40J 



LAW, LEGISLATION, CODES. 



I'nlil ii liiis been ascertained \vlint arc the utmost 

 limits til human relations, and those limits, \vitli ;ill 

 their intermediate details, can be clearly defined . in 

 -knit- of difference, how can any system of laws 

 be adequate to provide lor. or to guard them, or to 

 fix the rights growing out of them ? To suppose that 

 mini is capable of all this, is to suppose that he is 

 omniscient, all-wise, and all-powerful ; that he is 

 perfect, or that he can attain perfection; that lie can 

 see all the future in the past, and that the past is 

 l<n M -nt to him in all its relations. The statement of 

 such a proposition carries with it its own refutation. 

 While man remains as he is, his powers, and capaci- 

 ties, and acts, must forever be imperfect. But it 

 may be said, that a positive code may be framed, and 

 a declaration made that it shall be deemed the sole 

 niiide and rule, and that all other rules shall be pro- 

 hibited. Certainly this may be done. But the effect 

 of this would be, not to form a perfect code for all the 

 future exigencies of society ; but to declare that 

 whatever was Jeft unprovided for in the code, should 

 be neither matter of right nor wrong. It would be to 

 declare, that, as to all other transactions, now and 

 hereafter, society should be utterly lawless ; and, of 

 course, it would be to declare, that a system con- 

 fessedly imperfect, and not meeting the wants or 

 exigencies, the rights or the wishes of society, should 

 still govern it. What would this be, but to provide 

 a bad code for human concerns, which it could not 

 measure or manage ? From these considerations, 

 we may assume it as a concession granted on all 

 sides, that a perfect code, to regulate all present, 

 and, a fortiori, all future concerns of any civilized 

 society, by positive rules, applicable to them, is 

 morally impossible. The only real question is, whe- 

 ther a positive code can be provided, adequate, in a 

 general sense, to the present known wants of society. 

 That codes may be formed, more or less compre- 

 hensive, to regulate many or few concerns, to supply 

 defects, or to give symmetry and order to the law on 

 particular subjects, cannot be doubted. It has been 

 often done. Perhaps no civilized nation has ever 

 existed, in which there was not, at the same time, a 

 written and an unwritten law, or, in other words, a 

 rule of positive institution, and a rule of customary 

 law. All special decrees and ordinances of the sove- 

 reign power are of the former kind. Many subjects 

 are of such a nature as to require some positive 

 rule, seeing that natural law cannot fix them upon 

 any invariable basis. For example, there is nothing 

 in the nature of things by which we can say, that 

 land shall, in all possible states of society, descend to 

 the possessor's heirs, or who those heirs shall be ; that 

 he shall have a right to dispose of them by testament 

 or deed, and how that testament or deed shall be 

 evidenced ; whether bills of exchange and promissory 

 notes shall be negotiable or not, and to what extent 

 binding upon the parties. These subjects, in the 

 origin of society, must either be positively provided 

 for, or no rights can exist (strictly speaking) until 

 they have become, by usage, fixed in a particular 

 form. But most nations, with whose history we are 

 acquainted, have had many positive laws. And to 

 suit their institutions to the exigencies of society, in 

 all its changes, there must be ordinances to change 

 the old and to frame new rules. In ancient Rome, 

 in the modern governments of continental Europe, 

 and especially in France and in Britain, great alterl 

 ations have, from time to time, been made in the 

 existing system of laws. Fundamental laws have 

 been abrogated ; amendatory provisions have been 

 established ; existing rules have been methodized, 

 confirmed, explained, and limited ; and new rules 

 prescribed for new cases. The ordinances of Louis 

 XIV., of 1673 and 1681, on the subject of maritime 



and commercial affairs, are striking instances of this 

 sort. The abolition of feudal tenures ; the regula- 

 tion of uses and charities ; the allowance of last wilU 

 and testaments, made in a prescribed mode ; the pro- 

 visions to suppress frauds, in the statute of frauds ; 

 the registration of conveyances of lands ; the negotia- 

 bility of promissory notes ; and, above all, the positive 

 enactments, various and almost innumerable, in the 

 criminal code, are illustrations of the same fact, in the 

 history of British legislation. All these statutes 

 furnished, to a limited extent, a code on the particu- 

 lar subject. And we have recently seen, in the con- 

 solidation of the criminal laws of England into a few 

 statutes, under the auspices of Sir Robert Peel, a 

 striking instance of sul>stantive codification of the 

 criminal law of England, in many of its most impor- 

 tant provisions. But the objections often urged 

 against codes, are not meant to be applied to legisla- 

 tion of this sort, but to systems, which are promul- 

 gated for the government of the great concerns of 

 nations, in all their various departments and interests. 

 How far this can be done, has been a matter of con- 

 siderable theoretical discussion. But the question 

 has been practically answered by the celebrity of 

 several positive codes. And among those whose 

 success and wisdom have been most generally 

 acknowledged, are the code of Justinian, and the 

 code of Napoleon. That either of them furnishes 

 complete rules for all the concerns of society, or 

 excludes the necessity of judicial interpretation, or 

 positive legislation, cannot be affirmed. That eacli 

 of them covers a vast mass of the ordinary concerns 

 of society, and fixes, positively and clearly, a great 

 many wrongs and rights, and points out the proper 

 redress, in cases where rights are to be vindicated 

 and wrongs repressed, cannot well be denied. The 

 question, then, is fairly presented, how far codes of 

 this sort (the only ones which, in the actual state of 

 society, are morally possible), are desirable, and 

 founded in sound policy. It is here, that the advo- 

 cates and the opponents of codes, under the jurispru- 

 dence of the common law, meet on debatable ground. 

 The lovers of ancient institutions, of existing laws, of 

 customary principles, oppose codes as inconvenient, 

 and unneccessary. They hold them to be inconveni- 

 ent, because they fix a stubborn rule, which shall 

 govern future cases, instead of leaving them open to 

 the free operations of the common law, which adapts 

 itself to all the circumstances of the age. They main- 

 tain, also, that codes are unnecessary ; for, so far as 

 there is any rule, it is already known in the common 

 law; and positive legislation cannot make it more so. 

 It is added (and it is true), that law is gradually 

 formed, and must differ in different ages, according 

 to the different circumstances of society; that it must 

 be varied according to the progress or regress of a 

 nation ; that it can rarely settle comprehensive prin- 

 ciples; and must, by degrees, thread its way through 

 the intricacies of human actions; and that an inflexi- 

 ble rule might work quite as much mischief as none 

 at all ; that no legislature can make a system hajf so 

 just, or perfect, or harmonious, both from want of 

 time, and experience, and opportunity of knowledge, 

 as judges, who are successively called to administer 

 justice, and gather light from the wisdom of their 

 predecessors. Most, if not all, of these suggestions, 

 may be admitted to be correct, and yet they do not 

 settle the controversy. In the first place, the objec- 

 tors must admit, that, under the common law, there 

 are positive statutes, which regulate many great con- 

 cerns and rights of the countries governed by it. The 

 descent and distribution of real estates, the making 

 of last wills and testaments, the forms and cere- 

 monies attendant upon conveyances of real estate, to 

 say nothing of other important subjects, are 



