so constituted as to administer remedies for which the forms of law are totally incompetent. Hence it is neither above law, nor opposed to it, but merely subsidiary, serving to supply its deficiencies and help out its designs. In general, two things are necessary to bring a case within chancery jurisdiction; first, the absence of an adequate remedy at law; and secondly, the existence of some enactment or precedent to meet the case. But these things will be more fully explained hereafter. Enough has been said. to show that equity forms a branch of unwritten law, not inferior in importance to the common law, and equally the work of judicial legislation.

Civil and Canon Law. I have thus far made no mention of the civil or Roman law, or of the canon or ecclesiastical law, because neither possesses any intrinsic authority in this country, except a select portion of the former in Louisiana. Yet as both are sources from which much of our unwritten law has been derived, they merit a brief description. By the civil law (a) then, is meant the body of Roman law, compiled and digested under the direction of the emperor Justinian and his successors. It consists of three principal divisions. 1. The Institutes, in four books, which contain the elementary principles of law carefully arranged, and designed principally for students. 2. The Pandects, in fifty books, which contain a methodical digest of the writings and opinions of the most celebrated jurists. 3. The Code, in twelve books, containing the imperial edicts and decrees, to the time of its date. To these must be added the Novels, containing the edicts. and decrees of subsequent emperors, and forming a supplement to the compilations of Justinian. These compilations, therefore, embody the wisdom of the Romans in jurisprudence for about twelve hundred years.

By the canon law (b) is meant the body of ecclesiastical law compiled from the opinions of the early Latin fathers, the ordinances or decrees of general councils, and the bulls of the holy sce. But this body of law is far less interesting to us than the civil law, because, in our total separation of church and state, its influence has been almost entirely done away. Yet in questions relating to marriage and divorce, and to the settlement of the estates of deceased persons, we still have occasion to refer to this body of law.

§ 19. Codification. (c) Before leaving this subject, it may not be improper to say a few words upon the project of diminishing the importance of unwritten law, by enlarging the boundaries of

(a) See 1 Black. Com. 80; 1 Kent, Com. lec. 23; Gibbon's Roman Empire, ch. 44; Justinian's Institutes, by Cooper; Domat on the Civil Law, by Strahan; Irving's Introduction; Ayliffe's Pandects; Brown's Civil and Admiralty Law; Cushing's Introduction to the Study of the Roman Law; 12 New York Legal Observer, 289.

(b) See 1 Black. Com. 82-85; Brown's Ecclesiastical Law; Rogers' Ecclesiastical Law. There is an American republication of the English Ecclesiastical Reports in six volumes, edited by E. D. Ingraham, of Philadelphia.

(c) See 1 Hoff. Leg. Out. 454; Bentham on Legislation; Grimke's Report to the Legislature of South Carolina; Story's Report to the Legislature of Massachusetts; 1 West. Law Jour. 433.

written law. And first, is this practicable? In answering this question, it is sufficient to consider unwritten law merely as a collection of legal principles, no matter how established, or whence derived. Can these principles be reduced to precise language, and arranged in systematic order? For if so, they can be enacted into a code. Now operations precisely similar, and equally arduous, have been performed in every other art and science. The great difficulty has always been to find out the principles, not to arrange them; but here the principles exist in the reports, and the numerous digests and abridgments would greatly facilitate the construction of a code. We are not left, however, to speculation and conjecture. The thing has been done, and therefore can be done again. It is sufficient to refer to two experiments. When Justinian ascended the Roman throne, the laws had been accumulating in the same way as ours, for ten centuries, and were contained in some thousands of volumes. Yet he found commissioners to construct from this confused mass of materials, a clear, connected, and beautiful system of law. And in the strong language of Gibbon," while the vain titles of the victories of Justinian are crumbled into dust, the name of the legislator is inscribed on a fair and everlasting monument." Almost the same remarks apply to the splendid achievement of Napoleon. When he ascended the French throne, the task of legal reform was as imperiously called for, and not less arduous. But to such a man difficulty seemed in itself a temptation. He, too, found commissioners to frame an admirable code; and in his own vigorous language, he "will go down to posterity with that code in his hand." But we need not go abroad for examples. Codes justly renowned have already been framed for Louisiana. And, to take partial examples, our constitutional law has been codified to the admiration of the world, while that of England still remains unwritten, a heavy mass of doubtful precedents. And yet for this great work our fathers had no models, and scarcely materials. Again, the criminal law both of the United States, and of most of the States, has been likewise codified; and our citizens thereby enjoy the inestimable privilege of being able to find, on a few pages of the statute books, every offence for which the hand of justice can punish them. (a) The idea of impracticability, therefore, can only arise from a misconception of what is actually proposed. Did the project contemplate the formation of a code absolutely perfect, so as to anticipate all future cases, this would indeed transcend finite capacities. For in the ever

