only be done by publishing promptly and faithfully able reports of important decisions, and by applying to the legislature for aid when the evil is of a nature to require correction.

There seems to be something contradictory in the arguments, as they are usually urged, against the character of the common law. By one, the judge is called a legislator, moulding his decisions to suit his own notions of equity and right. By another, he is thought to be so absolutely bound down to precedent and authority, that he dares not depart from them, however unreasonable they may appear to him to be. To our apprehension neither of these statements is in any degree correct. In fact, they neutralize each other.

The legislator is free. No decree from a higher authority, except it be the letter and the spirit of the Constitution, has any restrictive force over his measures. Far different from this, however, with the judge upon the bench. In the capacity of legislator, he has authority to act only so far as is necessary in order to carry some law into execution, and then he is within the narrowest limits, and strictly and ably watched. In clearly settled cases, he is indeed bound to acquiesce; not because they were arbitrarily or peremptorily decreed, but because, as has been often observed, the points of the question in controversy were thoroughly examined by the keenest minds in competition with each other; and then deliberately pronounced to be law by cool and impartial judges; and because the principles of justice, which regulate the rights of one man, ought not to be refused to another. When the original cases were evidently not well examined in the outset, they may be reëxamined, and overruled, and set aside; and this is the condition, which is always annexed to them in practice. But when they were so examined, there is every reason for giving them the obligatory force of law. We should feel the greatest insecurity of property and of rights, were it otherwise; to say nothing of the time and labor uselessly spent in searching for what had already been well ascertained.

It would be with us no ground of fear, were our judiciaries actually invested with legislative powers, far more extensive than any that they have been accused of arrogating to themselves. Judges, sharply and unremittingly watched from every side of the question in controversy, by the shrewdest and most intelligent men in the community, whom education and the warmest feelings of pride, ambition, self-interest, and rivalry

of excelling in the discharge of their professional duties, combine to make acute in the detection of errors, and bold and active in publicly exposing them, will not venture, intentionally, to go very far astray from the plain principles of rectitude. They are as strongly protected, too, from unintentional wrongs. It is from the same well guarded and unexceptionable sources, that they are compelled to receive all possible light and instruction. In such a body of men, and thus situated, we should not be afraid to repose absolute legislative power, so far, at least, as is necessary to regulate the common transactions between man and man. And when we see the time and money which are now miserably wasted by many of our legislatures in making bad laws, to say nothing of the faction and the views of self-interest which reign in them, and the poor principles of qualification on which some of their members are elected, we almost wish that it were so. It is perhaps the ultima Thule in the career of political improvement.

In general, however, we believe that the writers against the common law have now given up what was formerly the most important point in the controversy. They concede that it contains some of the most admirable principles in any system or code; and the object seems to be merely to select these, and purify them from the dross, with which they say they are mingled, and then give them the sanction of some direct act from the legislature. These arguments appear to be directed against a few of its slight errors, and, in the formal part of it, against some prevailing absurdities, which its warmest admirers are now willing to allow to be such. They are errors; they are absurdities. They have brought the whole system into disrepute among the truest, and in some instances the most enlightened friends of equity and right; and although not materially, in the end, affecting the prompt and efficient administration of justice, they may be, and no doubt in some cases ought to be corrected. It is not the business of the judiciary, however, to undertake this. With all their legislative powers, which are so much complained of, and how much soever themselves may desire the reformation, they will not, they dare not attempt it. The legislatures of every state in the union come together once or twice in a year, with this as one of the principal objects of their convening; and when the evil is so great as to cry aloud for a remedy, there is no doubt that an adequate one may be applied. Let us have a care, however, lest we undermine and make the whole venerable

fabric tremble, merely for the purpose of removing some of the unimportant outworks, which time and a change of circumstances may have rendered awkward and uncouth.

