Principal cases in 1 Younge & Collyer, Part 1; 6 Simons, Part 1; and such cases in 2 Clarke & Finelly, Part 2; Principal cases in 2 Montague and Ayrton, Part 1, and 4 Deacon & Chitty, Part 1; omitting such cases as have appeared in former Digests. Principal cases in 9 Greenleaf's Reports, Maine; 1 Fair- field's Reports, Maine; 4, 5 & 6 Yerger's Reports, The Practice in the Courts of Law and Equity, in Vir- ginia, by Conway Robinson. Vol. II. Containing An Address delivered before the Law Academy of Phila- delphia on the 6th of May, 1835. By William Rawle, Jr., Esq. One of the Vice Provosts of the Academy. Reports of Cases argued and determined in the Supreme A Digest of the Law of Evidence in Criminal Cases. By Henry Roscoe, Esq. of the Inner Temple. Barrister The Science of Legal Judgment: a treatise designed to show the materials whereof and the process by which the courts of Westminster Hall construct their judgments, and adapted to practical and general use in the discus- on account of want of room. 551 NOTE. Several notices of New Books have been unavoidably omitted AMERICAN JURIST. NO. XXIX. APRIL, 1836. ART. I.-GERMAN CRITICISM OF MR. JUSTICE STORY'S COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES. (Continued from Vol. XIV. p. 344.) [The interest, with which the first part of the present criticism has been received by many of our readers, has induced us to translate the remainder. The following pages show an acquaintance with our institutions wonderful for a foreigner, and contain several highly useful suggestions for the consideration of the people of the United States. We repeat here what is stated in the introduction to the first part of the criticism, as published in our last number, that it is translated from the Critical Review of Legislation and Jurisprudence, a periodical published at Heidelberg, Germany, and edited by two renowned Jurists, Messrs. MITTERMAIER and ZACHARIE. In the German review, the name of its author, Professor R. MOHL, of Tübingen, according to the commendable custom of the continental critics, is prefixed to the article. ED. JUR.] AN attentive reader, after having gone through with an exposition of the North American constitution, would, naturally, in the first place, and, because it would be the first inquiry put to him by others, ask himself the question,-what general impression had been made upon his mind, by the much-talked of institutions of the Union, and what practical general conclu sions he had been able to derive therefrom? We, at least, have considered this question, and it may be permitted us, to give the answer, even if it were for no other reason, than that we might not seem to shun a declaration of our opinions on the subject. If it be true, that the highest praise, which can be awarded to the political institutions of a country, is, that they meet with the warm approbation of a great majority of its citizens, (that being the most certain proof, that they correspond to the wants and habits of life of the people, or, in other words, that they are relatively the best) then the constitution of the United States deserves to be placed in the first rank of praise-worthy forms of government. The attachment, or rather enthusiasm felt for it, is indeed universal, and, in the minds of those, to whom the condition of foreign countries and their appropriate institutions are less known, leads to an unsparing contempt, as arrogant as it is unjust, of other modes of government. This feeling of attachment manifests itself, in the most lively manner, and, at all points, in the work now under consideration; and we cannot conceal the fact, that its exhibition has awakened, in our minds, conflicting emotions of joy and of pain-of pain, because it clearly shows, how incurably poisoned, (we need not now inquire, through whose fault) are all our ideas of popular right and all our political feelings. With us, or at least with the great mass, he alone is deemed to be a friend of his country, who is hostile to every existing institution, and to every act of government, merely. because the one exists, and the other emanates from the sovereign power. The universality of the evil shows how deep seated it is; and it is very much to be feared, that it can only be cured, by a sacrifice of our civilization and of our material well-being. Happy land, in which the most zealous supporter of the existing and protecting order of things is regarded as the purest patriot, and in which that beautiful appellation is not used as synonymous with that of conspirator, much less with. that of incendiary! We hear it said, however, on all sides, that the foundation of the happiness of the Americans is not in their constitution, but in the great substantial advantages of their country :-in its immeasurable and as yet unused territory:— in its favorable situation for the pursuits of commerce:-in its freedom from dangerous neighbors, and consequent exemption from exhausting preparations for war;-in the demand for labor and the want of laborers, &c. These are indeed the foundations of a material well being and of a national prosperity, increasing with a rapidity hitherto unknown; and this happy condition of things doubtless contributes to the general and widespread contentment of the American people; but, by no means, can the praise due to the constitution be thereby diminished. In the first place, the happiness of the Americans. is manifested not only in regard to their physical, but also and in an equal degree, in respect to their intellectual and political condition. The government is not merely put out of view and tolerated, on account of conditions and circumstances, which are in other respects bearable; but, at the same time, that the existence of the latter is acknowledged, the former is both loved and commended. Without being disposed to assert, in so many words, that the citizens of the United States would be equally contented, in the complete enjoyment of their present political institutions, without the physical advantages of their country; we are, nevertheless, of the settled opinion, that if they were even destitute of the latter, they would feel themselves equally happy. In the second place, then, is it not in a great measure to be ascribed to the form of government, that these physical advantages are susceptible of being brought into use? The systematic formation of the wilderness into States ; -the prudent disposition of the public domain ;-the free intercourse from Vermont to Texas ;-the establishment of a union-citizenship, of equal validity in all the States, and the principle, that a citizen of any State is entitled to all the rights of citizenship in every other State-the essential equality of the constitutions of the individual States, proceeding from the measure of constraint, imposed upon them by the constitution. of the Union, which, at the same time, allows them to provide freely, in all other respects, for their local wants, and, by means of which, that harmony, in regard to fundamental principles of right and of policy, which is so necessary in an union of many States, is happily united with the power of conducting the daily affairs of life, according to their own pleasure :—the complete consolidation of the individual States,' which prevents the possibility of all conflicting restrictions, chicanery, and recriminations, and which precludes them, if they were disposed, from wasting their best energies in preparations for war, in foreign embassies, and in intrigue :-all these and many other provisions of the constitution have, in truth, not less operation upon the physical well-being of the citizens, and the degree of contentment which it produces. There are many countries, which have received equal, if not greater, favors from nature, but, which, by reason of their less favorable political institutions, do not long make such progress, and are, nevertheless, equally contented :—as an example of such, we regard the nearest neighbor of the United States, Canada. But, from this view, namely, that the Constitution of the United States is, on the whole, admirably adapted to the end it has in view, and that it promotes the happiness of the people, may we not conclude, that it might and ought in other circumstances to produce the same result? By no means. Every political institution is merely a relative good, and, to a favorable result, requires the pre-existence of certain conditions; where these are wanting, the form of the constitution may perhaps be imitated; but it will, in point of fact, be either administered in a wholly different spirit, or it will come in contact with, and give a shape to, a different state of things. If the entire absence of an aristocratical constitution of society and of character, and a habitude of submission to the dominion of the law, rather than to that of men, be, as they undoubtedly are, the indispensable conditions of a popular representative government, it follows clearly, that many other nations, and, in particular, all the nations of Europe, are wholly incompetent to that form. We, at least, are unable to look upon the visionary schemes of those, who imagine the introduction of a representative democracy 1 The German word unselbstandigkeit, which we have here translated consolidation, denotes rather the absence of a separate, substantial existence, than a positive blending together. ED. JUR, |