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of the head and the heart to explain, to improve, and to recommend it. This law has also a quality which, at least, in every materi
is peculiarly its own, and which emphatically arises from the circumstance of its being an unwritten law. It is that strong corps of reserve which at once, and without fail, furnishes a rule, when the written law is found at a loss. Guided by such principles as have been mentioned, it operates as the true balance wheel which regulates and keeps up the whole complicated system of civil conduct among those who have the happiness to recognize its obligations, and preserves that true level and harmonious consistency with itself, and with the other laws in being, which alone can give beauty and harmony to society. It is not the offspring of a day, but is the result of the reason and experience of ages, and the whole system indeed is but a part of that fortunate chain of peculiar circumstances which has so singularly characterized the history of England. It is that great improveable faculty in her system, which has given birth to the richness, the justice, and the purity of her civil code. It is that power by which the constitution permits, without the aid of parliament, the introduction of the best regulations of other nations, and adopts them as her own. Under this law England has gone on accumulating in her own bosom the wisdom of other times, and other people. When once after full and solemn argument, any principle or doctrine is found wise in itself, and consistent with her established usages, whether the same be found in the code of Justinian or of Confucius, its claim to a place in the English system, is acknowleged, and thereafter itis to be seen flourishing in its adopted country. Other people have their common-law, but from a want of that concurrence of fortunate circumstances, they may all be said to be local, temporary, and time-serving. And such a law also has England. But the common law as we have adopted it in this state, is founded in the broad principles by natural equity and good sense : we have always been safe under its protection, and it has shown itself the uncorrupted guardian of our rights. Yet this is the law which some modern reformers arrogantly brand as the offspring of barbarism, tyranny and folly; and this is the law of which we are to be de
r prived, to make room for new and untried theories got up
in the shape of a Code.
But the necessity for a code is still urged upon us, in order to ascertain and explain with more certainty our rights and duties. Certainty in the laws has always been, with great propriety, held up as an object of the first importance to a free people.
And yet although we are constantly boasting of our freedom, the actual uncertainty of the law, is a standing theme of ridicule among the ignorant. This apparently paradoxical state of things is easily resolvable by a moment's reflection. The true doctrine on this subject is, that the law should not be uncertain in its principles, nor dependent on the caprice of individuals for its execution. Now where the civil laws of a state have given rise to one commotion, the political and criminal laws have given birth to an hundred. It is these last, that have deluged the world in blood, and it is in these last, that certainty should be particularly aimed at. But, that absolute certainty should be attained in any laws, as to those questions that daily arise between men in their civil avocations, is impossible in the nature of man. After the broad avenues in which he is to walk in his civil course have been opened, it must necessarily be left to the sound discretion and judgment of the courts to pronounce, whether he has kept the proper intermediate paths. And when the system of trial and investigation on such points is judicious and sound, we have secured all that the nature of the thing warrants us to expect. No code ever has been or can be framed, to meet the ever varying cases of human life. The very establishment of courts itself, is not even intended to do absolute right between parties, neither do they boast of so doing. They have two objects in view, the settlement of disputes that must be definitely arranged for the peace of society, and the settlement of them in a manner as just and correct as possible. Approximation, however, is all that they expect.
Now, for those broad relations above referred to, it would seem when listening to the advocates for a code, that we have no provision. And is it indeed so? What is our Constitution but a perfect code for our public political rights? Have we no canons of descent that strike deep into, and give a tone to the character of all our institutions? Have we no penal code? What are our statute books ? And yet, forsooth, because we have also an unwritten law, we are deafened with ridicule at the glorious uncertainty of the law. In truth, there is a vast deal more vagueness and indefiniteness in the ideas of the opponents of this unwritten code, than is to be found in that system itself. The one is a plain practical rule to be found in or deduced from precedent, the other you cannot apply in many supposable cases. What sort of a statute, for instance, would the legislature pass on that great mass of cases, denominated Cases in Equity? What would be the size and character of a statute on the subject of Evidence—so, we mean, as to supercede the necessity of a resort to the common law? And how, to
answer the same purpose, should the laws of Pleading or of Contracts be embodied ? It requires but half an eye to see, that to supersede the common law by a code, would be like drawing up a moral code, and rejecting the impulses of virtue and the natural dictates of reason.
