assumpsit: if goods, detinue or trover; (1 Rolle Abr. 32, pl. 13; Sty. 296; Yelv. 164, and the cases before cited.) that if the cestui que use disagree, the bailer may maintain debt or account, or trover or detinue, according to the nature of the property; that if the bailment be to deliver over as a gift, it is countermandable at any time before actual delivery; that if not countermanded, even in case of a gift, account, debt, or assumpsit, detinue or trover, as the case may be, lies for the cestui que use; that the bailer, however, in every case has a right to account, for if the cestui que use has disagreed, he is entitled to recover back the property, and if it has been delivered over he has a right to know it. Dy. 22, a.; see Core's case, Dy. 19, b.; 8 Edw. 3, 42; Fitz. Accompt. 45.

To the cases respecting the vesting of the property in the cestui que use, may be added, 3 Co. 26, b. ; 2 Vent. 298; 1 Buls. 68; Rast. 159; Dy. 22, a. ; 3 Leo. 38; 1 Bác. Abrid. Bailment, D; 1 Rolle Abrid. 606, C, 1.

But in contradiction to the foregoing doctrine is the case Turberville v. Porter, cited Dy. 49, a. (10) margin, where, in an action of account, the defendant pleaded that the plaintiff being indebted to one A in the same sum, gave him the sum to pay, and that on such a day he paid. The plaintiff replied that before the day he countermanded it. On demurrer the court were of opinion that he might countermand it, for he might himself have paid it since.

See as to the general doctrine, 6 Vin. Countermand, A, 1, 2, 3, 4, 6; 4 Vin. Bailment, D; 1 Bac. Abrid. Bailment, D; Sheppard's Epitome, Countermand, p. 357; Taylor v. Lendley, 9 East R. 49.

The two preceding articles are from the manuscript of a very learned and distinguished jurist, well known to the public by his rank, reputation and works. The articles are dated 1810, in the MS. and are printed as they were at that time written. The law in Massachusetts on the subject of damages in repleven, still remains as stated in the article on that subject. We are permitted to make further extracts from the same manuscript in future. ED. JUR.

ART. VII.-PROFESSION OF THE LAW IN THE UNITED STATES.

Influence of the form of government and political institutions upon the law and its professors. Extract from an Address delivered before the Suffolk Bar, May, 1827; by the Hon. LEMUEL SHAW, now Chief Justice of the Supreme Court of Massachusetts.

[Some introductory remarks in relation to associations among the members of the profession, are omitted.]

LET us then, gentlemen, proceed to consider the condition, the importance and utility of the profession of the law, in the actual situation and prospects of the United States. The propo⚫sition which I wish to maintain, and which I think may be fully established, is this; that in a free, representative government, founded upon enlarged and liberal views, designed to secure the rights, to promote the industry and to advance the happiness of a great community, and adapted to a high state of civilization and improvement, it is of the highest importance that there should be a body of men, trained, by a well adapted course of education and study, to a thorough and profound knowledge of the law, and practically skilled in its application, whose privilege and duty it is, in common with their fellow citizens, to exert a fair share of influence in the enactment of laws, and whose peculiar duty and exclusive occupation it is, to assist in the application of them to practice in the administration of justice, in its various departments. May I not go farther, and add, that the utility of this profession, the benefits which it is capable of conferring, and the respect in which it shall be held, in any community, will be in a great measure proportioned to the degree, in which the government and institutions of such community, are founded upon free principles.

There are, obviously, two very different modes of governing mankind; the one, by the will of a superior, either absolute, as in the case of a naked despotism, or more or less modified and restrained, as in the case of a limited monarchy; the other, by laws fixed and certain, binding upon the whole people, being the will of the whole people, deliberately expressed in the mode established by fundamental laws, and openly promulgated, by which, and by which alone, every citizen is entitled to seek

his rights, and bound to regulate his conduct. And this description applies not only to his civil rights, but emphatically to those, which in a much higher degree awaken the interest and engage the affections of freemen, because they are the only safe pledge and guaranty of all the rest; I mean his political rights.

In a mere naked, absolute despotism, whatever appearance it may exhibit of splendor or of greatness, it is manifest that law and its professors, would be entirely out of place. A stern, inexorable, or capricious will, stands in the place of reason, of justice, and principle. Both legislation and jurisprudence are lamentably concise. Sic volo, sic jubeo; stat pro ratione voluntas.

Reason would in vain waste her profoundest researches into the moral nature and social condition of man, in seeking for the deduction of rights, which are never recognised; justice would as vainly urge the existence and obligation of duties, where the forms of justice are not seldom perverted to the purposes of confiscation and judicial robbery; and eloquence would raise her persuasive voice in vain, where her tones are unfelt, and her language is unintelligible.

