in the country upon a question on poli- terial, and I suppose that you have tical philosophy, I was anxious to learn done the same. The decision of the whether your reasons for entertaining question must depend upon the comopinions alluded to were peculiar to the parative value of our argument, in reyourself, or were the same with those gard to which other persons are, of of the British disciples of the school course, better judges than I am. I of Malthus; and it was for the have never considered the corresponpurpose of informing myself upon this dence as confidential, and am quite point that I took the liberty of writing willing that you should, as you appear to you. Your first letter gave me the inclined to do, take the opinion of your information that I sought; and I should friends, or the public. upon it in any way not have troubled you with any com- that you may deem expedient. My ments upon the points on which we dif- friend, Mr. O'Sullivan, to whom I have fer, had you not particularly requested communicated a part of the corresponme to do so. dence, expressed a wish to publish_it, when complete, in the Democratic Review. I shall send him a copy for this purpose by the same conveyance that takes this letter. Agreeing with me in the opinion that the progress of population is naturally attended with a positive increase in the productiveness of both manufacturing and agricultural labor, you apprehend a decline in the rate of wages from the effect of a deficiency in the supply of food, which you suppose to be another result of the same cause. A deficiency of this kind in the supply of food or any other article, of course corrects itself, so far as this can be done by the regular operation of the laws of trade; and there is no apparent reason why provisions, if deficient, may not be introduced by sea or land, to any extent, at any point where they are wanted, excepting the cost of the operation, or a deficiency in the supply abroad. The question, how far, if at all, these causes would prevent in this case the regular course of the laws of trade, is accordingly the point upon which the discussion between us has mainly turned, and which I have supposed to be the only material one. You have stated your reasons for believing that the cost of transporting provisions from a distance is too great to permit the existence of the trade to any considerable extent, and also that the supply from abroad must always, from the nature of the case, be much too limited to cover the supposed deficiency. I have endeavored to show that in the case of a deficiency of provisions of native origin, resulting from the progress of population, the trade in the foreign article must necessarily be profitable to any extent to which a supply may be wanted, and that there is no necessary limit to the amount of this supply short of the exhaustion of the whole productive power of the globe. I stated briefly but distinctly upon these points all that I think ma You remark that I shall have an opportunity, in China, of testing the correctness of the principles that I have stated in these letters, and appear to suppose that the experience of that country rather tends to disprove them. Without anticipating what may be the result of my own observations, which I shall be most happy, as you suggest, to communicate to you, I will add here a few hints from a writer, whose work I happen to be now reading for a different purpose, and who considers China as affording the strongest example of the beneficial effect of the progress of population upon the welfare of nations. The book is a recent publication, entitled "The Chinese as they are," by Mr. Tradescent Lay, a British missionary, and apparently a judicious and careful observer. "The prosperity of the Chinese tempts one to frame a system of political economy which lays population as the foundation whereon everything in the way of social comfort or personal affluence is reared. The wealth of the community grows out of men, and not out of the soil, excepting in a secondary and subordinate sense. I look upon man as the great capital of a nation-a view which is based upon what I see in China, where a swarming people are encircled by a swarm of comforts. In no country do the inhabitants crowd every habitable spot as in China; and in no country do the poor people abound with so many of the elegancies and luxuries of life. In China the shops overflow with everything that can attract the eye or provoke the appetiteall under the more effectual lure of a low price. A native is thus stirred up to industrious habits, not by the iron hand of compulsion, but by the charming hopes of enjoyment. The worth of his money engenders frugality, and thus adds a sister grace to industry. The ease with which a family may be maintained, nerves him to indulge the love of matrimony, and he lays by something to purchase a house, with a beautiful wife to adorn it. Early marriage encourages fertility, and augments the population already vast, and consequently the means of living, which bear a ratio to the population. Thus we are carried round in a circle, and brought back to man, with the benediction-In. crease and multiply and replenish the earth,' as the corner stone of national prosperity. "In China the natives throng all those parts which are susceptible of tillage, till there is not room enough to hold them, and we find at the same time a supply of comforts for the poor such as no other country can parallel. It is a favorite theorem with some, that while the poulation goes on increasing in geometrical progression, the products of the soil, or rather the means of subsistence increase only in the arithmetical. In China the luxuries of life have also increased in the same geometrical ratio; and in other parts of the world they will be found to have followed the same law, when proper allowance is made for circumstances. When the corn-laws and other enactments that have sprung out of the same stingy, short-sghted policy shall have been repealed, and foreigners shall be allowed to sell us their produce freely, the welfare of our poor will increase with their num bers. They owe their present unfortu nate predicament to legislation; and they will commence a new era in their happiness, when the unstatesmanlike practice of taking from one part of the community and given to another shall have been forgotten." We are now twelve days out, and have had thus far a most prosperous Voyage, not having yet experienced