value without the form of legislation, and whose recorded opinions,
uttered from the chair of a professor, the bench of a judge, or, it may
be, from the seclusion of private life, continue to rule the nations.
Here are Papinian, Tribonian, Paulus, Gaius, ancient, time-honored
masters of the Roman Law,--Cujas, its most illustrious expounder in
modern times, of whom D'Aguesseau said, "Cujas has spoken the language
of the law better than any modern, and perhaps as well as any ancient,"
and whose renown during life, in the golden age of jurisprudence,
was such that in the public schools of Germany, when his name was
mentioned, all took off their hats,--Dumoulin, kinsman of our English
Queen Elizabeth, and most illustrious expounder of municipal law, one
of whose books was said to have accomplished what thirty thousand
soldiers of his monarch failed to do,--Hugo Grotius, filled with all
knowledge and loving all truth, author of that marvellous work, at
times divine, at other times, alas! too much of this earth, the "Laws
of War and Peace,"--John Selden, who against Grotius vindicated for
his country the dominion of the sea, supped with Ben Jonson at the
Mermaid, and became, according to contemporary judgment, the great
dictator of learning to the English nation,--D'Aguesseau, who brought
scholarship to jurisprudence throughout a long life elevated by justice
and refined by all that character and study could bestow, awakening
admiration even at the outset, so that a retiring magistrate declared
that he should be glad to end as the young man began,--Pothier, whose
professor's chair was kissed in reverence by pilgrims from afar, while
from his recluse life he sent forth those treatises which enter so
largely into the invaluable codes of France,--Coke, the indefatigable,
pedantic, but truly learned author and judge, Mansfield, the Chrysostom
of the bench, and Blackstone, the elegant commentator, who are among
the few exemplars within the boast of the English Common Law,--and,
descending to our own day, Pardessus, of France, to whom commercial
and maritime law is under a larger debt, perhaps, than to any single
mind,--Thibaut, of Germany, earnest and successful advocate of a just
scheme for the reduction of the unwritten law to the certainty of a
written text,--Savigny, also of Germany, renowned illustrator of the
Roman Law, who is yet spared to his favorite science,--and in our own
country one now happily among us to-day by his son,[165] James Kent,
the unquestioned living head of American jurisprudence. These are among
jurists. Let them not be confounded with the lawyer, bustling with
forensic success, although, like Dunning, arbiter of Westminster Hall,
or, like Pinkney, acknowledged chief of the American bar. The jurist
is higher than the lawyer,--as Watt, who invented the steam-engine, is
higher than the journeyman who feeds its fires and pours oil upon its
irritated machinery,--as Washington is more exalted than the Swiss,
who, indifferent to the cause, barters for money the vigor of his arm
and the sharpness of his spear.
[165] Hon. William Kent, recently appointed Royall Professor of Law in
Harvard University.
The lawyer is the honored artisan of the law. Tokens of worldly success
surround him; but his labors are on the things of to-day. His name is
written on the sandy margin of the sounding sea, soon to be washed
away by the embossed foam of the tyrannous wave. Not so is the name of
the jurist. This is inscribed on the immortal tablets of the law. The
ceaseless flow of ages does not wear off their indestructible front;
the hour-glass of Time refuses to measure the period of their duration.
Into the company of Jurists Story has now passed, taking place, not
only in the immediate history of his country, but in the grander
history of civilization. It was a saying of his, often uttered in the
confidence of friendship, that a man may be measured by the horizon of
his mind, whether it embraces the village, town, county, or state in
which he lives, or the whole broad country,--ay, the world itself. In
this spirit he lived and wrought, elevating himself above the present,
and always finding in jurisprudence an absorbing interest. Only a few
days before the illness ending in death, it was suggested to him, that,
as he was about to retire from the bench, there were many who would
be glad to see him President. He replied at once, spontaneously, and
without hesitation, "that the office of President of the United States
would not tempt him from his professor's chair and from the law." So
spoke the Jurist. As lawyer, judge, professor, he was always Jurist.
While administering justice between parties, he sought to extract from
their cause the elements of future justice, and to advance the science
of the law. Thus his judgments have a value stamped upon them which
is not restricted to the occasions when they were pronounced. Like
the gold coin of the Republic, they bear the image and superscription
of sovereignty, which is recognized wherever they go, even in foreign
lands.
