written or statute law, which is arbitrarily prescribed and promulgated, in a certain definite form, by a lawgiver, whose mere authority binds the people. Sic volo, sic jubeo, stet pro ratione voluntas. You shall not dispose of your property by will, unless you reduce it to writing, and publish it before three or more witnesses who shall sign it in your presence, neither shall you revoke it when made, except, &c., in the presence of as many witnesses, who shall see you sign. The question arising upon such a law is not what is reasonable, but what is commanded-and, in the case of a contract, not what the community at large understand by a given form of words, but what the author of the statute meant. The business of the interpreter is that of a grammarian and philologist-he is an auceps syllabarum, required to extract from a given number of letters and syllables, the intention, more or less clear, of a selfwilled dictator. In the case of a single statute, it is often impossible to come to any satisfactory conclusion-because it may be absolutely impossible to derive any assistance from general reasoning on the analogies and policy of the law. The memory, therefore, is not assisted by the usual helps of philosophical connection and arrangement. To remember, with any advantage, you must remember verbatim. When a principle of the common law is ascertained, it may be fearlessly pushed out to all its consequences-but, in a statute, a subsequent provision may come in conflict with the prior, because the legislator did not see, or did not choose to adopt, the true theory in its whole exThus it is that the common law is said to be reason and the perfection of reason: that is to say, it is the application of common sense, disciplined and directed by certain established principles, to the affairs of men. Take the case of remainders, for example. All that is wanted is a definition of a fee-a particular estate--and one or two maxims in relation to the freehold never being in abeyance, and the necessity of its vesting in somebody to do the feudal dues, and answer to a præcipe. It is astonishing how many conclusions, in this complicated branch of law, are deduced with the greatest clearness and certainty from such apparently slender premises. There is, in truth, as we remarked on a former occasion,* a surprising analogy in this respect between jurisprudence and the exact sciences. It is true that an entire code gives far more scope for such reasonings than a single statute, because one part of it may derive light from others. But it appears to us that, in this respect, a body of unwritten reason, of which the great outlines are precisely designated, and the first principles well settled, must necessarily have an advantage over a system or collection of positive enactments, for the reason just stated. Hence it is safe to say that, with the * Southern Review, No. 3, art. iii. tent. VOL. 11.-59 exception of a very few instances of arbitrary, or rather obsolete rules, which are every day becoming still fewer, nothing that is not reasonable is good law. And hence we venture the additional assertion that no written law ever approaches to perfection, either in respect of theoretical beauty, or practical fitness, until it has been reduced to the form of unwritten or common law until the refractory and inflexible matter of the original statute, if we may so express it, has been melted down and moulded into a more convenient shape, by the plastic hands of the commentator or the judge. A striking illustration of this remark is found in the history of the Roman law. The matrix of the whole corpus juris civilis was the laws of the XII tables. Then came the senatus consulta, the leges, passed by the comitia centuriata or the whole people, partricians included, and the plebiscita, adopted by the commons alone, but binding upon all. To these we may add the edicts of the Prætor and the Edile. All these together constituted a body of written or arbitrary law. But out of these beginnings sprang up what is properly called the jus civile, or common law. These various statutes or enactments were considered and commented on and applied, with a sage discretion, to particular cases, by the learned jurisconsults whose authority was binding upon the judges. The pandects, as we have seen, are a collection of these. And thus it was, that the responsa prudentum-the interpretations of the learned-came to be the most copius fountain of that jurisprudence which has refreshed the whole earth with its healthful and invigorating waters-and thus, too, it was that, whereas our statutes are engrafted upon the common law which they derogate from, or change or control, their common law grew up out of their statutes, and was as an atmosphere of light superinduced upon, and circumfused about them, or like that beautiful luxuriance of foliage and fruit which Virgil describes as shooting forth under the hand of the engrafter from a bald and barren stock, and towering up the skies. "Nec longum tempus et ingens Exiit ad cœlum, ramis felicibus arbos Miraturque novas frondes et non sua poma."-Georg. ii. Then, as to the uncertainty of the law and the discretion of the judge. It is altogether chimerical to suppose, that a written text can exempt us from these evils, if it be ever so well executed, and if it be otherwise, it will multiply them beyond expression. We have seen that the great bulk of the civil law was really "judge-made" law, although it had its origin in statutes. Let us adduce some other examples. Barrington, in his amusing book upon the statutes, records it, as a saying in Westminster Hall, that the exposition of the statute of frauds had cost one hundred thousand pounds; and we have very little doubt that it did, for a respectable volume has been compiled of cases that have arisen under it. One of the questions it has given rise to is among the most memorable in the history of our law. The statute requires, as is well known, that wills disposing of lands shall be attested by three or four credible witnesses. Under this apparently simple clause, a doubt was started, in the case of Anstey vs. Dowsing, whether a benefit to a witness, at the time of his attestation, should annul his testimony, though at, or after the testator's death, he should have become disinterested by a release of his legacy or the receipt of its value. It was held that the condition of the witness, at the time of the attestation, should be regarded. This led to the statute 25 Geo. ii. c. 16, which avoids the legacy in such a case, and makes the witness competent. About the same time (the decisions were somewhat later) the celebrated difference of opinion arose upon these very words of the statute, between Lord Mansfield, and Lord Camden-the former, in Wyndham vs. Chetwynd,† deciding that the clause only exacted competency in the witness, and that at the time he should be called to testify in court-the latter in Hindon vs. Kersey,‡ holding with the doctrine in Strange. It is difficult to imagine any