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of the division of courts of justice into distinct departments of law and equitymall these subjects are investigated, not only by learned and ingenious individuals in private stations, but by those who have power to enforce their conclusions with the authority of the state. On the continent of Europe, these discussions have been continued ever since the establishment of the codes of Napoleon. It is a great mistake, to consider those codes as the first attempt in modern times to establish a complete system of written law. Long before the name of that extraordinary man was heard of, the customary law of the different provinces of France had been reduced to a written text; and the beautiful ordinances of Chancellor D'Aguesseau had nearly completed a system of statutory legislation, which served as materials for the new civil code of France. More deliberate examination has again detected numerous imperfections in this code. But, with all its errors, it is still retained as the law, not only of France, but of Holland and Italy. In Holland it is about to undergo a revision and modification. In some of the cantons of Switzerland, it has already passed through that process. Throughout Germany, the most ani. mated discussions, on subjects connected with the science of legislation, are going on. The history of the Roman law is diligently studied, and its principles are not only taught, as formerly, in the learned universities of that intellectual country, but are widely diffused in periodical journals, which keep alive a taste for this branch of study.
As respects the controversy about common and written law, it appears to us, that it is neither necessary nor desirable to abolish the common law upon the establishment of a code. The common law, or some other supplementary rule, must always exist as a system of jurisprudence, after the most successful attempt to establish a complete digest of statute law. In those countries of Europe where written codes have been long established, the Roman law still retains its authority; as a system of jurisprudence, as a supplementary rule to be resorted to, both for the interpretation of the code, and to supply its defects. In this view, it is expressively called by the French lawyers, raison écrite. The same office must probably always be performed by the common law of England, in those countries which have been governed by that law, even after the establishment of civil and criminal codes. Nor does this concession diminish the weight of the arguments in favour of such codes. No man will urge it as a reason against the establishment of written constitutions of government, that both in our national and our state constitutions we are obliged frequently to resort to the common law, not only to ascertain the import
of terms used in them, but to interpret their text, and to supply its unavoidable defects and omissions. This will much less frequently happen in a code of private jurisprudence ; which must, necessarily, be very diffuse, and comprehend many of those minute details which are omitted in drawing up a constitution of government. But still, we think, the necessity of occasionally resorting to this system of raison écrite cannot be entirely avoided.
To return from this digression. The bankrupt law of England, the first foundations of which were laid as early as the reign of Henry VIII. and of Elizabeth, had grown up, by the gradual accumulation of subsequent statutes amending these, and by a long series of judicial interpretations engrafted upon the original text, to become one of the most complex titles of English jurisprudence. Indeed, the study of this head of the law formed almost a distinct department of the profession. The determination of cases in bankruptcy, even with the assistance of the commissioners, formed one of the most laborious portions of the Lord Chancellor's duties. Voluminous treatises had been written upon it. But all these efforts of the legislature, of the eminent men who have held the great seal, and of the learned individuals who have practised in bankruptcy and written upon the subject, have only served to swell this indigested mass of materials to a monstrous pile, in the labyrinth of which there was no clue to guide the wanderer. In this state of things, the subject was taken up by parliament at its last session ; several of the old statutes were repealed, many of their provisions consolidated, some of the judicial interpretations of their original text incorporated into the law, and the whole digested into one act. Here then we have an example, in one very important, overgrown, and complicated title of the law, of the practicability of what has been gravely pronounced by some very wise persons, impossible. That it is not a perfect system, or a perfect digest of an imperfect system, may be readily admitted. The first may be hereafter shown by further experience, and the last Mr. Uniacke has shown in the little work before us. But that it is the combined result of the commercial and legal experience of England for the last three hundred years, and a convenient consolidation of all the provisions on the subject, which that long experience has determined it wise to retain, into one statute, of no very great length, a bare inspection of the law will render quite manifest. But this is not all. This bankrupt code was framed, not by Jeremy Bentham—not by any private speculative philosopher, or by any public assembly of levellers, aiming at a radical reform of existing institutions it was framed by the imperial parliament of Great Britain-by
king, lords, and commons : - and the most remarkable circumstance about this remarkable law, and which characterizes it as forming an æra in British legislation, is the preamble which is prefixed to it: “Whereas it is expedient to amend the laws relating to bankrupts, AND TO SIMPLIFY THE LANGUAGE THEREOF, AND TO CONSOLIDATE THE SAME, SO AMENDED AND SIMPLIFIED, IN ONE ACT, and to make other provisions respecting bankrupts, be it enacted,” &c. It then goes on, and in one fell swoop, repeals no less than twenty-one acts of parliaments, beginning with the venerable statute of the 34 and 35 of King Henry VIII. c. 4, and ending with the statute of the 5th of his present majesty, c. 98. sparing neither old age nor youth-neither the wisdom of the Eighth Harry nor that of the Fourth George. It then proceeds, with what must appear to some a merciless hand, (but to us it seems too sparing,) to lop off the useless verbosity, and dark and antiquated phraseology, of the enactments it thinks fit to retain; and to supply the place of those it entirely extirpates, by new and more wholesome provisions, reducing the whole into something like order and symmetry:
Notwithstanding these improvements in the phraseology of the new act, (which was passed on the 20 May, and went into operation on the 2d of September last,) Mr. Uniacke thinks it is susceptible of still further improvement both in style and arrangement, and for that purpose has translated the act, (as he ex, presses it,) so as to render its language more plain and intelligible, and reduce its size at least one third. This translation was published some time since by Mr. Lang, in the New-York Gazetle, and therefore we shall not trouble our readers with an analysis of it, which we had intended to prepare and lay before them.
