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reduced to a system ; that is, arranged in a regular order, so as to be conveniently taught, easily remembered, and readily applied.' To make any branch of knowledge a science, then, it is only necessary that it be reduced to a system, arranged in a regular order.
It follows, when it is thus systematized and arranged, that it can be conveniently taught, easily remembered, and readily applied. It is very certain that no branch of knowledge could be either conveniently taught or easily remembered without such arrangement or system. The students of Professor Mayes may be assured — it is quite true, as he insists — that the neglect of analysis and classification begets most of the difficulties of the student, all the weary plodding of practitioners of law — the inconclusive reasoning of judges, and anomalous decisions that mislead the inexperienced, and are afterwards doubted, denied, and at last, formally overruled. They may also be assured that whoever tries the experiment, will find it utterly impossible to become an eminent or successful lawyer, who relies upon his memory in the exigencies of practice, to furnish him with decided cases for the resolution of his doubts. Principles must be thoroughly studied, clearly comprehended, and their application to particular cases, fully perceived. Then, and not till then, may we hope, though we may not be able to cite a decision in point, to carry with us the tribunals to whom we have to submit the interests of our clients. Upon this point Professor Mayes bas very properly observed that the opinion of the judge is only to be regarded as evidence of the law; and to this, like every other evidence, more or less credit should be given according to the judge's opportunities of information, the use he has made of those opportunities, and his consequent capacity to decide correctly. But if law is not a science; that is, if the subjects of law, - the nature of man, the situation, wants, interests, feelings, and habits of society, - cannot be classified upon general resemblances, and brought under the control of pervading principles, then the opinion of the judge is something more than evidence, it is absolutely law, as much as was the rescript of the emperor. He is not the interpreter, but the maker, of the law; and in him resides that despotic power, which some political writers imagine must be committed to some body of magistracy. And all the classification or arrangement that the subject would admit of, would be to draw up de
cided cases in assemblages, according as the facts contained in one might be like the facts contained in others. So that the beating of a neighbor, or a wife, or child, or slave, or beast, would fall into the same class, because the main circumstance is force. And we could assign no other reason for insisting that a case should be decided in a particular way, than that some other case, resembling it in facts, had been so decided. It is by the urging of different analogies,' says Paley, “ that the contention of the bar is carried on; and it is in the comparison, adjustment, and reconciliation of them with one another, that the sagacity and wisdom of the court are seen and exercised.' This is a sufficiently faithful picture of the administration of the law, as it is exhibited in such books as Plowden's Commentary. But we appeal to the intelligent reader of the modero English, and especially respectable American, Reports, to say whether the justness of this representation does not altogether fail. When has the Supreme Court of the United States, or the distinguished advocates who practise there, placed their delineations of the law in the great cases discussed in that court, upon the fragile basis of analogy alone? On the contrary, if the file has been ransacked for adjudged cases, it was only in a manner subsidiary to a remarkably full, complete and satisfactory discussion of - principle. The same remark applies to the administration of the law, in New York, and Massachusetts, and some other States.
But as our question is one of words, it might be enough, after the definition of science, we have quoted, to ask whether thé subjects of law have not been classified; whether our knowledge of it has not been reduced to a system, and arranged in regular order? We should think the question answered by referring to Hale's Analysis; still better, by mentioning Blackstone's; and best of all, perhaps, by appealing to the Roman law as published by Justinian. These are examples of all that is meant by the word science as above explained. In each of them the objects of knowledge have a juxtaposition, which is not arbitrary, and which is produced by their mutual resemblances, in short, by their nature, and does not depend upon the accident of a case, or series of cases having been so and so decided. In the definition of Jurisprudence, given in the first title of VOL. VIII.-NO. XVIII.
Justinian's Institutes, the comprehensive sense here attributed to the word science, is expressed by the word notiti, while the ordinary sense is expressed by scientia. Thus:-Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injus i scientia. Translated according to the above definition of science, it would be — Jurisprudence is the knowledge of divine and human things. It is the knowledge of what is just and unjust reduced into a system ; that is, arranged in regular order, so as to be conveniently taught, easily remembered, and readily applied. In the classical writers, we may have observed such phrases as — prudentia juris civilis, juris publici, and the like. Here the component parts of the word are written separately, and the word prudentia itself means knowledge or skill. If we translate Justinian's definition according to this idea, and with a view still to the definition of science formerly quoted, it would run — Knowledge of the law is knowledge of things divine and human. It is the knowledge of what is just and unjust reduced to a system ; that is, arranged in regular order, so as to be conveniently taught, easily remembered, and readily applied. Among the many definitions which Cicero has given of law - ler — is the following -justorum, injustorumque, distinctio ; that by which we distinguish between what is just and unjust. The science of law, then, is that knowledge whereby. we distinguish between the jușt and unjust, reduced into a system, and arranged so as to be conveniently taught, easily remembered and readily applied.
