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seem, therefore, that the general rule which has been considered in regard to mistakes of law does not absolutely bar the jurisdiction of courts of equity, but that as a rule of policy it is addressed merely to the discretion of the judge. There are no cases but those of inequality in the consideration, where courts of equity are called upon to interfere. It is certainly just, that such cases should not be hedged in by general rules, the effect of which is to prevent the administration of equity; and if legislation could be made efficacious for any purpose in relation to this subject, it could only be by abrogating the maxim, so far as it has been supposed to be an absolute bar to equity. Another question, which in this country may be considered uncertain, is, whether a party, plaintiff, can enforce in equity an agreement which has been reformed and varied by parol proof. It seems strange that any such doubt should have been entertained, in relation to cases arising under the statute of frauds, but the opinion of Mr. Chancellor Kent, in Gillespie v. Moon, 2 John. Ch. Rep. 585, and in Keisselbrack v. Livingston, 4 John. Ch. R. 144, seems to sanction the idea, that when a contract required to be in writing by the statute of frauds is shown by parol to vary by mistake from the intent of the parties, the real agreement, which is by parol evidence shown to have existed, may be carried into effect by a court of equity. A different doctrine certainly exists in England, and the reasons why parol evidence will be received, to exempt a party from the jurisdiction of a court of equity to enforce an agreement, but are not sufficient to authorize the court to reform an agreement, required by the statute of frauds to be in writing, and enforce it by a decree, are given with great clearness in the case of Clinan v. Cooke, 1 Sch. & Lefr. 39. If the doctrine of Mr. Chancellor Kent, which has been approved by Mr. Justice Story, 1 Story's Comm. on Equity, 175, be well founded, then a vast field of discretion is opened to courts of equity in this country, which, by the construction of the statute of frauds in England, is effectually closed. There is another subject, which in the English courts of equity may be considered as reduced to rules of reasonable certainty, which the decisions of Mr. Chancellor Kent have involved in considerable doubt. The doctrine of that learned judge is, that a mere voluntary conveyance to a wife or child cannot be sustained against a person who was a creditor at the time; Reade v. Livingston, 3.John. Ch. R. 504. The true ground would seem to be, that all conveyances must be sustained, until they are shown to be affected by fraud. The doctrine in the case alluded to establishes an artificial construction, the effect of which would be to enlarge the terms of the statute of the 13th Elizabeth, and to make all voluntary conveyances fraudulent, in regard to creditors existing at the time, however free from actual fraud the transaction may have been, by reason of the abundant sufficiency of the grantor's property to answer his debts. It may well be contended, that such was not the policy of the statute, and that the circumstance of indebtment, though it may have been an evidence, was not conclusive of fraud. The effect of this doctrine if established, it is believed, would be greatly to embarrass transactions, by subjecting the validity of conveyances to a long antecedent condition of parties, where actual fraud was not intended. s. F. D. [To be continued.]
ART. III.-LIEBER'S POLITICAL ETHICS.
Manual of Political Ethics, designed chiefly for the Use of Colleges and Students at Law. Part I. By FRANCIs LieBER. Boston: Charles C. Little and James Brown, 1838.
