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fore the Americans should be favorably disposed towards the amendment of laws touching in such a variety of ways, and so closely, the roots of industry. They would realize in this spirit the spirit of the Roman twelve tables : Salus publica suprema ler. “The public welfare is the end of the law.” Thus we shall be enabled to appreciate the evil effects of the uncertainty of the application, rather than want of the common law, upon the prosperity of individual industry. In the following remarks we shall point out some of the most obvious disadvantages.
As we have already had occasion to remark, the amount of legal decisions is innumerable, and is made up of a great variety of materials, which are not sufficiently digested. Lawyers and their clients, therefore, have had great difficulty to understand rightly the leading principles of the law ; although, in the daily occurrences of life, the necessity of a recourse to law is continually presented to all persons, and a certainty in its issue is of urgent necessity, but notwithstanding, impossible, without clear and precise definitions. But the abundance of these materials, so far from being viewed as an evil, should be looked upon as of great importance to the advancement of law, if care is taken to regulate and render them easy of access; to separate the useful from the obsolete; and to throw the crude into a more suitable shape; just as with the precious metals, which must be sought after in the bowels of the earth, and be freed from their admixture with baser ore, before they can be applied to satisfy the wants of mankind. In the present state of the subject, the most important questions may, on the one hand, be decided by laws containing many obscurities, contradictions, and inaccuracies, creating thereby, in various ways, insecurity to possessions and property, whilst on the other hand we should remember, that in a system of jurisprudence all parts affect each other, and that consequently a contradiction can never remain isolated, but
must enter, in a variety of ways, into the intricate relations of social life, and render it impossible at all times to guard against its baneful influences. Fraud and artifice find ample nourishment in the inaccuracies and ambiguity of the laws; disputes necessarily arise from laws of doubtful meaning; and the peaceful citizen, fondly fancying himself safe, and in the possession of his manifest rights, finds it impossible to protect himself from the harassing schemes of his malicious opponent. The latter is even assisted by the laws themselves, in consequence of their internal contradiction, in his attempts to involve the former in the dubious, expensive, and dilatory uncertainty of a lawsuit, the issue of which will depend entirely upon the view which may be taken of the controverted matter, by the final authorities; and which, from the contradictory nature of the laws in question, cannot previously be ascertained with any accuracy.
All this may easily happen with even a good case, and with lawyers and judges conscientiously performing their duty. Unjust doubts will then be frequently entertained of the science and capacities of jurisconsults; whereas it is the faulty laws alone which are to be blamed. Their amelioration, therefore, is of weighty importance to the true interests of industry, and of the law. And, furthermore, those legal institutions of the olden times of England should not be retained without great modifications, in all cases in which they may not be in accordance with the more modern American customs, as they tend to confuse all ideas, and to naturalize much here, which was local and incidental in its nature and origin, and which is not suited to the life of America. From these remarks it will be sufficiently evi
| Some excellent remarks on this point may be found in the American Jurist for October, 1834, in a " Lecture on the alleged uncertainty of the law," by John Pickering.
? Montesquieu, de l'esprit des lois, livre 19, chap. 21.
dent, that the obscurities, the faulty arrangements, and the contradictions of the laws, must be directly opposed to the establishment of legal security. But legal security is certainly one of the principal objects of a government which shall endeavor to realize the true end and design of its institution.
A more perfect establishment of legal security, attainable only by reasonable ameliorations of the law, being thus among the noblest and most elevated objects of government, the following questions need not excite surprise. Why have civilized nations allowed centuries to roll by without obtaining that legal security which they so earnestly desired? Were they not equal to the task, or did it exceed the capacity of their legal science ?
The answer to these questions may be found in the following considerations. On the one hand the exigencies of the times have made it necessary for all nations to apply themselves principally to matters of state polity. On the other hand, in France, Prussia, and Austria, codes have been made, and in the United States, also, much has already been done for the amelioration of the private law, by careful revisions of statutes, which have admirably prepared the way for the compilation of a code which would comprehend both common and statute laws.
After the systematic compilation of the civil law and law of procedure of Louisiana, and after some alphabetical arrangements of the statutes, Messrs. Spencer, Butler, and Duer revised and codified, in 1829, the statutes of the state of New York, a work which, for its novelty and the systematic order in which it was completed, deserves the highest praise.
In 1835, Messrs. Jackson, Stearns, and Pickering, were equally successful in their systematic revision of the statutes of Massachusetts. And two years later, a commission, authorized by the legislature of the same state, and at the
head of which Mr. Justice Story was placed, in their "Report on Codification," have done great service to the country, by the clear and able manner in which they have presented to the people the expediency and practicability of codifying the common law.
But the systematic arrangement of the common and statute law, or the compilation of a code, is a measure against which many objections have been raised. We come now to the consideration of those objections, and to these we will now give a careful attention.
[The residue of this in which the objections against Codification are considered, will appear in the next number.]
1.-DIGEST OF ENGLISH CASES.
Selections froin 10 Adolphus & Ellis, parts 2, 3 and 4; 11 Same, part 1 ; 3 Perry
and Davison, parts 3 and 4 ; 4 Same, part 1; 1 Manning & Granger, part 2; 8 Scott, part 2; 1 Scott's N. R. parts 2 and 3; 6 Meeson & Welsby, parts 4 and 5; 7 Same, part 1; 8 Dowling's P. C., parts 4 and 5; 9 Same, part 1; 9 Carr. & Payne, part 3.
ACTION ON THE CASE. (For obstruction in highway.) In
an action to recover compensation in damages for an injury occasioned by an obstruction in a highway, it was left to the jury to say, whether or not the plaintiff was himself in any degree the cause of the injury, whether he had acted with such want of reasonable and ordinary care as to disentitle him to recover : Held, that the direction was proper. (11 East, 60; 3
M. & W. 244.) Marriott v. Stanley, 1 Scott, N. R. 392. ARBITRATION. (Revocation of submission by insolvency.)
Semble, the insolvency of the plaintiff does not operate as a revocation of a submission to arbitration. (4 B. & Ald. 250 ; 9 B. & C. 659; 8 D. P. C. 281.) Hobbs v. Ferrars, 8 D. P. C.
779. 2. (Award, construction of.) An award, dated 13th October,
1840, ordered the payment of money on “ the 28th day of October next : " Held, on motion for an attachment, that the money was payable on the 28th of the saine October in which the award was made. Brown v. Smith, 8 D. P. C. 857. VOL. XXVI.NO. LI.