But it is quite obvious that the application of this knowledge is a very different thing from the knowledge itself. Its systematic and orderly arrangement facilitates, and promotes uniformity in its application. But because it is not applied with perfect uniformity and accuracy, we cannot justly conclude that it possesses neither system nor orderly arrangement, and so is no science. What is abstracıly just or unjust may be determined with mathematical precision, because the evidence of these abstractions is intuitive. But relative justice and injustice depend upon so many and such complex circumstances, as 10 require talents of the very highest order both for the comprehension of principles and facts, 10 draw the distinction between them with success, and satisfaction to society. Is it lawful to practise deceit? is easily decided; but — is it lawful to practise deceit towards assassins? presents real difficulties. In the Courts of Chancery, where the questions of relative right and wrong are attempted to be solved with the greatest accuracy of discrimination, we shall often be struck by the obscurity and perplexity that ailend the administration of justice in individual cases. But even here much of the difficulty is produced by following cases, instead of principles. Lawyers need not be told how many elaborate and critical judicial opinions have been written to disenthral the case under investigation from the control of decisions, and restore the empire of principle. How often have the ablest ministers of justice been compelled to smother the cries of conscience, and sacrifice the rights of a party upon the altar of the idol, stare decisis !
Although the definitions of moral science are as accurate, its postulates as admissible, its axioms as self-evident as those of mathematics, it does not, therefore, follow that the resolution of every question which arises, will be equally feasible to every intellect to which society, from time to time, entrusts the administration of the laws. Nor that the same intellect will, at different times, solve difficulties with uniform discrimination. Amidst the variety of ways in which a case may be decided, there is but one right way; and the practical machinery of new trial, review, rehearing, and appeal from tribunal to tribunal, is adjusted with an expectation that the questions, what is just, what unjust? may not, at first, be rightly answered. The gradation, also, os tribunals is so arranged as at each remove from the first, to increase the probability of a correct determination. The number of possibly erroneous decrees lessens by every one which is made different from the first, and from every intermediate decree. The liability to err is, likewise, diminished as we advance from the judges of inferior, to those of superior, talents and attainments. But all these institutions and the errors committed, conspire, not to prove that law is not reduced to a system and arranged in regular order so as to be conveniently taught and easily remembered — not that it is not a science; but that after all its systematic arrangement, its rules cannot be so é readily applied as the good of society demands. It is often contemptuously said — no two lawyers or judges will decide the same case alike. No; nor will any two mathematical instrument makers, nor even the same, at different trials, working
always upon the same scientific principles, produce two equally accurate compasses, scales, or protractors. No two physicians, without consultation, seeing the same symptoms, will either call the disease by the same name, or pursue the same curative process. This only proves that the application of the certain rules of science is uncertain; and that it is, in short, an art. But we all know that an art is most successfully practised by those who have most thoroughly systematized and arranged their knowledge of the principles upon which the processes of the art depend. It is said of the great chemist, already mentioned, that no one who ever did so much, probably ever made so few unsuccessful or random experiments. And this is attributed to the singular perspicuity, simplicity and order that reigned in his arrangement of the phenomena of the science.' He was successful in the practice of chemistry, because he did not behold the effects of that attraction and repulsion acting at insensible distances upon particles of different natures, which constitute the science, with the stolid eye of one who sees nothing but confusion, but with the discriminating perception of a mind alive to the analogies of nature. Cicero represents the laws as speaking in the person of the judge -magistratum esse legem loquentem. The nearest possible approach to the practical realization of this bold metaphor, would be to commit the administration to those who have reduced their knowledge most thoroughly to a system distinguished for perspicuity, simplicity, and order. The law would then stand the fairest chance of being heard amidst the dio of litigation; and of shining forth unobscured by the clouds of passion, prejudice, and ignorance. If the law, indeed, was a part of the judge, as much as the faculty of speech is part of him, the end proposed by the law, the attainment of justice, would be certainly accomplished by such a judge, without an effort of his mind. And cases the most perplexed by the multitude of their facts and the conflicting of rights, would be rightly determined with intuitive precision. It is because judges cannot be found through whose faculties the law certainly speaks, that rules have been provided of civil procedure, which are intended as helps that the law may be made audible. If it could be heard without them, if our purblind and stumbling faculties were less earthly in their nature, these helps would be cut down as excrescences of the body politic.