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emotion, they discoursed their whole life over again, looked confidently forward to the way which yet lay before them, as well as to the course of their only son, who was travelling in Italy as an ingenious student of painting; and contemplated, with inward confidence, the cheerful brightness which had beamed upon them in the world from their tenderest infancy, and, at every year, was become more glorious and explicit, so that it now appeared to their eyes like a circle of light.
"The great clock from the tower of the neighbouring minster had already struck ten; the lights in the houses of most of the citizens were already extinguished, and Mr. Helfrad still continued sitting in the arm chair, with the silver-clasped parchment volume on his lap, opposite his Gertrude, who let the spindle stand still, listening with folded hands and glittering eyes, to the discourse of her husband, and, occasionally introducing here and there, appropriate observations. It had already struck the half hour, when Mr. Helfrad looked up astonished and said: 'How far into the night we have gone on speaking! it is not good for the eyes of men to be so much longer awake than the sun! though certainly when one has been employed in looking at the eternal sun.' The old man raised himself from his seat, and began to stir the brands which yet smoked in the stove, and repeated the proverb:
"When you find that you succeed,
In good measure and design."
"Then the great club which hung by a chain before the house door, began to thunder powerfully. I am coming directly!' said Mr. Helfrad through the sashes, and whilst he got a light ready, he said to Gertrude: Now it is fortunate that I remained up; if the patient be dangerously ill, the quarter of an hour that I shall come earlier, will do much good.' 'Would it not be better' said Gertrude, ‘ that you waked some one of the servants to open the door to them? Who knows who is out there? Night is not the friend of any man.' That is the good of it to me,' said Helfrad, laughingly; took his old, respectable sword from the wall, put into his pocket a little box of medicines which he was accustomed to take with him, by way of precaution, when he went to see the sick, threw on his fur cloak, put on his black coif, and went out of the room with the lantern in his left hand, and his arms in the right. Thereupon, they knocked still very wild and impatiently, and the master said, stepping down the couple of steps which led from the chamber to the house-floor. Patience! patience! I shall be with you instantly.' Gertrude lighted him out of the chamber, and stammered after him: 'It lies like a heavy weight upon my heart! if you now would but wake up one of the people; do it only to please me, and let me have my own way for once.' 'When my own affairs are concerned child! I do what you wish with all my heart,' said the old man, shoving at the bolts of the house door; but when professional business is concerned I don't mind it a tittle.' As the door opened, he again laid hold of the lantern, which, while waiting, he had placed upon a projection of the wall, drew a step back, threw the light upon the landing, and asked, in a friendly voice, 'who is waiting at the door? In God's name let him come in and tell
me in what way I can be useful to my fellow-creatures.' The autumn wind whistled shrilly into the open door, and out of the darkness of the night there appeared a completely black countenance, with a strange, high cap upon its head and a bright, yellow dress, in the circle described by Mr. Helfrad's light. With a loud cry, Gertrude staggered back into the room, and even the old man stepped a little back, and drew a large cross with his sword before his entire person. After which, he supported himself upon his arms, and spoke with a firm voice: 'In God's name, declare what you have to propose, and declare who it is that sends you.' The black man might himself have been frightened at the appearance of the lofty, firm old man, with his light and sword, since he trembled greatly, but soon composed himself and said: 'Quickly with me to the Three Crowns tavern, mister! there my lord lies sick of a dreadful fever which has attacked him with such violence, that it will snatch him off in a few hours if you do not help him!' 'We'll see what can be done,' replied the physician. From God and skill much is to be hoped for,' and, at the same instant, he blew upon his light so as to make it burn clearer, and stepped out of the house, calling back to the trembling Gertrude: Shut the door, go to bed; however, let there be a good fire made in the stove, and give yourself no uneasiness, I have the key of the house-door with me, and walk out also, under the protection of God.' But yon singular messenger,' said he, turning to the black man, go before me and step briskly, that we may soon reach our destination."" Vol. iii. p. 59.
We must take our hand, off, for we find that we are transgressing all reasonable limits. There are, however, so many charming passages in these tales, so many interesting situations, such numerous and highly finished descriptions of natural scenery, such splendid exhibitions of high-wrought passion, that our only difficulty has been selection, our only care, to secure compression. No effort in the regions of popular writing can be supposed beyond the power of this author. He has only to dismiss the cumbersome machinery of the marvellous, and to betake himself wholly to the worship of nature, to command the most exalted success. Why does he not apply his masterly powers to the illustration of the manners of his country; a land which has such indisputable claims upon the admiration and gratitude of the human race, and whose political situation is now so favourable to the reputation of genius, as awakening no alarm, and, therefore, causing no jealousy. German domestic life has much in it that is delightful: it is frank and hospitable, unrestrained and full of vivacity, and permitting, within the limits of good taste, an exhibition of feeling which is almost banished from other and more artificial forms of European society. Moreover, the public of Germany are a reading people; highly cultivated and ingenious, and capable of conferring the most lasting popularity on a writer, who shall be at once enamoured enough
of the institutions of his country to think them worth pourtraying, and vigorous enough to present them in the bold relief which they so well merit. What may not be expected from such materials, clothed in a language, which unites with the copiousness of the Greek, the perspicuity of the French, and the simplicity and pathos of the English? We deem it hardly to much to say too our author, not for what he has hitherto done, but for what we are convinced he is yet capable of achieving,
"Thine too, these golden keys, immortal boy!
