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vernment, but to originate and nourish a new spirit in the empire, and breathe a new genius into the people. Yet after allowing all due merit to each of those systems, for which of them would we exchange our poor, abused unwritten law? Moreover, mark the issue in each of the cases cited. The code of Alfred is now hardly known except by name; it is merged in the common law. The code of Justinian, abolished but a few years after it was established, was superseded by a new one, which after endless changes and alterations, sunk by its own weight into non-existence. Whilst that of Napoleon, as great a monument as it is to the renown of that immortal genius, serves at present under a load of commentaries but to trace the bold features of the national law.
It may be worth while to consider farther, whether a code gives promise of an equal progress towards gradual perfection, as the present system. The true genius of the common law is that of perpetual reform. Ever regardful of expedience and just policy, it has always been able to keep exact pace with the progress of society. By a sort of vis medicatrix, inherent in its very constitution, it uniformly accommodates itself to the existing exigencies of the times. Upon the introduction of feuds, the common law was seen to gather around the system and form a body of regulations, of which that system was, as it were, the nucleus. When an established religion became part of the policy of the kingdom, the common law was immediately to be observed, setting up its land-marks and prescribing its limits and extent. When commerce spread its sails, and introduced new channels for the enterprize and industry of Englishmen, the common law, true to itself, stepped immediately to its assistance, and traced out the principles necessary for its success. Not that the statute law was entirely silent, but the common law did not wait for the sitting of parliament, but went immediately into action upon every emergency. As things changed, the common law changed with them, and following up the spirit of the times, and the genius of business, ever sought and kept the true level of affairs.
The statute law drew, in many instances, the outlines, but the common law. uniformly, accomplished the filling up. Did the legislature in England abolish the great mass of the feudal system
? the common law silently withdrew its forces from that quarter of the field. Did the people of this state abolish their old royal
. government with many of their civil and criminal institutions ? the common law adapting itself to circumstances, became with us a plain and simple republican.
But by a code you strike at the root of this principle; you
fix the height of the improveable point, and to avoid a mere speculative evil, you compel a resort either to an endless change in the code, or to a palpable and violent breach of the laws. When Edward I. reformed the English system, he did not attempt to abolish the common law, but with the hand of a master and the genius of a great legislator, he corrected those evils which from age had grown up in the system, and then left this law to pursue its natural course.
We are told however with great show of concern, of the shoals of books which the retention of this law attracts from England to our shores, and hence, we are told, a farther argument for its abolition. This, like most of the arguments on the subject, implies of course the idea, that the contemplated code when introduced, is to be an exclusive system; but when urged as a serious motive for a codification, is almost too worthless for notice. Is the purchase of these books voluntary or constrained ? If voluntary, why complain? and it surely is not constrained, for modern English decisions are not binding upon us. Then if the pith of the objection be, that we are above receiving instruction from the genius, the wisdom, and the learning of English jurists, it is an objection fit only for the mouth of a savage ; we do not reject the aid of their experience, their learning, and their science on other subjects, and are our lawyers mad enough to reject their assistance in their profession alone?
There is but one more light, in which we shall consider this subject, and it is, we confess, to our mind, a powerful and conclusive one. The common law, in some shape or other, and under different restrictions and modifications, is the law of almost every
state in the union. The constitution of the United States forms the tie which binds us in a political association, but there is nothing so calculated to cement this union, to produce a warm, brotherly feeling among us, in short, to create a national American character, as a community of laws. The points and particulars in which we already vary, and the contrariety of interests which continually operate to divide our feelings, have often been lamented as a source of future discord. But in the common law is to be found a redeeming principle-it is, in fact, the national law. Abolish it, and you destroy the strongest link in that civil bond, which should ever accompany our politieal one. But by going on, each state hand in hand in this matter, we may look for that gradual improvement in the laws which our combined efforts must accomplish.
Let it be always borne in mind, that these remarks are made
with an eye to the idea suggested in the early part of this article: that the contemplated code when formed, should be exclusive in its operation, and shut out the common law. Because, if nothing more is meant than a mere revision of particular branches of the law, then we are not at issue ; for with all our heart, and all our soul, would we hail a convention called not for political purposes, but formed of enlightened citizens from different parts of our state, to consider, revise and amend it. But who that has ever felt that glow of admiration which must frequently have warmed the bosom of every man conversant with the principles and decisions of the common law; that feels the justice of the eulogies of its admirers; who that believes it to be the safe-guard of his dearest rights; that can feelgratitude for the benefits which it has conferred on his country ; and that believes it to be the richest legacy he can leave to his children--can sit tamely by and hear its venerable name abused, and listen with calmness to the sneers and maledictions of those who contemplate it only in the unnatural alliance into which it has been forced in England !
Though much indeed might be looked for, from a bold and unanimous effort at revision, if conducted on proper principles, still, as to that which may emphatically be styled the common law, we are now upon the right course.