a single day of bad weather, calm or head wind. We already feel the first breathings of the north-easterly trade winds, upon which we calculate to waft us to the vicinity of the line. Our ship sails magnificently, though not permitted to develope her full capacity by the slower movement of her consort, the Vincennes. I often think how the noble old discoverer would have exulted to have had the command of such a squadron for his great expedition. Our first port will be Rio, whence I expect to despatch this letter. With many thanks for your kind wishes, and in the hopes of hearing from you while abroad, I remain, dear sir, very truly and respectfully your friend, Hon, Geo. Tucker. A. H. EVERett. SONNET (From the Italian.) In a fair garden grew a purple rose, But envious thorns are hid beneath its leaves: As oe'r it with a trustful joy she bends, A sudden wound her ardent grasp deceives. Life's richest music discords will reveal, COMPENDIUM OF MODERN CIVIL LAW. BY FERDINAND MACKELDEY, PROFESSOR OF LAW IN THE UNIVERSITY OF BONN. Edited by Philip Ignatius Kauffmann, Ph. D. in the University of Freiberg. [From the 12th German edition, in two volumes. Vol. 1, 8vo., pp. 400 $6 50. New York, 1845: Published by the Editor, and sold by all the principal Law Booksellers of America and Great Britain.] Ir is agreeable to notice the increased attention paid of late years, both in this country and England, to the study of the Civil Law. The works of the lamented Story, and of Professor Greenleaf, have been of great service in directing the legal mind to the great masters of the Eldest System of Jurisprudence, and our own Kent bears his testimony strongly to the value of this branch of juridical study. "Upon subjects relating to private rights, and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice. I prefer the regulations of the common law, upon the subject of the paternal and conjugal relations, but there are many subjects in which the civil law greatly excels. The rights and duties of tutors and guardians are regulated by just and wise principles. The rights of absolute and usufuctuary property, and the various ways by which property may be acquired, enlarged, transferred and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Roman Law, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So, the rights and duties flowing from personal contracts, express and implied, and under the infinite variety of shapes which they assume, in the business and commerce of life, are defined and illustrated with a clearness and brevity without example. In all these respects, and many others, which the limits of the present discussion will not permit me to examine, the civil law shows the proofs of the highest culti vation and refinement; and no one who pursues it can well avoid the conviction, that it has been the fruitful source of those which have been applied to elevate and comprehensive views and principles, adorn the jurisprudence of modern nations."*-Commentaries, Vol. 1, 5th Edition, p. 547. If English authority be desired as to the importance of the Civil Law, what says Lord Bacon? He declares, Pref. to Elements of the Common Laws of England-"the Justinian Code to be a work of great excellency, indeed, as may well appear in that France, Italy and Spain (and he might have added Germany), which have long since shaken off the yoke of the Roman Empire, do yet, nevertheless, continue to use the policy of that law." Lord Brougham has borne his testimony to the Civil Law-see his Memoir of Lord Mansfield-"as the most perfect structure that ever was formed of rules for classifying rights and marshalling the remedies for wrongs." But perhaps neither Bacon nor Brougham were profound common lawyers. What will be said, then, to Lord Holt? In Lane vs. Cotton, 12 Mod., 482, the great case which first determined that postmasters are not liable for the fraud or negligence of their clerks, he said-" Inasmuch as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, therfore founded upon the same in many *We see that this passage is cited by Mr. Warren in the last edition of his valuable work on Law Studies, than which nothing better to excite the mind of the beginner can be placed in his hands. things; though," he adds, in the true spirit of an English lawyer, "I am loth to quote it." And yet, notwithstanding this testimony, and testimony like this to its excellence, which, from the judgments of Lord Hardwick and Lord Mansfield, might be increased to any extent, the following language, used a hundred years ago, is almost as vexatiously true now as it was then : "I was surprised," says Dr. Strahan, to find in a country (England) where all arts and sciences do flourish, and meet with the greatest encouragement, that one of the noblest of the human sciences, which contributes the most to cultivate the mind, and inform the reason of man, as that of the civil law does, should be so much disregarded, and meet with so little encouragement; and I observe, that the little regard which has of late years been shown in this kingdom to the study therof has been in a great measure owing to the want of a due knowledge of it, and to the being altogether acquainted with the beauties and excellencies thereof; which are only known to a few gentlemen who have devoted themselves to that profession; others, who are perfect strangers to that law, being under a false persuasion, that it contains nothing but what is foreign to our laws and customs. Whereas, when they come to know, that the body of the civil law, besides the laws peculiar to the Commonwealth of Rome, which are there collected, contains likewise the general principles of natural reason and equity, which are the fundamental rules of justice in all engagements and transactions between man and man, and which are to be found no where else in such a large extent, as in the body of the civil law, they will soon be sensible of the infinite value of so great a treasure."