We may be allowed, however, to express our wish, that as the subject of a bankrupt code seems to be taken up in earnest by congress, due attention may be paid to the revision of the phraseology of the bills which have been heretofore presented on the subject, and that we may avail ourselves of the substantive alterations which have been made in the English bankrupt laws by this new statute, so far as they shall appear to be adapted to our peculiar circumstances. It seems indeed extraordinary that one of the most important powers with which congress is invested by the national constitution, should have remained so long unexecuted. We can hardly conceive it possible that a great commercial country can long exist, in any tolerable order, without a bankrupt code. That this should be uniform throughout the nation, in a country divided into so many jurisdictions as this is, seems to be self-evident. It is true, that the English bankrupt laws do not extend to Scotland and
Ireland, or to the British colonies; but we are to remember, that they extend to all persons resident in England, whether natives or aliens; and that by far the greater part of the commerce of the British empire centres, and is carried on, in England, where its active agents reside, and are liable to be affected by the bankrupt laws. But in this country, divided, as it is, into twenty-four different jurisdictions, each having its peculiar system for the collection of debts and the relief of insolvent debtors, great confusion and inconvenience has already arisen, and must at last become inextricable, without the establishment of uniform laws on this interesting subject. The commercial credit of the country, both at home and abroad, is injured by it to a degree which it is impossible to estimate. We are very sensible of the difficulties of adjusting a system of bankrupt laws to the various wants, and habits, and local institutions of our wide spread empire; but we do not believe that these difficulties are insuperable. Any uniform system, however imperfect, would be preferable to the present chaos of state regulation--of insolvent laws, and attachment laws, and execution laws, constantly fluctuating with the changing policy of the different states, operating in the most unjust and partial manner upon foreign creditors, and confining the unfortunate debtor to the limits of the local jurisdiction within which he has obtained his discharge. We are, however, satisfied, that the American legal mind, availing itself of the lights of experience in other countries, is competent to frame a bankrupt code, which shall be superior to any other that has yet been devised, both in simplicity and efficacy. If there be any doubt of the practicability of this, it must arise, not from the want of skill in our legislators, but from the state of morals and of manners which has grown up under the present lax and confused system, and which will not endure those decisive remedies which alone can be efficacious. They will at least have the consolation of Solon, if they cannot give their countrymen the best possible laws, they will give them the best which they are capable of receiving.
ART. XII.—The Atlantic Souvenir ; a Christmas and New-Year's Offering. 1826. Philadelphia. H. C. Carey & I. Lea.
When this journal was first started, under a different title, strong doubts were entertained, by many judicious and reflecting individuals, as to the meaning of its name; and perhaps, if its godfathers had been perfectly ingenuous, they would have found it no easy matter to have satisfied the laudable curiosity and rational septicism of those who quarrelled with the mysterious appellation. If there be any who yet feel uneasy about this matter, we have now an opportunity of referring them for information to those who stood sponsors for the beautiful work before us, to the title of which, for obvious reasons, we make no objections; although
we fear it may affect dangerously some weak nerves, and sound to their nice ears like the “Herculean Balsam,” whilome advertised as a grand specific in this city.
However this may be, we have reason to be proud of this little volume, both for inatter and manner, as a specimen of American manufacture, and as it will bear comparison, without prejudice, with any of the similar publications of the English press. For the elegance and beauty of its typographical execution, we have not seen its rival in any book printed in this country.
It has been supplied with its literary materials entirely by native writers; and at least half its contents is from the pens of authors in this city. “The Eve of St. John," " A Tale of Mystery," and the “ Spanish Gir) of the Cordilleras," from the same prolific pen, will be read with universal pleasure; and although the author's reputation has been long established, we know not but it may be even enhanced by the perusal of these stories, in the opinions of those who have often smiled with him in the sallies of his native humour, or who have confessed the strength of his caustic taJent, when he has employed the power of his satire against the libellers of our country. The first of these tales, (and, in our opinion, the best, both for plot and execution,) is the narration of the persecution and murder of a young Greek girl and her lover, by a Turkish tyrant. Whether it be founded on any particular facts we know not; but too many similar recorded instances of remorseless and abominable oppression in the annals of Mahometan sway, give to this well told fiction the pathos and the eloquence of truth. The “Tale of Mystery," which we have also relished exceedingly, is an account of the melancholy and gentlemanlike deportment and demise of one Mr. Jacob Stump, who died, as his fathers before him had done, “ without a disease." Whether the cause of this premature dissolution of Jacob and his ancestors, is intendo ed to be discoverable in the necessity of their wearing, for constant penance and mortification, their unfortunate surname, or to whatever source this family disease might be traced, we think the parents of the hero showed great good sense and taste, in not tacking to his inevitable cognomen any preposterous heathen appellation. They found him a Stump; and they christened him plain Jacob. Had they made him carry on the back of his familiar title, the tremendous heroic weight of Artaxerxes, or Agamemnon, he would surely have sunk into an earlier, a more untimely grave. The scene of this story is at home, and the fidelity of its descriptive parts will be at once recognised by all who have travelled in steam-boats, or made the fashionable summer excursion. Were we, at this season of festivity, in a cynic vein, we should object to the “ Spanish Girl of the Cordilleras,” on account of the poverty of its plot. The story, however, such as it is, is told pleasantly and gracefully.
“ The Catholic Iroquois,” by the author of Redwood, relates the martyrdom of an Indian girl, who, after having been educated in the Christian faith, and married to a young Frenchman, is carried away by her savage father and his tribe, after the destruction of her husband, and the settlement in which they dwelt, and devoted to the funeral pyre, on her refusal to embrace the faith of her kindred, and a husband from among their people. We have rarely met with a more deeply interesting and pathetic narrative, of equal length, tha this. The writer has evinced all her usual ability in the introduction, in which the legend is naturally and happily introduced; in the local descriptions of scenery; in portraying the prominent characters, and in the management of the inci. dents.