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doing what they are designed for. If it be said that they may give too partial an impression, we think there is little danger that men will receive too partial impressions in general either of the living or the dead. We know of no faults in Mr Haven's character that deserve to be remembered; and great injustice would have been done if any were published with affected candor, to impair the brightness of his example. We do not say this in reference to the “Memoir' before us; it is such a portrait as his friends delight to recognise, such as all wish to resemble, and yet such as his worst enemy could not help allowing to be just.

The volume contains two orations, one delivered at the Centennial celebration in New Hampshire, the other before the Phi Beta Kappa Society of Dartmouth College. We well remember the pleasure given by the former to a large and intellectual audience; and this suggests to us that almost every part of this book will be read at the greatest disadvantage, because almost all the essays were occasional and the interest of the times has passed away. The situation and the opinions of the world are so changed in ten years, that now a child knows what it then required a powerful mind to discover through the confusion of that day. Keeping this in view, we shall know how to value his estimate of Napoleon's character, and the sketch of Cromwell, another remarkable man, whose bistorical character perhaps cannot yet be painted by an impartial hand. The extracts from the · Portsmouth Journal' on the . Balance of Trade,' and similar subjects, are well known to many of our readers; we will therefore give a specimen of his Christian philosophical reflection.

• There is in the history of Jesus Christ something peculiarly captivating to the minds of children. He is presented to them in a form which they can apprehend. He is not, like the Supreme Being, something vast and incomprehensible, filling all space and supporting all existence, without being seen or heard or understood. When they are instructed in the being and attributes of God, they can bring to their imagination no visible point in which they can centre the rays of his glory. The mind is overwhelmed and lost, when it attempts to grasp what is infinite and eternal. But Jesus Christ appeared on earth as one of our own race.

He partook of our nature, and when we think of him, we can bring to our minds his person, his deportment, his words, and all the circumstances of his life. This is peculiarly valuable in the instruction of children. Jesus Christ, while on earth, passed through all the stages of human existence from infancy to manhood. He can therefore, command our sympathies in every period of our own lives. There is scarcely a social or relative duty, scarcely an act or suffering in the countless variety of human scenes, in which we cannot derive instruction and support from his example. The history of Jesus Christ should therefore be engraven on the minds of children ; they should be made acquainted with its minutest details. No opportunity should be lost of associating it with something that they already know or feel. The chords of religious emotion should be so multiplied, that, strike where you will in after life, some string shall be touched that shall vibrate to him.' pp. 202–203.

The specimens of Mr Haven's poetry deserve notice, not so much on account of its originality, as the beautiful tone of its feeling. The world, just come to a sense of its own importance, is too busy to attend to poetry, and there are certainly things more important; but the sweet and thoughtful views of nature, the lonely musings of a poetical imagination, are required to relieve this perpetual and often needless bustle ; and a cultivated mind will neither despise, nor be wholly without them. The lines on Autumn, are the most poetical.

• I love the dews of night,

I love the howling wind,
I love to hear the tempest sweep
O'er the billows of the deep!
For nature's saddest scenes delight

The melancholy mind.
Autumn ! I love thy bower

With faded garlands drest;
How sweet, alone to linger there
When tempests ride the midnight air,
To snatch from mirth a fleeting hour,

The sabbath of the breast.
Autumn! I love thee well;

Though bleak thy breezes blow.
I love to see the vapors rise,
And clouds roll wildly round the skies,
Where from the plain the mountains swell

And foaming torrents flow.
Autumn! thy fading flowers

Droop but to bloom again;
So man, though doomed to grief awhile,
To hang on fortune's fickle smile,
Shall glow in heaven with nobler powers,

Nor sigh for peace in vain.' p. 257.

Art. IX.-Reports of Cases Argued and Determined in the

Circuit Court of the United States, for the Second Circuit,
comprising the Districts of New-York, Connecticut, and
Vermont. By Elijah PAINE, Jun., Counsellor at Law.
Vol. I. 8vo. pp. 718. New York, 1827.

