such is the common law. The limits of warranty or fraud, exclude a multitude of complaints and conflicts.

It was our intention to follow our author through his reasonings in favour of the Roman jurisprudence, to show that, however specious they may be in their relation to the cases put to illustrate them; however captivating to the eye that looks not to the general business of life, they are altogether fallacious when applied to the multifarious concerns of that business, as extended and varied in modern times. The numerous modifications which have been found necessary in those countries which have adopted the Roman code, bear testimony to the truth of this view. The author is as sensible as any body of this unfitness, and has endeavoured to remove the difficulties, by proposing a new set of regulations better adapted, as he thinks, to the present state of the world. Time and space do not allow us to examine the offered substitutes; but we are satisfied we could readily demonstrate to any jurist practically acquainted with the operation of laws, that they will not do. He has attempted to keep a middle path between the strictness of the common law, and the "extravagant doctrines of the civilians;" but we believe his propositions would involve us in the dangerous uncertainty growing out of doubtful rules, immediately requiring perplexing explanations and indispensable exceptions. No party could foresee the result of his agreement; nor what the morality of the judge might make of it. Such, we think, would be the effect of the "few rules" proposed as "the fair expression of those particular limitations, as to concealment, and reservation, which common sense and common honesty prescribe." The refined ethics of the civilian may be delightful to the philosopher-who, in his closet, makes himself happy with reveries of the perfectibility of our nature and condition; but if he will go into the warehouse, or on the exchange, he will find that some more plain and practical doctrines are required for the actual business of mankind.

For many years past, particularly during the judicial administration of Lord Mansfield, the civil law has been struggling to get a footing in the English courts; and its advance has been sternly and resolutely resisted by the friends of the common law. Some success has, nevertheless, attended the attempt; and, in many instances, with signal advantage to the administration of justice. Some dogmas of the common law, created in the early stages of society, and indurated by ages, have been softened and moulded into a better shape by the hand of the civilian. The law relating to commercial transactions has been improved; and some changes, in other departments, have been

cautiously and judiciously admitted. It is, however, a perilous task, and should be undertaken only by the hand of a master. Innovations upon principles, long established, as the arbiters of right in a community, should be watched with scrupulous jealousy. It is an exercise of power very flattering and seductive to a weak mind; none but the strongest should presume to touch it. Nothing is more pernicious than the sacrifice of a principle to the equity of a particular case. A judge with an honest heart and a weak head will be apt to indulge in such experiments unless he be restrained by an inflexible arm. We mean not to be intolerant on this subject; many of the principles of the Roman code are admirable as well for their general wisdom as their particular justice; and may be incorporated with fitness and utility with our system. But this must be done by judges of deep learning and much experience; with extensive views and firm heads. A reformer is, almost vi termini, an enthusiast, and seldom proceeds in his work with moderation and foresight. It is not enough that the proposed change is good in itself. We must inquire how it will affect the harmony of the system, and fit in with the adjacent parts. Should a friend propose an alteration in my house, I would examine how it will agree with the rest of the building. I will not block up a necessary stairway for an improvement in my hall; or destroy a whole suite of useful apartments to make a pretty boudoir. On the other hand, we must not imagine that perfection belongs to the common law, and obstinately refuse to listen to any voice that invites to a change. The Roman code was framed by learned and wise men, and has received the applause of many ages. "The decisions of the old Roman lawyers," says Sir W. Jones, "collected and arranged in the sixth century, by the order of Justinian, have been for ages, and, in some degree, still are, in bad odour among Englishmen. This is an honest prejudice, and flows from a laudable source; but a prejudice it most certainly is, and, like all others, may be carried to a culpable excess."

In these United States, we have a fair opportunity of acting wisely and liberally on this subject. We have not the fixed prejudices of the English; but are nevertheless deeply and justly impressed with a reverence for the wisdom of the common law; with its practical fitness for the business of men, and its broad and general policy and justice; making the peace and prosperity of the whole community its first object, and taking care of individual interests and rights as far as that object will admit. We confess our regret that the author of the "Essay" was, from any consideration, induced "to hurry it through the press, with as little delay as possible;" and, with him, we are obliged

to say, we are not "fully satisfied with the manner in which he has treated the subject." He has collected his materials with much intelligence, industry and impartiality; but he has not used them with the precision and arrangement necessary either to do himself justice, or to enable his reader to follow him clearly through his argument. We do not understand, distinctly, the extent of his objections to the provisions of the common law; nor how much, or under what modifications, of the civil code, he is disposed to adopt. The matter of his essay is full of interest, not only in its relations to legislative or judicial regulations, but in its moral aspect; and his opinions ought not to have been presented to the public, but in their full maturity. The subject is worthy of the attention of the author a second time. We doubt not he would make it a valuable addition to legal and ethical learning. Those who may not adopt his conclusions, will, at least, owe him their thanks for a full, candid and forcible presentation of the question and its argument.