IN our last April number, we took occasion to remark, that we knew of no single work, on moral or political philosophy, upon which we would advise the American student to rely, or which was entirely adapted to aid in forming the mind and character of the American lawyer and statesman. The publication of the first part of Mr. Lieber's Political Ethics, of which we expressed a general opinion in our last number, if it do not entirely supply the desideratum to which we have alluded, may at least be considered as furnishing a most valuable contribution to our political literature. The volume before us, intended as the first part of the work, is divided into two books, in the first of which the author briefly considers the subjects of ethics in general and of political ethics in particular, and, in the second, examines at more length the important and difficult subject of the State. In the first book, the author's principal purpose is, to present a distinct but general view of the nature of the subjects, of which he proposes to treat under the name of political ethics. The science of ethics is general; but, in the application of this science to some of the prominent situations or important characteristics of man, it gives rise to special branches or systems of ethics. It is the object of the science of natural law, to inquire into the rights of man, as derived from his nature, both physical and moral; and the only axiom, which is necessary as a basis for this science, is this: “I exist as a human being, therefore, I have a right to exist as a human being.” When the science of natural law has ascertained and established that which is right from the nature of man, it is the subject of another science to ascertain the best means of securing it, both according to the result and conclusions of experience, and the demands of existing circumstances. This science Mr. Lieber denominates politics proper. The means of securing man in the enjoyment of those rights, which are the subject of natural law, being ascertained by political science, the practical application of those means constitutes the object of political ethics. This branch of moral science is thus described by the author:
“Wherever the application of a principle or rule is required, whenever an abstract principle passes over into practical life, conscientious action is required, or it will fail to obtain its object. No prescription or form of words, no law or institution, can serve as a substitute for this essential element of human action. It is therefore necessary to ascertain by what moral principles we ought to be guided in certain specific political cases, and what it is that experience points out as the wisest course for a conscientious citizen, under the law and in relations established by the two former sciences. And this branch in particular I call political ethics.
“If, for instance, politics proper establish, that, for certain purposes and under certain circumstances, it is necessary that the votes of the members of a state ought to be taken, but that the law ought to leave it to the option of each citizen whether he will vote or not; it belongs to the province of political ethics, to ascertain whether every citizen is morally bound to vote under all circumstances, and if not, to point out the cases when he ought to vote, not according to the law, but in conformity with his moral obligations as a good citizen; when he need not, and finally, when he ought not to vote.
“If the former branch establish that general rules of action or laws must be established wherever a society exists, and that these laws ought, of course, to be obeyed, for, without it, they would not be general rules; and if, at the same time, that branch has to define the subjects on which society may or ought to legislate, and those on which no general rule ought to be given; it belongs to the department of the branch with which we shall occupy ourselves, to ascertain the cases when or laws which we may disobey and those we are morally bound to disobey. If we find that in free countries an opposition to the administration is not only advisable, but highly desirable, political ethics must show how far a conscientious citizen may go in his opposition.”
The science of political ethics is somewhat more fully
exhibited in the point of view presented by the following extract :
“If we wish to assign the proper rank to what I mean by political ethics, among all the sciences, whose subject is man, it would be this: man can be considered as he is, or ought to be, and as he has been ; again, individually or socially ; again, physically, morally, or intellectually. Individually, physically as he is, man forms the subject of anatomy, comparative anatomy, physiology, &c., or medicine. Socially, physically and as he is, by political economy. Individually, morally, as he is, and ought to be, by ethics, the science of education, &c. Individually, intellectually as he is, by philosophy of the mind, or, according to English terminology, by metaphysics. Socially, according to the relations of right, as it ought to be, by natural law, politics proper, &c.; as it is, by diplomacy, positive law, &c. Socially and morally, by political ethics. Socially and intellectually, by the science of national education, or, in general, national civilisation. The two relations of time as it is, and as it has been, together with the ethic relation, as it ought to be, give, applied to law for instance, the positive or existing law, history of law; and natural law and theoretic politics.
“All right, as we have seen, starts from the moral character of man, and ethics, again, applied to man's political relations, have to shed light upon the many relations within the confines of the law, upon those actions, which the law leaves wisely to the judgment of the citizen, and which yet are of great importance to the whole well-being of the commonwealth. I repeat, it is this branch of applied ethics, which I call political ethics.”
The fifth chapter of the first book is occupied with a discussion of the questions, whether the science of political ethics is sufficiently important to be treated separately, and whether politics is a subject to which ethics can be applied. As to the first, man cannot exist without the institution called the state, because he is essentially a social being. But “a man may be a dutiful son, a loving brother, a kind hus