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on descents only, without deeds, of doubtful construction, which was actually sold by the advice of conveyancers at one third part its value on account of the risk to wbich the title was exposed. p. 127. Until the present heap of laws and legal authorities,' says Mr. Humphreys, 'is consigned to oblivion, in vain will the public seek a uniform system of real property.' Observations on the actual state of the law of real property, p. 176.
It is not easy to conceive a worse state of the law than that which is bere described, when property loses two thirds of its value from the mere uncertainty of the law of descent. Such are the working qualities,' to borrow an expression of Mr. Park, of a law of precedent, which, proceeding on the hypothesis of judicial infallibility, consecrates every decision as a sacred portion of the law, never afterwards to be departed from, provided it be not flatly absurd and unjust;' and equally so whether the decision be wise or unwise, whether it establishes a great rule of natural justice in its broad principles, or cuts up and impairs the rule by technical subtleties and mischievous distinctions. What is the remedy? Shall we continue to wander forever in this labyrinth of subtleties aud contradictions?-still to waste our energies in this perplexed maze of legal puzzles, constantly accumulating and springing up on every side? It is extremely difficult for a man whose mind is thoroughly disciplined to the habits of a profession, especially if it be one that monopolizes his whole time, like that of the law, to change those modes of reasoning and of viewing things, which have become so familiar as to be in a manner incorporated into the very constitution of his mind. Even the absurdities of a system will be sometimes recommended to bim by the very ingenuity that is employed to avoid the inconveniences which arise from them; as in the case of legal fictions. These are the delight of every true amateur of black letter lore, and while he is charmed by their subtlety and ingenuity, he seems wholly unconscious that they are the living and unanswerable witnesses of the imperfection of that very system, which is the object of his encomiums. A plain and direct course of proceeding startles and alarms a man, who has always been accustomed to arrive at bis object by artifice and trick. He will be embarrassed by the very simplicity and directness of a system so different from that to which he has been accustomed; as a man who has long been habituated to walk in gyves will at first feel awkward in the exercise of the unrestrained liberty of his limbs. To the question, then, what remedy shall be applied to this vicious state of the law, we are not to expect the profession generally to be the first to propose codification. But we think that one answer only will be given by every man whose mind is not under the influence of professional bias. It is this; take the whole of this indigested mass, and discarding what is useless and bad, subject the remainder to a rigorous analysis, reduce it to its elementary principles and give to these the sanction of legislative authority.
We have examined the objection to codification founded on the multifariousness of the subject, more at large, perhaps, than may be thought necessary. The best reply, and the only one which now need be made to the alleged impossibility of reducing the law to a code, is a simple reference to the cases in which it has been actually done. In the early and rude ages of the Roman republic we have seen an example in the laws of the twelve tables. As civilization advanced and the law became more complex and refined, a code was annually promulgated in the edict of the prætor, until the entire law was recast by the prætor Salvius Julianus, and the edict made perpetual. In the progress of time another revision was required to relieve the law from the many camel-loads of books, which the genius of the profession had produced between the ages of Adrian and Justinian, and the corpus juris was again reformed by Tribonian. On the revival of commerce in the middle ages, the maritime law was repeatedly reduced to the form of a code by different maritime powers; and in more recent times the municipal law has been codified in Prussia, in Austria, and above all, in France under the auspices of Napoleon. In our country the same thing has been done in Louisiana, and a large advance made towards it in the revised statutes of New York. pears to us that it is quite too late at this time to deny the practicability of a work, that has been accomplished for so many different people and by so many different hands. The only question which can be considered as fairly open to controversy is its utility.
In denying the utility of a code, admitting it to be practicable, the advocates of customary law, derive an objection from the argument that is principally relied on in its favor, viz. that it
It apis in its principles fixed and inflexible. This fixedness and immobility, it is said, is incompatible with the condition of an improving society. Customary law, we are told, is more flexible, and by its plastic character, easily and by insensible gradations, accommodates itself to the changes continually taking place in the condition and character of society, and thus keeps an even pace with the improvements of the community.
This is the objection of M. Savigny and the historic school of Germany, upon which we expressed our views somewhat at large in a former article. (See vol. 5, p. 23.) It has been substantially reproduced by Mr. Park. The following extracts present, in a condensed form, the strength of his argument.