Many years ago his judgments in matters of Admiralty and Prize arrested
the attention of that famous judge and jurist, Lord Stowell; and Sir
James Mackintosh, a name emblazoned by literature and jurisprudence,
said of them, that they were "justly admired by all cultivators of
the Law of Nations."[166] He has often been cited as authority in
Westminster Hall,--an English tribute to a foreign jurist almost
unprecedented, as all familiar with English law will know; and the
Chief Justice of England made the remarkable declaration, with regard
to a point on which Story differed from the Queen's Bench, that his
opinion would "at least neutralize the effect of the English decision,
and induce any of their courts to consider the question as an open
one."[167] In the House of Lords, Lord Campbell characterized him
as "one of the greatest ornaments of the United States, who had a
greater reputation as a legal writer than any author England could
boast since the days of Blackstone";[168] and, in a letter to our
departed brother, the same distinguished magistrate said: "I survey
with increased astonishment your extensive, minute, exact, and familiar
knowledge of English legal writers in every department of the law. A
similar testimony to your juridical learning, I make no doubt, would be
offered by the lawyers of France and Germany, as well as of America,
and we should all concur in placing you at the head of the jurists of
the present age."[169] His authority was acknowledged in France and
Germany, the classic lands of jurisprudence; nor is it too much to say,
that at the moment of his death he enjoyed a renown such as had never
before been achieved, during life, by any jurist of the Common Law.
[166] Letter of Sir James Mackintosh to Hon. Edward Everett, dated June
3, 1824: Life and Letters of Story, Vol. I. p. 435.
[167] Letter of Lord Denman to Charles Sumner, Esq., dated September
29, 1840: Life and Letters of Story, Vol. II. p. 379. The case to which
Lord Denman referred was that of _Peters_ v. _The Warren Insurance
Company_, 3 Sumner's Rep. 389, where Mr. Justice Story dissented from
the case of _De Vaux_ v. _Salvador_, 4 Adolph. & Ellis, 420.
[168] Hansard, Parl. Deb., LXVIII. 667.
[169] Life and Letters of Story, Vol. II. p. 429.
In this recital I state simply facts, without intending to assert
presumptuously for our brother any precedence in the scale of eminence.
The extent of his fame is a fact. It will not be forgotten, as a proper
contrast to his fame, which was not confined to his own country or to
England, that the cultivators of the Common Law have hitherto enjoyed
little more than an insular reputation, and that even its great master
received on the Continent no higher designation than _quidam Cocus_,
"one Coke."
In the Common Law was the spirit of liberty; in that of the Continent
the spirit of science. The Common Law has given to the world trial by
jury, _habeas corpus_, parliamentary representation, the rules and
orders of debate, and that benign principle which pronounces that
its air is too pure for a slave to breathe,--perhaps the five most
important political establishments of modern times. From the Continent
proceeded the important impulse to the systematic study, arrangement,
and development of the law,--also the example of Law Schools and of
Codes.
Story was bred in the Common Law; but while admiring its vital
principles of freedom, he felt how much it would gain from science,
and from other systems of jurisprudence. In his later labors he never
forgot this object; and under his hands we behold the development of a
study until him little known or regarded,--the science of _Comparative
Jurisprudence_, kindred to those other departments of knowledge which
exhibit the relations of the human family, and showing that amidst
diversity there is unity.
I need not add that he emulated the law schools of the Continent,--as
"ever witness for him" this seat of learning.
On more than one occasion, he urged, with conclusive force, the
importance of reducing the unwritten law to the certainty of a code,
compiling and bringing into one body fragments now scattered in all
directions, through the pages of many thousand volumes.[170] His views
on this subject, while differing from those of John Locke and Jeremy
Bentham,--both of whom supposed themselves able to clothe a people in
a new code, as in fresh garments,--are in substantial harmony with
the conclusions now adopted by the jurists of Continental Europe,
and not unlike those of an earlier age having the authority of Bacon
and Leibnitz, the two greatest intellects ever applied to topics of
jurisprudence in modern times.[171]
[170] Encyclopædia Americana, article _Law, Legislation, Codes_,
Appendix to Vol. VII. pp. 576-592. Report of the Commissioners of
Massachusetts on the Codification of the Common Law. American Jurist,
Vol. XVII. p. 17.
[171] Bacon, Offer to King James of a Digest to be made of the Laws of
England: Works, Vol. II. p. 548, 4to ed. Leibnitz, Ratio Corporis Juris
reconcinnandi; Epist. XV., ad Kestnerum: Opera, Tom. IV. Pars iii. pp.
235, 269.