This can unlock the gates of joy,
Of horror that. and thrilling fears,
Or ope the sacred source of sympathetic tears."
ART. III.-1. The Report made to his Majesty by the Commissioners appointed to inquire into the Practice of Chancery. Ordered by the House of Commons to be printed, 9th March, 1826. London. 1826.
2. Considerations suggested by the Report made to his Majesty, under a commission authorizing the Commissioners to make certain inquiries respecting the Court of Chancery. London. 1826.
THE distinction between common law and equity, has generally been considereu a great anomaly in English jurisprudence. But we are inclined to think that it is a regular consequence of a still greater anomaly-the Trial by Jury. If we are not mistaken in this notion, the Chancery jurisdiction instead of being regarded with an unfavourable eye, should be considered as an essential auxiliary to the best part of our system. Writers have commonly had resort to Aristotle for a definition of equity, as something ordained to temper and mitigate the rigour of the law, where, by the generality of its rules, it would, in some particular cases, operate injustice. But this definition gives no idea at all of that peculiar jurisdiction which is called equity It is the business of the courts of common law, as among us. well as of equity, to judge according to the intent, and to except from the operation of the rule, those cases which are not within the spirit, although they may fall within the letter of the law.
And so on the other hand, equity as well as common law, judges by positive rules, which form an artificial system altogether distinct from what is called natural justice. But the leading characteristic of the common law is precision. The way of commencing a suit, the mode of procedure, and the character of the relief administered, all show the greatest anxiety to keep the parties closely to the point. This is strictly conformable to the nature of jury trials, which are admirably calculated to give satisfaction when the attention of the jury is directed to the evidence, and the evidence is kept within the bounds of a definite question. To the good sense of the people, the task of determining between what is true and what is false in the story of the parties and their witnesses, is admirably suited; but to understand the rules of property, which a complicated state of society has introduced, requires study and a peculiar education. These are, therefore, the province of the judge. This distribution is coeval with the earliest accounts of the history of juries-and the experience of modern times has suggested no alteration of it. No reformer has ever proposed to take away the judge from the jury-or to abolish the distinction which refers the questions of fact to the one, and the questions of law to the other. The whole procedure of the common law has a reference to the functions of the jury; every thing is done to bring the matter in dispute to such a state, that the jury may have nothing more to do, than to give a precise answer. No law ever took a straighter course, that evidence should not be perplexed, nor juries inveigled, than the common law of England. As on the other side, never law took a more precise and straight course with juries, that they should give a direct verdict.*
The conclusion of the suit shows the character of the whole. The writ of execution is the only relief which the successful party can obtain at law-and it is like the verdict of the jury, single and positive. So much is to be rendered to the successful party-there is no modification or restriction-nothing conditional. The law has adjudged the property to the demandant, or the claim is reduced to a simple debt. If the party fails to obtain this, he fails altogether. In the earlier stages of society, when personal property was of small account, and marriage settlements were unknown, there was little call for any other species of relief in Courts of Justice, and the writs in the register applied well enough to all the cases that were likely to arise. The supply was equal to the demand. But in time, the great increase of personal property and new modes of industry gave
* Bacon-Reading on the Statute of Uses-Law Tracts, 328.
rise to cases that called for a different sort of relief. Take for instance, the case of a partnership-a large property to be divided in unequal shares, great sums of money to be collected, and many debts to be paid. Whatever complaints one of the partners might have to make against the other, he could not be entitled to an execution at common law; for he could not show that any thing was to be paid to him till the debts of the concern were paid, nor could he show how much was due, until the outstanding debts were collected; nor could he require that the sheriff should put him in possession of the goods, because the custody of them belonged to the other partners as much as to himself. Neither was a common law execution applicable to the complaints of the dissatisfied partner, for it was a settlement that he wanted, and the power of compelling his associates to unite with him in doing a great variety of acts to effect that object. Again, as relates to trusts. The trustee needs instructions, or the cestui que trusts disagree with him or with one another, as to the mode of administering the property, and ask the directions of the court. Such directions it is not the province of a jury to give.
Nor is the simplicity of the course of the common law to be referred merely to the forms of action or system of pleadings which prevail in those courts, but exists intrinsically in the nature of the subjects themselves, which form the proper objects of their jurisdiction. Whatever latitude of pleading may be allowed in the courts of common law, whether the matter is submitted to the court by the way of precise and definite written allegations and answers, or is tried under the more comprehensive statement of the general issue, there is a unity in the subject of a suit at common law, which resolves itself into the simple affirmation or negative of the jury. If any one will compare the judgment in the most complicated suits at Law, with the decree in an ordinary cause in Equity, he will be struck with the difference. In the one, various directions are given, inquiries are to be made, accounts are to be taken, and important acts done by the various parties. In the Court of Law, one party is merely to pay or render, and the other to receive, something definite.
If we consider the important and efficient part which the jury sustain in the courts of Common Law, we shall be at no loss to account for this difference. If the courts of Common Law were opened to the subjects which require the long and minute decrees of a Court of Chancery, the jury would be perplexed with duties for which they are not prepared by education or
VOL. III. NO. 5.