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go far, to reconcile judgments seemingly opposed to each other. It is sometimes intimated, that the friends of codification expect to destroy litigation, by making the law, on all points, so clear that no question could possibly arise. We know not what Mr Bentham, or M. Dumont, the great organ of his communications, expects to effect, but if this were the proposed and expected advantage to result from Codification, it would certainly be a work to be left to the jurists of Laputa. The least experience, the least reflection is sufficient to convince any one, that litigation does not, in a majority of cases, grow out of the uncertainty of the law. It is much more frequently occasioned, no doubt, by the uncertainty of the application of undoubted rules of law to complicated and unexpected trains of fact and circumstances. But human passion and human interest are the great sources of litigation, from which it must always flow, apart from the greater or less uncertainty of the law or the facts. Sir Edward Coke, we believe, says, that not more than two points of law were called in question, during his practice in the Courts. Many thousands of lawsuits were no doubt prosecuted in this period.
If then codifying is not to destroy litigation ; what good is it to do, or is it expected to do? As we are not now discussing the subject itself, we shall not, of course, undertake to answer this question in any detail. We would only say, that the good effects of codifying would be precisely the same in kind, and differing in degree according to circumstances, with those of every other process, undertaking, or work to facilitate the study and practice of the law. If the day before Sir William Blackstone sent his Commentaries to the press, the question had been started, whether their publication would destroy or diminish litigation, or more generally, whether it would do any good, the answers would probably have been as various, as those now made to the question of codifying. We are told, that when the first copies of Blackstone's Commentaries reached America, (whither, by the way, Mr Burke tells us, nearly half the early editions were sent,) James Otis, in possession of one of them, rushed into open court, in the fulness of admiration, and declared, that if that book had been written earlier, it would have saved him years of labor. A code of law properly prepared, stating in as plain a form as it can be stated, what the law of the land is, on every point, would produce, in a greater or less degree, the same saving of time, which James Otis ascribed to the publication of the Commentaries. To that small portion of litigation, which arises from an uncertainty on the part of clients as to what the law is, it might gradually be expected to afford a remedy. It would also go far to enable persons, not lawyers, to acquire a liberal knowledge of the law of the land. Fortescue more than three centuries ago said, that this could be done in a year, without the neglect of other employments. It must, however, be a very superficial knowledge, that could be obtained on those terms.
A code of law may be conceived of in two forms; that of a work, like those of Justinian or Napoleon, an authoritative body of law, enacted by the legislative power of the state ; or that of a mere learned production of a private jurist, as the work for instance of Domat. The questions of expediency would receive different answers, no doubt, according as one or the other species of code was projected. The severest friend of the system as it is, would probably welcome the appearance of a work, in which every rule, maxim, and injunction of English or American law should be propounded in natural order, and in the simplest form, by a jurist like Coke or Mansfield. What good the work would do, would depend on the use it was put to, and the hands into which it fell. To one man it would be invaluable, to another worthless. Some it would assist and some it might mislead. But all this may be said of every other book ever written, on the law, or on any other subject. We may add, that approaches to a work of this kind have been frequently made and with entire success. Every elementary treatise on a title of law partakes of the nature of such a work, and some attempts at this private codifying of the common law, in the strictest form, have also been made.
But the more common understanding of a code of law is, that of a body of law compiled and enacted by the legislative power, like the Code Napoleon. Would this be useful? This is the great question, on which we do not mean to enter. We think ourselves, knowing that our opinion, as such, carries no weight with it on the point, that it would be highly useful. We see no reason why a work, which we
have supposed would be of universally admitted utility, as a private enterprise, would diminish in utility, in consequence of being drawn up with the greater deliberation and solemnity, necessary to a legislative ordinance. The work of course would be prepared by the ablest lawyers and judges of the day, who are authorised on every point to decide what the law is; and would receive the sanction of the legislative body, which is authorised on any point to declare what the law ought to be, within the limits of the Constitution. Moreover, approaches have been made even in England and America to codifying, in this sense; and further approaches are daily making. Every consolidated act is of the nature of a chapter of a code. Two such chapters in the code of the United States have passed the House of Representatives the last winter; one merely administrative, the other in the highest walks of penal jurisprudence. We allude to the Post Office bill, and to Mr Webster's law against certain crimes and misdemeanors. Every bankrupt act is an important section of a code. Lord Ellenborough's Statute, 43 Geo. III. c. 58, was such a section, and scarcely a session of Parliament or of Congress passes without one. The work, therefore, is constantly doing in part, and irregularly ? Why not do it in the form of an entire perfect system ?. But it is idle to make remarks on a subject, which volumes would not exhaust, and we therefore drop it.