In the course of the following article we intend to speak at some length on the importance of promptly reporting adjudicated cases, particularly those settled in the United States courts ; of the nature and necessity of the common law, and the only sure means of improving it ; of the impossibility of codifying it completely in any of our free legislative assemblies, and the utter inutility of such a measure, even were it easily practicable. At the close of the piece we shall make a few remarks on the volume before us, and on the character of the eminent judges, whose adjudications compose it. We have chosen to lay out our ground thus distinctly before our readers, in order that they may know perfectly well what to depend upon, before they begin. To many of them, no doubt far the greater portion of our theme will be uninteresting, although we ourselves think it of the highest importance. Hitherto we have thought it so much so, that in order to give free play to an inquiry into the merits of the common law, we have admitted into our journal articles upon the subject from the opposite parties in the controversy, and therefore, as it would at first sight appear, wholly irreconcilable with each other. It is of great consequence, we say, that the leading questions in this dispute should by this time be definitively settled. If the common law be of the vicious character, of which some have represented it to be, it should as soon as possible be removed, closely interwoven as it is, with all our political institutions. If, on the contrary, it be an excellent system in itself and admirably suited to our growing wants and changing circumstances, we ought to feel assured of it, that we may live contented under its administration, and do all in our power to give it security and improvement. This is the state of the case, as it appears to us at present. Measures are proposed for the removal of an evil, which does not exist ; if it do exist, it is unavoidable ; if it be not unavoidable, still the measures proposed never will remove it ; and even if they could remove it, when promptly and efficiently carried into execution, in this country at least we venture to say they are wholly impracticable.

Since we last published an article upon this subject, we have the opinion of one of those venerable sages of the profession, who, uniting the noblest talents and the most extensive learning, with the greatest experience, both at the bar and upon the bench of one of the highest courts of judicature in our country, cannot be regarded with too much respect. We should be almost willing to cite such an one, as conclusive authority upon a question, which he is so perfectly competent to settle. Our readers understand us, of course, as alluding to the profound and eloquent Commentator on American Law. We will lay his opinion before them.

'In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics, and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty.'—Kent's Commentaries, vol. I. pp. 321, 322.

A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the common law of England is “not the product of the wisdom of some one man, or society of men, in any one age ; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men. And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay.' - Ibid. pp. 439, 440.

In all ages and nations there must be common law, or leges non scripta. And in exact proportion, too, as those are advanced in civilization and refinement, do these become numerous, extensive, and intricate. It was so among the Greeks. It was so also among the Romans. * We know how it is in Eng

*•Constat autem jus nostrum, quo utimur, aut scripto, aut sine scripto; ut apud Græcos, tão vólewe os pèy fyygapoi, oi dè cogapos. Inst. lib. 1, tit. 2, § 3. •Sine scripto jus venit, quod usus approbavit ; nam diuturni mores, consensu utentium comprobati, legem imitantur. Ibid. § 9. Et non ineleganter in duas species jus civile distributum esse videtur.' Ibid. § 10. Aristotle also makes precisely the same distinction. Rhet. lib. 1, cap. 10. Rhet. ad Alex. cap. 1.


land. It is more or less so in fact, all over the civilized world. It is the case even in France, and is rapidly becoming more so, as we understand, and as every rational man might have fairly expected, under the admirably digested code of Napoleon.* It is so, in short, from the uncompromising nature of things. It lies not in human foresight to anticipate even the various classes of cases that may arise. What legislature, for example, could have previously provided for the great questions that have presented themselves under policies of insurance, or bills of exchange, or promissory notes, or the admissibility of evidence, or the taking of testimony, or in short under any branch or department of law ? for to attempt to enumerate them is to limit ourselves, and to confess that they may be enumerated, when they are in fact innumerable. New and unimagined cases will for ever come up, for which no legislative provision could have been made. What then is to be done ? There cannot be a great and grievous wrong, without a violation of law. The questions therefore cannot be laid aside ; and by what laws must they be settled ? By the leges non scripta, by analogies drawn from previously adjudicated cases, by well established usages and customs, existing among intelligent and experienced people, and arising from, and therefore adapted to their wants, and to circumstances in which they have been placed, and finally ratified by the sanction of the courts of judicature. It is this in fact which forms the first and perhaps the only true foundation of the common law. And without the liberty of judicially resorting to it, we should be in a state infinitely worse than despotism ; a state where there are innumerable and continually multiplying violations of right, for which, however, there can be neither redress nor remedy.

We may hold it therefore for an incontrovertible truth, that there must be a common or unwritten law in every civilized state. If it be an evil, it is a necessary evil. No human ingenuity can prevent it. The only question then remaining is, how we can ensure to it correct principles, and give it all the accuracy of which it is susceptible. And we shall give our reasons, in the course of this article, for believing that this can * Still this code, with all its excellencies, has many

defects. It provides no legal remedies. It says nothing of the various forms of action ; of pleas or pleadings ; of the law of evidence, or of the testimony of witnesses, &c. And it is from some of these sources, that the greatest embarrassments have arisen in settling our common law, VOL. XXVII.--NO. 60.


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