principle of voluntary bankruptcy, which the wisdom of the framers had introduced, no doubt because they felt that it was accordant with the feelings of the people. These two principles appear to us, to be the true bases of a bankrupt system suited to our situation, and consonant with the public feeling.

In this country, nothing is more required than simplicity in the laws, and no machinery but what cannot absolutely be dispensed with. It was well observed in the senate by Mr. Tazewell, that if the proposed bankrupt law should be extended to all the classes of society, it would fill the land with officers depending on the federal government. It would have in a great degree the same effect, though restricted to merchants, unless the system should be greatly simplified. This can only be done, by taking as a basis, voluntary Bankruptcy and the composition system. They are both peculiarly suited to our circumstances. The composition system might indeed be called emphatically, American, for every body knows that no honest debtor will in this country find a majority of his creditors deaf to the voice of misfortune, and unwilling to grant him 'a reasonable composition. It has this advantage over the levelling principle of the English bankrupt law, that it accommodates itself to every case and every circumstance, and that a respectable merchant who has only been unfortunate, may by agreement with his creditors, still remain at the head of his affairs, and not be turned out upon the wide world, and see his property wasted by assignees who have little or no interest in the management of it. The voluntary system is in the spirit of all our insolvent laws, and this circumstance alone points it out as the most eligible. Compulsive methods may be provided for cases of flight, absconding, and all others in which compulsion is absolutely required.

On these principles, all that legislation would have to do, would be to define what is to be understood by merchants and traders, to fix the majority of creditors in number and value requisite to bind the minority by their composition with the debtor, to provide against frauds, particularly those of fictitious creditors, the most common and the most to be guarded against in such cases; to enact compulsive measures against the debtor, when the case should require it, and to designate tribunals, to confirm or reject the compositions made between him and his creditors as they should appear to be fair or fraudulent, and to hear and decide on all incidental questions. Imprisonment for debt by process issuing out of the courts of the United

* Supplement to the National Intelligencer, February 3d, 1827.

States might then be abolished as to all the classes, or rather, as to all debts and contracts not included within the purview of the bankrupt act, which the states, by their own legislatures, would probably extend to process issuing from their own. courts.

In these matters it would seem expedient that the state courts should have a concurrent jurisdiction with those of the United States; except, perhaps, when the aggregate of the debts of the bankrupt should exceed a certain sum. Then the jurisdiction of the latter might, we think, be exclusive. Our constitution is a government of auxiliary powers; the execution of the laws of the United States by state tribunals is a strong federal feature, which, as long as it is maintained, will preserve us from the so much dreaded consolidation, which must inevitably take place, or a separation, which would be much worse, if by the refusal of the state courts to entertain jurisdiction of cases arising under the laws of the Union, congress should be reduced to the necessity of sending forth their officers over the whole surface of the country. We do not foresee that any such thing is likely to happen; but the difficulties that have arisen in certain cases, and which our author notices in his eighteenth lecture, make it our duty to put the states on their guard against too much nicety, when such questions shall again arise, and rather to seek to reconcile than to divide.

We are inclined to think that the system of a bankrupt law that we have thus cursorily explained, without giving it the development of which it is susceptible, and which it would, indeed, require, would be agreeable to all classes, and reconcile all interests. It is mild in its nature, as our laws in general are; its severity might hereafter be increased, if experience should show it to be requisite. But in the beginning, it seems to us that mild measures ought to be preferred. The practice, however, which at present prevails, of making assignments of the debtor's property to trustees chosen by himself, should, of course, be entirely done away. But this is matter of detail, which does not come within the scope of these observations: upon the whole, we think, that our system, simple and mild as it is, could not but be satisfactory to the mercantile class. As to the other classes, it is to be presumed that they would be satisfied with the abolition of imprisonment for debt, which could then be productive of no inconvenience. The principal difficulty would be its operation in those states where lands are not liable by law for the payment of debts, because it would be giving a great advantage to the landholder, who is not subject to the law of bankruptcy. But the wisdom of those states would

probably provide a remedy; as their citizens, after all, would be the greatest sufferers. It is impossible to suggest a system that will not be liable to some inconveniences, in the usual course of human affairs; that which presents the least, must be considered as the best. We do not flatter ourselves that the one we have proposed will be adopted, because mankind love to tread in the roads with which they are best acquainted, from reading or from practice; but truth is a plant, though of slow, yet of sure growth, and some of the ideas which we have suggested, may, perhaps, at a future day, produce wholesome fruits. He who would have proposed in England, twenty years ago, the adoption of the composition principle, would have been treated as a foolish innovator; and yet we have lived to see it incorporated with their bankrupt acts; it is now a part of their general system, and in a fair competition with the other parts, will probably acquire a deserved superiority. As to voluntary bankruptcy, it has always been in fact, though not in form, in common practice in England; for it is well known that the greatest number of bankrupt commissions, are obtained by the connivance of the creditor with the debtor. Why should not that be allowed to be done avowedly, which is constantly practised in a secret and collusive manner, what no sound legislation should authorize?