ART. VIII.-1. An Oration pronounced at Cambridge, be
fore the Phi Beta Kappa Society, August 27, 1824. By EDWARD EVERETT. Published by Request. Svo. pp.
67. Boston. 2. An Oration delivered at Plymouth, December 22, 1824.
By EDWARD EVERETT. Boston. 8vo. pp. 73. Cummings, Hilliard and Co. As the occasion on which the first of these orations was pronounced, in presence of the Nation's Guest, and before an assemblage of eminent persons from all parts of the Union, was one of rare occurrence and deep interest, so the subject chosen by the orator was well calculated to suit the dignity of the occasion, and to command the attention of bis hearers and of the public. This subject was, “The peculiar motives to intellectual exertion in America.' A topic so comprehensive, and touching so closely the political condition, the institutions, and prospects of our country, could hardly fail to open a rich field for inquiry and discussion, for ingenious argument, plausible conjecture, and eloquent illustration. The author's method, and the ability and success with which he has accomplished the task he set himself, will appear as we proceed.
Hume long ago attempted to demonstrate, that it was not possible for the arts and sciences, or those acquisitions, which constitute the refinement of intellect and manners, to take their rise under any other than a free government. He lays it down as an axiom, that in a community there must be laws before the desire of knowledge; for laws give security, this prompts to curiosity, and hence inquiry, which is the prelude to knowledge. An absolute despotism is in its nature without laws; the will of the sovereign is supreme, and as no rules exist from which the people can anticipate the mode, in which his judgment or caprice will induce him to decide and act, it follows that no sense of security, no settled confidence in the governing power remains. The case will not be altered, into whatever number of departments a despotic government may be divided. The head may delegate a portion of his authority to subordinate governors, but each of these, having no laws to guide them, will be a despot, and the security of the people will be in the same state of jeopardy, as if there were no such division of power. The moment you establish laws, you weaken the despotism, and give the people some influence in their own government. These laws will be binding on the rulers and the ruled, forming a known system, and thus far giving security. If they are oppressive, the people can take measures to lighten the burden, by making it expedient for the governing power to adopt modifications and improvements. Such was the process in Rome, when the authority of the consuls was absolute, and they decided all causes without any other statutes than their own opinions. The people grew impatient, the decemvirs were chosen, and the laws of the twelve tables promulgated, which became gradually enlarged and formed into a system, that answered all the purposes of a governinent essentially free. It is, moreover, impossible for the arts and sciences to take root in a despotism, because, till they have gained some degree of ascendency, the monarch himself must be unenlightened, and ignorant of the modes of establishing forms of government suited to embrace the complicated operation of laws, and the machinery necessary for preserving a balance among the various subordinate departments.
Now, whether this argument of Hume may not be a little too specious, to be set down as a practical axiom in politics, we shall not decide. The theory appears sufficiently sound, and is probably borne out by facts as far as history records them ; but when we go back so remotely into the ages that have been, and search for the origin of governments, and the first dawnings of the arts and sciences, we grope in a darkness too profound to enable us to fortify our discoveries by any substantial historical testimony. As all governments must have originated in the consent of the people, it is hardly probable that any forms have long subsisted wholly independent of law, or so despotic as not to afford security enough to give the mind leisure to become enamored of knowledge, and freedom to pursue it within certain limits. Nor could there have been occasion forcibly to narrow these limits; the progress of acquirement must have been gradual, and rarely so rapid as to alarm the jealousy of despotism. Hence knowledge and laws sprang up together, and the question, as to which took the lead in the primitive forms of government, if it be not idle to ask it, will hardly be answered with the present imperfect light, which the world has on the subject.
Nor indeed is it of much consequence now, at what time, or under what kind of government, the human mind began first to put forth its strength. In the present state of political advancement, it is mainly important to know the tendency of different forms, as it has been tested by experiment, and is now developing itself in the various systems, old and new, of civilised nations. Every day opens some untried point of observation, and if future legislators shall have the wisdom to remedy the errors, which, aided by the experience of the past and the enlightened influence of the age, they have the