Page images

which went into operation on the first of January, 1834. The changes introduced by this act are pointed out and explained by both these writers, but most fully and minutely by Mr. Stewart; whose table of descents is adapted for tracing descents or deaths as well before as since the statute. Fully believing, as we do, in the utility of these publications, and awarding to both authors due praise for the manner in which they have executed their task, we are constrained (somewhat perhaps by our partiality for a favorite writer, but not less) by the superior neatness of his style, as well as by his greater conciseness, to declare our preference for the work of Mr. Stephen; which, besides, we cannot help thinking is better suited for republication in this country than the larger work of Mr. Stewart. We are not quite willing to recommend the American law student to dispense with the reading of Blackstone, in the original; but we are prepared to say, that in our opinion, the second perusal of the Commentaries (for we consider a second, at least, as indispensable), should hereafter be made in the work of Mr. Stephen. Mr. Stewart does not depart materially from the general plan and arrangement of Blackstone. Indeed, the only transposition, of which we are aware, is in the second volume, on the law of property, in which the “subject of uses and trusts is treated of in a separate and early chapter, instead of leaving it to be introduced incidentally in the chapter on alienation by deed.” Mr. Stephen, on the contrary, has adopted a plan of his own, which, so far as we know, is entirely new ; the nature of which, and the grounds upon which it rests, are so well explained in the author's preface, that they deserve to be stated at length.