Taking certainty then in the sense above contended for, can we with
any propriety declare our law to be an uncertain rule? All theoretical perfection, burlesque and ridicule aside, is it simply true that the common law has neither principles nor consistency? No man among us fears to trust his person or his property in our courts of justice: or if he does, is it the certainty or uncertainty of the laws at which he trembles ? Besides we do not go an inch too far when we assert our conviction, that the fact of the common law being unwritten, is the very essence of its perfection. There is no proportion between the uncertainty, which exists on subjects founded on the common and on the statute law. In infinite cases when the law arising out of a statute would appear to be plain and unequivocal, we are astonished upon investigation, to find how imperfect language is. The statutes of limitation, and of frauds and perjuries, are fully in point to illustrate this remark, and to show how utterly impossible it is, to frame written laws with any degree of precision. But the unwritten law, unconfined to one solitary section of a statute, but gathered from the spirit and universal relations of things, and with an eye fixed on established precedents, accommodates itself readily to cases, as they arise, and squares them to existing circumstances. The doctrine of " stare decisis," and the establishment of Reports, have given to the law all that harmony, strength and consistency which is its firmest support and its best recommendation. Uncertainty indeed may occasionally arise, from the mistakes of lawyers, jurors, judges, and from other causes, but as to the law, the great wonder is the beautiful harmony of its parts. Every man at all acquainted with common law decisions, will bear testimony to the logical exactness and precision of that splendid system, alike evidencing the strong sense of the rules of law, and the talents, the learning, and the uprightness of the courts.
There was once, however, an insinuation thrownout in debate in our state legislature, by an individual now high in station, which on that account it may
be worth while for a moment to cxamine. It respected the danger resulting from the great discretionary power with which it was said the nature of the common law invests the judges. The true reply to this is, that the common law places not a whit more power in their hands
in this respect, than arises from the necessity under which they are placed, of construing and reconciling loosely penned and inconsistent statutes. Besides, the idea is bottomed on false premises. The judges are as closely, though not as illiberally confined by precedent, as they would be by a statute. But supposing it, however, to be true, that their discretionary power has much wider scope in one case than in the other, we believe we do not go too far, when we offer the proposition, that experience, the only test of practical truth, has fully demonstrated, that the judiciary is exactly that department in the state, in which the greatest share of this power may be placed with the least danger. It must be placed somewhere in all governments, and considering the tenure by which the office is retained, the motives held out by the great dignity and responsibility of the station, and the character of the persons, who, it is perfectly fair for all the purposes of this argument to assume, will always be found on the bench, we may safely conclude their hands to be the safest in which to put this trust. Legislatures we know are subject to caprice, to the power of eloquence, to party feeling, and even to worse influences; and from these causes we see them pass in a moment laws disgraceful to the country, and injurious to its best interests. The judiciary, after full trial, has proved itself the safest guardian of civil rights. Elevated above the more ordinary sources of error, and sitting before a whole people jealous of their influence, the judges listen with disinterestedness, coolness and enlightened judgment, to the acute, profound and learned argument of laborious counsel, and after mature and patient investigation of general principles and established decisions, coupled in many cases with the evidence of persons most competent to speak with knowledge on the subject in debate, solemnly pronounce an opinion, which is now to be added to that mass of authoritative law, each step of which has been taken with equal caution in former times. It is indeed to her judiciary, that England is indebted for the more solid part of her freedom, and for that superior virtue and equity which characterise her laws. The courts have for ages kept themselves aloof from those disputes which have so frequently harrassed and divided her parliament, and have manifested a devotion to the cause of liberty and justice, which it would have been well for the other branches of her government to have imitated. If the parliament alone had been the regulating power, Englishmen at this moment would have been slaves. But the courts have been always silently, yet surely, undermining whatever errors the parliament may have committed. The statute
de donis alone would have destroyed England, but the courts have, piece by piece, destroyed the statute, until at last they have opened the eyes of the legislature, and they now go very much hand in hand. It is really quite a curious subject for reflection to witness the parliament of England so closely imitating the courts in their mode of proceeding, that they will bardly now pass a law, of great and general importance, before calling for evidence on the subject from all parts of the kingdom.
Still it is farther urged, that other people have had their code, and that great men in England have recommended and advocated the plan in that country. The names of Bacon and Hale are cited, as triumphantly as if their two voices should outweigh the palpable and overwhelming fact, that with all her great men who have devoted themselves to the perfection of her legal system, none have ever yet attempted to carry the point of a codification. But in truth such a system as is advocated here was never thought of by any great man in that country, and could Bacon and Hale now rise from their graves, they would point with ther pale finger to the commentaries of Blackstone, and exclaim,“ behold here more than we ever anticipated !"
Yet in England it may be allowed, that a code, if practicable at all, owing to her circumstances, might be more expedient than in this country. Whilst we are one, united people, with no contending jurisdictions and no adverse customs to divide us, England is torn with questions on these points. Still, to show the virtue and the force of that common law, which by its adversaries is said to have in fact no existence, that government the most complicated, free and powerful in Europe, looks to this same unwritten law for its main support. And as to the codes of Alfred and Justinian, so often referred to, not only did the propriety and necessity of a code result in their case from the innumerable distractions and divisions of their people, but a farther object was gained by this plan, in the promotion of which none other could answer so well. In order to consolidate their
power, to have but one yoke upon the necks of their people, to spread a net, which when drawn at their pleasure, might enclose the whole body of their subjects, no project held out such inducements as a Code.
The same remarks, in their fullest extent, are applicable to the code of Napoleon. He came to a people, whose institutions had been radically overturned, who were split up into a thousand divisions, and had become almost destitute of a fixed law. He had not only to establish a new and thoroughly opposite system of go