ART. VI.-Secret Journals of the Acts and Proceedings of Congress, from the first Meeting thereof, to the Dissolution of the Confederation, by the Adoption of the Constitution of the United States. 4 vols. Wells & Lilly, Boston.

As congress, under the confederation, was invested with executive, as well as legislative power, it became necessary that two sets of journals of its proceedings should be kept; one ⚫public, the other secret. The latter, comprised in four volumes, and principally relating to American transactions with foreign powers during the period of the Revolution, and down to the time of the adoption of the constitution, have lately been submitted to the world, in pursuance of the resolutions of the general government in 1818 and 1820. It has rarely, if ever be fore occurred, that the journals of the executive proceedings of any nation, especially with foreign powers, have been given to the public in extenso. In this respect, the United States have pursued a more open and liberal course, and have departed from those cautious and selfish maxims of policy, by which the monarchies of Europe have been generally governed.

These journals will be found interesting, not merely as tending to elucidate a portion of American history not generally known, but also as showing that the American patriots, in the VOL. I.NO. 1.

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trying period to which they relate, had great difficulties to encounter, in the cabinet as well as in the field; and we cannot but think, so far as our observation has extended, that the contents of these volumes have not received that attention from the American public which they deserve.

They are not confined to the dry and uninteresting account of the daily routine of business, as in ordinary cases, but contain many interesting and important facts, as well as many valuable state papers, relating to the American Revolution, never before promulged. There will be found, in detail, the instructions given to the commander-in-chief of the American army, at his first appointment in June, 1775; the confidential addresses to the states, by congress; plans of treaties to be proposed to France, Spain, and other European powers; the secret instructions given to American envoys abroad; various confidential communications made to congress by foreign nations, and particularly by the king of France, or his ministry; the nature and extent of the claims of the king of Spain to the western country, and the exclusive navigation of the Mississippi; the secret articles annexed to some of the treaties made with foreign powers; the attempts made by Great Britain to break the alliance between France and the United States, by secretly proposing to each separate terms of peace; with many other transactions, equally curious and interesting. Some of the most important of these, it is our intention to notice; particularly such as tend to elucidate the history of the Revolution.

The instructions to General Washington, when first appointed commander of all the forces of the united colonies, raised or to be raised, are contained in the first volume, pages 17, 18. After some directions relative to recruiting the army, and some other things of minor importance, congress say—

"You shall take every method in your power, consistent with prudence, to destroy or make prisoners of all persons, who now are, or who hereafter shall appear in arms against the good people of the united colonies."

"And whereas all particulars cannot be foreseen, nor positive instructions for such emergencies so beforehand given, but that many things must be left to your prudent and discreet management, as occurrences may arise upon the place, or from time to time befall-you are, therefore, upon all such accidents, or any occasions that may happen, to use your best circumspection; and, advising with your council of war, to order and dispose of the same army under your command, as may be most advantageous for obtaining the end for which these forces have been raised, making it your special care, in discharge of the great trust com

mitted unto you, that the liberties of America receive no detriment."

The difficulties and embarrassments of congress, arising from a want of commercial resources, from the depreciation of paper money, and from a failure of the states to comply with the requisitions made upon them, are strongly depicted in the confidential addresses of congress to the states. In April, 1780, after earnestly calling upon them for the immediate pay ment of their quotas of taxes, congress enforce the call, by the following appeal:

"If any state should be unprepared, if the collections are incomplete, not a moment is to be lost. Delay will be disappointment, and may involve consequences too interesting, too fatal to be hazarded. Should the public operations, through languor and inattention, be retarded and stopped; should those exertions, which have hitherto rendered this contest conspicuous to the world, be intermitted, the fairest prospects, and the most promising occasion, may be irretrievably lost. The crisis calls for exertion. Much is to be done in a little time; and every motive that can stimulate the mind of man, presents itself to view.

No period has occurred in this long and glorious struggle, in which indecision would be so destructive; and, on the other hand, no conjuncture has been more favourable to great and decisive efforts."

The financial embarrassments afterwards increased to such a degree, that the superintendent of finance was obliged to draw bills beyond the known funds in Europe, to meet the payment, and congress were under the necessity of giving their sanction to the measure.

The acts and proceedings of congress, in relation to foreign powers, contained in the three last volumes, will be deemed particularly interesting.

One of its first acts, appearing in this part of the journals, is the appointment of a committee for the purpose of secretly corresponding with the friends of America "in Great Britain, Ireland, and other parts of the world." This appointment took place in November, 1775. The principal object of the committee was to sound the French and Spanish courts on the subject of assistance, in arms and ammunition, and an eventual alliance.

It was known, that France had not been an idle spectator of the contest between Great Britain and the colonies, from its commencement. As early as 1767, the French minister at the count of London, was particularly attentive to Dr. Franklin, paid him many visits, and made many inquiries concerning