by two volumes! Well may the foreign reviewer say, that there is scarcely a notary public in all Germany who would thus have written about the Theodosian Code. We have no want of respect for these learned writers, but their discussion forcibly reminds us of the current anecdote of two men, one of whom made a bet, that the other could not repeat the Lord's prayer; upon which the other immediately went through the Apostle's Creed; when the first, having patiently heard him through, gave up and paid him the bet, with the grave remark-'you've won, but I did not believe before that you could have done it.' |