« السابقةمتابعة »
despaired. Cavilling objectors have found much in it to censure, but the enlightened experience and wisdom of many centuries have determined its place among the best, the wisest and most perfect of human institutions, adapted admirably to the purposes to which it is applied. “The whole machinery of the State,” says one, "king, lords and commons, all the apparatus of the system and its varied workings, end simply in bringing twelve good men into the box.” If we trace for its origin, we must be lost in the most remote antiquity. It formed a part of the policy of those northern tribes which overran Europe, and traces of it are found wherever they left their impress. These hardy emigrants from the officina humani generis, had notions of liberty too stern and elevated to condescend to any other judgment than that of their peers. It was then, as it was long afterwards, Nullus liber homo, uliquo modo destruatur, nisi per legale judicium parium suorum. When the Saxons were introduced into England, it is likely they brought this institution with them, if they they did not find it there as some suppose, or were not indebted to Alfred the Great for its establishment. Certain, in the time of Ethelred, it is mentioned as no novelty. Down to the present day, it has ever maintained its character and dignity, even in the most troubled times. Its sphere has been respectively innovated upon by the Norman trial by battle,—the Courts of High Commission, Star Chamber and Chancery,—but it has proved too strong for all of them. Formerly, the heaviest punishment, in the nature of a “writ of attaint of false verdict,” was suspended over the jurors' heads,-if they flinched, it fell. The consequences of this writ were direful in the extreme,- its victim was scarcely considered a human being,-he was hooted at, execrated, hunted down,—he lost every right and every privilege, even his family were infamous; in an instant, in the lwinkling of an eye, he was transformed into
"- a monster of such hideous mien,
That to be hated needs but to be seen.' But, a writ of such questionable propriety was seldom used, and has long ceased even to be named. If any thing can be said in its defence, it must be found in the nature of the jury in the earlier times; it had vastly more power than now. Its members came from the county in which the case originated, and their verdict was founded upon their own personal
knowledge without the examination of witnesses. The writ of attaint might have been needed then, not afterwards.
Every one conversant with English history, must remember the great efforts which were made at one time to undermine the power of the jury, and bring it down crouching at the feet of the court. Lord Mansfield led the van, and was a host in himself; Mr. Justice Buller was behind him, full of admiration.* Lord Hardwicke was looked up to with veneration, and other great judges were not wanting. We alJude to the attempt which was made to wrest away from the jury, in the question of libel, the consideration of intent, and confine them simply to the fact of publication. The most distinguished lawyers of the age, backed by the House of Commons and people, took the alarm and rushed to the conflict. Then was there a war of giants. Mansfield was violent, reckless, but great. Junius, behind the scenes, was hurling thunderbolts. Mr. Fox's artillery commanded the House of Commons. The voice of the nation fixed at last the seal of its condemnation on the odious heresy, and the jury was safe. During this famous controversy, so daring was Lord Mansfield in support of his opinions, that he is accused on one occasion of having overleapt the boundary of truth, and sullied his otherwise bright reputation. In referring to a popular ballad of the times, of Lord Hardwicke:
"For Sir Philip well knows that his inuendoes
Who are judges of fact as well as of laws :" to suit his own purposes, the learned judge made the last line read, at the expense of harmony as well as truth:
"Who are judges of fact but not judges of laws." In the United States, by virtue of a common origin, the English law has been almost universally adopted—the exceptions being found in those cases where a conflict exists between the peculiar institutions of the two countries. Dur. ing the colonial relation, the parliament of England, as of
*Lord Mansfield was even then, at the head of the King's Bench, introducing those innovations, *** which, by his own account
of it, threw Mr. Justice Buller into a perfect ecstacy of wonder at the depth, the comprehensiveness, and the acumen, of that powerful and ruling understanding. South. Rev. No.3, Art. III., by Mr. Legare.
course, had the same sovereignty on both sides of the water. When that relation was dissolved, and the thirteen American States formed together an independent member of the family of nations, English and American law began to diverge. The era of the Revolution is the point of divergence. English statutes, before that period, if they ever were applicable to this country and have not been repealed, are declaratory of the law now. Since then, it has been customary to re-enact here such statutes of the English parliament as seemed deserving of highest favour and calculated to give increased efficacy to the administration of justice. What was common law in England in 1776, is common law in this country now, unless altered by statute. English contemporary reports of adjudged cases, and the writings of their sages in ihe profession, are consulted among us with as much zest as ever, and admitted to as high favour in our courts. With all the enmity we encourage against England, -all the ri. valry that exists between the nationsthere has yet been exhibited, on our part, no indisposition to admire her, in those points where she is truly admirable, -we admire and imitate.