thing better reasoned than the judgments of these great men, and, to this moment, we are not satisfied what was the will of the lawgiver. Such a question might possibly arise at common law; but could a more perplexing one be imagined? And yet the language of the statute out of which it sprang seems as plain and intelligible as its author could have employed. The saying of Lord Hardwicke with regard to the statute of uses is well known; the only effect of it has been to add three words to a conveyance. Reformers and philanthropists will, no doubt, see in this, another reason for declaiming against the tyranny of judges-but surely it affords us very little ground to hope that the reducing of the law to a written text will be sufficient to control those usurpers. Compare with the difficulties, which the Courts encountered in the construction of these statutes, those which presented themselves to Lord Mansfield in building up, by a series of luminous decisions, the Commercial law of England. That judge is celebrated as the founder, and, as some think, the author of this part of our law; and this, we suppose, is one of the most flagrant and most unpardonable instances upon record of judicial legislation. But the truth is that it was no legislation at all. What could the court do? Two merchants have entered into a contract of insurance or affreightment-the one demands, the other refuses, performance of the contract, because they differ as to its meaning and effect. The decision of the controversy is, of Strange, 1254. +1 Burr. 414 14 Burn. Eccl. Law, 97. course, referred to the judge. It is clear that he has no alternative but to decide it-that is to say, to do justice between the parties according to their own agreement, by interpreting the agreement as it ought to have been understood between them. And how was this to be done, seeing that the form of the contract had not been prescribed by the legislature, and no precedent was to be found among the judgments of the courts? The common law furnished every means necessary to the effecting this purpose in the most satisfactory manner. A special jury of merchants is empannelled at Guildhall the usages of trade and the general opinion of the mercantile community are ascertained by other merchants called up as witnesses-these are found to be confirmed by the lights of foreign judicature, and the experience of practised lawyers, who are resorted to for assistance by the judge the verdict of the jury is conformable to the evidence, and both are sanctioned by the wisdom of the bench. The meaning of the contract is ascertained-or, in other words, it is ascertained what the parties ought to have understood each other as meaning-the law which they have chosen to lay down for themselves is manifest. What remains to be done? Simply to lend the aid of the court to enforce that voluntary law of the parties which it does, as a matter of course, in all cases of agreement either by an action of covenant, (if it be under seal,) or by an action on the case, if it be not under seal, and there be a sufficient consideration. Now let it be remarked that these decisions took nobody by surprise. On the contrary, we doubt whether any judgment of the King's Bench, in the interpretation of the plainest statute, ever gave such universal satisfaction, by conforming perfectly to the common sense of mankind and the expectations of the public. It is an error to call Lord Mansfield an inventor. With all his great talents as a jurist, and his bold and adventurous spirit of inquiry, he did no more than apply principles, which had been fully ascertained and settled, with judgment and discretion, to cases as they arose. And there is hardly a rule laid down by that judge, which Valin, Emerigon, and other continental writers have not discussed-except where the usages of trade in England forbad his drawing upon such resources, or modified their results. But, even under the best code that ever has been formed, judges must often find themselves in the same situation with Lord Mansfield, without the same means of executing the true purposes of the parties whose differences are submitted to them. We shall cite the highest possible authority to this effect, M. Portalis. In his 'exposition des motifs' of the law relative to the publication of statutes, &c., he uses these identical words. He is discussing the subject under the particular head of règles pour les juges. "There is then," says he, "necessarily a multitude of cases in which a judge finds himself without a law. It is necessary, therefore, to leave to the judge a power of supplying the law by the natural lights of integrity, (droiture,) and good sense. Nothing were more puerile than to take such precautions as would prevent a judge from having any thing more to do, than to apply a precise text. To prevent arbitrary judgments, we should expose society to a thousand iniquitous judgments, and, what is still worse, we should run a risk of having no justice administered at all; and, with the wild notion of deciding all cases, we should make of legislation an immense labyrinth in which reason and memory would be equally lost." Again. "We speak as if legislators were gods, and judges not even men." "The judges then must never stop: a question of property cannot remain undecided." "The judge who shall refuse to decide, upon a plea of the silence, or obscurity, or insufficiency of the law, shall be liable to impeachment for a denial of justice." Code Civil, No. 4. M. Faure, another distinguished counsellor, in his address to the Corps Legislatif, upon the same subject, holds the following language: "In a word, as to every matter, whether civil or criminal, either the law speaks, or it is silent. If the law speaks, the judge decides in conformity to it. If it is silent, he must still decide, but with this difference, that, when the matter at issue is a mere civil right, the judge must be governed by the rules of equity, which consist in the maxims of natural law, of universal justice and of reason, and that, when it is a criminal case, the accused ought to be acquitted in consequence of the silence of the law." This last distinction is undoubtedly a sound one, and is, as we have seen, recognized and developed by Mr. Livingston, in his introductory Report to the Penal Code of Louisiana. But we ask whether any advocate of the common law ever dreamed of claiming for its judges a larger charter of interpretation, than this. And yet the people, who are so deeply concerned, it seems, in the issue of this question, are led to believe that all they have to do is to swell the bulk of the Statute Book in order to bring the law within the compass of the uninitiated! This suggests to us an alternative important to be adverted to. When a code is finished, like all other statute laws, it has to be interpreted and applied to the cases as they arise. It is, of course, subject to misinterpretation. "No written law can be so clear, so pure, A prophet graved the text, an angel held his hand;" |