In their train follow the company of jurists, whose labors have the

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,--

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