LAW MERCHANT LAW OF EXCEPTION. 



405 



partnership, of agency and factorage, of sales, of 

 bailments, and many kindred titles, admits of codifi- 

 cation to a very high degree of certainty; and yet, 

 in these branches, there is still room enough to con- 

 trovert particular decisions and authorities, to make 

 it desirable to give a positive sanction to the better 

 doctrine, and thus to save the profession from labo- 

 rious researches, and the public from expensive liti- 

 gation. The ordinance of Louis XIV., on commer- 

 cial law, dried up a thousand sources of disputation ; 

 and the present code of commerce of France has 

 settled, in a positive manner, most of the question- 

 able points, which had been found unprovided for by 

 that ordinance, and were resigned to judicial deci- 

 sion in the intermediate period. Besides, a code fur- 

 nishes the only safe means of incorporating qualifica- 

 tions upon a general principle, which experience has 

 demonstrated to be proper and politic. Courts often 

 lament that a principle is established in too broad 

 terms for the public good, and yet do not feel them- 

 selves at liberty to interpose exceptions which the 

 principle does not sanction. This article has 

 already spread out into a great length, and must now 

 be closed. The result of the whole view, as to codes, 

 is, that neither the friends nor the opponents of them 

 are wholly right in their doctrines or their projects ; 

 that, in every civilized country, much may be done to 

 simplify the principles and practice of the law by 

 judicious codification, and to give it uniformity and 

 certainty ; that How much ought to be done ? is a 

 question not admitting of any universal response, but 

 is, or may be, different as to different countries, or, 

 in different ages, as to the same country ; that every 

 code, to be useful, must act upon the existing institu- 

 tions and jurisprudence, and not, generally, supersede 

 them ; that what, with reference to the customs, 

 habits, manners, pursuits, interests, and institutions 

 of one country, may be fit and expedient, may be 

 wholly unfit and inexpedient for another ; and 

 that the part of true wisdom is, not so much to 

 search out any abstract theory of universal jurispru- 

 dence, as to examine what, for each country in par- 

 ticular, may best promote its substantial interests, 

 preserve its rights, protect its morals, and give per- 

 manence to its liberties. 



LAW MERCHANT. See Commercial Law. 



LAWOFEXCEPTION (in French, loid' exception). 

 When the situation of a state is so critical that the 

 ordinary powers and laws are no longer considered 

 sufficient, extraordinary and more energetic means 

 are employed. The Romans had a form for such an 

 emergency, which invested the two consuls with a 

 greatly augmented power " Videant consules, ne 

 quid respublica detriment! capiat ( Let the consuls see 

 that the republic receive no injury);" and if this was 

 not sufficient, they appointed a dictator. The remedy 

 was often worse than the disease. Despotic govern- 

 ments require no laws of exception ; in these the 

 public power is always free from the restraints which 

 are imposed upon it in constitutional states. In the 

 latter, certain cases happen in which the power of 

 the government must be strengthened, to be able to 

 act with energy and promptness. In Britain, the 

 first and most important regulation, in such an em- 

 ergency, is the suspension of the habeas corpus 

 act for a limited time. The government can then 

 take into custody suspected and dangerous persons, 

 without following the regular process of law. This 

 suspension is not a prerogative of the crown, but can 

 only be granted by parliament, and for a limited pe- 

 riod, at the expiration of which all such state prison- 

 ers must be released, or subjected to a formal exam- 

 ination. Even then, the suspension does not protect 

 the ministerial officers against the demands for indem- 

 nification for an unjustifiable arrest. These com- 



plaints, when made against tlie ministers of the king, 

 are usually comprehended in a separate act of parlia- 

 ment, called the indemnity bill, at the discussion of 

 which in parliament, the opposition party is careful 

 to institute a strict examination of the use which the 

 ministers have made of their extraordinary power. 

 A second regulation of this kind is the alien bill (see 

 Alien Bill), which invests the government with a 

 power over all foreigners dwelling in Britain, such 

 as does not constitutionally belong to it, giving the 

 right not only to order them out of the country at 

 pleasure, but also to send them to any part of the 

 continent. Bills of pains and penalties, which are 

 admissible in single cases, constitute a sort of law ot 

 exception. Parliament maintains the right to pass 

 such bills, which could not belong to it under a cor- 

 rect division of public power, and thus to punish 

 individuals without a judicial sentence. This is to be 

 distinguished from its proper judicial functions, by 

 which the peers of the realm, the house of lords, act 

 as the highest court of justice, and the house of com- 

 mons comes forward as complainant (as in the case 

 of governor Hastings). There the lords sit formally 

 as a court of justice ; a full judicial hearing is granted 

 to the defendant, and his condemnation cannot be 

 pronounced except by a majority of twelve voices 

 (thenumber of the jury in usual cases). In these cases, 

 the house of lords alone decides upon the motion of 

 the commons, and wholly without the concurrence of 

 the king, whose right to pardon is even circumscribed. 

 But when an individual bill of attainder, or bill of 

 penalties, is brought forward in parliament, then the 

 introduction of the act may take place in the house of 

 lords as well as in the house of commons ; and no 

 peculiar legal process is followed, but it depends on 

 the pleasure of each house how the facts, upon which 

 the summary sentence is grounded, shall be proved ; 

 and it is only from considerations of natural justice 

 that opportunity is granted to the accused to defend 

 himself. The sentence itself is passed by a simple 

 majority of voices in each house, like other laws ; but 

 it must be sanctioned by both houses of parliament, 

 and the assent of the king must be obtained, as in any 

 other law. In fixing the punishment, also, parlia- 

 ment is amenable to no established rule, and the 

 right of the king to pardon wholly ceases, if he has 

 once given his consent. Such a process lias always 

 something very odious on the face of it, and, in point 

 of fact, it is very rarely resorted to. Thomas Went- 

 worth, earl of Stafford, the celebrated confidential 

 minister of Charles I., was condemned to death by 

 this form, and it was equally criminal and impolitic 

 in the king to give his consent to this bill of attain- 

 der. The same process was introduced against the 

 queen, in 1820, and, wholly independent of her guilt or 

 innocence, this was a sufficient reason for rejecting it. 

 In the United States of America no such legislative 

 power exists, either in the state or in the national 

 legislature. It is contrary to the genius of a repub- 

 lican government. The constitution of the United 

 States declares, that " No bill of attainder, or ex post 

 facto law, shall be passed;" that " the privilege of the 

 writ of habeas corpus shall not be suspended unless 

 when, in cases of rebellion or invasion, the public 

 safety requires it. 1 ' So, also, except in cases of im- 

 peachment, every person accused of a capital or 

 infamous crime, (except in the navy or army service) 

 has a right to a trial by jury, and cannot even then 

 be tried, unless upon a presentment or indictment by 

 a grand jury. Such are the privileges guarantied by 

 the constitution of the United States. And the state 

 constitutions generally embrace the same protective 

 principles. There is also another principle recognised 

 in the constitution of the United States, which is of 

 great importance. It is the provision, that"exces~ 



