grandeur and power. Before the well balanced constitution of Solon was subverted by the demagogues of a later age, she had made such progress that she could live through a long period of misrule and adversity, not only without any apparent decay, but even, in some respects, with seemingly increased splendor, and the elegant compliment of Isocrates was well earned, that she had made the Greek name a designation, not of a race of men, but of a particular state of civilization, so that they were Greeks, whom not a common origin, but her refined discipline identified as one people. * Strabo, lib. iv., c. 35, § 3. D'AGUESSEAU. 1. Memoir of the Life of Henry Francis D'Aguesseau, Chancellor of France; and of his Ordonnances for consolidating and amending certain portions of the French Law: And an historical and literary account of the Roman and Canon Law. By CHARLES BUTLER, Esq. Barrister at Law. Fourth Edition. London. Murray. 1830. 2. Euvres complétes du Chancelier D'Aguesseau nouvelle édition, augmentée, de pièces échappées aux premiers éditeurs et d'un discours préliminaire. Par M. PARDESSUS, Professeur à la faculté de droit de Paris. (16 tom. 8vo.) Paris. 1819. In the little volume placed at the head of this article, Mr. Butler has surpassed himself. Notorious as he is for a garrulous smattering in all things knowable, we did not think it possible he should put forth such a scandalous piece of book-making, on such a subject as the life of D'Aguesseau. We sent for his work with hopes which have been most cruelly disappointed. We have long thought a complete view of the services, the talents, the learning, and the character of the illustrious subject of this Memoir, a desideratum in English legal literature. It struck us, too, that Mr. Butler was as well qualified for such a task as any English lawyer of whom we have recently heard, except the late Sir Samuel Romilly. But what are we to think of a miserable little compilation of some seventy or eighty pages octavo, with as much margin as text, recording of one, who, for sixty years together, filled by far the largest space in the eyes of the French nation of any legal character since the Chancellor De l'Hospital, and who, for full half that period, was the very successor of that great man in the dignity, the duties, and we may add, the glory of the highest station in the judicature of France, very little more than might be learnt from his epitaph? We will venture to assert that a more satisfactory account-and beyond all comparison more satisfactory-of D'Águesseau is to be found in the notes to Thomas' Eloge, alone, than in this work of Mr. Butler. But if it is strange that the author should publish such a thing as this, what shall we say of the people that encourage him? It appears that this book has actually passed through four editions. Nor is this to be ascribed to the value of the "historical and literary account of the Roman and Canon Law," that accompanies the "Memoir." Qui Bavium non odit, amet tua carmina Mavi. A reading public which can patronize one of these enterprises is quite worthy of the other: and we confess that, taken together, the success of them gives us a very unfavorable notion of that part of the English reading public that is interested in the science and literature of law. Or shall we rather infer that so impatient is its curiosity about such things, that, rather than have nothing at all said about them, they are willing to look favorably even upon the drivellings of Mr. Butler? We are afraid that this last suggestion is altogether improbable. Some five and twenty years ago, when Mr. Evans published his translation of Pothier on Obligations, it is evident that even he had but just made the acquaintance of D'Aguesseau. The readers of that valuable work know that it is enriched by a dissertation on mistakes of law, from the pen of D'Aguesseau, and by two of his plaidoyers, when Ayocat-Général. The translator himself professes to have come to his knowledge of those admirable productions but a short time before the publication of his own book, and he is so enraptured at his discovery, that nothing prevented his imparting to the public a much larger share in his new acquisitions but the painful conviction that the public had not the least desire to partake of them. The truth is that, if a man were called upon to name the sort of intellectual pursuit which was most at variance with all elegance of taste, all literary acquirement, all comprehensive and profound philosophy, all liberal and enlarged views of science and of society, in short, with all that made D'Aguesseau-what he was-the most accomplished of advocates, of jurists and of magistrates, as well as of scholars and gentlemen-he would without any hesitation name the Common Law of England, as it has been generally studied by the practitioners of Westminster Hall. In a passage from Hotman, quoted by Mr. Butler elsewhere,* Polydore Virgil is represented as having pronounced the jurisprudence of that country a mingled or chaotic mass of foolishness and captious subtlety, and Erasmus breathes a sigh over the fate of Sir Thomas Moore, constrained by circumstances to devote his elegant mind to the study of a body of laws, than which nothing, in the opinion of the Dutch scholar, could be more illiterate. We have more than once, in the course of our labors, had occasion to make a similar remark, which we shall have now a fair opportunity more fully to develope and illustrate. would not be understood to detract from the unquestionable and *Pref. to Coke-Littleton.-We remarked, in a former number, a ludicrous blunder of Mr. Butler, in translating the words of Hotman-a blunder unaccountable in a man of his education-or of any education. + Quibus nihil illiteratius. 