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more may be profitably done will probably be generally admitted. But with respect to the mode in which this should be effected there will not be found the same unanimity of sentiment. Several among the greatest names in American jurisprudence have expressed themselves adverse to codification. Among these we may mention Mr. Duponceau; and a similar opinion has been intimated by Chancellor Kent, although he approves almost invariably of the amendments introduced into the common law by the revised statutes of New York, yet at the conclusion he expresses his doubts, whether the law of real property be not “100 abstract and 100 complicated to admit with entire safety of the compression which has been attempted by a brief, pithy, and sententious style of composition. There is a peculiar and inherent difficulty in the application of the new and dazzling theory of codification to such intricate doctrines, which lie wrapped up in principles and refinements remote from the ordinary speculations of mankind.' Com. vol. 4, p. 346. And on more than one occasion he seems to throw back a melancholy look on the masses of curious learning which have been rendered useless by these reforms.
But if there are great names opposed to codification, there are at least as great in its favor.
At the head of these we may place Lord Bacon, a man whose capacious and comprehensive mind embraced the whole circle of human knowledge. There are,' says he, 'two modes of framing a new statute; by one former statutes on the same subject matter are confirmed, and some changes and additions engrafted upon them; by the other all former laws are repealed and abrogated, and replaced by a new and uniform law embracing the whole subject. The latter mode is to be preferred. For by the former the laws become complicated and perplexed; what is of present urgency is indeed done, but the body of the laws in the mean time becomes vicious. In the latter it is true that greater care is required; for the foundations of the law are to be examined; prior legislation is to be reviewed and weighed, before the new act is adopted, but in this way the harmony of the law is best preserved for the future. Legum Leges. Aphorism, 54.
The same reasons which should induce the legislature, in revising a particular statute, which is nothing but a codification of a part of the law, to embrace in the new act the whole subject, operate with equal force in favor of codifying the whole law, whenever any considerable alterations are to be made, or when it has, from repeated alterations in a long course of time, become so broken up and perplexed, as to render it difficult to know precisely what the law is.
By codification we do not mean the introduction of a new systein of law; all that is meant is the ascertaining and expressing in clear and intelligible terms the law as it actually exists, and arranging the subject into a methodical and systematic form, The innovations on the existing law may be more or less according to the wants of society at the time when the code is framed. But far be it from us to recommend the abolition of the existing law. Joterwoven as it is with all our habits, usages and manners, it cannot be abolished and a new system introduced without producing endiess confusion. The first step towards framing a code would be to collect the whole body of the common and statute law and arrange it methodically into a convenient number of titles, chapters, and sections. In this way would be presented in one view all the points of law, on every title, which are setiled and incontrovertible, — all the questions which are still mooted at the bar as undecided, — all the points on which jurisprudence is variable and the decisions conflicting; and by the same operation would be discovered both the redundancies and deficiencies of the law. Will it be pretended that the principles contained in these chapters and sections cannot be expressed in intelligible and definite language? What can we think of those intricate doctrines' wrapped up in such refinements that language can offer no form of words, by which they can be intelligibly espressed? Can such be fit rules for regulating the rights of property? What else are they or can they be but snares? If they cannot be analyzed and expressed in a series of perspicuous propositions, it is because they are indistinct and indefinite in themselves, because they are inconsistent and contradictory, because they are, to use the words of Chancellor Kent, enveloped in a cloud of refinements that have gradually accumulated until they have overshadowed and obscured the law of real property, and produced that everlasting uncertainty' of which he so feelingly complains. It is those distinctions, erceptions, and qualifications, those alterations made in the law, when the court professes to make no changes, but merely to declare the old law, which have for a long series of years been continually springing up and crossing and interfering with each other in every direction, wbich are interwoven and knotted up in all conceivable ways, until they have worked the law into such a tangled skein of subtleties, that thirty years of exclusive and devoted labor, with all the helps that books and courts can furnish, are not sufficient to unravel this maze of puzzling intricacies and arrange them in an order that will be intelligible, we will not say to the laity, but to the most profound and learned clerks. We admit that it would be quite impossible to reduce to an intelligible code this chaos of jarring subtleties; nor do we think that the human being, who knows any thing else, can be found, who desires it. With respect to these, a legislature, that understood its vocation, would make short work. It would at once apply the sponge and obliterate the whole mass, and with it consign some hundreds of volumes of useless erudition and conflicting subtleties to that limbo of oblivion in which the hecatombs of the scholastic vanities of the middle ages have so long slept in undisturbed repose. The code would preserve only those rules of law, which have been found to be useful, and no rule can be useful that is not plain and intelligible, at least to those who are adepts in the science. We do not deny that jurisprudence would still have its refinements and intricacies growing out of the various and often intricate modifications of property, which are required to meet the wants and, in some instances, the caprice of an opulent and highly cultivated society. But the interest of society demands that liinits should be fixed beyond wbich these modifications should not be allowed, and these limits should be plainly marked by the law. The difficulties will be only in the application of the text to the cases, not in doubts as to the rule of law itself. These difficulties no human law can obviate, because they have their origin not in the law, but in the acts of individuals.