(a) So, very recently, Codes of Procedure have been adopted in New York, Massachusetts, Kentucky, Tennessee, Missouri, Ohio, Indiana, Iowa, Wisconsin, and some other States. An act of the British Parliament passed June 30, 1852, amended by that of Aug. 12, 1854, and entitled "The Common Law Procedure Act," abolishes all forms of actions and introduces radical reforms in pleading and practice. For a summary of these changes, see 18 Boston Law Reporter (Feb. 1856), 541. The law of criminal procedure has lately been greatly simplified in England. Bishop on Law of Criminal Procedure, passim. The Indian codes of the English Parliament, are very interesting and instructive examples of codification.

multiplying relations of human affairs, the imagination cannot reach forward to the time when new cases will not arise. But this is not the proposition. Nothing more is sought than to incorporate into a code, existing principles, and this has been shown to be practicable. A difficulty, however, has been suggested of another sort; namely, that when commissioners should have prepared a code, a legislative sanction could not be procured. The idea is, that the numerous members of a legislative body could never be brought to unite upon any code, when to a single mind there would be no difficulty. It is indeed probable, that many of the members would not carefully examine its provisions, and could not appreciate them if they did. But a personal inspection by every member would not be expected. This is not the way in which such bodies usually transact their business. They inquire and examine through their appropriate committees, and rely upon their reports. They might do so in this case. For greater security, there might be successive committees from year to year; and then, if time should disclose errors, they could be readily corrected by future legislatures.

In the next place, then, is the project expedient? There are some objections on this score, which first require to be answered. First, it is said that we might lose much that is really excellent in the unwritten law. The fact would seem to be otherwise. The proposition is to search thoroughly, once for all, the voluminous records of unwritten law, and abstract therefrom all the principles which are worthy of being retained. But the search need not be confined even within this range. The records of all human experience might be explored; and wheresoever in the codes of ancient or modern lawgivers, a legal principle could be found suited to our condition, it could be adopted. In this way, so far from losing, we should take the surest method of preserving all the scattered gems of jurisprudence. Secondly, it is said that we should effect a great, sudden, and of course disastrous change in legal rights, a kind of civil revolution. But this does not follow. The proposition is not to reverse the law, but simply to change it from unwritten to written law. Not one legal principle need be altered, unless the public good require it. Thirdly, the time and expense may be deemed an objection. No doubt it would require much of both. The best exertions of the best minds, in a long and arduous labor for the public, ought to be well rewarded. But when accomplished, the work would be beyond all price. Moreover, the cost would probably be saved in a single generation by the reduced expenses of litigation. Let us then advert to some of the positive advantages of such a code; and first, our laws would be better adapted to our condition than they now are; since that part of the unwritten law, which is suitable only for barbarians, would be of course rejected, and no longer cumber our legal repositories. Secondly, our laws would be more generally known, for the inquirer would no longer have to search for them through a thousand volumes, and

then haply not find them.

