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fully studied, will be seen to contain the germs of those statutes which shall be suitable at any time to the existing state of things.
From what has been said, it will be acknowledged, that from its nature the common law has a stronger hold upon the people, and is more equitable than statutes, which may be temporary and partial. From its forming a part of the life of a nation, it will be as difficult to alter it suddenly to any considerable extent, as to change the habits of an individual. A nation may be more easily subdued, than changed in its habits and customs.
In accordance with this fact, the northern tribes, barbarous as they are commonly considered, showed much sound sense in so constructing their institutions upon the ruins of the Roman Empire, as to permit all those subjected to them to live according to the laws and customs of their respective countries.
Napoleon, on the other hand, it must be granted, whatever opinion he entertained of his code, showed little political judgment, or great disregard for the principles of human nature, in compelling its summary adoption by the nations whom he conquered.
But with all the advantages abovementioned, common law is attended with considerable difficulties. In a nation, just rising in the scale of civilization, inhabiting a small portion of country, and still simple in its institutions and interests, there may exist a great degree of simplicity and unity in its common law, so that it may be preserved in the memory of the people. But when these institutions and interests shall have become, as in the present day, greatly complicated, and be coupled with the diffusion, over a vast country, of a scanty population, it will be impossible to expect the same opinions and ideas to prevail in regard to particular customs; and the more impossible if with the increase of civilization the employments of the people have
become the more distinct and subdivided, so that what was formerly done in common has now been assigned to particular classes; for the jurists compose one of these classes, and through their labors a direction is given to the law.
In the same manner, therefore, as in simple ages law was found to live in the minds of the whole people, so now it ought to exist in the minds of the jurists, by whom the people must be supposed to be represented in this function. Since then the principles of law, in the course of time, naturally come under the full control of the judges and the lawyers, it is of the utmost importance, that means be devised for thoroughly acquiring a knowledge of law, by a well grounded jurisprudence, and a good civil code; and that each of these should be continually adapted to those changes which the altered state of society may have occasioned.
The unwritten part of the common law, which exists only in the form of custom, is very different from statute law, in respect to its susceptibility of proof. The former derives its only authority from its being known and assented to by every iqdividual, or by the majority, whilst the latter, having the authority of the legislature, offers the most perfect evidence for its support. Common law is not so precise, and a knowledge of its leading principles not so distinct, on account of its being made up of an accumulated mass of details; consequently, the fault to which it is liable is uncertainty of application. Its meaning, therefore, in order to remove the uncertainty, ought to be expressed in precise terms, and its principles arranged in systematic order.
This has been attempted by writing down the customs, and by putting into the form of statutes certain detached portions of this ever-growing law.
In this way these portions have been determined, and
It has been gratifying to observe the excellent beginning which the law schools in this country have made, and which promises well for the wider diffusion of a sound legal science.
sanctioned, and their meaning precisely ascertained, so that they have ceased to be exposed to the changes incidental to this kind of law. But the greater part of the common law has not been so secured, and consequently, its existence must be often proved by protracted litigation. Now an essential ingredient in the nature of all positive law is compulsion; as otherwise, laws would be ineffectual, and be mere empty words.
This compulsion is necessary to all law, but does not exist in the common law, until it is expressly invested therewith, by the public and decisive sanction of the legislature, and thus rendered authoritative in the eyes of the people. To this end common law must be provided with this necessary support, and without it will be less effectual. All principles which are founded on custom, and have any reference to law, ought to be carefully investigated in all their extent and bearing, and be clearly laid down in a general code. But it is not enough to collect together the scattered rules of common law, without principle or system; as such a code would, by reason of its disconnection, entirely fail in its object, and at the same time be deficient, difficult of application, and wanting in precision.
The present state of American municipal law. Unhappily, it must be confessed, that the common law of England, as we find it, patched with statutes, has been compiled after the latter fashion, without any regard to suitable arrangement; although its intrinsic merits would well entitle it to a thorough exposition, on account of the merit of its fundamental principles. Blackstone, in his commentaries, has proved to the world the possibility of its clear development from those principles. At the same time, it must not be forgotten, that those ancient customs and laws bear many marks of the crudeness and inexperience of the times, so that without being considerably modified, they
could not, in many cases, answer the necessities of the present age: and the same may be equally said of the old English statute laws, which, according to lord Coke's impartial testimony, confirmed by Blackstone, were compiled in a temporary and special manner.
“For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English as well as other courts of justice,) owe their original not to the common law itself, but to the innovations that have been made in it by acts of parliament, 'overladen,' (as lord Coke expresses it,) 'with provisions and additions, and many times, on a sudden, penned or corrected by men of none or very little judgment in law.' This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. But if,' he subjoins, acts of parliament were, after the old fashion, penned by such only as perfectly knew what the common law was, before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs and defects discovered by experience, then should very few questions arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of laws, between insensible and disagreeing words, sentences, and provisions, as they do. And if this inconvenience was so heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times as large bulk; unless it should be found that the penners of our modern statutes informed themselves better in the knowledge of the common law." I
the study of the law, page 29.
Whatever is true concerning a body like the parliament, would be true concerning legislative bodies here and every where; but in no country is there such a probability of conflict of laws, as in this, where there are so many legislative bodies in operation.
The English criminal law, noted beyond all others of Europe for its severity, though not a part of the municipal, but of the public law, should be incorporated in the proposed code. Blackstone complains of its rigor and we see from the speech of Mr. Thomas Fowell Buxton, in the house of commons, March 2, 1819, that its severity has been increasing.
The laws of England punished with death, under the Plantagenets, four kinds of crime; under the Tudors, twenty-seven ; under the Stuarts, ninety-six ; under the Guelphs, one hundred and fifty-six.
Of late these laws have been slowly mitigated in England;' but with great rapidity in the United States. In the English common law is contained more of the Roman law than is commonly supposed in this country. Not only have many principles of that law been adopted, but whole sections appear as almost translated; as, for instance, those of the right of possession; the fundamental principles of contracts; successio ab intestato, &c.; thus securing many excellent principles in regard to property and business, and at the same time drawing from the old Saxon law those principles favorable to personal security and freedom. Consequently, the English law, in its composition, at the present time, offers greater intrinsic merits than the common law of most of the countries of Europe. For proof, it is sufficient to refer to the authority of certain well known jurists. Judge Story not
Commentaries on the laws of England, vol. 4, chap. 1. • It is hardly necessary to refer the reader to the services done to criminal law by the powerful and benevolent mind of the late sir Samuel Romilly,