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OF A COURSE OF LEGAL STUDY RESPECTFULLY ADDRESSED TO THE STUDENTS OF LAW IN THE UNITED STATES, BY DAVID HOFFMAN, PROFESSOR OF LAW IN THE UNIVERSITY OF MARYLAND.
(First published in the North American Review, 1817.)
The great progress, which has been made in mathematical and physical science during the last two centuries, has attracted the attention, not only of philosophers, but of men of business. So intimately, indeed, has this progress connected itself with the immediate wants and comforts of mankind, that it can scarcely escape the inost careless observer. But the progress of moral, political, and juridical science during the same period, though less perceptible to the common eye, is not less wonderful ; and has, quite as much, contributed to the improvement of the human race, and to the development and security of their most important rights and interests. Few persons, indeed, are sufficiently aware, how forcible, though silent, is the operation of laws upon our manners, habits, and feelings ; and how much of our happiness depends upon a uniform and enlightened administration of public justice. Whatever of rational liberty, and security to private rights and property, is now enjoyed in England, and in the United States, may,
in a great degree, be traced to the principles of the common law, as it has been moulded and fashioned, from age to age, by wise and learned judges. Not that the common law, in its origin, or early stages, was peculiarly fitted for these purposes; for the feudal system, with which it originated, or, at least, became early incorporated, was a system, in many respects, the very reverse ; but that it had the advantage of expanding with the improvements of the age, and of continually enlarging itself by an adoption of
those maxims of civil right, which, by their intrinsic justice and propriety, commend themselves to the bosoms of all men. The narrow maxims of one age have not been permitted to present insurmountable obstacles to the improvements of another; but they have become gradually obsolete, or confined to a very insignificant range.
If it were not beside our present purpose, we might illustrate these remarks, by calling the attention of our readers to the fact, that, since the reign of queen Elizabeth, nearly the whole system of equity has been created ; and that the commercial contracts, which form so great a portion of the business of our courts, were, before that period, either wholly unknown, or, at the most, but very imperfectly understood. In respect to insurance, we may almost say, that the law has grown up within the latter half of the eighteenth century. Previously to the time of Lord Mansfield, there are but few cases in the reports, which are entitled to much respect, either for their sound interpretation of principles, or general applicability. It is to bis genius, liberality, learning, and thorough understanding of the maritime jurists of the continent, of Cleirac, and Roccus, and Straccha, and Santerna, and Loccenius, and Caseregis, and Valin, and to his ardent attachment to the equitable doctrines of the civil law, that we are chiefly indebted for that beautiful and rational system, which now adorns this branch of the common law. The doctrine of bailments too, (which lies at the foundation of the law of shipments,) was almost struck out at a single heat by Lord Holt,* who had the good sense to incorporate into the English code that system, which the text and the commentaries of the civil law had already built up on the continent of Europe. What remained, to give persect symmetry and connexion to all the parts of that system, and to refer it to its principles, has been accomplished, in our times, by the incomparable Essay of Sir William Jones, a man, of whom it is difficult to say, which is most worthy of admiration, the splendor of his genius, the rareness and extent of his acquirements, or the upspotted purity of his life. Had he never written any thing but his Essay on Bailments, he would have left a name, unrivalled in the common law, for philosophical accuracy, elegant learning, and finished analysis. Even cold and cautious, as is the habit, if not the structure, of a professional mind, it is impossible to suppress enthusiasm, when we contemplate such a man.
* The case of Coggs v. Bernard. 2 Ld. Raym. R. 909.
We recall ourselves to the more immediate topics, on which we have already touched. Of the law of bills of exchange and promissory notes, how little can be gleaned from works before the reign of William and Mary! And how many of its most useful principles are younger than the days (as Swift calls her) of good queen Anne ! In the reign of George III., more has been done to give a scientific cast to these doctrines, than in all the preceding ages. And here, again, we may remark, how much has been gained by the accessions and alluvions of the civil law. It is impossible to read the older decisions, without reviving the memory of Marius and Casaregis; or the later, without perceiving their general coïncidence with the summary, but profound treatise of Pothier. If we pass to the other branches of commercial law, we shall find the improvements not less striking, nor less important. Molloy and Malynes, feeble and inaccurate as their treatises are now confessed to be, were, until comparatively a recent period, the principal, though erring guides of the profession, in questions respecting the rights and duties of owners, masters, and mariners, of shippers and freighters, of average, salvage, and contribution. In what part of either of these writers, or of any contemporary, or more ancient reporters, shall we find the doctrines relative to the earning and loss of freight and wages, or relative to charter parties, bills of lading, stoppage in transitu, and liens, so familiar to the modern merchant and lawyer, traced out with the important practical distinctions belonging to them? What was then despatched in a few pages, would now require a large volume. Much might, even at that period, have been acquired by a diligent study of the maritime jurists of the continent; but they were either unknown, or, with one or two exceptions, passed over in silent neglect. The truth is, that maritime law had then but little attracted the attention of the courts of common law; and the only court, in which the subject was much considered, (we mean the Admiralty,) labored under the severe hostility of these courts, and had to maintain an arduous struggle even for existence. Under such circumstances, its judgments and opinions carried little weight in Westminster Hall; for few were willing to listen to principles, which had no authority beyond the narrow walks of Doctors Commons.
If we except the aid borrowed from the civilians of the continent, the masterly treatise of Mr. Abbott on the law of shipping is principally founded on the adjudications since the elevation of Lord Mansfield to the bench; and in these adjudica