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new law may be suddenly introduced, from the great temptation of filling out a noble outline and erecting a perfect system; in short, there is some reason to fear lest systematizing should degenerate into absolute codification. It is remarkable that two such minds, as those of Lord Bacon and Lord Hale, should have concurred, at periods when many of the evils they complain of were certainly less sensibly felt, than at the present day, not only in favorable disposition towards what may be called moderate reform in the law, but in devoting themselves to consideration of the means by which it might best be effected. Indeed the latter, as far as we can gather from his preface to Rolle's Abridgment, seems to have contemplated the formation of a sort of corpus juris communis out of the many books of our English laws, for the public use, and for the contracting of the laws into a narrower compass and method.' Perhaps, however, regarding the extreme jealousy of innovation, which he elsewhere expresses, we should understand him here as intending nothing more than was proposed by Lord Bacon; whose plan, in regard to the common law, was first, to compile a select volume of forms and precedents from the ancient rolls; secondly, to make a perfect collection of adjudged cases, omitting all that were doubted or overruled, or mere repetitions of former decisions, or which were entirely antiquated and obsolete, as well as 'all idle queries, which are but seminaries of doubts and uncertainties,' and reducing into a compendious form such as were reported with unnecessary prolixity; thirdly, to form a book of institutes, and a few other auxiliaries to the study of the law, which he probably would not have thought necessary to propose, had he lived to the days of Sir William Blackstone, certainly not had he seen all the labor saving machines of the present age. In regard to the statutes, his design was simply to repeal and discard from the books all that were dormant or obsolete, to mitigate the penalties of many, and to consolidate into one clear and uniform law all those which regarded like subjects. The most strenuous opposer of codes would hardly disagree to these modes of amendment.
But the gentlemen of New York are going a step farther, in regard to the reformation of the statute law. They propose, not merely a consolidation, but an entire new order of arrangement, accompanied by changes of phraseology, with a view to greater clearness and precision, and even by provisions wholly new, to supply and remedy what are in their judgment palpable
omissions and imperfections. The title, for instance, which we have cited at length, does not contain a single sentence, nor indeed a single provision, which is to be found in any former volume of the laws; on the contrary, the first section is avowedly extracted from a decision of the Chancery Court of the State; the third section was suggested by decisions at common law, establishing certain principles in regard to counties, that would probably be extended to towns under like circumstances;' and the other two sections are wholly their own. Now it must be confessed, that this is exercising the powers confided to them in their greatest latitude; and it is not wonderful, that those who are timid on the subject of innovation, or at least abundantly careful, that every change of the laws 'be demonstrable to be for the better, and such as cannot introduce any considerable inconvenience in the other end of the wallet,' should be somewhat apprehensive of unforeseen consequences.
It is but just, however, to state, that the extract we have given is not a fair sample of the two proposed chapters in this particular. It is the only title which is composed entirely without the aid of the existing statutes. Neither do the commissioners themselves consider these chapters, which contain doubtless a great deal of novelty, as specimens, in this respect, of the whole work. They justly consider, that there is a great distinction between statutes regarding electoral franchises and modes of public proceeding, and those which concern private rights more nearly, regulating the distribution of property and the domestic relations. With the former, they have felt themselves at greater liberty to fill up what was wholly unprovided for by the existing letter of the Statute Book, under the idea that these laws are of a character peculiarly simple in themselves, and such as ought to be expressed in a form level to the comprehension of all capacities, leaving little or nothing to be supplied by inference or by mere conjecture. They are besides, careful in every section to point out what is substantially new, and to refer, if it be an old provision newly clad, to the precise source from whence it was derived. They admit that these chapters 'can hardly be called revisions of existing laws,' and consider them rather as suggestions to the legislature in the most convenient form.
With respect to the class of statutes falling under the second general division, namely, 'those which relate to the acquisition, the enjoyment, and the transmission of property, real and personal;
to the domestic relations; and generally to all matters connected with private rights,' the commissioners appear to be duly sensible of the increasing difficulty of their task, and by no means indicate an overweening confidence of success. These are statutes of which they say, ' almost every line has been the subject of judicial interpretation;' and by a salutary provision in the act from which they derive their authority, they are expressly restrained from making any change in the phraseology or distribution of the sections of any statute, that has been the subject of a legal decision, by which its established construction might be affected or impaired. If in this portion of their labor, they should observe the same scrupulous regard to the duty of forbearance as they have thus far to a most diligent and indefatigable exercise of their extensive powers upon the first class of laws, and yet succeed in reducing them into an equally simple and methodical arrangement, they will have achieved a work which will do infinite honor to them and their constituents, and be of great service not only to the profession, but to the community at large. We have little apprehension, from their guarded and deliberate labor, taken in connexion with their known professional learning and practical skill, as well as the specimen they have laid open to our examination, of dangerous innovations; and we believe, that the final completion of this great work will constitute a new era of legislation' in New York, the benefits of which will be experienced, ere long, by the necessary force of example, in her sister States, if not in other portions of the civilized world. Yet, not being prepared to go all lengths with the reformers of the day, and perceiving a disposition in the commissioners to exercise their right of suggesting new things to the legislature pretty extensively, we cannot take our leave without recommending moderation in this particular, and reminding them, in the language of Lord Hale, that the business of amendment or alteration of the laws is a choice and tender business, neither wholly to be omitted when the necessity requires, and yet very cautiously and warily to be undertaken though the necessity may, or at least may seem to require it.'