Let our jurists study, methodize and purify; let our legislature stand ready on all occasions, to correct and regulate it; and we may safely trust to private hands for learned treatises and laborious digests. This is the generalizing principle in the system, that will always keep it within compass. As new and more valuable books are written, combining the inquiries of their predecessors, with the latest decisions and improvements, they will gradually take rank of inferior works. In this country particularly, circumstances are leading to the true course. The plan formed, and now executing, by T. Sergeant and J. C. Lowber Esqs. of the Philadelphia bar, of digesting the modern English reports, and reducing them to such a size as fits them for our country, cannot be too much commended ; and we are gratified to hear that it is in contemplation to edit a work in this city, in which all the old English reports will be reduced to a convenient compass, by striking out such parts as may not be applicable to our wants. The plan too, now becoming general, of noting all late English works of merit with references to American laws and decisions on the same subject, on their republication in this country, adds greatly to the facilities of the American lawyer; and the only pity is, that there might appear something indecorous in applying to the producVol. I. No. IV:
tions of a private hand, the same knife that is used to their public reports. This method we have no doubt will be finally adopted, and then no lawyer willing to devote his time and labour to his calling, and anxious to obtain all the lights which the high functions of his profession, of all others, demand, can complain with any shadow of justice. The labours and exertions of the eminent jurist, who having successively filled with equal honour, ability and usefulness, the stations of Judge and Chancellor in our state, has lately read lectures on our laws in this city, are worth more than all the codes, as such, that could ever be formed.
We are perfectly conscious how unworthily we have treated the subject on which we have remarked ; and we should not have dwelt on it so long, had we not considered it as one likely to take hold on the publie feeling, and one too, we may add, on which the public might be misled. The world is indeed improving, but we think with Bacon, that time, after all, is the great reformer ; we have not yet arrived at that point,
; that we can make laws by the wholesale. A partial reform we advocate ; but farther than that, we join with King John's barons of old, and cry “nolumus leges mutari.”
Webster's Calendar, or the Albany Almanac, for A. D. 1824.
by Andrew Beers, Philom, Albany. Impr. Webster. Beers's Calendar, or Hosford's New-York and Vermont Almanac,
1824. Published by E. & E. Hosford, State Street, Albany.
Among the many pleasing publications which the American press is usefully spreading abroad, none give us greater pleasure than the unassuming, and highly useful little works, called almanacs.
Literary men seem almost entirely engaged with poetry and fiction, novelties and jeux d'esprit; and though we acknow: ledge that these do much, indeed, pour passer le temps, yet we maintain that the useful part of learning often escapes notice, from its retiring nature ; and many a good thing passes away, with only a brief notice of its valuable application to the immediate purposes of life. An almanac is one of these ; and though it almost seems preposterous to permit the dignity of sober criticism, in a review of its apparently common-place merits, yet its advantages are so great, and it is so nearly related to the sublimity of science, and the problems of abstruse
philosophy; it is a subject so intimately connected with the midnight toils of great minds, and with so much of the history of the world in its brightest ages, that we feel a pleasure in drawing it out from under the pile of trash which now so completely occupies the public attention. If we make the discussion at all interesting to our readers, we will only commend ourselves to the immortal remembrance of Philo Beers, and Poor Richard. Those of us who have lived a few years this world of cycles and zones; who have always been within some parallels of latitude or longitude, bave, it is true, become habituated to annual calendars, and " notes of time;" but then there are bright “sun shiny spots" in the ephemeral world, which recal the most pleasing reflections of an astronomical kind. The long-lost bickerings between the humorous dean of St. Patrick's, and the irritated Partridge, than whom (forgive our propensity) the Dean wished no better game, and the prodigious fame of Lilly, the parliamentary astrologer, have each their recollections and their eulogy ; but these do not impair the credit of astronomical calculations, with profound thinkers, or even with the world. There's many a “spectacle on nose,” which still devoutly fixes on the apogee and perigee of Andrew Beers, that lover of learning. All our domestic operations are carried on by the aid of this daily manual ; and we do not stir from our firesides without running over the long thin columns of days, sun's declination, time of rising and setting, or without a wishful glance at the hazardous assurance of bright moon-light nights, and pleasant days.
Freeman and captive are each of them chronologists. The latter with his rusty nail, (as the sentimental Sterne has assured us,) traced day by day, upon his little stick, the melancholy account of his sufferings, and his hopes deferred. It seems that all the world have agreed in one point, the necessity of the divisions of time, and the making them evident to the senses by " outward and visible signs.?
As far back as we can carry our investigations, a division of time appears to have been necessary. Says the oldest book in the world and the evening and the morning were the first day." But why go so far back to prove so evident a proposition ? All moralists have regarded time with a feeling of awe, regret, and melancholy pleasure. “Tempus fugit" adorned the dials of the ancient chronometricians--glided into the sweet verse of Horatius Flaccus, or pointed the rustic moral of the Mantuan Bard.
In England, the almanac is protanto the law of the land. We do not, however, mean at this time, to enter into any dis