The only question, indeed, now actually at issue between the writers upon this subject, we believe to be this. Is it expedient for us to undertake to analyze the whole of the common law, select the most valuable of its principles, digest them, arrange them, embody them into a code, give them the sanction of some direct legislative act, and by the same act declare all the residue to be void or of no legal validity? We say we understand this to embrace the only important points of inquiry still unsettled among the parties in this controversy; and for ourselves, we confess we have no confidence in the practicability of the proposed measure, even were it ever so desirable. The business of fully codifying all the existing laws, we believe, never could be accomplished by one of our free legislatures. We feel almost assured of this, in fact, by actual observation. How slowly and how unwillingly do they alter any of the material principles of judicial proceeding, even when this is strongly recommended to them, and by the most enlightened men. At every period of their coming together, propositions for this end are continually brought before them, which they as continually reject. The old Norman barons used to say, when in parliament assembled, Nolumus leges Angliæ mutare. And it is still the practical maxim of our free legislative bodies. Suppose, then, they were called upon to go over the whole ground, investigate the complicated details of this most intricate and extensive and rapidly growing of all the sciences, take up title after title, rule after rule, principle after principle, examine them and the reasons on which they are founded, and the various modes by which they are to be carried into execution, and their influence on the general administration of justice in the community, we know not when they would find the end of it. And all this they must sooner or later perform; for although the business of analyzing and codifying may at first be entrusted to a few enlightened men, the task of revising and correcting, as well as enacting into law, must be done by the legislatures themselves; or they delegate the highest trust committed to them to subordinate agents, without themselves seeing to its faithful execution. At least, under this impression they uniformly act. They think it their duty to place implicit confidence

in no one.

We can imagine the innumerable alterations, amend

ments, and substitutions, which almost every member thinks himself capable of introducing, and bound, perhaps, to insist upon; and it needs but little experience to convince us of the wearing delays and disaffections that must arise from this mode of proceeding. We venture to say, in short, that the undertaking never could be satisfactorily accomplished by our free legislative assemblies We know that it was never so attempt

ed.

It is not in lands of liberty and equal rights that the business of codifying flourishes. It is commonly the work of despots. A single imperial voice, commanding unqualified instant submission throughout the community, has hitherto ordered, directed, and enforced it in practice. In this manner only can it be promptly, harmoniously, and efficiently done; and although the laws which were thus framed are of a very admirable character, and still call forth the highest commendations of the wise, it is not because the people were free for whom they were designed, but because they were not free, and had neither the power nor the presumption to attempt to alter those, that were imposed upon them by the sovereign authority; which, however, fortunately for them, had the wisdom to select and employ the most enlightened counsel in the work. If our political institutions had prevailed among them, they would not have had, they would not have needed, the statutory codes. The evils which called forth these important remedies, are of a kind of which we, in this country, can form no adequate conception; and yet they ought to be taken into the estimate, when we speak of the necessity or the utility of their so much lauded legal system.

Justinian was the sole legislator of the whole Roman empire. The first principle of his code was, Quod principi placuit, legis habet vigorem. For four centuries before him, in fact, such had been the constant and undisputed right of those clothed with the imperial power. The will of a single man, of a child, perhaps, as has been justly said, was allowed to prevail over the wisdom of ages, and the inclinations of millions; and few institutions, either human or divine, were permitted to stand on their old foundations. Yet during this very period, were enacted by those various single-handed legislators, the perpetual edict of ́Hadrian, the Gregorian, the Hermogenian, and the Theodosian Codes; the Code, the Pandects, and the Institutes of Justinian; immense and admirably digested systems of laws, of which those

now remaining have nothing like a rival among the similar juridical efforts of modern times, aided as these have been by lights borrowed from those. The evils existing then, as we have said, were of a nature to make such a remedy indispensably necessary. The constitutions of the emperors were often irreconcilable, and sometimes contradictory. The ordinances, edicts, responses, rescripts, novels, and we know not what other classifications of laws, were inconsistent with each other, and no ingenuity could harmonize them. Many parts had never any force in practice; many had become obsolete; and the whole body of those actually in operation was full of obscurity and wholly destitute of order. In the space of ten centuries,' says Gibbon, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest. Books could not easily be found, and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion.'

These are the evils which the statutory digests of Justinian were originally designed to remove. A few of a similar character, and others of a totally different one, existed in France; and nearly the same imperial legislative power, though remotely and indirectly applied, was necessary to carry the code of Napoleon into execution. That beautiful country had been long divided into very many provinces or departments, in which various opposite regulations of law prevailed. In one, for example, the inheritance of personal property (succession mobilière) went on principles of descent different from those in another. In one, it would go to the father; in another, to the uncle; in a third, to the husband or wife, in preference to the other two. This was a very fruitful source of artifice and strife. The parent, or curator, or tutor, sometimes removed, with the ward under his protection, to a distant part of the realm, merely for the purpose of giving his own family a better chance in the inheritance. It was in order to remedy difficulties similar to these, and make the law consistent and uniform all over France, that the code of which we are speaking was chiefly designed; and we believe that this is the only great practical benefit which has hitherto been derived from it. For the reasonings in support of its principles contain little that is new, and the principles themselves are almost all borrowed from the civil law, which was in the main the common law of France before the revolution, and, if we are not mistaken, it continues to be so now.