But whilst a simple despotism, as the extreme of arbitrary government, seems incompatible with the very existence of laws, yet fortunately for the dignity and happiness of mankind, it can hardly exist in a state of society, advanced beyond the first steps in the progress of civilization. The possession of property, though held by the frailest tenure, the necessary participation of military power, the influence which even inferior agents may acquire, must, to a certain extent, soften the most odious features of absolute despotism. Still it is obvious, that where arbitrary and uncontrolled power forms the basis, and determines the predominant character of government; where the people have imbibed its principles, acknowledged its maxims, and submitted to its dominion; although laws may exist, and although they may be administered with some decent regard to equitable principles, and the dictates of natural justice, so far as they regard the personal and civil rights of subjects, they are either silent or treacherous, in regard to every principle and maxim which affects their political rights, and the relation between sovereign and subject. Stripped of her highest prerogative, that of regulating and limiting the powers of the government, and establishing

the rights and duties of subjects, upon fixed principles, the law ceases to be regarded with that entire respect and veneration, which she so justly commands, in the hearts of freemen.

The consistency of arbitrary power in the government, with a considerable advancement in those branches of jurisprudence, which relate to private rights, is illustrated by the history and principles of the civil law. Being a collection of the laws of Rome, under her various forms of government, royal, republican, and imperial, and adopted in various stages of the progress of that wonderful people, in wealth, refinement, military power, and territorial grandeur, it embraces, of course, a great diversity of principles and maxims. But collected and digested under the auspices of the emperor Justinian, long after Rome had abandoned the principles and policy of her republican institutions, and yielded an unlimited obedience to the will of the Cæsars, all the tendencies of that system of laws, were in favor of the claims of arbitrary government. So far, therefore, as that celebrated body of laws, applies to the investigation of private rights, to the doctrine of contracts, to the rights and obligations growing out of the domestic relations of life, and to the acquisition, enjoyment, and transmission of property, it is abundantly acute and ingenious, and manifests a thorough and enlightened acquaintance with the soundest principles of equity and natural justice, practically adapted to all the wants and circumstances of men in society. It is natural that it should be so. It embraced the learning and researches of many of the most able jurists and civilians, during the long period of Roman greatness, of which it would be difficult to determine whether the military or intellectual splendor were the most imposing. But so far as the civil law treats of natural and political rights- of the relation of sovereign and subject of the nature, sources and limits of political power its whole spirit and tendency is that of subserviency to the claims of unlimited authority. It is natural that this should be so. At the time of the compilation of the Justinian Code, although some few of the forms of the earlier institutions of Rome, might be retained, yet for several centuries preceding, the imperial constitutions, being edicts emanating from the sole will and authority of the emperors, had been received as the supreme law of the empire, throughout its vast extent.

Such being the spirit, the character, and the tendency of the

civil law, as a body, it may, in some measure, account for the different degrees of favor, with which it has been regarded, and the different reception which it has met with in modern times. Under the early feudal institutions of Europe, originating in a state of society, little advanced beyond that of barbarism, in which military authority alone was regarded with much respect, there were some rude notions of liberty and equal right, and some restraint was imposed upon the unlimited powers of the monarch, by the privileges asserted on the part of the feudal aristocracy, supported by military force. In most of the continental nations of Europe, where the powers of the feudal aristocracy have gradually yielded to the increasing power of the throne, until the principle of unlimited monarchy has been fully established, the civil law has been received and adopted as an entire system, and acknowledged as of absolute authority. In England, on the contrary, where, from her insular situation, and from a series of fortunate and extraordinary events, which it is unnecessary to recapitulate, a free government has been established upon the basis of a similar feudal monarchy and aristocracy, the civil law, from its first introduction, was regarded by her barons with extreme jealousy. Their stern determination to reject what they considered as its corrupting influence, was expressed in the memorable response, nolumus leges Angliæ mutare. So jealous, indeed, were the good people of England, of the political heresies of the civil law, that they resisted, with great earnestness, the adoption of those principles of equity, in the private relations of society, which have since been acknowledged as of unquestionable soundness. But it is consolatory to mark the triumph of truth and reason over even national and political prejudices. Those principles made their way slowly, indeed, but steadily, in spite of all opposition, and now constitute a considerable portion of the basis of English jurisprudence. But it may be remarked that they have been thus adopted, not because they are found in the Institutes, the Pandects, or the Code; not because they are sanctioned by the name or authority of any lawgiver, but because they are founded upon the pure principles of natural justice, drawn out, expressed, and adapted to the actual condition and circumstances of society, with such clearness, force, and precision, that they naturally commend themselves, by their own intrinsic excellence, to the favorable