Nor do we suppose that a code would put an end to the multiplication of law books. Its tendency for a time would probably be to augment the ratio of increase. We should have our commentaries on the code, in which each article would be explained; and we should have, as we now have, our series of reports, which might be multiplied to an indefinite extent. But there would be this difference. The law itself would be bound up in a
portable volume, and the commentaries and reports would not, as they now do, constitute the text of the law. Those only which were most valuable would be preserved, while the rest would soon fall into oblivion. And though their accumulation would at first be rapid, they would soon be falling into disuse at one end of the series, nearly as fast as they would accumulate at the other. But in the present state of the law, the authority of the reports is not limited by any period of prescription. We are obliged, in this age of philosophical intelligence, to go back to the black letter cases of the semibarbarous times of the Edwards and Henrys. When a volume of decisions takes its place in our libraries, it there must remain. Sedet æternumque sedebit, for it is of perpetual authority and may be invoked to decide the rights of parties five hundred years hence, as cases decided five centuries ago are cited now. Under our present system of law, which is to be found no where but in the decisions of the courts, the multiplication of books is becoming, or rather has become, an evil that is intolerable.
In expressing our opinion thus freely in favor of a text in preference to a customary law, we would not be understood to recommend this matter to be taken up bastily. There are some branches of the law which might be reduced to a code without much labor; as for instance the law merchant and the maritime law. These have grown up in an enlightened age. The principles are plain and for the most part well settled; and they have been methodized and systematically arranged in well written treatises. Take, for instance, Baily or Chitty on Bills of Exchange; strike from the treatise all the authorities cited, and all the reasonings of the author in support of his opinions, and leave Dothing but the statement of the principle, and you have the outline of a code ready formed. Let the language in which the principles are expressed be carefully revised, and rendered as perfect as it can be made. Where there are deficiencies let these be supplied, and where the cases are conflicting let the law be settled, and your code is complete. To reduce to a code the law of real property would be a work of greater labor. The law merchant would require but little amendment. But if a property law is to be formed out of that system of usages, which had their origin in the feudal establishment, it would require extensive alterations to accommodate it to the present state of society. Between society as it now exists, and the condition of society in the feudal ages, there is all the difference that there is between a camp of ferocious barbarians and a city of polished merchants and cultivated philosophers. If we are to take the usages of these barbarians as the basis of a property law for a nation of merchants, artizans, and farmers, there would be much to be rejected and much that is new introduced. Mr. Humphreys thinks that the wisest course would be to apply the sponge to the whole mass and reconstruct the system anew. But the majority of opinions would probably be in favor of preserving the common law as the basis, and engrafting upon it such amendments as the spirit of the age demands.
Nations educated in the school of the civil law have already their codes framed with great wisdom and which operate with complete success. But the common law, though amended by the legislature from time to time in particular points, has never been reduced to a code. But this we believe is destined to be done in this country. New York has honorably led the way and shown what may be done. Let Massachusetts, and Pennsylvania, and Virginia, follow in her track. They are old commonwealths and ripe for the work. Each succeeding state would improve on its predecessors; and after the law has been repeatedly codified, the framing of a code will not be a work of much more difficulty than the framing of a constitution is now. We should find, too, that the codes in all the states would be nearly uniform, and with the successive improvements that would be made, we have no doubt that America would have the honor of presenting to the world the best specimen of legislation that has yet been
ART. II.—THE LIFE OF EDMUND PENDLETON, OF VIRGINIA. Happily for human nature, history's sanguinary page of war and anarchy is occasionally lit up by some solitary star of virtue, shining on in its attractive splendor, amid the wastings of crime and the desolations of ambition. To such green spots in the waste of history, humanity turns with philanthropical pride. With affection, they hallow the memory of a whole people, and