« PreviousContinue »
of right which arise in an infinite series.' p. 22. The multiplicity of these combinations is illustrated by a survey of the present condition of the law of England.
There are, it is said, but few of the leading principles of the common law, which can be traced to an earlier period than the reign of Edward I. The small number which remount to a higher antiquity, are fragments of the Roman jurisprudence, which survived the shock of the conquest of the country by the barbarians, and were preserved by tradition through the period of disorder and violence which followed. p. 9. The common law received a powerful impulse from the genius of this prince, or rather from the sages of the law who illustrated his reign, and the forms of the administration of justice, which were established at that time, have been preserved with but little alteration to the present day. 4 Blackstone, 427. From that period down to our own times, the common law has been in a process of uninterrupted accumulation. It has now, according to Mr. Park, grown to such a bulk as to be entirely beyond the compass of any human memory. The library of an English counsellor, which contains the law, has increased to about five hundred volumes. Of these about three hundred and fifty are devoted to the decisions of the courts-the authoritative expositions of the law. The principles and doctrines taught in the other one hundred and fifty volumes of treatises and digests by learned authors, are received with various degrees of credit corresponding with the reputation of the authors for learning and sagacity; but the decisions of the courts are the living voice of the law. The three hundred and fifty volumes of reports are not to be regarded merely as evidence of the law or commentaries upon it, expounding its reasons and illustrating its spirit. They constitute the law itself; they are the corpus juris, as much so as the Pandects of Justinian were of the Roman law. Each particular decision makes the rule for all similar cases, unless the decision is flatly absurd and unjust.' 1 Blackstone, 70. These reports constituting the only text of the law; before a jurisconsult can be qualified to administer it as a magistrate, or to advise a client as a counsellor, he must make himself familiar with the contents of this library.
If the sight of this corpus juris in its bloated dimensions is well calculated to shake the confidence of a mind of not more
than ordinary firmness, a more minute examination of the subject in detail will not be likely to revive his courage or confirm his constancy. Each of these volumes contains, according to Mr. Park, on an average, about five hundred cases, and each case is of binding authority unless it is 'flatly absurd and unjust.' This will give 175,000 sections or articles of the law. But even this does not present the corpus juris in its most discouraging aspect. A single adjudication,' says Mr. Park, 'may generally involve from ten to twenty points of law, which, if not all actually embraced in the decision, are more or less. important as the expression of judicial sentiment.' p. 50. Taking the medium of 15, we shall find the 175,000 articles of the law subdivided into 2,625,000 sections. If one half be deducted for criminal and parish law, and for points of pleading and practice, with which, however, every judge and practising lawyer must be familiar, there will yet remain 1,312,500 articles or sections to constitute the body of the law of property and civil rights. If this be a correct statement of the case, it will readily be conceded to Mr. Park that no human memory can, by any possibility, contain this million of abstract propositions and have them sufficiently familiar to apply them with promptitude and intelligence to new cases, which may come up for advice or adjudication.
Admitting the view here taken of the common law to be correct, so far from presenting an objection to codification, it furnishes one of the strongest arguments in its favor. If the law has already grown to such an unwieldy and unmanageable bulk, it is manifest that its cumbrous magnitude is a fault that is continually and rapidly on the increase. That the account of Mr. Park is not materially overcharged will, we believe, be admitted by every practising lawyer.
The first step in the formation of a code is not attended with much difficulty. It is but to collect the cases and arrange them under different titles according to the subject matter of each. This has been already done in several digests that are now in familiar use. Nor would it be a work of much more difficulty to go through with the digest thus formed, and purge it of about nine tenths of the cases collected, without materially impairing the copiousness of the collection, as a repository of legal principles. After this operation, if a legislative sanction were given to
the whole compilation, this would be doing for the common law nearly the same office that was performed for the Roman law by Justinian. Such a compilation would correspond in substance to the Pandects. This, so far from being impracticable, it will be readily admitted, is a work of no extraordinary difficulty. Every elementary work on any branch of the law is a digest of the law on that title, and a legislative sanction is all that is wanted to give it a paramount authority. But this operation, though it would greatly improve the law, by removing a mass of materials which are worse than a mere incumbrance, would give but a very rude and imperfect outline of a code. To extract from these materials all the essential and governing principles, and arrange them into a series of general and abstract propositions that should contain the essence of the whole law, would be a work of far greater delicacy, and would require the hand of a master.