All

Thirdly, they would be more simple. If statutes are not easily understood, it is the fault of those who frame them, in not using clear method, and plain language. needless technicalities which now lumber up the books, would be avoided. Fourthly, our laws would be more certain than they now are, and it has often been said that the certainty of law is more important than the reason of it. The only uncertainty which need belong to statutes, is that which arises from the imperfection of language. There would be no balancing of authorities, or arguing about fitness. The only question would be, What has the legislature enacted? Not so with unwritten law. For though in theory precedents are binding, yet in point of fact, judges do not regard precedents as absolutely imperative, like statutes, but rather as lights to aid their discretion, and inform their judgment. They sometimes overrule their own prior decisions, and very often the decisions of other courts, insomuch that an immense collection (a) of overruled cases has already been published. And how is even this source of uncertainty increased, by promulgating such a doctrine as that already referred to, that the unwritten law is binding only so far as it is adapted to our condition? Ought we to depend to such an extent as this, upon the discretion of any set of men? Lastly, our laws would be more conformable to the theory of our government, which vests legislative power in the legislature alone, and not in the judiciary. But I have not time to pursue the subject. The question of codification is by no means clear of difficulty, though abundantly deserving of serious consideration. § 20. Divisions of Persons. (b) Having now enumerated the various kinds of law, let us next advert to the subjects upon which law operates. These are, as we have seen, persons and property. But both persons and property are distributed by law into various divisions and subdivisions, which I shall here briefly indicate; beginning with persons. 1. The law distinguishes between natural and artificial persons. By a natural person is meant simply a human being. By an artificial person is meant a corporation, consisting of one or more natural persons, endowed by law with certain attributes not possessed by natural persons; among which are, unity and indivisibility of name and purpose, and continuity

(a) See Bigelow's Overruled Cases. One of the most remarkable instances of overruled precedents is the case of Godsall v. Boldero, 9 East, 72, decided in 1807, which, after being often recognized as authority by judges and text-writers, was finally overruled in 1854. Dalby v. India and London Life Assurance Company, 15 Com. Bench R. 365, 28 Eng. L. & Eq. 312. In the original case, an insurance had been effected on the life of the celebrated William Pitt. The policy was subsisting at the time of his death, on Jan. 23, 1806, and the debt was paid by his executors. The insurance company in a suit on the policy resisted payment, on the ground that the contract of life insurance is one of indemnity-and the creditor having been fully paid, had been fully indemnified. The defence was sustained. The last cited case, however, decides that the contract of life insurance is not one of indemnity, but a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life. See Parsons on Mercantile Law, p. 550.

(b) See the first book of Blackstone, for these divisions and definitions.

of succession and duration, unaffected by change of members. The law creating a corporation, and called its charter, imparts to it various other capacities according to its objects, which will be described hereafter. 2. The law distinguishes between public and private persons. Public persons include all those who occupy official stations; and will be described in connection with the departments of government. All other persons are private. 3. The law distinguishes between citizens and aliens. Citizens include all persons born within the United States, and all persons duly naturalized. (a) The process of naturalization will be described hereafter. All other persons are aliens. 4. The law distinguishes between males and females. Females have no political capacities whatsoever; that is, they have no direct voice or agency in the formation or administration of government. But while they remain unmarried, their legal capacities are the same as those of the other sex. When married, they are placed under various disabilities, which will be described when we come to speak of husband and wife. 5. The law distinguishes between infants and adults. Infants or minors, in many of the States, include all males under twenty-one years of age, and all females under eighteen. In others, twenty-one is the age of majority for both. All other persons are adults. Infants have no political capacities at all; and they are placed under various legal disabilities, which will be described hereafter under the heads of parent and child, and of guardian and ward. 6. The law distinguishes between persons sane and insane. Insane persons comprehend all those persons who are totally or partially deprived of reason. They are placed under various legal disabilities, which will be described under the head of idiots and lunatics. 7. The law distinguishes between. masters and slaves or servants. Slaves include those persons bound by law to involuntary and perpetual servitude, unless manumitted by their masters. They will be described hereafter. Persons voluntarily bound to service, or bound only for a limited time, will be described under the head of master and servant. 8. The law distinguishes Indians from all other persons. They are placed under various disabilities, both political and legal, which will be described hereafter. 9. The death of an individual gives rise to various legal distinctions. If he has disposed of his property by will or testament, he is called testator; the persons taking his property, legatees or devisees; and the person appointed by him to settle his affairs executor. If he has left no will, he is called intestate; the persons designated by law to take his property, heirs; and the person appointed by court to settle up his affairs, administrator. All these relations will be enlarged upon hereafter.

(a) Also, all persons born out of the jurisdiction of the United States, whose fathers were, at the time of their birth, citizens of this country, and had at one time resided therein - also, married women capable of naturalization under existing laws, whose husbands are citizens of the United States. Act of Feb. 10, 1855. 10 U. S. Stat. 604.