LAW, LEGISLATION, CODES. 



401 



a greiit diversity of opinion lias been exhibited on 

 the subject. It will be our object, in the sequel of 

 these remarks, to put the reader in possession of 

 some of the main grounds of the controversy. The 

 legislation of no country, probably, ever gave origin 

 to its whole body of laws. In the very formation of 

 society, the principles of natural justice, and the 

 obligations of good faith, must have been recognised 

 before any common legislature was acknowledged. 

 Debts were contracted, obligations created, property, 

 especially personal property, acquired, and lands 

 cultivated, before any positive rules were fixed, as to 

 the rights of possession and enjoyment growing out 

 of them. The first rudiments of jurisprudence re- 

 sulted from general consent or acquiescence; and when 

 legislation began to act upon it, it was rather to con- 

 firm, alter, or add to, than to supersede, the primitive 

 principles adopted into it. We, in fact, know of no 

 nation, or, at least, of no civilized nation, whose history 

 has reached us, in which a positive system of laws 

 for the exigencies of the whole society was co-eval 

 with its origin ; and it would be astonishing if such a 

 nation could be found. Nations, in their origin, are 

 usually barbarous or rude in their habits, customs, 

 and occupations. They are scanty in population and 

 resources, and have neither the leisure, nor the in- 

 clination, nor the knowledge, to provide systems for 

 future use, suited to the growing wants of society, or 

 to their own future advancement in the arts. A few 

 positive rules suffice, for the present, to govern them 

 in their most pressing concerns ; and the rest are left 

 to be disposed of according to the habits and manners 

 of the people. Habits soon become customs; customs 

 soon become rules; and rules soon fasten themselves 

 as firmly upon the existing institutions, as if they 

 were positive ordinances. Wherever we trace positive 

 laws, iii the early stages of society, they are few, and 

 not of any wide extent ; directions for special con- 

 cerns, rather than comprehensive regulations for the 

 universal adjustment of rights. No man can pretend 

 tliat, in Asia, any such universal rules were estab- 

 lished by positive legislation, at the origin of the 

 great nations by which it is peopled. The instructions 

 of Moses, as promulgated by divine authority, for the 

 government of the Jews, are not (as every one per- 

 ceives) designed for every possible exigency of 

 contract, or right, or injury, or duty, arising in the 

 course of the business and history of that wonderful 

 people. They are rather positive precepts, adapted 

 to great occasions, and to govern those concerns 

 which respected their wants, their spiritual advance- 

 ment, and their duties as the chosen people of God. 

 The Greeks are not known to us, in their early or 

 later history, as having had a code of universal 

 extent. The Romans, in their early history, had few 

 positive laws ; and those seem to have been borrowed 

 from other sources. We often, indeed, see it stated, 

 that the common law of England was originally 

 formed from statutes now obsolete and unknown. 

 But this assertion is wholly gratuitous. There is no 

 reason to suppose that, in the early history of its 

 jurisprudence, more was done than is usual in other 

 nations, at the same period of their progress, such as 

 the promulgating of some leading regulations, or the 

 forming of some great institutions for the security of 

 the public. In fact, a great portion of the English 

 common law is of modern growth, and can be traced 

 distinctly to sources independent of legislation. The 

 commercial law of England is not two centuries old, 

 and scarcely owes any thing important to positive 

 legislation. In truth, the formation of codes, or 

 systems of general law, for the government of a 

 people, and adapted to their wants, is a business 

 which takes place only in advanced stages of society, 

 when knowledge is considerably diffused, and legis- 



lators have the means of ascertaining the best princi- 

 ples of policy and the best rules for justice, not by 

 mere speculation and theory, but by the results of 

 experience, and the reasoning of the learned and the 

 wise. Those codes with which we are best acquainted, 

 are manifestly of this sort. The institutes, and 

 pandects, and code of Justinian, were made in th 

 latter ages of Roman grandeur nay, when it was far 

 on the decline, not by instituting a new system, 

 but by embodying the maxims, and rules, and princi- 

 ples, which the ablest jurists had collected in different 

 ages, and from all the various lights of reason, and 

 juridical decision, and general experience. No man 

 imagines that Rome, in her early history, was capable 

 of promulgating, or of acting upon, such a system. 

 And this system, large as it was, has no pretension 

 to be deemed complete, even for Rome itself. It left 

 an infinite number of human concerns undecided by 

 its text, which were, of course, to be submitted to 

 judicial decision, and to receive the judgment of the 

 wise men, who should be called, from time to time, 

 to declare the law ex aequo et bono. It may indeed 

 be assumed, as a general truth, that the body of 

 every system of law which has hitherto governed 

 human society, had its origin as customary law ; and 

 if it has ever assumed the form of positive legislation, 

 it has been to give it greater sanctity and extent, as 

 well as greater uniformity of operation. This is 

 certainly true in respect to the common law. That 

 system, as administered in Britain and the United 

 States, is, as compared with the positive code, or 

 statutes, of an immeasurably wider extent, both in 

 its principles and its practical operation. A man 

 may live a century, and feel (comparatively speaking) 

 but in few instances the operation of statutes, either 

 as to his rights or duties ; but the common law 

 surrounds him, on every side, like the atmosphere 

 which he breathes. Returning, then, to the question 

 before stated, it may be inquired, whether it be 

 practicable, in a refined and civilized state of society, 

 to introduce a positive code, which shall regulate all 

 its concerns. That such a code could be formed in a 

 rude or barbarous age, so as to be adapted to all their 

 future wants and growth, in passing from barbarism 

 to refinement, seems absolutely incredible. That it 

 could be formed in a refined age, when learning, and 

 large experience, and enlightened views, and a 

 sagacious forecast, might guide the judgments of the 

 legislature, is the point before us. In the first place, 

 it has never yet been done by any people, in any 

 age. The two most illustrious instances of codifica- 

 tion are that of Justinian and that of Napoleon. 

 Neither of these purports to be a complete system of 

 laws and principles, superseding all others, and 

 abolishing all others. As far as they go, they purport 

 to lay down positive rules to guide the judgment of 

 all tribunals, in cases within them. But other cases 

 are left to be decided as they may arise, upon such 

 principles as are applicable from analogy, from 

 reasoning-, from justice, from the customary law, or 

 from judicial discretion. A positive prohibition to 

 decide in cases not provided for by these codes, is 

 not contained in either. But is it possible to foresee, 

 or to provide beforehand, for all such cases ? Society 

 is ever varying in its occupations and concerns, in its 

 objects and its pursuits, in its institutions, its plea- 

 sures, its inventions, its intelligence, and, in short, in 

 innumerable relations and diversities of measures and 

 means. How is it possible to foresee, or to limit, 

 these relations or diversities ? How is it possible, 

 especially in free governments, to reduce all human 

 acts to the same positive elements ? to prevent con- 

 tracts, and obligations, and rights, and equities, and 

 injuries, and duties, from becoming mixed up in an 

 infinite series of permutations and combinations ? 

 2c 



