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ART. I.-WRITTEN AND UNWRITTEN SYSTEMS OF LAWS.
De la Codification en general, et de celle de l'Angleterre en
Ir a man conversant in the business of life, but wholly unpractised in the mysteries of the law, were asked, which would be most conducive to a steady and uniform administration of justice; a written code in which all the general rules of law were systematically arranged into a series of clear and distinct propositions, easily understood by all the citizens; or a system of law growing out of the customs and usages of society, and which could only be known with certainty by proving these usages; we believe the answer would invariably be a preference for a written code. When the question is presented in this abstract light, independent of the experience of mankind, it seems impossible that two opinions can be entertained on the subject. The radical and elementary idea of a law, is, that of a fixed and certain rule; and when the rule is ascertained and fixed, it is very obvious that the convenience and security of those who are governed by it require that it should be reduced to writing and expressed in clear and explicit terms; so that every man may satisfy himself of the existence of the rule and of its bind
ing authority. Until thus reduced to writing it is, from necessity, to a certain extent variable. It will not be expressed by every one in precisely the same words, and therefore will not be understood in exactly the same sense. But when reduced to a fixed and invariable formula, it has acquired all the certainty that the imperfection of the human understanding and the character of human language will admit. It then becomes properly a rule of action. The magistrate, who administers the law, has nothing to do but to apply the rule to the act. If the result of the comparison is, that the act conforms to the rule, it is lawful; if it does not, it is unlawful. But if the rule only exists as a custom, the magistrate must first verify the custom, then reduce it to a formula, and afterwards apply the formula, which he has extracted from the custom, to the act on which he is to decide. The mere statement of the process, by which the magistrate must arrive at a conclusion, in every case that is presented for decision, proves, in the most conclusive and unanswerable manner, the superiority of a written over an unwritten and customary system of law. He is in fact obliged, in the decision of every judicial question, to form, from the unwritten customs, an abstract proposition, or rule of law, which is precisely equivalent to an article in a code, instead of having this formula prepared for him by the legislature in a written text.
It is objected, however, by those who are opposed to all attempts to reduce the whole body of the law into a written and systematic code, that no code can be framed sufficiently comprehensive to embrace all the infinitely diversified combinations of facts involved in the various and multiplied transactions of an active and highly civilized community;- that every attempt at forming a complete code must unavoidably fall short of its object, and leave a vast number of cases which cannot be brought within the purview of the law. A code, it is said, must necessarily be limited in the number and variety of its provisions, but the variety of cases that may be presented by new combinations of facts is unlimited.
This objection is placed in bold relief by Mr. Park in the work now before us. The transactions,' says he, ' of mankind, and the internal combinations of those transactions being infinite, it is impossible to have any series of preconceived propositions, which must necessarily be finite, coextensive with the questions