“We have seen that the main defects of the common law have arisen from the unavoidable trammels in which the judges have been generally held by precedent, or past decisions. The one redeeming circumstance, however, which has enabled English jurisprudence to keep any pace with the advanced knowledge and liberality of mankind, notwithstanding those trammels, has been its freedom from the more rigorous trammels of a written articu. lar text. In this country, by tying up jurisprudence in an unyielding and imperative text, we should have withdrawn the plastic power of the law from the hands of men daily conversant in the business of jurisprudence, and daily experiencing its practical workings and defects. We should have destroyed the immediate connexion between the perception of the practical inconvenience and the application of the practical remedy. Those absurdities or miscarriages of jurisprudence, which now find their escape in exception, in qualification, and in distinction, upon the existing rules pro re nata, must then exist unmollified till the arrival of the next period of revision, whenever the code has laid down rules, which cannot be construed into the necessary amount of flexibility for the given occasion.
But if the effect of codification would be thus hostile to the
"We have not had the benefit of seeing the work of M. Savigny, and our knowledge of it is principally derived from M. Meyer, and the account given of it by M. Lerminier, in his Histoire du Droit. As well as we can judge there is every appearance of fairness in M. Meyer in giving the argument, which he labors to overthrow; and it is expressed in clear and intelligible language, divested of that maze of nebulous generalities and dreamy abstraction which throw a mystic and somewhat partial coloring over all the speculations of the German school of philosophers on moral and metaphysical science. VOL. IX.-NO. XVII.
ultimate advancement of jurisprudence as a science, the results even of a revisional code would be still more retrogressive upon professional intelligence and learning. When a new rule, or the alteration of an existing rule, takes place under the present system, it takes place in the unavoidable presence of the profession; of a bar, some portion of whom have been engaged in advocating and opposing that result; - the residue of whom have been present as hearers. It takes place in the regular hours of business ; at a time when men’s minds are habitually and naturally directed exclusively to the matters of business. It takes place, too, singly, occasionally, and as an event in legal intercourse and experience.' p. 154 — 159.
If the doctrine of these extracts is to be followed in its full extent, it will supersede the use of a legislature. Mr. Park would exclude them, not only from framing a general institute or code, but from the occasional revision or amendment of the law. And he would prescribe to the judicial tribunals, in the exercise of their legislative functions, not to establish laws by edicts or ordinances, as was done by the prætors in Rome, and sometimes by the French Parliaments, but by ex tempore acts of legislation pro re nata. Let these principles be followed out and they will destroy all certainty in the law, and substitute in the place of fixed and stable rules of jurisprudence the arbitrary discretion of the court. For if the court may escape from the law in an exception, a qualification, or a distinction ; — nay more, if they may establish a new rule, or alter an existing rule, when a case is presented for decision, it is too clear to admit of controversy, that the law exists merely in the discretion of the court, and that it may, at any time and without previous notice, change it at its pleasure. When a suitor comes before the tribunal relying on the existing law, as it has been manifested in a continued stream of decisions, he may find the court in a humor to reform the law. - to introduce a new rule, or alter an existing rule; - or to escape from their former practice and the authority of prior decisions through an exception or a distinction. And when this is the case, the new rule is ushered into the world, and the manes of the expiring law appeased and propitiated by the proper solemnity of an expiatory sacrifice of the unhappy suitor. Nor is this all. When a new rule is introduced under this system of judicial legislation, it has a retroactive operation. It makes the law for past as well as future transactions. According to the theory of the common law, whenever the court pronounces a decision, the principle on which it is made is assuined to be the actual law, and the decision becomes an imperative authority for all similar cases. This constitutes the difference between the mode of amending the law by edicts or ordinances and by arrets or decisions. An ordinance, like a law, only operates prospectively. It makes the law for future cases; but a decision is a declaration of the law as it is, and applies as well to other cases existing at the time as to the future. If the occasional amendment and reformation of the law is to be entrusted to the judicial tribunals, on every principle of justice this power ought to be exercised in the forms of edicts or ordinances. An alteration of the law by a decision is nothing more nor less than a fraud.
It is deciding on the rights of parties, not by the law under which they were acquired, but by an er post facto law made for the special purpose of giving to one person what by the existing law belongs to another. Strip the matter of all the specious disguise that may be thrown over it, and when the naked truth is contemplated, in what does this differ from confiscation or robbery?
Mr. Park is, however, too good a lawyer to follow out these principles to their natural and logical results. The whole course of English jurisprudence shows how extremely reluctant the courts are to overrule prior decisions, however inconvenient or unjust. Mr. Park would find it necessary to circumscribe and limit the range of judicial legislation ;- and in fixing its limits he would be brought back to the principles on which the courts have acted for centuries. The fruits of this system we already see in an accumulation of cases, which set the powers of memory at defiance by their number, and the force of reason by their contrarieties.
That this state of the law calls for amendment is now generally admitted. The demand for a reformation is indeed less imperious in this country than in England. This reformation has already been partially effected by the action of the legislature in most of the States in the Union. A large portion of the subtleties and refinements, which encumber and perplex the common law, have been from time to time removed, so that the science with us is comparatively simple and plain. That much