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qualities, are, nevertheless, dense and dangerous masses of ignorance and brutality; ever liable to be inflamed, and hurled blazing against those venerable social fabrics, under whose ample protection a free and mighty people, the greatest which the world has yet beheld, in arts, in arms, in morals, in literature, in all that ennobles and adorns our nature, has reposed and flourished for so many ages in peace and security. From this people we are proud to have derived our origin. We owe to them our laws, our language, our knowledge, our habits, our enterprise, our energy—all that has made us what we areall that gives us assurance of realizing the bright hopes of the future. Americans can never be indifferent to the welfare of England; whilst they are ever anxious for the diffusion of liberal principles, and the establishment of rational liberty in all countries, they do not view with complacency the efforts of selfish demagogues or of visionary enthusiasts, either at home or abroad, who, to gratify private ambition, or to realize the dreams of a morbid imagination, are willing to sacrifice the happiness of the present for the chance of obtaining something better for the future.
There are some persons whose selfishness is so great that they will set a house on fire, an it were but to roast their eggs; and some fanatics who regard whole generations of men as fit subjects for political experiments, and who, in order to execute their chimerical schemes, or apply their wild and speculative theories, are willing to involve a whole nation in blood. Both are equally reckless of human misery in pursuit of their objects; and whether they appear as intriguing politicians, agitators, radicals, "friends of the people," or of " the rights of man," in a country where the security of personal liberty and private property is protected by the equal administration of law, they should be regarded with distrust and suspicion by all capable of appreciating and enjoying the blessings of social order, regulated liberty, and established government.
ART. VIII.- Reporis of William Rawle, Thomas I. Wharton, and
Joel Jones, Esquires, Commissioners appointed to revise the Civil Code of Pennsylvania. Harrisburg
The idea, that the whole jurisprudence of a country may, with advantage, be reduced to a written code, has never met much favour in the eyes of the legal profession in England or this country. Indeed they are sometimes disposed to carry this jealousy to an extreme, and oppose all measures calculated to ameliorate the crude efforts of hasty legislation. The uncandid and superficial observer is too apt to attribute this to a supposed interest in the perpetuation of abuses, which, were it necessary, might be easily shown to have no existence. Nor does it result from a prejudiced attachment to antiquated notions, nor from a fear that their past labours and studies may be inpaired in value by any general and radical change either in the principles or administration of the law. It seems to arise from a consideration, to which Mr. Duponceau has adverted, that " the course of the common law naturally leads those who are engaged in its studies to take practical, rather than theoretical, views of almost every department of it.” The truth is, that lawyers, better than any other class of people, know the importance of certainty. "Misera est servitus ubi jus aut vagum aut incertum” has been their leading sentiment from the earliest times. However paradoxical it may seem, the common law of England, which is the basis of the jurisprudence of this country, does possess a degree of certainty to which no general written code can lay claim. This assertion is attested as a fact by Lord Coke, and his experience is confirmed, it is believed, by the observation of every one practically engaged in the administration of justice.
England has been called " the paradise of customary law.” The common law of England is allowed to be only the general custom of the realm, commencing, perhaps, originally in express legislation, ancient statutes worn out of use, but without question extending and accommodating itself to the varying and increasing wants of a growing community, and possessing a power most like that silent judgment of the people, which tends to correct the mistakes of arbitrary legislation.” Hence its peculiar adaptation to free states, and hence, transplanted by our forefathers from England, it has found a most congenial . soil in the United States.
The certainty of the common law may be traced to two main sources. One the trial by jury; the constitution of which tribunal, and its appropriate place in the system, have rendered it necessary that a clearly drawn line of demarcation should be preserved between the law and the facts of every case. Hence
the purity of the law for the most part has remained untainted by the hardships of particular cases. The other cause is the stern character of the maxim stare decisis, the necessity of which cannot be portrayed better than in the energetic language of Sir William Jones : “ The maxim, that nothing is law that is not reason, is in theory excellent, but in practice dangerous; as many rules, true in the abstract, are false in the concrete ; for since the reason of Titius may, and frequently does differ from the reason of SEPTIMIUS, no man, who is not a lawyer, would ever know how to act, and no man, who is a lawyer, would, in many instances, know what to advise, unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate." Our lawyers, though they search every where for the principles to guide them, bow to no binding authority but the adjudications of the courts, and even these they narrow down to the very point of the controversy. The authority of a case is not the reasoning of the judges, but the judgment of the court upon the facts. Thus, though there be writers and judges entitled to all the veneration that could be accorded to a Papinian, and perhaps as well worthy to be called “ Juris asylum et doctrinæ legalis thesaurus ;" we know none whose mere dictum is law. The principles and rules that are to govern every case, are publicly discussed by men who have made the study of the law their profession, and who naturally put in requisition all the learning and ingenuity they possess, to present that view most favourable to those who employ them.
The judges, fraught with the lucubrations of twenty years or more, are the calm and impartial auditors of this public discussion, and when they decide, are expected publicly to give the reasons of their decision. These two causes of certainty have subsisted from the earliest periods, and the common law has never been without their salutary influence.
