Lapas attēli



HAVING considered the nature and force of written law, and the general rules which are applied to the interpretation of statutes; we are next to consider the character of unwritten, or common law, and the evidence by which its existence is duly ascertained.

The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge, statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by consent of the legislature.

common law

This is laying down the origin of the common law rather Source of the too strictly. A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the common law of England is "not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and ob

a Lord Chief Justice Wilmot, 2 Wils. Rep. 348. 351.

b Preface to Rolle's Abridgment.

servation, of many ages of wise and observing men." And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. "Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us, that new and unthought of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws, that concern the common justice applicable to a great kingdom, is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time, and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the productions of much wisdom, time and experience.'

[ocr errors]

But though the great body of the common law consists of a collection of principles, to be found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts; it is, nevertheless, true, that the common law, as far as it is applicable to our situation and government, has been recognised and adopted, as one entire system, by the constitutions of Massachusetts, New-York, New-Jersey, and Maryland. It has been assumed, or declared by statute, with the like modifications, as the law of the land in every

a Cicero in like manner ascribed the excellent Institutes of the Roman republic to the gradual and successive improvements of time and experience; and he held, that no one mind was equal to the task. Nostra respublica non unius esset ingenio sed multorum; nec una hominis vita sed aliquot constituta sæculis et ætatibus—neque cuncta ingenia conlata in unum tantum posse uno tempore providere, ut omnia complecterentur sine rerum usu et vetustate. De Repub. lib. 2. 1.

state. It has been decided, that even English statutes passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country."

The best evidence of the common law is to be found in Force of ndjudged cases. the decisions of the courts of justice, contained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labour of judges, are constantly required, in the study of the reports, in order to understand accurately their import, and the principles they establish. But to attain a competent knowledge of the common law in all its branches, has now become a very serious undertaking, and it requires steady and lasting perseverance, in consequence of the number of books which beset and encumber the path of the student,"

a The Revised Statutes of Illinois, published in 1829, declared, that the common law of England, and English statutes of a ge neral nature made in aid of it, prior to the fourth year of James I,, with the exception of those concerning usury, were to be rules of decision until repealed. In 1817, the common law was adopted by statute in the state of Indiana; and it is understood, that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the state of Mississippi.

b Patterson v. Winn, 5 Peters' U. S. Rep. 233. Sackett v. Sack. ett, 8 Pick. 309,

c The number of volumes of English reports, exclusive of reports relating to the courts of admiralty, elections, settlement cases, and Irish reports, amount at present, (1826) to 364, and to render their contents accessible, the digested indexes of the modern reports VOL. I.


The grievance is constantly growing, for the number of periodical law reports and treatises which issue from the English and American press, is continually increasing; and if we wish to receive assistance from the commercial systems of other nations, and to become acquainted with the principles of the Roman law, as received and adopted in continental Europe, we are still in greater danger of being confounded, and of having our fortitude subdued, by the immensity and variety of the labours of the civilians." It is necessary that the student should exercise much discretion and skill, in the selection of the books which he is to peruse. To encounter the whole mass of law publications in succession, if practicable, would be a melancholy waste or misapplication of strength and time.

amount to 33 volumes. The text books, or treatises, amount to 184 volumes, and the digests and abridgments to 67 volumes, making, in the whole, a copious library of 648 volumes, in addition to the statute law. See Humphreys on Real Property, p. 163. To these we may add upwards of 200 volumes of American reports, treatises, and digests.

a M. Camus annexed to his Lettres sur la Profession d'Avocat, a catalogue of select books for a lawyer's library, and which he deemed the most useful to possess and understand; and that catalogue, in the edition of 1772, included near 2,000 volumes, and many of them ponderous folios, and not one of them had any thing to do with the English statute or common law. It is now a complaint in France, that the crowd of reports of decisions encumber the law libraries; and M. Dupin, in his Jurisprudence des Arrets, edit. 1822, alludes to the immensity of such collections, and the great abuses to which that species of jurisprudence is subject. His select law library, for the use of law students and young advocates, contained 343 volumes. One great abuse in the practice of reporting is, that there is no very careful selection of decisions which are only worthy to be reported, but every adjudication, though upon common-place learning, and upon points which have been again and again decided, is usually given in one promiscuous mass. Lord Bacon, in his proposition for the amendment of the law, wisely recommended "that homonymiæ, as Justinian called them, that is, cases merely of iteration and repetition, be purged away."

Lord Bacon, in the aphorisms annexed to his treatise De augmentis Scientiarum, speaks of the necessity of a revision and digest of the law, in order to restore it to a sound and profitable state, whenever there has arisen a vast accumulation of volumes, throwing the system into confusion and uncertainty. The evils resulting from an indigestible heap of laws, and legal authorities, are great and manifest. They destroy the certainty of the law, and promote litigation, delay, and subtilty. The professors of the law cannot afford the expense and time necessary to collect and study the volumes, and they are obliged to rely too much on the second-hand authority of digests-ipse advocatus, cum tot libros perlegere et vincere non possit, compendia sectatur -glossa fortasse aliqua bona. The period anticipated by Lord Bacon seems now to have arrived. The spirit of the present age, and the cause of truth and justice, require more simplicity in the system, and that the text authorities should be reduced within the manageable limits; and a new digest of the whole body of the American common law, upon the excellent model of Comyn's Digest, and executed by a like master artist, retaining what is applicable, and rejecting every thing that is obsolete and inapplicable to our institutions, would be an immense public blessing.

A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in


a Bacon's Aphorisms, De accumulatione legum nimia, Aph. No. De novis digestis legum, Aph. No. 59-64. De scriptoribus authenticis, Aph. No. 78.

« iepriekšējāTurpināt »