Page images
PDF
EPUB

that her usages, laws, and regulations do not present many things for instruction, and some for imitation. In respect to the general principles of jurisprudence, those which are applicable to the ordinary concerns of human life in all countries, and ought to be law in all, because they are founded in common sense and common justice, it is undeniable, that much light may arise from the investigations of foreign jurists. Genius and learning can never fail to illustrate the principles of universal law, even when the primary object is merely to expound municipal institutions. The Dutch, the German, the Italian, the Spanish, or the French civilian is not less a master of equity and rational jurisprudence, when he deals with the Roman law, colored, and it may be shaded, by his own local customs and ordinances, than the lord Chancellor on the woolsack, enforcing trusts in foro conscientiæ, or the lord Chief Justice, when expounding commercial contracts at the Guildhall of London. The truth is, that the common law, however reluctant it may be to make the acknowledgment, and however boastful it may be of its own perfection, owes to the civil law and its elegant and indefatigable commentators, (as has been already hinted,) almost all its valuable doctrines and expositions of the law of contract. The very action of assumpsit, in its modern refinements, breathes the spirit of its origin. It is altogether Roman and Pretorian. And there never has been a period, in which the common lawyers, with all their hostility to the civil law, have not been compelled to borrow its precepts. The early work of Bracton shews how solicitous some of the sages were, even in that rude age, to infuse into their own code some of that masculine sense, which found favor in the days of Justinian.

What, indeed, should we think, in the present times, of men, who affect to be indifferent to the writings of such authors as D'Aguesseau, Domat, Valin, Pothier, and Emerigon? Mr Duponceau in his late excellent Dissertation on the Jurisdiction of the Courts of the United States, a work that should be profoundly studied by all American lawyers,—has said, that the works of Pothier were warmly recommended by Sir William Jones to his countrymen, but without success.' We hope his language is too strong. That such a writer as Pothier should be neglected by Englishmen, would be a disgrace to the learning and literature of the nation.

Who has written with so much purity of principle, such sound sense, such exact judgment, such practical propriety on all the leading divisions of contracts? Who has treated the whole subject of maritime law so fully, so profoundly, so truly with a view to its equity and advancement, as Valin? Who has equalled Emerigon as a theoretical and practical writer on the law of insurance? He has exhausted every topic so far as materials were within his reach; and upon all new questions his work, for illustration, and authorities, and usages, is still unrivalled.

We think, indeed, that we perceive the dawn of a brighter age in the English law, when the foreign lights, which have been slowly and by stealth admitted into Westminster Hall, will be hailed with a liberal spirit, and will irradiate its bar and benches. Mr Joy, in the case of M'Iver v. Henderson, (4 M. and S. 576,) and Mr Campbell and Mr Bosanquet in the case of Bush v. the Royal Exchange Insurance Company, (2 Barn. and Ald. 72.) shewed a familiar acquaintance with the foreign maritime jurists, and argued with great effect from their authority; and on a comparatively recent occasion, (5 M. and S. 436.) when Emerigon was cited, Lord Ellenborough said, 'Emerigon, whose name has been so frequently mentioned in the course of the argument, is entitled to all the respect, which is due to a very learned writer, discussing a subject with great ability, diligence, and learning, and adverting to all the authorities relating to it.' Mr Justice Bailey and Mr Justice Best, who are judges of uncommon ability, have repeatedly of late adverted to the French maritime authors with discriminating accuracy, and in terms of the most unreserved respect. We consider these indications of a liberal study of foreign jurisprudence, as extremely creditable to this age of the common law, and augur from them, for the future, a far more expanded view of commercial questions, than has usually been encouraged since the days of Lord Mansfield.

If we were disposed to recommend the study of public and foreign law to common lawyers, we do not know how we could better do it, than by pointing out some illustrious examples of its successful accomplishment in our own age. Sir James M'Intosh, of late years so distinguished in Parliament as a friend to liberty, to science, and liberal institutions, and who is at the same time a most humane and philosophical

jurist, has in his incomparable introductory Discourse to his Lectures on the Law of Nations, given us a finished specimen of the advantages resulting from the mastery of foreign public writers. It would, perhaps, be difficult to select from the whole mass of modern literature, a discourse of equal length, which is so just and beautiful, so accurate and profound, so captivating and enlightening, so enriched with the refinements of modern learning, and the simple grandeur of ancient principles. It should be read by every student for instruction and purity of sentiment, and by lawyers of graver years to refresh their souls with inquiries, which may elevate them above the narrow influences of a dry and hardening practice.

