hibita only, or mala in se, is now exploded, and a breach

of the statute law, in either case, is equally unlawful *468 and equally a breach of duty; and no agreement founded

on the contemplation of either class of offences will be enforced at law or in equity. (a)

There are a number of other rules of minor importance, relative to the construction of statutes, and it will be sufficient to observe, generally, that the great object of the maxims of interpretation is, to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy. (b) But it would be quite visionary to expect, in any code of statute law, such precision of thought and perspicuity of language as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and litigious interpretations. Lord Coke complained, (e) that in his day great questions had oftentimes arisen "upon acts of Parliament, overladen with provisos and additions, and many times on a sudden penned or corrected, by men of none, or very little judgment in law." (d)

(a) Aubert v. Maze, 2 Bos. & Pull. 371; Cannan v. Bryce, 3 B. & Ald. 179; Dan iels, Ex parte, 14 Vesey, 191.

(b) Lord Mansfield, in Pray v. Edie, 1 T. R. 313; Willes, 397; United States v. Fisher, 2 Cranch, 399. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est. The English judges have frequently observed, in answer to the remark that the legislature meant so and so, that they in that case have not so expressed themselves, and therefore the maxim applied, quod voluit non dixit. "Where I find the words of a statute perfectly clear, I shall adhere to the words," said Denman, C J., in 4 Nev. & Man. 426.

(c) Pref. to 2 Co.

(d) In Douglass v. Howland, 24 Wendell, 45-47, Mr. Justice Cowen has expressed himself with a justice, strength, and truth on the subject of the interpretation of statutes, worthy to be transcribed. "We cannot," he observes, "escape the power of construction, so long as we have a judicial system. Well known rules in the construction of statutes ought not to be departed from. Statutes in affirmance of the common law, or in affirmance of judicial construction upon a former statute, ought not to be holden a deviation from the former law, unless it be obviously so. There is scarcely any branch of legal policy more worthy of being enforced, than that which aims to keep the laws of a nation the same in all respects from one age to another, except in points where change becomes absolutely necessary. Time, says Lord Hale, is wiser than all the wits in the world, and the law which has been tried by it has the highest possible evidence in its favor. Time is the schoolmaster which teaches law most effectually, and without which it cannot be generally known. In the New York Revised Statutes of 1830, a vast deal is made up of enactments intended merely to repeat what had been decided by our own or the English courts. But changes in the

Various and discordant readings, glosses, and commentaries will inevitably arise in the progress of time, and, perhaps, as often from the want of skill and talent in those who comment, as in those who make the law. Though the French codes digested under the revolutionary authority are distinguished for sententious brevity, there are numerous volumes of French reports already extant, upon doubtful and difficult questions arising within a few years after those codes were promulgated. (e)

* 469

*The Emperor Justinian, in one of the edicts which he published in confirmation of the authority of the Pandects,

language of the reports, or rules of court, or the old statutes, occur at every step of the revision. All the general acts were remodelled. An arrangement more scientific, a style improved in elegance and simplicity, were sought to be introduced throughout the whole; hence short paragraphs, made up of short sentences, generalities, ellipses, complications, equivalent words or translations, for old and well defined technical terms. In short, the old costume was dismissed, and that of the civil code of France adopted as nearly as could be. Yet I take it that the main substance of what we had before was always intended to be retained. The revision was mainly a reenactment or codification of the substance, the principle of what we had before, though I admit the identity cannot easily be ascertained in very many instances. It cannot be that the formal changes I have mentioned meant a change in substance. The transmuta. tion of a principle of the common law, or a rule of practice, into a statute, or an old statute, or its received construction into a new one, without a palpable design to depart from the former, ought not to be considered as a departure. We are then left where we were, with all the old helps about us, the old lights burning. It has been a settled rule, in respect to the revision, in 1801, of the old statutes, that where the law was antecedently settled by clear expressions or adjudications, the mere change of phraseology was not to be construed a change of the law, unless such phraseology evidently purported an intention to work a change Case of Yates, 4 Johns. 359; Taylor v. Delancey, 2 Caines's Cases, 150, 151. If such was the rule of construction under the revision of 1801, which proceeded by cautious and prudent steps, fearful to go even beyond a change of orthography, what shall we say of an age when there is literally a mania for changing every law in some way?"

We are reminded by these remarks of the principles of Solon, the Athenian lawgiver, that it was better to retain old laws, even though in some respects objectionable, than to be always eager to change them for new ones, though possibly superior. Little or no confidence can be placed in the authority of laws which are incessantly altered, remodelled, and exchanged; and that those only which have been sanctioned and established by long usage, and under which the citizens had, as it were, been born and educated, are likely to be religiously observed. Schöman's Dissertations on the Assemblies of the Athenians, Cambridge, 1837, p. 240.

