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are alike incompatible with the present state of knowledge, and with our institutions? Our poor laws have been enacted in conformity to English notions. We have reenacted their usury laws. Their laws against the combinations of mechanics to obtain advanced wages from their employers are adopted in these democratic states. We have no time to pursue this branch of the subject farther. The preceding part of this essay has been written in vain, if it has not shown the prevalence of fixed ideas and principles in regard to all matters of jurisprudence, and that there is little danger of rash and unnecessary innovation in our laws. Indeed, a thorough bred lawyer cannot be a great innovator; his mind is saturated with the system, and he cannot wash out the tinct; his thoughts have all travelled in a certain round, and they cannot break out into space.
It is often urged, and with great sincerity, that the proposed remedy for the multiplicity and uncertainty of the law would be unavailing. It is said, and no doubt truly, that if a written code of the laws were prepared with the greatest care and ability, there would still be many lurking ambiguities; that new cases and new difficulties would arise; that comments would shortly be appended to the code; that these comments would themselves form the basis of fresh annotations; that different opinions would be entertained of the meaning of the code itself, and conflicting decisions made thereon, and thus in a short time there would grow up a mass of authority and adjudication, as ponderous and oppressive as that from which we now seek to be relieved; and, finally, that all expectations of reducing the law to a state of simplicity and certainty would prove fallacicus. We admit that there is much truth in this. We have no expectation that the law ever can be reduced to a state of simplicity and certainty. On the contrary, it is in its own nature, and must ever remain, to a very great and inconvenient extent, complicated and uncertain. It is for that very reason, that it is all important to reduce the subject within as manageable a compass, and to as great a degree of certainty as possible. That there are trackless forests, and undiscovered regions, is no reason why the known and cultivated parts of the country should not be surveyed and reduced to orderly arrangement.
The multiplication of reports, emanating from the numerous collateral sources of jurisdiction, is becoming an evil alarming and impossible long to be borne. It has of late increased enormously in every mode of increase; the establishment of new tribunals; the increased habit of reporting; and the prolix method adopted by the reporters. All these reports are considered to be entitled to respect in a greater or less degree, and they come upon us from every quarter in an overwhelming flood, intermingled with digest, compends, and essays, without number. Such has been this increase, that very few of the profession can afford to purchase, and none can read all the books which it is thought desirable, if not necessary, to possess. By their number and variety they tend to weaken the authority of each other, and to perplex the judgment. No system ought to be adopted, which should prevent our searching for the lights of jurisprudence in every quarter whence a ray can be derived, but we surely may avoid something of the perplexity and confusion of false lights. If all the existing sources of information were explored, and a digested system of law extracted from them with great care and judgment, much might be accomplished, although many errors were suffered to remain. We should not have a perfect code; new cases would arise, that could be referred to no settled principle. But this merely shows the imperfection of all human things, and the infinite relations of hunan life; it does not show, that an immense mass of doubt and error would not be removed. We should avoid to a great degree the weighing and balancing of opposing decisions, and conflicting analogies. The code, so far as it professed to proceed, would be decisive. Many reason as if we could gain nothing, because we cannot settle everything. That new and difficult relations will present themselves, only renders it the more necessary, that those which are developed should be fully understood and reduced to method and certainty.
An example may perhaps assist our comprehension of the subject. Take the law titles Baron and Feme, (Husband and Wife,) or Bills of Exchange and Promissory Notes. Neither of these are among the most difficult or least understood titles of the law. Still the learning in relation to them is scattered through at least five hundred volumes, any one of which it might be important for a lawyer to consult in a
given case. It is true, and we admit, that all the possible relations of these subjects could not, by any human investigation or sagacity, be reduced into a code, but so far as they ever have been brought under judicial cognisance, or otherwise developed, they might be set forth plainly and at no great length. In so doing a mass of errors and contradictions would be authoritatively refuted, surplusage avoided, redundancies and repetitions retrenched, and the whole matter, as we verily believe, might be reduced in the proportion of one hundred to one, and this to the great improvement of the law as a science.
