LAW, LEGISLATION, CODES. 



403 



vided for by positive statutes. Here we have a rule, 

 which is absolute and inflexible. To say that, if 

 found inconvenient, it may be altered, is, in effect, 

 no argument at all ; for the same may be said as to 

 any provision of a systematic code. No code is sup- 

 posed to be unalterable. Again, if it be said, that 

 the legislature may, and often does, in an early stage 

 of society, fix great principles and institutions, and 

 then leaves the rest to judicial decisions, and thereby 

 shows its wisdom, the true answer is, that the same 

 reasoning applies to all codes, however extensive, if 

 they leave the judicial tribunals at liberty to decide 

 upon new cases, not governed by, or necessarily 

 included in, the terms of the code. So far as the 

 legislature has laid down principles (whether more 

 or less extensive is of no consequence), these govern; 

 beyond them, all is left as before. Again, the com- 

 mon law is itself, as far as it goes, a system of rules. 

 These rules are fixed, certain, and invariable, as to 

 all cases falling within them. They are quite as un- 

 yielding as any code can be. When the common 

 law has declared that the eldest son shall be the 

 sole heir, and that the half-blood shall not inherit, 

 a court has no more liberty to depart from these 

 rules, or to refuse to apply them to any case fall- 

 ing within them, upon any notion of hardship 

 or inconvenience, or ill adaptation to the exigencies 

 of society, than it has a right to say, that a last will 

 and testament shall be good, though not executed 

 according to the requirements of a statute. In each 

 case, it is bound, and bound to the same extent. If 

 the question were, whether a positive code should 

 contain a clause prohibiting courts of justice from 

 deciding upon cases not within the purview of the 

 code, there might be much to urge against the policy 

 and reasonableness of such a clause ; but it would 

 furnish no objection to other parts of the code. The 

 only point, with reference to a code, which, under 

 this aspect, would deserve consideration, is, how far 

 it would be desirable to provide for cases which may 

 be foreseen, but have not, as yet, actually been sub- 

 jected to legislative decision. On one side, it may 

 be said, that it would be best to leave all such cases 

 to be decided, as they arise, upon the result of human 

 experience and human judgment, then acting upon 

 all the circumstances. On the other hand, it may be 

 said, that it is better to have a fixed, present rule, to 

 avoid litigation, and to alter it in future, if unex- 

 pected inconveniences should arise. The reasoning on 

 each side is sound, when applied to particular cases. 

 On each side, it admits of question, when applied to 

 all cases. It may be best, in many cases, to leave 

 the rule to be made, when the case arises in judicial 

 controversy. In others, it may be far better to 

 establish a present rule, to clear a present doubt, or 

 fix a limit to what is now uncertain. Take the case 

 of a bill of exchange, or promissory note ; and ,-up- 

 pose the question were, at what time demand of pay- 

 ment should be made, when it was payable on time, 

 and no rule existed, and yet there was an immense 

 amount of property dependent upon having a fixed, 

 uniform rule ; and, until so fixed, there must be end- 

 less litigation. Can any one doubt of the benefit of 

 a rule, such as is now fixed in the commercial law of 

 our country, for the purpose of securing certainty, 

 viz. that payment must be demanded on the day on 

 which it becomes clue. On the other hand, suppose 

 it were now proposed to make a law, fixing what 

 should lie the rate of wages in all future times, in all 

 private employments ; would it not, at once, occur 

 to be impolitic to act upon a rule, the effects of which 

 might immediately, or in future, press unequally and 

 injuriously upon different interests in society ? Again, 

 it is said to be unnecessary to reduce the rules of 

 the common law to a code, for they are as certain 



now as they would be in a positive code. They are 

 even more so, because the legislature cannot be pre- 

 sumed able to lay down a positive rule, with all the 

 limitations and qualifications of the common law. 

 Now, botli of these suggestions admit of a satisfac- 

 tory answer. If the rule exists, and has certainty 

 in the common law, it can be stated. If there are 

 any known exceptions, limitations and qualifications, 

 upon a rule, those also can be stated. If nothing 

 beyond a particular limit is known, then legislation 

 can, at least, go to that limit. And as to all other 

 cases, the same uncertainty exists, both at common 

 law and in legislation. The difficulty of the argu- 

 ment consists in assuming, that, because the legis- 

 lature has prescribed the same rule as the common 

 law, the courts are thereby prohibited from doing 

 what they possessed the power to do before, in the 

 absence of any rule, viz. to find out what is the rule 

 that ought to govern. Now, the legislature may as 

 well leave this power in the courts, after a code, as 

 the common law ; and it will be best, unless there is 

 a positive prohibition to the contrary. The other 

 part of the suggestion applies only to the point, 

 whether the code is well or ill formed by the legis- 

 lature. If badly formed, it will, of course, be pro- 

 portionally bad ; but that furnishes no objection to a 

 code, but to the mode in which it is executed. 

 Then, again, as to the suggestion that it is unne- 

 cessary, because the rule already exists in the com- 

 mon law, and has certainty: to this several answers 

 may be given. In the first place, if it be conceded, 

 that there is entire certainty in the rule, at common 

 law. there can be no harm in making the rule 

 positive. It may do good ; for it will instruct many, 

 in and out of the profession, in respect to their rights 

 and duty, who are now sadly ignorant of both, or are 

 liable to be misled by their imperfect inquiries, or 

 their limited sources of information. Every man 

 maybe able to peruse a concise text ; but every man 

 may not have leisure or ability to study a voluminous 

 commentary. Besides, even in relation to the doc- 

 trines of the common law, many of them lie scat- 

 tered in different cases, and many of them are not so 

 clear as not to admit of different interpretations, by 

 minds of different learning and ability. Even law- 

 yers of great research and accuracy, especially where 

 the doctrine, though on the whole clear, is matter ot 

 deduction and inference, may not, at once, come to 

 the correct conclusion ; and others of less learning 

 and ability may plunge into serious errors. Now, 

 it would be no small gain to have a positive text, 

 which should give, in such cases, the true rule, 

 instead of leaving it open to conjecture and inference 

 by feeble minds. Again, there are many subjects of 

 great intricacy and complexity, which can be fully 

 mastered only by very able minds, resting, as they 

 do, upon nice, and sometimes, upon technical reason- 

 ings, not seen by the common reader. In such cases, 

 the text may admit of very exact statement, but the 

 commentaries necessary to deduce it, may be exceed 

 ingly elaborate. The demonstration, or last result, 

 may be clear, but the steps in arriving at it, exceed- 

 ingly perplexed and embarrassing. It may require 

 an analysis by the greatest minds to demonstrate ; 

 but, when once announced, it may be understood by 

 the most common minds. For instance, the subject 

 of contingent remainders and executory devises is of 

 uncommon complexity in the common law, and many 

 a lawyer may read Mr Fearne's admirable treatise on 

 the subject, without feeling competent to expound 

 all its doctrines. And yet, put every principle into 

 a positive text, with all its limitations and restric- 

 tions (not to be made out by argument and inference, 

 but given in a direct form), and his labours and his 

 reasoning would be materially abridged, and cer- 

 2c. 2 