(e) The Journal du Palais, presentant la jurisprudence de la Cour de Cassation, et des Cours Royales, sur l'application de tous les codes français aux questions douteuses et difficiles, had amounted, in 1818, to fifty volumes and upwards. From the time of the French Revolution down to 1828 there were one hundred volumes of statutory law made in France.

and prefixed to that work, expressly prohibited the civilians of his time, and those of all future ages, from writing any commentary upon his laws. (a) The history of Justinian's reign shows the folly and absurdity of this attempt to bar all future innovation. Greater changes took place in a few years in the laws and jurisprudence of Justinian, said Montesquieu, than in the three hundred years of the French monarchy immediately preceding hist time; and those changes were so incessant and so trifling, that the inconstancy of the emperor can only be explained by having recourse to the secret history of Procopius, where he is charged with having sold equally his judgments and his laws. (b)

(a) Secunda Præfatio Digestorum, sec. 21. In imitation of Justinian, the King of Bavaria, by his royal mandate of October 19th, 1813, prohibited the publishing of any commentaries on his penal code, by officers of state or private scholars. The code of Frederick II. of Prussia referred all dubious constructions of law to the interpretation of a law committee, and the professors of law were not allowed to lecture on the code. Doctor Lieber says that M. de Savigny was the first Prussian jurist who delivered lectures on that code, and he justly observes that interpretation cannot be dispensed with wherever human language is used, except in mathematics. The necessity of it lies in the nature of things, of our mind, and of our language. No code can provide for all specific cases, or be so constructed as to close all further inquiry. In France, Bavaria, Austria, Prussia, &c., some authority is always designated, from which, in doubtful cases, explanations shall be obtained; and in France and Prussia many large volumes of additions and explanations have been officially published and added to their codes. See Legal and Political Hermeneutics, by Francis Lieber, 2d ed., Boston, 1839, pp. 40-46, and which is a treatise replete with accurate logic, and clear and sound principles of interpretation, applicable to the duties of the law giver, and the science of jurisprudence.

(b) Grandeur des Romains et leur Décadence, c. 20. The best digest that I have seen of the rules and of the examples in the English law concerning the construction of statutes, is to be found in Dwarris's General Treatise on Statutes, London, 1830, [2d ed. 1848,] and published since the first edition of these commentaries. The rules are illustrated by cases drawn from the whole body of the reports, ancient and modern, in a full and satisfactory manner. See Dwarris, c. 12 & 13, [c. 9, 10,] from p. 688 to 780, [550 to 694.] Mr. (now Sir F.) Dwarris has added to his work an excellent statutory history of English law, from Magna Charta down to the end of the reign of George IV. It is a running commentary on the principal statutes, in which Lord Coke's celebrated exposition of the statutes, in his 2d Institutes, as far as it extends, is essentially incorporated

[ 535 ]

LECTURE XXI.

OF REPORTS OF JUDICIAL DECISIONS.

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, (a) a 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 the consent of the legislature.

In

1. Source of the Common Law. - This is laying down the origin of the common law 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. the just language of Sir Matthew Hale, (b) 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 observation 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

(a) Lord Chief Justice Wilmot, 2 Wils. 348, 351.

(b) Preface to Rolle's Abridgment.

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."(c)

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, so far as it is applicable to our situation and government, has been recognized and adopted, as one entire system, by the constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every state. It was imported 473 by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. (a) It is

*

*

(c) Cicero, in like manner, ascribes 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 ætatibusneque cuncta ingenia conlata in unum tantum posse uno tempore providere, ut omnia complecterentur sine rerum usu et vetustate. De Repub. lib. ii. 1. Nec temporis unius nec hominis esse constitutionem reipublicæ. Ib. 2, 21. The Roman system of law, says M. Valette, was not the result of philosophical theories conceived a priori, but slowly elaborated by every-day experience, and conformed, under the influence of magistrates and jurisconsults, to all the necessities of society.

(a) Vide supra, 342, 348, and the opinions of Judge Chase, in the case of The United States v. Worrall, 2 Dallas, 394, and of M'Kean, C. J., in Morris v. Vanderen, and Respublica v. De Longchamps, 1 Dallas, 67, 111; Statutes of Pennsylvania, 1718, 1777; Laws of Vermont, c. 6, p. 57; Statute of North Carolina, 1778, c. 5; Revised Statutes of North Carolina, 1837, i. 110; State v. Rollins, 8 N. H. 550; Statute of South Carolina, 1712; Parsons, C. J., in Commonwealth v. Knowlton, 2 Mass. 534; Story, J., in Town of Pawlet v. Clark, 9 Cranch, 333; State v. Buchanan, 5 Harr. & Johns. 355, 356; McLearn v. McLellan, 10 Peters, 631, 635. The constitution of New York, of 1777, declared that such parts of the common law of Eng land, and of the statute law of England and Great Britain, as, together with the acts