But a still more striking example is Lord Stowell, (better known in this country as Sir William Scott,) the present venerable Judge of the High Court of Admiralty, of whom it may be justly said, in the language of Cicero, that he is jurisperitorum eloquentissimus. This great man has presided in the Court of Admiralty since the year 1798; and during this period he has commanded the admiration of all Europe by the learning, acuteness, and finished elegance of his judg ments. There was a time, when it was somewhat the fashion in this country to undervalue the solid excellence of his opinions. Our commerce was brought so directly in conflict with his administration of prize law, that it was difficult to avoid prejudices on a subject, in which, as neutrals, we had so deep an interest, and were so liable to indulge strong animosities. But time has dissipated many delusions on this subject; and we have had in the late war ample opportunity to try the accuracy of his principles, when we changed the character of neutrals for that of belligerents. We can now look back upon his decisions with somewhat of the calmness and sobriety of a philosophical historian. With the exception of the doctrines respecting the colonial trade, in which it is but common justice to admit, that he either acted upon public Orders in Council, which he was bound to obey, or upon the Rule of 1756, which his government had previously chosen to consider as an established part of its prize code, the differences between his decisions upon prize law, and those promulgated by the Supreme Court of the United States, are so few, as to be almost evanescent. After the most powerful arguments

[blocks in formation]

under the highest political excitements, and with the aid of the most striking eloquence, there has been but a single principle adopted by him, which has been deliberately overruled by the Supreme Court; and on that occasion there was a serious difference of opinion among the Judges.

But it is not in respect to prize law, that we intend to speak of Lord Stowell, though he everywhere exhibits the most profound and accurate knowledge of all the publicists of continental Europe; but as a maritime judge, deciding, in what is called the Instance Court, the great principles of commercial jurisprudence. His superiority in this department over the technical reasoning of the common lawyers is most signal. He discusses every question with a persuasive and comprehensive liberality, with a tone of general equity, a knowledge of maritime usages, and a disposition to consider maritime jurisprudence, as the unwritten law of the world, rather than the municipal monopoly of a single nation; and he draws from all sources, ancient and modern, the best and purest principles to aid, to illustrate, and to confirm his own judgment. With him the grave learning of Grotius, the acute, bold, and somewhat vehement discussions of Bynkershoek, the reverend testimonies of the Consolato del Mare, the collections of Cleirac, the busy, practical sense of Roccus, the brief but clear text of Heineccius, the various and exhausting labors of Casaregis, the argumentative commentaries, and luminous treatises of the French jurists, appear as perfectly familiar, as the writers of his own age and country. He evidently reposes upon them, even when he does not cite them; and transfuses into his own eloquent and impressive judgments, whatever they afford of general doctrine, or just interpretation, upon all the doubtful questions of maritime law. One scarcely knows which most to admire, the simplicity of his principles, the classical beauty of his diction, the calm and dispassionate spirit of his inquiries, his critical but candid estimate of evidence, his strong love of equity, his deep indignation of fraud, chastened by habitual moderation, or that pervading common sense, which looks into, and feels, and acts upon the business of life with a discriminating, but indulgent eye, content to administer practical good without ostentation, and wasting nothing upon speculations, whose origin is enthusiasm, and whose end is uncertainty or mischief. Even

when he deals with subjects of another class, as in ecclesiastical causes in the Consistory Court, one is surprised to see with what admirable propriety he uses his knowledge of general jurisprudence and the civil law, to give vigor to his decrees. And upon questions involving the lex loci, he has triumphantly shown, that he can master the results of foreign jurisprudence, and, as in the very interesting case of Dalrymple v. Dalrymple, compose the strifes of the learned advocates of the Scottish bar, and fix forever upon an immovable basis a question, which had vexed the domestic forum of Scotland for a long period with its doubts and difficulties. We say, without hesitation, that the character of this eminent Judge, whatever may have been his original genius and ability, owes its present elevation, in a great measure, to his enlarged studies, and his cultivation of universal jurisprudence. Take, for instance, his celebrated judgment in the case of the Gratitudine in 1801, on the right of the master to hypothecate the cargo, as well as the ship and freight, for the necessities of the voyage; or the case of the Julianna in 1822, on the invalidity of a stipulation in the shipping paper to cut off the seamen from wages, unless the voyage was performed to the final port of destination; where shall we find in the annals of the common law, except among the judgments of Lord Mansfield, cases argued out upon such rational and enlightened principles, aided by sober and various learning, and ending in conclusions so irresistible? One seems in them to be reading, not the law of England merely, but the law of the world-the results of human reason and human learning, acting on human concerns, with reference to principles absolutely universal in their justice and convenience of application. We wish American lawyers would study the fine models of this sagacious Judge, with a diligence proportionate to their importance and utility.

We cannot quit this subject, without recommending to our brethren of the English bar, if perchance these pages should attract their notice, the study of American jurisprudence. Of course we do not mean of our local laws and peculiar systems, for we should as little advise this, as we should to our own lawyers, the study of the English law of tythes and moduses, and copy holds, from which we are separated toto cœlo. What we do recommend is the study of our commercial ad

« PreviousContinue »