Mr Dane, an eminent lawyer of Massachusetts, is now publishing a Digest of American Law. This abridgment is to be contained in eight very large octavo volumes. Now if Mr Dane esteemed himself at liberty to state simply what the law is, or in his opinion ought to be, without amplification or argument, if he could omit the citation and discussion of dicta and authorities, whether contradictory or corroborative, and should thus reduce the law, as any other science would be reduced, to a series of propositions and statements intelligible to every professional student, if not to every enlightened man, and should present his digest in this form to the public, no one, who has turned his attention to the subject, will doubt, that the whole might be comprised in at least one volume of the same size. It would then much exceed in bulk the Napoleon Code. The maxim, lege multum non multa, is as applicable to the law as to any other subject, and such a volume, carefully perused and reperused, would convey more and better information than the reading of the whole eight, excellent as we doubt not they will be.
We are not to be understood as recommending the propriety of committing such a task to any one man, however eminent his talents and acquirements, or severe his industry. It is too mighty for a single intellect. Besides, an individual is apt to be governed by a single set or chain of ideas and associations, and such a work ought to undergo a careful and thorough revision, by those who will view it in different points of light. There are, no doubt, many men in our country who are fitted to earn glory for themselves, and to signalise the age, by the performance of such a labor. In a few years two or three such men, aided by the labors of a few eminent
common lawyers, would produce a code, which, after the first awkwardness resulting from novelty and change of habit had worn off, would be almost as real and as great an improvement in jurisprudence, as the introduction of steamboats in water transportation. Simplification, order, arrangement, labor saving contrivances, and increased efficiency of exertion are taking place in every other branch of human knowledge and effort; and it is not to be admitted, that the law, whose office it is to pervade and govern the whole, is exempt from the operation of a beneficent principle, which is otherwise universally prevalent. The main labor would be to retrench and simplify, and to declare authoritatively, that which is now involved in doubt and discussion from the contrariety of opinions and decisions to be found in the books.
When such a code shall have been well considered, digested, and matured, it must of course be submitted to the state legislature for its final adoption. It would then undergo another scrutiny, and the practical good sense of those who compose that body would act upon it. They would not lightly interfere with a system, which had been thus prepared and elaborated; but they would of course reject whatever they might deem manifestly injurious. This would be an additional guard, of which other nations have not had the benefit in the formation of their codes, at least not to the same extent. A code of laws, thus prepared and adopted, would, no doubt, still be imperfect; but if it were not less so than the present system, (if that can be called a system, which is the confused product of different ages, and countries, and states of society, dark, uncertain, often contradictory, and almost without method,) if it were not preferable to such a system, the result of the experiment would be to show, that confusion may be better than order, and that on the great subject of the regulation of human rights and actions, it is better to trust to chance than to intellect.
But ought we to be considered as contending for experimental projects against experience? On the contrary, has not experience settled this point in favor of our argument? It matters not that the experience is not our own. It is the distinguishing character of wisdom to profit by the experience of others. The Roman law was not drawn from more various sources than our own, and it probably was not more VOL. XIX. NO. 45.
confused and discordant, yet the digests and revisions, which it underwent at successive periods, were not only of great immediate utility at the time when they were made, but have conferred immortal honor upon the enlightened princes under whose auspices they were compiled, and upon the illustrious jurists, who were employed for that purpose; and when the empire which produced them, with all its power, learning, arts, and institutions, had crumbled into dust, and clouds and obscurity had gathered thick upon it, and the destruction was nearly elementary, these monuments survived the wreck of almost everything else, and were rediscovered and brought forth in happier times to serve as the basis, and in truth, nearly for the whole structure of the jurisprudence of the new governments, which were formed from the ruins of the Empire. If we suppose a similar misfortune to happen to England or America, what book, treatise, or set of books is there now existing, which, if discovered in future times, would convey to posterity an adequate knowledge of our legal system? If a complete law library, buried this day, were disinterred at the distance of a thousand years, it would not answer that object. The arbitrary refinements and distinctions of the common law would have passed away from the human mind, and could hardly be revived. The language would have become obsolete. If any one doubts this, let him inquire whether an ordinary record of a court of Westminster Hall, as for instance, in an action of trover or trespass, being sent to any country on the continent of Europe, and translated into the language of that country, would convey clear and sufficient information either of the matter in controversy, or of the ground on which it was decided. Those, who have had an opportunity to examine the records of continental courts, must acknowledge, that in this respect, at least, they are very much superior to the English.
While on this subject, we cannot omit, in confirmation of our argument, to call the attention of our readers to the Napoleon Code. It was made after a great revolution, and by the command of a despot. Still, it is conceded by all to have been an immense improvement. It was, as every code must necessarily be, little more than a compend of laws and principles previously existing, but then it introduced order and certainty, and compressed the law within a comparative