We are drawing close upon the verge of our limits; we must, therefore, speedily take leave of our readers: there are, however, many things in this part of our author's work, which we would have dwelt upon with pleasure; particularly his sentiments on the common law, considered as the law of the United States, and on the prevailing mania of codification, in all of which we heartily concur. We purposed to consider the latter subject somewhat at large, but we are now compelled to confine ourselves to a few observations upon it.

The success of the Napoleon code has set all Europe codifying. In Italy, Germany, Russia, Switzerland and the Netherlands, the code makers are at work, and some of the results of their labours have appeared in projets or detached parts, and are the subjects of more or less enlightened criticism. England has caught the rabies, and her writers, at the head of whom is the celebrated Jeremy Bentham, are exercising their pens on the subject of this mode of legislation. Some of them confine themselves to codifying the statute law, beginning with Magna Charta and the bill of rights. Among these is Mr. Uniacke, (late judge of the vice admiralty court of Nova Scotia,) who has addressed a letter to the lord chancellor of England, in which he considers this project as the easiest thing in the world, and by way of specimen, has ingeniously codified the late bank

rupt statute. But others are not so easily satisfied; they aim at codifying the whole system of English jurisprudence, including the common, civil, maritime, ecclesiastical, and statutory law, and the law of courts of equity, borrowed from all the others, and resembling none. But how is this to be effected? The most superficial view will satisfy every impartial man that the thing is impossible. It would in the first place be necessary to reconcile equity with law, or to place the two different systems in opposition to each other in the same code. This would necessarily lead to the abolition of the one or the other. These and other obvious difficulties have not escaped the observation of the code makers, and therefore, in order to cut the Gordian knot, it has been lately proposed to abolish the whole of the existing law of real property, with its tenures, uses, trusts, remainders and all, and substitute for it a system analogous to that of the civil law. This has been seriously proposed by Mr. Humphreys of Lincoln's Inn,† not a novice in jurisprudence; but a barrister of respectable character, and who appears, from the intrinsic evidence of his own work, to be deeply skilled in the rules, principles and practice of the common law. This is one of the wonders of the pressnt age, and what is not less extraordinary, is, that the London Quarterly Review, hitherto the firm supporter of every thing existing, merely because it exists, and generally considered as the echo of the ministry, highly approves of the work, on the ground that "an opinion that the jurisprudence of that kingdom, is in a state which requires a strong interference of the legislature, to remedy its defects and abuses, and to produce a new and better administration of justice, has, for some time, been prevalent in that country, among all classes of people."‡

This is a broad admission, and the government are well aware that it is founded on fact. Therefore, we find that they are temporising with the feelings of their people. With this: view, they have set on foot a revisal of some of their statutes, reducing into one act those that are in pari materia, and introducing occasional amendments. Thus, we are informed that their fiscal laws are digesting after this manner, and their late bankrupt act shows us how the plan is carried into execution.

A letter to the lord chancellor on the necessity and practicability of forming a code of the laws of England, &c. By Crofton Uniacke, esq., London, (printed,) Boston (reprinted) 1827.

†Observations on the actual state of the English law of real property; with the outlines of a code. By James Humphreys, esq. of Lincoln's Inn, barrister. London, 8vo. 1826.

+ Quarterly Review, No. 68, September 1826, page 540.

This is a wise measure, and may defer for a while the impending danger. But, unless they amend their laws pretty much as we have done in this country, it is to be feared that the whole system will be overtaken by a sudden storm, and involved in a general ruin.

Here no such danger exists. The common law, as modified by our usages and local statutes, is very different from the same system as it obtains in England. There it has become at last utterly unmanageable, and it is to be feared that the disease will not yield to temporary palliatives. Here we have none of those excrescences which make the law, as it exists in England, so formidable to her citizens. We have successively done away its most objectionable features; and while we persist in our system of slow and gradual amendment, we need not be afraid of the result: but God preserve us from the extreme remedy of general codification! We may, perhaps, before long, see an example on the other side of the Atlantic, that will be sufficient to warn and guard us against the like attempt.

The third part of our author's work, which concludes this volume, consists only of four chapters, and treats of the various sources of the municipal law of the several states, which is composed of statute law and the reports of judicial decisions. The two last chapters are devoted, the one to a review of the different publications on the common law, and the other to a general history of the civil law, which, in some respects, is to be considered as connected with the law of the states, particularly in the courts of equity, and those which have been substituted for the English ecclesiastical tribunals. This part of the volume is short; but, like the rest of the work, is treated with considerable ability. Upon the whole, we cannot but recommend this book to the attention of the profession, and particularly to the students of our jurisprudence. We hope the learned author will soon publish the second volume; and that it will be followed by a third, and even a fourth, if the matter shall require so much. Every thing which may come from the pen of this eminent jurist, will be sure of being favourably received.