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a portion, at least, of the grotesqueness of its form has been occasioned by its being reviewed through an intellectual fog.
We will see then what the common law is not. A great deal of the difficulty which some find in clearly conceiving it, arises from confounding the common law of the state of New-York with the common law of England. As one is to an hundred, so is the one law to the other. Our law is a part of the law of England ; but, en masse, is as different from it as the numbers above named are from each other. The constitution of our state declares, that only such parts of the common law of England as are applicable to our circumstances shall forma part of our system, and by consequence, abrogates all such as are not so applicable. By this one declaration, made by an independent people, the common law of England, as such, is totally abolished, and of no force, and by the same deed such portions of that law as suited our circumstances became engrafted into our system. It henceforth changed its name, and became the common law of this state, just as much as the judicial recognition of any rule of the Civil law by the English courts, made it ipso facto a part of the common law of Eng. land. Then by the abolition of monarchical government, with all its numerous appendages ; of an ecclesiastical establishment in all its branches; of the law of entails; by the introduction of new canons of descent, new penal statutes and poor laws; by the doctrine of allodial ownership of the soil; and by the simplification of the system of courts and pleading, we have cut off from our common law, all that is revolting in that of England. We have no more to do with those parts of her common law, which relate to royal and family prerogatives, services, tythes, advowsons, with a thousand other local regulations, with their ten thousand consequent and resulting doctrines, than if they had never existed. The common law of this state does not recognize their relationship, for it is neither founded on them, nor connected with them. Simple and palpable as this view of the subject is, we apprehend that by means of it, the question stands stripped of at least half its obscurity.
Having thus determined what the common law is not, we will next inquire whatit is. Without pretending to mathematical precision, it may be defined clearly enough for all purposes, by saying that it is that unwritten system of principles and rules, recognized and enforced as obligatory on all questions that may arise either in the courts of England or of this country, and evidenced to be so recognized by treatises and books of reports of authority. To say that none but a lawyer .could understand this is to raise no other objection than might be start
ed against every definition in any science. But the definition is of very little moment; it has no more to do with the essence and value of the law, than the name of an individual has with his existence. The law is as well known to our intelligent jurists, and in our courts of justice, as the rules of the Civil law were to the imperial jurists, or even as our moral duties are understood by individuals. Difficulties arise equally in all of them, when they come to be applied to particular cases ; but the law, when properly investigated, is as clear and certain in one system as in the other. It may indeed be sometimes mistaken; and so were the Roman lawyers on the construction of their code, as the rescripts will testify; and so are individuals every day as to the proper course of their conduct.
If moral certainty is sufficient to lay a foundation for science, the Common law is a science.
We may fully illustrate by a few instances, the subjects of its jurisdiction, and the manner of its growth. There are, for example, a thousand admitted existing relations, which are recognized indeed by our law, but are no more founded on written statutes than our moral obligations. Such, among others, are those of husband and wife, parent and child, master and servant, buyer and seller, lender and borrower. These the common law takes under its immediate charge; and by consequence, no other law being prescribed, it carries its supervisory care into all those ramifications of rights and duties, which naturally and necessarily arise from those admitted relations. In arriving at the results which hereafter are to be looked upon as established law, it calls for the practice and information of those experienced and conversant in given subjects, and hence gives authority and validity to customs. It consults the best informed and most enlightened judgments on the abstract propriety expediency, or morality, of any proposed points, and hence, its axioms, its principles, its marims. It scans with critical acumen the essential ingredients of given acts, and hence its definitions.
This in a few words, and stripped of all mystery, is the Common law. Its object is to ascertain and settle the best methods for attaining the true happiness of society, according to that form into which it has become moulded, and to fix with unerring certainty such land-marks as may serve as guides in all future cases. It requires nothing more than honest investigation and unsophisticated sense, to perceive with what admirable success it bas pursued its objects. No wonder then that in all ages we find the best and the wisest men in England, eulogizing the merits of that law, and devoting the best qualities Vol. d. No. IV.
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 it is 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, ty. ranny and folly ; and this is the law of which we are to be deprived, 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 establish-, ed 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 tourts.
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