Under a constitution such as ours, where each State is a sovereignty, and taken together, all the States, for certain purposes only, constitute a unit, conflicting jurisprudence would naturally be expected ; but the common origin of the States, and the extent to which they all draw upon a common source, will always prevent the angle of divergence from becoming very great, ---the single State of Louisiana forming an exception, where the roots of the civil law have struck down so deeply, and have taken so firm a hold, that the growth of the common law has been retarded. When all the States are acting together as a unit, they acknowledge a body of law bearing with equal force upon all, and administered in courts of a peculiar nature. These courts, whether district, circuit or supreme, have jurisdiction co-extensive with the whole country.
Having now dwelt so long upon law, which may not have sufficient interest to keep alive attention, it is time to turn to that class of men who have, in all ages, presided over its administration, who have been its repositories, its priests, its oracles—lawyers. If there he a science of law, and if it have its deep and profound learning, to expect a general ununderstanding of it would be an absurdity. To be sure,
there is something paradoxical in the idea of men being governed by ordinances with which they have no acquaintance, and yet, how is it possible that they can have such an acquaintance without devoting much of their lives to its study. For this, how few have the time, if they have the capacity. In view of the law maxim, ignorantia legis excusat meminem, taken abstractly, does not Calligulas custom of writing decrees, in the smallest possible character, and posting them up in the highest places, lose much of its absurdity? Men, whose researches have never extended into this field, think it remarkable that so many difficulties should exist, so much complexness, so much doubt, and so vast an accumulation of learning, when the principles of justice are so few and obvious. They think that, between man and man, the duties and obligations are of so limited a nature and so easily understood, that all the rules required to govern them might be comprised in the shortest space. These opinions are common, and it is equally common for those ever ready to carp at lawyers, to charge upon them all ths difficulties in law. For ourselves, whilst we admit that simplicity and conciseness are much to be desired, that they conduce to the perfection of the system, and that the bold hand of the reformer, might often be judiciously extended, we cannot, after looking at society as it is organized at the present day, after regarding its minute divisions, and contemplating the extensive, varied and conflicting interests that rise up and place themselves under its protection, suppose for an instant that any thing but a vast accumulation of law will result with the profoundest learning. In a simple state of society, a few general rules may suffice, but, as the state grows, a body of jurisprudence will grow up with it in the same proportion. The number of independent adjudicated points in the English law, have been estimated at over one million, the development of which must occupy no inconsiderable libraries. It is easier to propose than to carry out reforms, and when any very extraordinary simplification has been aimed at the effect has generally been a failure. The rules of law as now established, have been established for their wisdom, and although that wisdom may not be discovered always at a glance, or even upon study, it has been frequently manifest when there has been any innovation. It is seriously questioned, by Chancellor Kent, whether any thing ha been gained by the New-York Revised Statutes, which promised
so much in the inroads they made upon the cumbrous forms of the Common Law, and we have heard that a distinguished statesman of our own State, having effected something of a similar nature in the Legislature, remarked afterwards, that if God would forgive him for this offence he would never be guilty of it again.
The profession of the law owes its origin and its importance to these facts. But a very small portion of society could be expected to interest themselves very much in the study and understanding of the laws by which they are governed. There must be a powerful motive to urge men upon this study, the interest which they have in it, from being subject to its control, has never been found sufficiently strong. We note it every day, in the little knowledge of law that exists out of the profession, in the offences ignorantly committed, -in the mistakes made by hoary locks in what legal men would term the plainest matters of law. Ambition and emolument are the only moving impulses, and, under their influence, the highest achievements will be made. Open the wealth, honors and distinctions of the State before any set of men, and you will have no want of candidates for favor. True, motives of this kind are not the most elevated, but they exist. The honors and dignities held out to the legal profession, in particular, grows out of the absolute necessity for such a profession, and the important part that it plays in conducting the whole operations of society. Hence we find the highest and most honorable mention made of it in every age, -we find public counsels filled from its members, and skill acquired in interpreting, ably exercised in enacting law. The bar has been the road to the bench, and the to a wide and commanding influence. If we speak of the necessity for such a profession, the reasons are various. In the management of all the important points connected with an intricate case much theoretical and practical skill are necessary, which would be vainly looked for in the parties interested. The rights of the question are often involved in so much obscurity, and the conflicting evidences are sometimes so great, that the highest powers of mind, combined with patience, industry and unremitting application are required to sift out truth from the heterogeneous mass and hold it up in its naked simplicity. True it is, that the community has not always professed to see so clearly as it ought the need of an enlightened, elevated profession, to whom the