In this catholic spirit he showed true eminence. He loved the law
with a lover's fondness, but not with a lover's blindness. He could
not join with those devotees of the Common Law by whom it is entitled
"the perfection of reason,"--an anachronism great as the assumed
infallibility of the Pope: as if perfection or infallibility existed
in this world! He was led, in becoming temper, to contemplate its
amendment; and here is revealed the Jurist,--not content with the
present, but thoughtful of the future. In a letter published since
his death, he refers with sorrow to "what is but too common in
our profession,--a disposition to resist innovation, even when it
is improvement." It is an elevated mind that, having mastered the
subtilties of the law, is willing to reform them.
And now farewell to thee, Jurist, Master, Benefactor, Friend! May thy
spirit continue to inspire a love for the science of the law! May thy
example be ever fresh in the minds of the young, beaming, as in life,
with encouragement, kindness, and joy!
* * * * *
From the grave of the Jurist, at Mount Auburn, let us walk to that
of THE ARTIST, who sleeps beneath the protecting arms of those trees
which cast their shadow into this church. WASHINGTON ALLSTON died in
the month of July, 1843, aged sixty-three, having reached the grand
climacteric, that famous mile-stone on the road of life. It was
Saturday night; the cares of the week were over; the pencil and brush
were laid in repose; the great canvas, on which for many years he had
sought to perpetuate the image of Daniel confronting the soothsayers
of Belshazzar, was left, with fresh chalk lines designating the labor
to be resumed after the repose of the Sabbath; the evening was passed
in the converse of family and friends; words of benediction had fallen
from his lips upon a beloved relative; all had retired for the night,
leaving him alone, in health, to receive the visitation of Death,
sudden, but not unprepared for. Happy lot, thus to be borne away
with blessings on the lips,--not through the long valley of disease,
amidst the sharpness of pain, and the darkness that clouds the slowly
departing spirit, but straight upward, through realms of light,
swiftly, yet gently, as on the wings of a dove!
The early shades of evening began to prevail before the body of the
Artist reached its last resting-place; and the solemn service of
the church was read in the open air, by the flickering flame of a
torch,--fit image of life. In the group of mourners who bore a last
tribute to what was mortal in him of whom so much was immortal stood
our Jurist. Overflowing with tenderness and appreciation of merit in
all its forms, his soul was touched by the scene. In vivid words, as
he slowly left the church-yard, he poured forth his admiration and his
grief. Never was such an Artist mourned by such a Jurist.
Of Allston may we repeat the words in which Burke commemorated his
friend Sir Joshua Reynolds, when he says, "He was the first who
added the praise of the elegant arts to the other glories of his
country."[172] An ingenious English writer, who sees Art with the eye
of taste and humanity, and whom I quote with sympathy, if not with
entire assent, has said, in a recent publication on our Artist, "It
seemed to me that in him America had lost her third great man. What
Washington was as a statesman, Channing as a moralist, _that_ was
Allston as an artist."[173]
[172] Prior, Life of Burke, Vol. II. p. 190.
[173] Mrs. Jameson, Memoirs and Essays: _Washington Allston_, p. 126.
(New York, 1846.)
Here again is discerned the inseparable union between character
and works. Allston was a good man, with a soul refined by purity,
exalted by religion, softened by love. In manner he was simple, yet
courtly,--quiet, though anxious to please,--kindly to all alike, the
poor and lowly not less than the rich and great. As he spoke, in that
voice of gentlest utterance, all were charmed to listen; and the
airy-footed hours often tripped on far towards the gates of morning,
before his friends could break from his spell. His character is
transfigured in his works. The Artist is always inspired by the man.
His life was consecrated to Art. He lived to diffuse Beauty, as
writer, poet, painter. As an expounder of principles in his art, he
will take a place with Leonardo da Vinci, Albert Dürer, Sir Joshua
Reynolds, and Fuseli. His theory of painting, as developed in his still
unpublished discourses, and in that tale of beauty, "Monaldi," is an
instructive memorial of conscientious study. In the small group of
painter-poets--poets by the double title of pencil and pen--he holds an
honored place. His ode "America to Great Britain," which is among the
choice lyrics of the language, is superior to the satirical verse of
Salvator Rosa, and may claim companionship with the remarkable sonnets
of Michel Angelo. It was this which made no less a judge than Southey
place him among the first poets of the age.
In youth, while yet a pupil at the University, his busy fingers
found pleasure in drawing; and a pen-and-ink sketch from his hand at
that time is still preserved in the records of a college society.
Shortly after leaving Cambridge he repaired to Europe, in the pursuit
of Art. At Paris were then collected the masterpieces of painting
and sculpture, the spoils of unholy war, robbed from their native
galleries and churches to swell the pomp of the Imperial capital.