1 transcendant merits of the common law, whether it be considered in reference to its rules of property, its system of legal logic,* or the maxims of justice, of morality, and of sound policy which it is studious to inculcate and enforce. Above all, we do not mean to dispute its justly conceded pre-eminence, as a scheme of liberty—a scheme of practical liberty-better, by far, than any other people, either of ancient or of modern times, have ever enjoyed. Our objection goes to form rather than substance, to the manner of teaching rather than to the things taught. With the exception of some men, who would be exceptions to any rule-such as Bacon and Mansfield-the lights of Westminster Hall have been mere practical lawyers, with abundance of knowledge, and exact knowledge, but without one spark of philosophy. Take Lord Coke and Lord Eldon, for example the two men, perhaps, of the greatest amount of legal acquirement, that have ever adorned the bench in England-whose very dicta are oracles, and who never touch upon a subject, however incidentally, without pouring out upon it a flood of curious learning. For all practical purposes these great judges deserve the consideration they enjoy, yet it would be difficult to name two men who fall so miserably short of that elegant and finished model upon which the distinguished civilians seem to have formed themselves. If any of our readers doubt this, we recommend to their dispassionate perusal the writings of Domat, of Pothier, and, above all, of the Chancellor D'Aguesseau. The appearance of Lord Mansfield, as Chief-Justice of the King's Bench, was an era of signal improvement. That great judge was not a better magistrate than Lord Hardwicke. Perhaps, if, in the administration of the laws, preference is to be awarded to either of them, it is due to the latter, in whose person Wisdom herself, as Mr. Fox observed of him, seemed to deliver the responses of the Law. But his great rival had to work upon materials less tractable than the subjects of Chancery jurisdiction. He had to contend with more inflexible technical forms—and the yet more inflexible prejudices of technical men. This latter difficulty may be easily imagined from the disposition manifested by Lord Kenyon, on all occasions, to overrule or qualify decisions which, however agreeable to a refined equity, and even to sound principles of law, that narrow minded man, wherever there happened to be no case in point, naturally enough regarded as so many dangerous innovations. But the reputation of Lord Mansfield has increased with the progress of time-as the conclusions of enlightened reason must ever be confirmed by the voice of experience. He is admitted to have been, in some sort, the founder of a new school of jurisprudence-not that he invented any thing (which would have been rather a sinister * Generally speaking, that is. glory in a judge or jurist) but that he introduced a new me thod-that he pointed out connections where none had been before observed, and simplified the science by comprehensive generalizations-in a word, that he did much to perfect the harmony and concordance of the law, and to shew that its seemingly arbitrary rules generally coincide with the dictates of right reason. Yet, great as Lord Mansfield's pre-eminence among English lawyers confessedly is, he is indebted for it, in no small degree, to the writings of the civilians. They were his masters and his model. In every branch of commercial law, they furnished him not only with ascertained principles, but even with express precepts and established precedents-and Mr. Evans* has shown, by a very curious collation of the text of the civilians, that, even in laying down the rules which govern the action for money had and received, he adopted not only their doctrines but their very words. The great advantage-unquestionable, we think of the manner in which subjects are treated of by the Roman lawyers and those who have succeeded them in modern times, is implied in what we have said of Lord Mansfield. It consists in looking upon jurisprudence as a science, and an ethical science, of which the principles however modified, occasionally, and controlled by the policy of society-are to be found in the conclusions of right reason and the unalterable feelings of human nature. Of law, they justly conceived, with Cicero,† that it is the recorded morality of a nation-a rule of social duty, no less than of civil conduct of which the great object is not only security in the possession and certainty in the transmitting of property, but the consecration, if we may so express it, of good faith, of integrity, of loyalty the impressing upon men's minds, by enforcing in all their commerce with each other, the sanctity of obligationsthe setting the seal of the public will and understanding, the unanimous assent of a whole society, and that society a great people, upon the principles of a refined equity and an enlarged benevolence, reduced to practice in the daily concerns of life, with the precision, the consistency and the uniformity of an exact science. The great lawyers of antiquity, in the golden age of the Roman law especially, were great philosophers as well. Their disquisitions, their dicta, their very definitions, all smack of the schools. In the progress of the Roman law this spirit made itself more and more apparent. At first there were many arbitrary rules in it, and from these were sometimes deduced, by an over-refined and captious logic, conclusions more subtle than sound, which gave to that jurisprudence the same technical and artificial air that strikes us in the writings of the bulk of our Translation of Pothier, vol. ii. p. 379. + De Legib. de Republica. |