-Strahan, Preface to Translation of Domat. Indeed it is very remarkable, considering the deep obligations under which the English and Anglo-American jurisprudence is to the Civil Law, that attention has not long since been directed to it in a systematic way. We talk of the ingratitude of republics. It is nothing to the ingratitude of the Common Law. For four hundred years the Common Law has been in a regular course of modification and amelioration; and that process has been mainly effected by grafting on its ancient stock vigorous shoots from the civil system. Alongside of the Courts of Common Law have grown up Courts of Equity, deriving their origin, their proceedure and their principles almost altogether from the great Roman sources; and these Courts of Equity have been mainly occupied with supplying the deficiencies, and controlling the injustice of the Common Law tribunals. During the same period the Legislature has been incessantly occupied in more direct interference to produce the same result-abolishing useless forms, liberalizing technicalities, in a word, directing the courts of So that if now justice to do justice. Brooke, or Fitzherbert, or Glanville, "the great justiciar," or even Lord Coke were "from his cerements to start," he could hardly recognize in the patch-work of Common Law, Equity and Statute Legislation which governs us, any remains of that which two hundred years ago was profanely pronounced the perfection of reason! During all this time the Civil Law has remained essentially unaltered so far as it affects the rights between man and man, and it still stands hoary with age, but unoppressed by years— "Dum prima et recta senectus, Nullo dextram subeunte bacillo;" a wonderful instance of the wisdom and practical sense of its great founders. Every year shakes the authority of Coke and his school; but Ulpian and Tribonian, their elders by a thousand years, still speak in the language of authority to the millions whom they govern. And yet the Common Lawyer suspends the whole civil system naso adunco, and asks the use study. of its It would be a curious thing, by way of experiment, to strike out of existence the modifications introduced into our system by equity and statute, and see where the suitor would be with his boasted Common Law. The debtor, whose debt of a thousand pounds is secured by a bond with a penalty of double the amount, if he is not ready with the money on the day, must on the morrow pay the two thousand pounds, for "a condition once broken is gone for ever." A party who has bound himself in a penalty of a thousand pounds to observe some multifarious agreement, must, if he depart from it in the smallest letter, pay the penalty, for breaches are not assigned, nor damages only when he rises from his genuflecassessed at Common Law. In the real law the perplexity and contradiction between the two systems is perpetual. "A freehold cannot commence in futuro," says Common "Law, because two hundred years ago livery of seisin was necessary." "Oh, but it can," says Equity, "in a will, because we observe the intent." "A fee cannot be mounted on a fee," says Contingent Remainder. "Oh, but it can," retorts Executory Devise. "An estate to A. B. for life, with remainder to his heirs, means," one would say, "that the first taker shall only have a life estate." "Not at all," answers the rule in Shelley's case; "it means he shall have the fee, and cuts off his heirs with a shilling." "A remainder to C. D., on A. B. dying without issue means," say grammar, and language, and common sense, "issue living at the death of A. B." "Not a bit of it," says Common Law: "it means dying without issue at any time-a hundred, a thousand years hence"-and thus though A. B. has actually died without any issue at all, poor C. D.'s estate is void, because it depends on the indefinite failure of issue. These and examples such as these might be multiplied ad infinitum. The truth is, that the whole history of the Common Law, as far as it regards the realty, is that of a struggle between the great landed proprietors and their creditors. Now a statute de donis, to render the possessions inalienable-now a Taltarum's case to make them convertible-Contingent Remainders, pulling one way, and Executory Devices jerking the other, till we are lost in a mighty maze, though it must be conceded not altogether without a plan." Far from us be it to speak lightly of the immense labor, the profound ability that has been exhibited in the Common Law. It is vastly easier to decry than to imitate or to equal it. No one can approach the tribunal of Coke, or peruse the pages of his great disciple Fearne, without prostrating himself in reverence at the shrine of Legal Reason. It is tions that he considers how false is the god whom he has been worshiping, and sadly reflects how little all this labor and thought have done to promote the real interests of mankind, or the sacred cause of justice. Far from us, too, be it to underrate the profound study of the Common Law. No man can be a lawyer who does not trace it from its sources-who does not explore it from its earliest teachers-who does not make himself familiar with its fundamental doctrines but after all this is done, let the aspirant despair of any pretentions to the name of a legal scholar, who has not also made himself familiar with the doctrines of the Civil Law-who has not devoted many an hour to what may be not unaptly termed the comparative anatomy of jurisprudence. But we are wandering from our theme. We have to notice Mr. Kauffman's recent translation of one the great German works on the Civil Law; and it is with no little satisfaction that we have to announce as proceeding from an American press by far the ablest and best exposition of the Civil Law that has yet appeared in the English tongue. Mr. Kauffman has done the profession great service. With the exception of Dr. Browne's very imperfect and superficial work,* we have nothing in the language that gives any tolerable notion of the principles of the Roman Law. This hiatus is now in a fair way of being filled up. Mackeldey is the Blackstone of the Civil Law. The work is one of standard reputation on the Continent. It went through ten editions in the author's life (terminated in 1834, at his fiftieth year), and has been twice re-published since. It has been translated into Greek, Russian, Spanish and French; and we have before us the second edition, in the latter language, published at Brussels, in 1841. Mr. Kauffman's edition is greatly superior to the French translation. The citations from the Panducts he has very * Many a student has used this work with pleasure and profit; but when it is recollected that all the materials are taken from Domat, Ayliffe, Gibbon (at whom, by the way, he indulges, in his preface, in an unpardonable sneer), Taylor and Aeineccius, and that the whole German school has come into existence since its publication, the terms imperfect and superficial will not appear too strong. |