ART. XIV.-CRITICAL NOTICES.
1.-Francis Berrian, or the Mexican Patriot. 2 vols. 12mo. Boston. Cummings, Hilliard, & Co. 1826.
THIS novel, if we except one or two introductory pages, purports to be drawn up in the form of a narrative, by the hero, of his own adventures. He represents himself as a native of Massachusetts, who, on coming of age, about the year 1821, sets out to seek his fortune in the Western country. After descending the Ohio and Mississippi, he proceeds on a trading expedition to the Spanish provinces in the vicinity of Louisiana. In the course of his rambles, he visits the Commanche Indians, a tribe who reside near the Rio del Norte. Here he finds the heroine of the work, Doña Martha, daughter of the governor of Durango, a lady who has been taken prisoner by the Commanches, and whom he soon rescues from captivity and restores to her friends, though not without exposing his life to imminent peril, and receiving several severe wounds. This last circumstance compels him to take up his abode for a while, in the mansion of the Conde Alvaro, father of Martha. Berrian, of course, soon falls in love with the young lady, but is exposed to perpetual annoyance and persecution from Father Joseph, the priest of the family, and from a rival called Don Pedro, a young Spanish nobleman. After completely recovering from his wounds, he is induced to prolong his stay in the house of the Conde, in the capacity of a teacher of English, till Don Pedro finally procures his banishment.
He departs and joins himself to a body of Patriots, who are then rising in Texas, fights several battles and combats, meets more wonders, not than a man, but than a hundred men, and after various alternations of fortune, becomes second in command of the Mexican forces, which drive Iturbidé from the throne, and is the most efficient instrument in that important revolution. He then marries Martha, while Don Pedro and Father Joseph are torn in pieces by the mob, conducts her in triumph to his native village in Massachusetts, and finally returns with her to Durango.
Such is a brief sketch of the main story of this novel. It is certainly constructed, in many respects, with a very moderate degree of skill.
In the first place, the hero begins his discourse, by stating, that his adventures are now over, and have terminated happily, a statement, which relieves us from all anxiety for his fate; and
we thus enter on the perusal of the story with the same kind of unlucky knowledge, which is sometimes acquired by looking over at once to the last page of a novel, an expedient, which every true novel reader holds in utter abhorrence. Our author has made a mistake of much greater consequence, in fixing the period of his story so near our own times, a blunder of the same kind with that committed by Miss Edgeworth, in making Lord Oldborough prime minister of Great Britain in 1808. The adventures of Francis Berrian are of themselves sufficiently marvellous, but when they are related as happening in the years 1821 and 1822; when we are informed (vol. II. p. 235.) that though Santa Anna held the supreme command, Berrian possessed coordinate authority (a distinction not extremely clear); when we are further told, that Mr Berrian really originated every measure, which overthrew the despotism of Iturbidé, our thoughts are driven in spite of ourselves, from the tale before us to actual history, and we are compelled at every step to recollect the discrepancy between them.
We shall not go into any difficult questions respecting the kind and degree of illusion, produced by a well wrought fiction in the reader's mind. But some illusion there certainly must be, and everything of the kind is effectually precluded in the present case, by the notoriety, as well as the recent date, of every material event connected with the Mexican Revolution; and as if all this were not sufficient to dispel the charm, which it is the business of the author to create and sustain, he has, as we have already stated, actually brought Francis Berrian and Doña Martha to one of the villages in one of our own states. We strive in vain, while reading a story like this, to shut our eyes even for a moment on its palpable incredibility. Every line suggests to us, that if any citizen of Massachusetts had performed, in any part of Mexico, one half the warlike achievements of Francis Berrian, and then returned homeward through our Western country, all the inhabitants of the states through which he passed, would have been thoroughly acquainted with his story, and eager to manifest their sense of his heroic valor. He would have been escorted from town to town by independent militia companies, would have received the degree of Doctor of Laws from a dozen colleges, and been compelled to go through a long campaign of public dinners, far more dangerous to life and health, than all his Mexican adventures.
We have noticed with the more severity our author's mistakes in the conduct of his story, because modern novelists seem to consider this part of their business as of very little consequence. The author of Waverley is notoriously careless in this respect,