There our Artist devoted his days to diligent study of his profession,
particularly to drawing, so important to accurate art. At a later
day, alluding to these thorough labors, he said he "worked like a
mechanic." To these, perhaps, may be referred his singular excellence
in that necessary, but neglected branch, which is to Art what grammar
is to language. Grammar and Design are treated by Aristotle on a level.
Turning his back upon Paris and the greatness of the Empire, he
directed his steps towards Italy, the enchanted ground of literature,
history, and art,--strown with richest memorials of the Past,--filled
with scenes memorable in the Progress of Man,--teaching by the
pages of philosophers and historians,--vocal with the melody of
poets,--ringing with the music which St. Cecilia protects,--glowing
with the living marble and canvas,--beneath a sky of heavenly purity
and brightness,--with the sunsets which Claude has painted,--parted
by the Apennines, early witnesses of the unrecorded Etruscan
civilization,--surrounded by the snow-capped Alps, and the blue,
classic waters of the Mediterranean Sea. The deluge of war submerging
Europe had subsided here, and our Artist took up his peaceful abode in
Rome, the modern home of Art. Strange vicissitude of condition! Rome,
sole surviving city of Antiquity, once disdaining all that could be
wrought by the cunning hand of sculpture,--
"Excudent alii spirantia mollius æra,
Credo equidem: vivos ducent de marmore vultus,"--
who has commanded the world by her arms, her jurisprudence, her
church,--now sways it further by her arts. Pilgrims from afar, where
her eagles, her prætors, her interdicts never reached, become willing
subjects of this new empire; and the Vatican, stored with the priceless
remains of Antiquity, and the touching creations of modern art, has
succeeded to the Vatican whose thunders intermingled with the strifes
of modern Europe.
At Rome he was happy in the friendship of Coleridge, and in long walks
cheered by his companionship. We can well imagine that the author
of "Genevieve" and "The Ancient Mariner" would find sympathy with
Allston. It is easy to recall these two natures, tremblingly alive
to beauty of all kinds, looking together upon those majestic ruins,
upon the manifold accumulations of Time, upon the marble which almost
speaks, and upon the warmer canvas,--listening together to the flow
of perpetual fountains, fed by ancient aqueducts,--musing together in
the Forum on the mighty footprints of History,--and entering together,
with sympathetic awe, that grand Christian church whose dome rises a
majestic symbol of the comprehensive Christianity which is the promise
of the Future. "Never judge a work of art by its defects," was a
lesson of Coleridge to his companion, which, when extended, by natural
expansion, to the other things of life, is a sentiment of justice and
charity, more precious than a statue of Praxiteles or a picture of
Raphael.
In England, where our Artist afterwards passed several years, his
intercourse with Coleridge was renewed, and he became the friend and
companion of Lamb and Wordsworth also. Returning to his own country,
he spoke of them with fondness, and often dwelt upon their genius and
virtue.
In considering his character as an Artist, we may regard him in three
different respects,--drawing, color, and expression or sentiment. It
has already been seen that he devoted himself with uncommon zeal to
drawing. His works bear witness to this excellence. There are chalk
outlines by him, sketched on canvas, which are clear and definite as
anything from the classic touch of Flaxman.
His excellence in color was remarkable. This seeming mystery,
which is a distinguishing characteristic of artists in different
schools, periods, and countries, is not unlike that of language in
literature. Color is to the painter what words are to the author;
and as the writers of one age or place arrive at a peculiar mastery
in language, so do artists excel in color. It would be difficult to
account satisfactorily for the rich idiom suddenly assumed by our
English tongue in the contemporaneous prose of Sidney, Hooker, and
Bacon, and in the unapproached affluence of Shakespeare. It might be
as difficult to account for the unequalled tints which shone on the
canvas of Tintoretto, Paul Veronese, and Titian, masters of what is
called the Venetian School. Ignorance has sometimes referred these
glories to concealed or lost artistic rules in combinations of color,
not thinking that they can be traced only to a native talent for
color, prompted into activity by circumstances difficult at this late
period to determine. As some possess a peculiar, untaught felicity and
copiousness of words without accurate knowledge of grammar, so there
are artists excelling in rich and splendid color, but ignorant of
drawing, and, on the other hand, accurate drawing is sometimes coldly
clad in unsatisfactory color.
Allston was largely endowed by Nature with the talent for color, which
was strongly developed under the influence of Italian art. While in
Rome, he was remarked for his excellence in this respect, and received
from German painters there the flattering title of "American Titian."
Critics of authority have said that the clearness and vigor of his
color approached that of the elder masters.[174] Rich and harmonious
as the verses of the "Faëry Queen," it was uniformly soft, mellow, and
appropriate, without the garish brilliancy of the modern French School,
calling to mind the saying of the blind man, that red resembles the
notes of a trumpet.