This leads us to the true answer to the objection that we are considering, and that is, that it is founded on a total misconception of the nature of a code. It supposes that a particular rule is to be given for each particular case; and it arises from confounding the duties of judicial tribunals with those of the legislature; from blending together two things, which, though they have a general analogy, are in their natures entirely distinct; we mean jurisprudence and legislation. The objection savors of the atmosphere of Westminster Hall, and is perhaps not unnatural, when considered as coming from one who has derived all his ideas of law from the practical routine of business in the English courts. But we were not prepared to see it urged with so much seriousness by a jurist like Mr. Park, whose mind has evidently been liberalized by a considerable familiarity with the jurisprudence of other nations. To make ourselves better understood, it will be necessary to look a little into the nature and foundation of the common law. The general basis of this law is, it is said, composed of certain ancient customs. These are not consigned to any written text, but are supposed to be deposited and preserved in the conscience of the courts of justice, which are the general repositories and oracles of the common law. 1 Blackstone, 69. This law is promulgated from time to time in such portions as the occasions of society require. It is remarkable that it is never promulgated until an occasion
occurs which requires its application, so that the rights of parties are determined by a law never before revealed, and of course by a law to them unknown. Under the administration of such a system of customary law, a decided case forms the law for all cases agreeing with it in all its material facts; for the fact of the decision is considered as conclusive proof of the custom. But it furnishes a rule for no other case. If the case to be decided agrees with the precedent in nine points, but differs in the tenth, the precedent does not apply; and if the court adopts the principle of the precedent, and decides the case on the ground of analogy, the decision discloses a new fragment of the law and becomes itself a precedent. For the court proceeds on the hypothesis of a pre-existing custom, and it is obvious that the precedent, which is brought to prove it, proves nothing more than that it extends to a case involving that precise combination of facts.
This is the natural and logical inference from the hypothesis, and the practice under such a system of law necessarily becomes a jurisprudence of precedents, as distinguished from at jurisprudence of principle. Each new decision is supposed to restore an isolated fragment of some forgotten usage, and to be itself the record proof of the custom. It is the proper office of courts to decide cases and not to make laws. If there be in fact no acknowledged rule of law, which applies to the case, it must be dismissed without a decision. The English courts do not claim the direct authority of making the law. But the ancient customs are supposed to furnish a rule of decision for every case that can by possibility occur. And if the precise rule is not found among the million of fragments, which have been from time to time revealed, these will supply a variety of analogies. These analogies are seized upon and discussed at the bar, and the lights struck out by the disputations of the forum enable the court to recollect another of these inexhaustible relicts. But these lights are not supposed to bring to the recollection of the court any more of the old law than is barely adequate, as a rule for that case. If, in expounding the text of the law, which embraces the case before him, the judge adverts to analogous cases and presumes to give a rule for them, the inspiration is supposed to abandon him, and his extrajudicial dicta are treated by his successors as entitled to no authority.
The supposition of an ancient and forgotten custom, is, as every one knows, a mere fiction, admitted by the courts to prevent a failure of justice. And proceeding on the groundwork of this fiction in the administration of justice, the courts in point of fact make the law, performing at the same time the office of legislators and judges. By this process the law is brought out only in disjointed fragments; the whole body, as we now have it, is composed of separate and independent cases; of particular applications; and not of general principles. The whole piece can only be formed like mosaic by arranging and putting together these separate and independent fragments.
To a mind accustomed to view the law in this light only, as a collection of a great number of special and arbitrary rules standing on the authority of usage, and not as a science flowing from a limited number of general principles, the objection of the multifariousness of the subject is natural and obvious. It is true that in framing a code, if we descend to particular and special rules, the number must be unlimited like the exhaustless variety of human transactions. But when the legislature acts in its sovereign character, its proper mode of proceeding is precisely the reverse of that of the judicial tribunals. Instead of gleaning here and there the scattered fragments of ancient customs, and by slow and painful industry piecing them together to make up an entire system, it should at once take the whole mass of existing customs and laws, subject them to a rigorous analysis, and, rejecting what is faulty or redundant and supplying the lacuna by new provisions, distribute the materials, which it has thus obtained, into a regular and scientific whole.
In all countries where the entire authority is not centered in a single person or a single assembly, but the powers of government are distributed among different agents, it is the exclusive province of the legislature to make the law or prescribe the rule of decision to the judicial tribunals. It acts only prospectively. A law can never act on the past, for when it has a retroactive effect and disturbs preexisting rights, it ceases to have the character of a law and takes that of a judgment. As far as it operates on the past it is not a 'rule of civil conduct,' it bears none of the characteristic features of a law, which are imperare, vetare, but is clearly trenching on the judicial department of the government. As it is impossible for any human sagacity to foresee