The adjudications of the courts are the evidence of what the common law is, but when these fail (as they sometimes, though rarely, do,) the eternal and perennial fountains of all jurisprudence are its acknowledged sources. Hence not certainty alone, but boundless extent, stands in bold relief among its prominent characteristics. There is no vacuum. Every interstice of the written law is filled by its principles, rules, intendment, and reason. To adopt again the language of the eminent and venerable American jurist, whose name we have already taken the liberty to use, and who has expressed this sentiment with surpassing eloquence—“We live in the midst of the cominon law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake, and when we lie down to sleep, when we travel and when we stay at home, and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning at the same time another language." "A man may live a century and feel (comparatively speaking) but in few instances the operation of statutes, either as to his rights or duties; but the common law surrounds him on every side like the atmosphere he breathes."
To reduce this system of jurisprudence to a written code, however beautiful the idea may appear in theory, it is believed would be found in practice to conduce neither to certainty nor simplicity. The administration of justice in a great community, in its nature is not a matter that can be reduced to the level of cominon understanding. The rules that adjust the complicated rights of men with a paramount view to the universal good over the special hardship of any particular case, cannot be understood and applied in the most simplified form that theory can devise, unless they are made the subject of long continued and devoted study and experience. The legal profession cannot be dispensed with in any country which has preserved a trace of freedom. It is one of the surest and best safeguards any where possessed for the security of life, liberty, and property. Men know this, or they discover it whenever their private interests are at stake. In every country where the attempt has been made to render every man his own lawyer, it has failed, and in Pennsylvania especially that failure has been signal.
But the full difficulty of reducing to a code the common law cannot be appreciated without considering that equity is its inseparable handmaiden. The term is, of course, here used in its forensic and not. its popular sense. Justice cannot be fully and satisfactorily administered by the common law, without the assistance of equity powers and principles in some shape or other. It is naturally interwoven with, and is an essential part of the system. The establishment of a separate court of chancery, as in England and some of the United States, is not indispensable to its administration. Nor even that the jurisdictions should be kept separate in the same tribu-' nal, by giving the court an equity side, as in the federal judiciary. The ordinary courts of law may be clothed with every really valuable equity power, and exercise a blended jurisdiction without material inconvenience. Even where the courts of chancery have a distinct constitution from the common law courts, it is a fundamental error to suppose that a different law is administered in the one than in the other. The forensic distinction between law and equity, is in the main for the sake of convenience in the administration of justice. The rules of property, which settle the distribution of the estates of intestates—which regulate the forms and solemnities of contractsthe express provisions of the statute law-are as inflexible in
VOL. XIX.--No. 38.
courts of equity as in courts of law. The canons of evidence, in every systern equally important with the former, (for what would be the value of a certain rule of right, if the evidence by which the facts of the particular case are to be brought within its compass were fluctuating and in the breast of the judges ?) are rigidly adhered to in courts of equity. The rules of interpretation, also, which are applied to ascertain the intent of the parties in their acts and contracts, and of the legislature in statutes, do not differ upon one side of Westminster Hall from those which prevail on the other. Nor, apart from these considerations, even on those matters in which it claims a peculiar cognizance, nor in moulding its remedial process to effect its object, is equity a word synonymous with discretion without rule. Such may have been the fact in the first scanty exercise of chancery jurisdiction, when the chancellors were ecclesiastics, and when Selden may have been justified in comparing it to the chancellor's foot. But from the year 1673, and the chancellorship of Sir Heneage Finch, whence the court of chancery dates the establishment of its jurisdiction upon a broad and rational foundation, equity has been an expansive system, with rules, principles, and precedents, both as to jurisdiction and the mode of its exercise, imperative upon the chancellors. In the language of Lord Redesdale :“ Principles of decision adopted by courts of equity, when fully established, and made the grounds of successive decisions, are considered by those courts as rules to be observed with as much strictness as positive law.” And indeed a very eminent English lawyer (Mr. Sugden), who has made this branch his peculiar study, has gone much further, and asserted that “there are now many settled rules of equity, which require to be moderated by the rules of good conscience, as much as the most rigorous rules of law did, before the chancellors interfered on equitable grounds." Equity then is a wise, though artificial system, built up by time and experience, whose object in general terms, may be stated to be, to assist and advance the remedies provided by law for specific wrongsto afford a remedy for cases where there is none at law, or where the common law reinedy is inadequate to the ends of complete justice-to relieve against the abuse, or to allay the rigour of the law in certain cases, but in no case to contradict or overturn its grounds or principles. The forensic difference between law and equity is principally in the machinery of the latter. Its advantages are, that it addresses itself to the conscience of the party, and draws from him the truth, which may lie solely in his own knowledge, and which it may be essential to justice to discover. Its remedies are frequently preventive, by injoining a defendant from doing that which he has threatened, or continuing that which he has begun, to the injury of the