[174] Bunsen, Beschreibung der Stadt Rom, Band I. p. 588. Article on
_Modern Art_, by K. Platner.
He affected no secret or mystery in the preparation of colors. What
he knew he was ready to impart: his genius he could not impart. With
simple pigments, accessible to all alike, he reproduced, with glowing
brush, the tints of Nature. All that his eyes looked upon furnished
a lesson. The flowers of the field, the foliage of the forest, the
sunset glories of our western horizon, the transparent azure above,
the blackness of the storm, the soft gray of twilight, the haze of an
Indian summer, the human countenance animate with thought, and that
finest color in Nature, according to the ancient Greek, the blush of
ingenuous youth,--these were the sources from which he drew. With a
discerning spirit he mixed them on his palette, and with the eye of
sympathy saw them again on his canvas.
But richness of color superadded to accuracy of drawing cannot secure
the highest place in Art; and here I approach a more harmonious
topic. Expression, or, in other words, the sentiment, the thought,
the soul, which inspires the work, is not less important than that
which animates the printed page or beams from the human countenance.
The mere imitation of inanimate Nature belongs to the humbler schools
of Art. The skill of Zeuxis, which drew birds to peck at the grapes
on his canvas, and the triumph of Parrhasius, who deceived his rival
by a painted curtain, cannot compare with those pictures which seem
articulate with the voices of humanity. The highest form of Art is that
which represents man in the highest scenes and under the influence
of the highest sentiments. And that quality or characteristic called
_expression_ is the highest element of Art. It is this which gives to
Raphael, who yields to Titian in color, such acknowledged eminence. His
soul was brimming with sympathies, which his cunning hand kept alive
in immortal pictures. Eye, mouth, countenance, the whole composition,
has life,--not the life of mere imitation, copied from common Nature,
but elevated, softened, refined, idealized. Beholding his works, we
forget the colors in which they are robed; we gaze at living forms, and
look behind the painted screen of flesh into living souls. A genius so
largely endowed with the Promethean fire has been not unaptly called
Divine.
It was said by Plato that nothing is beautiful which is not morally
good. But this is not a faultless proposition. Beauty is of all kinds
and degrees; and it exists everywhere beneath the celestial canopy, in
us and about us. It is that completeness or finish which gives pleasure
to the mind. It is found in the color of a flower, and the accuracy of
geometry,--in an act of self-sacrifice, and the rhythm of a poem,--in
the virtues of humanity, and the marvels of the visible world,--in the
meditations of a solitary soul, and the stupendous mechanism of civil
society. There is beauty where there is neither life nor morality; but
the highest form of beauty is in the perfection of the moral nature.
The highest beauty of expression is a grace of Christian art. It
flows from sensibilities, affections, and struggles peculiar to
the Christian character. It breathes purity, gentleness, meekness,
patience, tenderness, peace. It abhors pride, vain-glory, selfishness,
intemperance, lust, war. How celestial, compared with that which dwells
in perfection of form or color only! The beauty of ancient art found
congenial expression in the faultless form of Aphrodite rising from
the sea,[175] and in the majestic mien of Juno, with snow-white arms,
and royal robes, seated on a throne of gold,[176]--not in the soul-lit
countenance of her who watched the infant in his manger-cradle, and
throbbed with a mother's heart beneath the agonies of the cross.
[175] Ovid, Tristia, Lib. II. 527.
[176] Martial, Epig., Lib. X. 89.
Allston was a Christian artist; and the beauty of expression
lends uncommon charm to his colors. All that he did shows purity,
sensibility, refinement, delicacy, feeling, rather than force. His
genius was almost feminine. As he advanced in years, this was more
remarked. His pictures became more and more instinct with those
sentiments which form the true glory of Art. Early in life he had a
partiality for pieces representing _banditti_; but this taste does not
appear in his later works. And when asked if he would undertake to
fill the vacant panels in the rotunda of the Capitol at Washington,
should Congress determine to order such a work, he is reported to have
said, in memorable words, "I will paint only one subject, and choose
my own: _No battle-piece!_"[177] This incident, so honorable to the
Artist, is questioned; but it is certain that on more than one occasion
he avowed a disinclination to paint _battle-pieces_. I am not aware
if he assigned any reason. Is it too much to suppose that his refined
artistic sense, recognizing expression as the highest beauty of Art,
unconsciously judged the picture? The ancient Greek epigram, describing
the Philoctetes of Parrhasius, an image of hopeless wretchedness and
consuming grief, rises to a like sentiment, when it says, with mild
rebuke,--