404 



LAW, LEGISLATION, CODES. 



tainty exist where darkness before overshadowed liis I 

 mind. Again, the common law lias now become 

 on excenlingly voluminous system ; and as its 

 lions rest, not on a positive text, but upon 

 arguments, analogies and commentaries, every per- 

 son, who desires to know nincii, must engage in a 

 very extensive system of rending. He may employ 

 halt' his life in mastering treatises, the substance of 

 which, in a positive code, might occupy but a few 

 hundred pages. The codes of Justinian, for instance, 

 superseded the camel-loads of commentaries, which 

 were antecedently in use, and are all now buried in 

 oblivion. The Napoleon codes have rendered thou- 

 sands of volumes only works of occasional consulta- 

 tion, which were before required to be studied very 

 diligently, and sometimes in repeated perusal. 

 Again, what is to be done in the common law, 

 where there are conflicting decisions on the same 

 point, or converging series of opposite doctrines, 

 approaching towards a conflict ? The rule is here 

 confessedly uncertain. Why should not the legisla- 

 ture interfere, in such a case, and fix a rule, such as, 

 on the whole, stands upon the better reasoning and 

 the general analogies of the law ? In point of fact, 

 this is often done. Declaratory laws, in form, are 

 unusual among us ; but laws to clear doubts and 

 difficulties are very common. Such interferences 

 ought, doubtless, to be made with caution and pru- 

 dence, and great deliberation. But this furnishes no 

 just objection to a reasonable exercise of the power. 

 But in the practice under the common law, there is 

 still stronger ground for interference. In the first 

 place, what the common law is, is always open to 

 question ; and if authorities are suggested on either 

 side, it is common enough to find the rule deduced 

 from them, doubted, denied, or explained away, by 

 parties in an opposite interest. Courts are bound to 

 hear as well as to decide ; and although a court may 

 think the rule of the common law clear, from their 

 own prior researches and reasoning, it will rarely 

 feel at liberty to stop eminent counsel, when they 

 deny the rule, or seek to overthrow the authorities 

 and reasonings by which it is supported. The spirit 

 of our tribunals, and the anxious desire, not only to 

 do, but to appear to do justice, lead to a vast con- 

 sumption of time in these discussions. If the legis- 

 lature had once recognised the rule in a positive 

 code, there would be an end of all such reasoning. 

 The only question which could remain, would be, 

 whether the rule were applicable to the case. In 

 the next place, there are, upon some doctrines of 

 the common law, a vast multitude of authorities to 

 examine, compare, and understand, which requires 

 not only great diligence, but great skill. In some 

 cases, there are shades of difference fit for comment; 

 in others, obiter dicta, which are to be qualified ; in 

 others, doubts thrown out upon collateral heads; in 

 others, reasoning not altogether satisfactory. Under 

 such circumstances, what is to be done? The advo- 

 cate on the one side comments on every case, and 

 the language of every judge, which furnishes any 

 colour of support for his client. His arguments must 

 be met and answered on the other side, not only 

 because no advocate can know what the judges will 

 decide, but what will be the influence upon their minds 

 of a dictum, or doubt, or incidental remark or reason. 

 It is indispensable, therefore, to examine the whole, 

 though perhaps neither party doubts what the amount 

 of authority, on the whole, supports. On one point 

 (we believe) a learned English judge said, many 

 years ago, that there were then more than 170 autho- 

 rities. It is most probable that the number is now 

 doubled ; and yet, upon this very point, a legislative 

 enactment of three lines might put controversy at 

 IT.-I for ever. Perhaps no man in or out of the legal 



would now doubt what the rule ought to 

 be. '1 he diiiiculty is, that a rule has either been 

 adopted which works inconveniently in particular 

 cases, or a rule has grown out of a hasty adjudication. 

 which subsequent judicial subtilty has been desirous 

 of escaping from ; but it is not easy to do so, with- 

 out breaking in upon the acknowledged force of the 

 rule. Hence distinctions, nice, and, perhaps, not 

 very satisfactory, are found, as blemishes in some 

 parts of tlie law, which need the legislative hand to 

 extirpate or correct them. But it has been urged, 

 as has been already incidentally noticed, that it is a 

 great advantage to have law a flexible system, which 

 will yield to the changing circumstances of society; 

 and that a written code gives a permanence to doc- 

 trines, which would otherwise be subject to modifica- 

 tion, so as to adapt them to the particular character 

 of the times. This objection has been already in 

 part answered. In respect to the common law doc- 

 trines, they cannot now be changed, whatever may 

 be the changes of society, without some legislative 

 enactment. They furnish a guide to all cases go- 

 verned by them, until the legislature shall promul- 

 gate a new rule. Courts cannot disturb or vary 

 them; and the question of their application to new 

 cases is equally open, whether there be, or be not a 

 code. The legislature can, with the same ease, 

 vary its code as its common law. It can repeal, 

 amend, or modify either. But another principal 

 objection is often suggested, and that is, that all the 

 parts of the common law are not in a state suscepti- 

 ble of codification ; and that, as we cannot form a 

 complete system of it, one great object of a code 

 must fail. It may be admitted, that some parts of 

 the common law are too imperfectly settled in prin- 

 ciples, and too little understood in practice, to allow 

 of any exact codification. But these parts are prin- 

 cipally obsolete, or of rare occurrence and applica- 

 tion in the common business of life ; so that, if they 

 admitted of being reduced to a text, it may be well 

 doubted if they were important enough to deserve it. 

 There are other parts, again, which have grown up 

 in modern times, which may be admitted to be yet 

 in an immature and forming state, in respect to 

 which, perhaps, it were better to wait the results of 

 experience, than to anticipate them by positive law. 

 Conceding all this, it falls far short of establishing 

 the inutility of a code in other departments of the 

 common law, not open to the like objections. Be- 

 cause we cannot form a perfect system, does it fol- 

 low that we are to do nothing? Because we cannot, 

 without rashness, give certainty to all possible or 

 probable details of jurisprudence, shall we leave 

 every thing uncertain and open to controversy ? 

 England, in our own time, has consolidated the roost 

 important heads of her criminal jurisprudence, in a 

 new and methodized text. No man can doubt, that 

 revisions of this sort may be useful, and, indeed, indis- 

 pensable for the wants and improvements of society, 

 in its progress from one stage to another. The ques- 

 tion of more or less is a mere matter of expediency 

 and policy. It is not a little remarkable, that, in 

 England, almost every change in the general struc- 

 ture of her laws, by positive legislation, has, in all 

 ages, met with a similar objection and resistance, 

 and, when once adopted, lias been generally, if not 

 universally satisfactory. But there are many branches 

 of the common law which can, without difficulty, be 

 reduced to a positive text. Their main principles 

 are embodied in treatises, accurate and full, and 

 there can be no want of learned men ready to form 

 an outline of them for the consideration of the legis- 

 lature. Our commercial law is generally in this 

 state. The law of bills of exchange and promissory 

 notes, of insurance, of shipping and navigation, of 



