398 



LAW, LEGISLATION, CODES. 



haps not a man among them, has any knowledge. But 

 this is not to be observed in MIKI!! states only : very- 

 large ones sometimes sutler still more from this evil ; 

 lor though, on one side, the mass of knowledge united 

 in the body is greater, on the other, a greater num- 

 ber of ignorant men embarrass and confuse : and 

 while too many take part in making laws, but few 

 take an interest in the subject. The thoughtlessness 

 with which this important duty has been performed 

 in England till the present time, is shown by Miller, 

 iu an Inquiry into the Present State of the Statute 

 and Criminal Law of England (London, 1822). 

 The people of England, therefore (the paradise of 

 the customary law), are at length beginning to feel 

 the urgent need there is of reducing the chaos of sin- 

 gle enactments into general codes. This is called 

 the consolidation of lawt. Several learned indivi- 

 duals have undertaken to make such compends. 



We now propose to offer some observations, ex- 

 planatory of the views of lawyers accustomed to the 

 jurisprudence of the common law, on this interesting 

 subject. Civilians are (it seems from the preceding 

 part of this article) divided into several schools, pro- 

 fessing different opinions, and actuated by different 

 principles. The course of the common law naturally 

 leads those who are engaged in its studies, to take 

 practical rather than theoretical views of almost 

 every department of it. Hence they can hardly be 

 said to be divided into different schools, or to indulge 

 much in what may be called philosophical, historical, 

 or antiquarian inquiries. r lhe actual system, as it 

 exists, is that which they principally seek to adminis- 

 ter; and it is only occasionally that very gifted or 

 bold minds strike out into new paths, or propose 

 fundamental reforms. In the present age, however, 

 a spirit of inquiry is abroad, and the value and 

 extent of codification have, among other topics, been 

 matter of warm controversy among practical lawyers, 

 as well as among practical statesmen. We shall 

 speak of this subject in the sequel. Legislation, in 

 its broadest sense, includes those exercises of sove- 

 reign power, which permanently regulate the general 

 concerns of society. Its chief object is to establish 

 laws. And by a law, we understand a rule, pre- 

 scribed by the sovereign power of a state to its 

 citizens or subjects, declaring some right, enforcing 

 some duty, or prohibiting some act. It is its general 

 applicability, which distinguishes it from a single 

 edict, or temporary and fugitive order of the sovereign 

 will. It is supposed to furnish a permanent and 

 settled direction to all who are embraced within its 

 scope. It is not a sudden executive direction, but 

 an annunciation of what is to govern and direct the 

 rights and duties of the persons to whom it applies, 

 in future. The rule being prescribed, it becomes 

 the guide of all those functionaries who are called to 

 administer it, and of all those citizens and subjects 

 upon whom it is to operate. Neither is supposed to 

 be at liberty to vary its obligations, or evade its 

 provisions. But as, in the ordinary course of affairs 

 in free governments, every person has a right, where 

 the matter admits of judicial discussion, to litigate 

 the question, what are the true object and meaning 

 of a law, and how far it bears upon his rights, privi- 

 leges, or duties, it is understood, that in free 

 governments, and especially in republics, the ulti- 

 mate adjudication of what the law is, and how far it 

 applies to a given case, is to be definitively settled 

 by the judicial department of the government. It 

 would be obviously unfit for the legislative depart- 

 ment to settle retrospectively, as to past cases, what 

 wa- its own meaning, its true office being to pre- 

 scribe rules for the future. And though the execu- 

 tive department may, in the first instance, settle for 

 itself what the law requires, its decisions cannot, and 



ought not to be final ; for it has no means to call the 

 proper parties before it to litigate the question, and 

 no power to decree any judgment. Its proper func- 

 tion is to administer the law, and not to make it ; to 

 act upon its true construction, and not to fix it . 

 Otherwise, the fundamental principle of a republican 

 government would be overturned ; and laws would 

 be, not settled rules of action to be judged of by 

 courts upon the litigation of parties, deriving their 

 rights from, or in opposition to them ; but would be 

 arbitrary decisions of the sovereign power, without 

 appeal and without inquiry. In the American 

 states, this principle is thought so fundamental, that 

 their constitutions of government expressly separate 

 the legislative, executive, and judicial departments 

 from each other, and assign to each appropriate 

 duties. It is thought that in no other way can the 

 private rights and the public liberties of the people 

 be secure. A departure from this doctrine would 

 be deemed a direct advancement towards despotism. 

 When, then, in Britain, it is asked what the law is, 

 we are accustomed to consider what it has been 

 declared to be by the judicial department, as the 

 true and final expositor. No one is at liberty to 

 disregard its exposition. No one is deemed above 

 or beyond its reach, as thus declared. If it is sup- 

 posed to be misconstrued, or rather not to carry into 

 full effect the legislative will, a new or declaratory 

 law is passed, and furnishes the appropriate remedy. 

 And this leads us to remark, that the difference 

 between civilians and common lawyers, in respect to 

 the value and obligatory force of former decisions 

 (which we call precedents), is most important. The 

 opinion of no jurist, however high and distinguished 

 is his reputation or ability, is of the least importance 

 in settling the law, or ascertaining its construction. 

 So far as he may, by his arguments, or counsels, or 

 learning, instruct the court, or enlighten its judg- 

 ments, they have their proper weight. But if the 

 court decide against his opinion, it falls to the ground. 

 It has no farther effect. The decision becomes con- 

 clusive and binding, and other courts are governed 

 by it, as furnishing for them the just rule of decision. 

 No court would feel itself at liberty to disregard it, 

 unless upon the most urgent occasion, and when it 

 interfered with some other known rule or principle ; 

 and even then, with the greatest caution and defer- 

 ence. In countries where the common law prevails, 

 it is deemed of infinite importance, that there should 

 be a fixed and certain rule of decision, and that the 

 rights and property of the whole community should 

 not be delivered over to endless doubts and contro- 

 versies. Our maxim, in truth, and not in form 

 merely, is, Misera est servitus, ulijus est vagum aut 

 incertum. All this, it seems, is different in the civil 

 law countries. There, the celebrity of a particular 

 jurist may introduce a decisive change in the rule, or 

 at least in the administration, of the law ; and even 

 different schools of opinion may prevail in different 

 ages. Precedents have not, as with ns, a fixed 

 operation and value ; and judicial tribunals con- 

 sider, that a prior decision governs only the par- 

 ticular case, without absolutely fixing the principles 

 involved in it. The practice under the common 

 law has been found to be very beneficial ; and, 

 experience having given it a sanction and value 

 which supersede all theory and reasoning about it, 

 it is not often that the matter is discussed upon 

 abstract or philosophical views. But there are 

 many grounds, which might be urged in support of 

 this practice, which are capable of vindicating it hi 

 the most philosophical discussions. The question, 

 in its most general form, must involve this inquiry, 

 What is best for society, with a view to its interests, 

 its security, its permanency ? Now, it may not be 