“But it is in that which regards the general arrangement, that the strongest claim of the present work to originality will be found. The order adopted by Blackstone is, in all its principal lineaments, derived from the Analysis of Hale ; but though rendered venerable by the combined authority of names like these, I have not felt myself able to accede to it, without alteration. The main division, indeed, by which the body of municipal law is severed into Rights and Wrongs, I have deemed it expedient to retain; for, (though liable to the great disadvantage of precluding the entire or continuous discussion of some particular subjects, by making it necessary to recur to them under the aspect of Wrongs, after they have already once engaged our attention under that of Rights,) it is founded nevertheless on a natural and just distinction, and is interwoven besides with the whole fabric of our law, and rooted in the minds of our lawyers. The division also of Wrongs into those of a civil, and those of a criminal nature, I have, for similar reasons, thought it clearly essential to preserve. But as to the division of Rights, the case is widely different. These are distributed into Rights of Persons and Rights of Things; an arrangement which has been justly considered contrary both to grammatical and logical propriety. For the rights of things can only be understood as signifying the rights relating to things—a sense not correctly conveyed by the form of expression ; and placed, besides, in false antithesis to the rights of persons; by which is evidently intended the rights belonging to persons. The meaning would have been better expressed by a division into the rights relating to persons, and the rights relating to things. This fault, indeed, is the more remarkable, because it might have been avoided by a closer adherence to the language of Justinian's Institutes, which apparently served in this instance as the model : Omne jus quo utimur (according to the authority) vel ad personas pertinet, vel ad res, vel ad actiones. “The arrangement in question, however, is not open merely to this kind of criticism, but to other objections of a much weightier description. In the first place, it determines that the law relating to persons shall be fully discussed before that relating to property has been examined, - and yet the subject of property ought, in reason, to take the precedence of that part of the law of persons, at least, which treats of relative rights; for it is in the nature of the relative rights, namely, those which grow out of the social relations of parent and child, husband and wife, magistrates and people, and the like, to presuppose the absolute ones of life, liberty, personal security, and property. With respect to absolute rights of the three first descriptions, this is obvious, and the precedence therefore is properly assigned to them in Blackstone's work; but it is equally true with regard to property also, - for property, like the rest, unquestionably constitutes one of the circumstances to which the social relations are adjusted and to which they must be supposed to refer. To this right, therefore, the next place ought, in point of correct arrangement, to have been allotted; but the commentator's plan of division makes this impossible, and compels him, after a short notice of Property, to pass on, and to postpone its farther examination, until all relative rights (whether private or public) have been exhausted. This inversion of the natural order, is not only inartificial, but often embarrasses the discussion of rights of the relative kind. Thus in the chapter on Husband and Wife, every reader must perceive the disadvantage of the total omission to notice the effects of marriage in regard to the property of the parties; and yet until the subject of property in general had been examined, any disquisition on the proprietary rights attending that particular relation, would have been obviously premature. “Another, and a still more important objection to the method which considers Rights as consisting either of Rights of Persons or Rights of Things, is, that it fails to embrace the whole compass of rights. There is a branch of law which belongs (properly speaking) to neither of these divisions, but of great and growing importance in our municipal system, that, namely, which concerns the social, as distinguished from the political, ecclesiastical, and judicial institutions of the country, and which comprises (among many other subjects) the laws relating to the poor, to highways, to public charities, and the like. For topics such as these, the analysis of Blackstone affords no proper place, and when they are of too much importance to be neglected, expedients of an awkward kind are often devised to make room for them. Thus the law of highways and turnpikes is made incidental to the office of parish surveyor, and the large and interesting subject of the poor laws is dealt with, by way of digression from the office of overseer. “Dissatisfied for these reasons with Blackstone's arrangement of rights, and conceiving that it had not (like the other portions of his general method) become so inveterate among us, as to render its retention unavoidable, I have consequently ventured to lay it aside, and to adopt, so far as this subject is concerned, a different plan of distribution. This plan is entirely of my own conception. It might have been supposed, indeed, that in a field so highly cultivated as that of rights, I could be at no loss for a satisfactory precedent; but my search for one, though prosecuted with some diligence, was not attended with success. No writer on English or American law, who has deserted the order of Blackstone, had any pretension to be considered as a model – the repositories of the Roman jurisprudence (which, with the exception of the Institutes, are notoriously defective or confused in their arrangement) supplied nothing to the purpose—the Institutes themselves (from which the division into the rights of persons and of things was originally taken) could of course afford no assistance; and with respect to the continental systems, they either conform (as in the Code Civil of France) to the Institutes, or when they depart (as in the treatise of Domat) from the beaten track, their course is not such as an English jurist could follow with advantage. “The general plan, which I have thus ventured, on my own responsibility, to lay down, will be found in the first chapter of the first book. Its leading principle is, to make the distinction between persons and things the foundation not of a primary, but of a subordinate arrangement, and to consider persons as constituting, in a primary sense, the only objects of the law's regard. But the persons, whom the law is supposed thus uniformly to contemplate, are presented, first, in the light of insulated individuals; and in that capacity their personal (in other words their bodily) rights are examined ; next, in their connection with the things around them, - which introduces the consideration of their rights of property; next, as members of families, - which involves their rights WOL. xxW.—NO. L. 22

in private relations; and lastly, as members of the community, which leads to the discussion of their rights in public relations, or (as they may be termed more compendiously) public rights.

“According to this order, the absolute right uniformly takes the precedence of the relative, and the law of property in general, is investigated before the relations of men, in regard to property, arise for consideration. Upon this system, too, the division of public rights (when it shall come to be examined in its proper place) will allow of a subdivision conveniently adapted to the discussion of those mixed subjects to which we have before referred, and which, having no exclusive connection either with person or property, it is the tendency of Blackstone's method to exclude. I propose to subdivide the head of public rights into those which concern a man in his relations to persons in authority, whether civil or ecclesiastical, and those which concern him in his relations to his fellow-citizens at large—the first of which will fall under the heads of the civil government and the church, the second, under that of the social economy of the realm; and it is under this latter head, that such mixed subjects as above referred to, will find a regular and appropriate place. The entire arrangement of the work, when fully developed, will consequently stand as follows : —


1. As to things real.
2. As to things personal.

1. Between master and servant.
2. Between husband and wife. -
3. Between parent and child.
4. Between guardian and ward.

1. As to the civil government.
2. As to the church.
3. As to the social economy of the realm.

[ocr errors]
« PreviousContinue »