Lec. XX.]

he published in confirmation of the authority of the Pandects, 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 his 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

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 See Legal and Political been officially published and added to their codes. Hermeneutics, by Francis Lieber, 2d edit. 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 lawgiver and the science of jurisprudence. b Grandeur des Romains et leur Decadence, 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' "General Treatise on Statutes," London, 1830, 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 and 13, from p. 688 to 780. 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.

LECTURE XXI.

OF REPORTS OF JUDICIAL DECISIONS.

the common

law.

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 the consent of the legislature.

Source of 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. 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 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

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

b Preface to Rolle's Abridgment.

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."a

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 by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes.b It is also the established doc

*473

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. 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.

b Vide supra, pp. 342, 343, and the opinions of Judge Chase, in the case of The United States v. Worrall, 2 Dallas, 394, and of M'Kean, Ch. J., in Morris v. Vanderen, and Respublica v. Longchamps, 1 Dallas, 67. 111. Statutes of Pennsylvania, 1718. 1777. Laws of Vermont, c. 6. p. 57. Statute of North Carolina,

trine, that 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.a

1778, c. 5. Revised Statutes of North Carolina, 1837, vol i. p. 110. State v. Rollins, 8 N. Hamp. R. 550. Statute of South Carolina, 1712. Parsons, Ch. J., in Commonwealth v. Knowlton, 2 Mass. R. 534. Story, J., in Town of Pawlet v. Clark, 9 Cranch, 333. State v. Buchanan, 5 Harris & Johns. 355, 356. McLearn v. McLellan, 10 Peters' U. S. Rep. 631. 635. The constitution of New-York, of 1777, declared, that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James L., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio; and such is the substance of the statute law of Arkansas. 2 Arkansas R. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared, that the common law of England, and the English statutes of a general 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 1818, the common law was adopted by statute in the state of Indiana, and in 1835, in Missouri, under the same limitations; 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 states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25th, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state.

■ Patterson v. Winn, 5 Peters' U. S. Rep. 233. Sackett v. Sackett, 8 Pick. Rep. 309. Opinion of Cranch, Ch. J., in the case ex parte Watkins, 7 Peters' U. S. Rep. App. pp. 976, 977. Bogardus v. Trinity Church, 4 Paige's Rep. 198. The heirs of Gerard v. The City of Philadelphia, 4 Rawle, 333, Gibson, Ch. J. Statute of North Carolina, 1778, and see the preface to the 1st volume of the Revised Statutes of North Carolina, 1837. About the year 1750, the general assembly of Rhode Island adopted the principal statutes of England relative to property and to the colony, from the statute of Merton down to the 4th and 5th Anne, c. 16. In Georgia the principal English statutes relative to the essential rights of person and property, from Magna Charta, inclusive, down to the period of colonial legislation in this country, have been copied and adopted almost literally. It gives the appearance of stability, dignity and certainty to their statutory jurisprudence. Hotchkiss's Codification of the Statute Law of Georgia, 1845. The Revised Statutes of New-Jersey, published in 1847, constitute a plain, practical and excellent code of statute law, incorporating all the essential parts of the English and colonial sta

The best evidence of the common law is to be found in the Force of addecisions of the courts of justice, contained in numerous vol-judged cases. umes of reports, and in the treaties and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. The re

tutes prior to our revolution, applicable to our circumstances, and leaving the settled principles of the common law undisturbed, or more accurately defined. This has been done in several of the other states, with great ability, and under the same enlightened and chastened spirit of moderation. It was the same policy that dictated the statute revisions of New-York, in 1801 and 1829. The rage for bold, reckless and presumptuous innovation, so prevalent at this day, acting in contempt of the usages and wisdom of the common law, does not seem to have reached those statesmen who adopted the statute codes to which I have alluded. A new and improved digest of the statute law is quite a practicable and salutary reform, and is to be wholly distinguished from the visionary scheme and attempt to disturb and remodel the long established institutions and usages of the whole body of the common law, as is now directed to be done by the revised constitution of NewYork, in 1846. (See infra, p. 475.) The Revised Statutes of Massachusetts, in 1836, furnish an instructive model of a revision of the statute law, with such arrangements and improvements as the reasonable spirit of reform dictated. Though I would rather prefer (perhaps from early prepossessions) the old and simple division of statutes into chapters and sections, with the title and date of each law, in historical and chronological order to the complex subdivisions into parts, and titles, and sections, with interminable numbers, on the plan of the continental civilians. The congress of 1774 claimed to be entitled to the benefit, not only of the common law of England, but of such of the English statutes as existed at the time of their colonization, and which they had by experience respectively found to be applicable to their several local and other circumstances. Journals of Congress, October 14, 1774. This was only declaratory of the principle in the English law, that English subjects, going to a new and uninhabited country, carry with them, as their birthright, the laws of England, existing when the colonization takes place. Blankard v. Galdy, 2 Salk. Rep. 411. The decision of the lords of the privy council, 2 P. Wm. 75. Dutton v. Howell, Show. Parl. Ca. 31, 32. 1 Blacks. Comm. 107. See, also, Commonwealth v. Leach, 1 Mass. Rep. 60. Same v. Knowlton, 2 Ibid. 534. The rule is different upon the conquest of the country; the conqueror may deal with the inhabitants, and give them what law he pleases, but until an alteration be made, the former laws continue. Calvin's case, 7 Co. 17. The civil code of Louisiana, art. 3521, and the statute of that state of 1828, repealed the Spanish, Roman and French laws in force when Louisiana was ceded to the United States. But it was held, in Reynold v. Swain, 13 Lousiana Rep. 193, that this repeal only extended to the positive, written or statute laws of those nations, introductory of a new rule, and not to those which were merely declaratory, and that it was not intended to abrogate those principles of law which had been established or settled by the decisions of the courts of justice. It was therefore the daily practice, in the courts of Louisiana, to resort to the laws of Rome and France, and the commentaries on those laws, for the elucidation of principles applicable to analogous cases.

In 1840 the legislature of Connecticut declared, that the reports of the judicial