Page images

essays or discourses of the government lawyers and counsellors of state, relative, among other subjects, to the laws of failure and bankruptcy, may be found in the second volume of the Code de Commerce. The supplement to the code contains, among other matters, a law fixing the rate of interest, with a discourse upon this point by the Counsellor Jaubert.

Such is the enumeration of the five codes, and such a brief account of them, and the works illustrative of them, named at the head of our article. We ought not, however, to pass without notice the edition of M. Sirey, which comprehends them all in one volume, together with an ample collection of principles from adjudged cases.

We had intended to make a few remarks on the French Code, as an object of imitation for this country, but the subject of Codification is much too extensive and important to be treated in a few pages. It is a subject, which has lately engaged, and still engages, a good deal of attention in other countries, as well as in our own. A classical work was written, a few years since, by Professor Savigny, of Berlin, esteemed one of the first civilians in Germany, entitled, On the Vocation of this Age to make Codes of Law. This celebrated author is decidedly opposed to the compilation of a Code for Germany, and in this opinion he is followed by Mr Hugo, of Göttingen, and in general by the civilians of the school, of which Messrs Savigny and Hugo are considered as the heads. Some of the grounds, on which lawyers of England and America oppose a Code, are of course inapplicable to the question as discussed in Germany; and the extraordinary superiority, which the continental jurists claim for their law, as resting on a definite written base, like the Corpus Juris, over what they consider the vagueness and uncertainty of the common law, seems inconsistent with the zeal, with which the same jurists now oppose the preparation of a new Code.

The expediency of Codifying (for the ill sounding term is of convenient use) in England and America, is unquestionably one, on which opinions are divided; not only a question, like Sir Roger de Coverley's, where much may be said on both sides; but a question on which different opinions would be entertained, after it was reduced to its simplest and most abstract statement. We are inclined, however, to think that VOL. XX.-No. 47.


[ocr errors]

it is nevertheless a question, on which men would think much more nearly alike than they now do, if they would begin by understanding each other precisely, as to the terms of the controversy; the proposed nature of the work, of which the expediency is discussed, and the sort of advantage to be expected from it. The thing Codification is certainly as old as Moses; the word has grown into use, we believe has been coined, within a few years, in the progress of the lucubrations of an individual, whose reputation and character we consider too enigmatical to be rashly pronounced upon. We mean of course, Mr Bentham. This gentleman, in the course of his life, has proposed to write Codes of Law for Russia, for each of the United States, and very lately for Greece. If the question then to be settled is, whether it is expedient that the governors of the states should accept the proposals, which some time ago were made to them individually by Mr Bentham, to codify their law, we suppose the question would be settled with equal promptitude and unanimity. But when the question is thus stated, it is plain that it is a question not as to the expediency of codifying, but as to the mode of doing it, and the probability, that it would be well done for us by a visionary foreign philosopher, as much distinguished, at least, for his zeal in party politics, as for his learning in jurisprudence. If the question, on the other hand, be, whether it were not to be wished that Lord Bacon had accomplished the digest of the law, which he proposed; whether it were not desirable that Sir Edward Coke's works were, in reality, what Blackstone says he is pleased to call them, though they have little warrant to the title,' Institutes of Law; or if the question be, whether a valuable service were rendered to the Roman law, by the Institutes and Digest of Justinian, and issue were joined on these points, though the question is still more or less personal and local, as to the mode and occasion, yet we apprehend the answers would be different from those, which would be made to Mr Bentham's proposal. There is probably no man, who has ever studied Lord Coke's four books of Institutes, that has not uttered or conceived the wish, that this most learned jurist had, with logical severity, followed the plan, which that name would seem to indicate.

So with regard to the advantages, which would result from a code, a little previous candid explanation would no doubt

go far, to reconcile judgments seemingly opposed to each other. It is sometimes intimated, that the friends of codification expect to destroy litigation, by making the law, on all points, so clear that no question could possibly arise. We know not what Mr Bentham, or M. Dumont, the great organ of his communications, expects to effect, but if this were the proposed and expected advantage to result from Codification, it would certainly be a work to be left to the jurists of Laputa. The least experience, the least reflection is sufficient to convince any one, that litigation does not, in a majority of cases, grow out of the uncertainty of the law. It is much more frequently occasioned, no doubt, by the uncertainty of the application of undoubted rules of law to complicated and unexpected trains of fact and circumstances. But human passion and human interest are the great sources of litigation, from which it must always flow, apart from the greater or less uncertainty of the law or the facts. Sir Edward Coke, we believe, says, that not more than two points of law were called in question, during his practice in the Courts. Many thousands of lawsuits were no doubt prosecuted in this period.

If then codifying is not to destroy litigation; what good is it to do, or is it expected to do? As we are not now discussing the subject itself, we shall not, of course, undertake to answer this question in any detail. We would only say, that the good effects of codifying would be precisely the same in kind, and differing in degree according to circumstances, with those of every other process, undertaking, or work to facilitate the study and practice of the law. If the day before Sir William Blackstone sent his Commentaries to the press, the question had been started, whether their publication would destroy or diminish litigation, or more generally, whether it would do any good, the answers would probably have been as various, as those now made to the question of codifying. We are told, that when the first copies of Blackstone's Commentaries reached America, (whither, by the way, Mr Burke tells us, nearly half the early editions were sent,) James Otis, in possession of one of them, rushed into open court, in the fulness of admiration, and declared, that if that book had been written earlier, it would have saved him years of labor. A code of law properly prepared, stating in

as plain a form as it can be stated, what the law of the land is, on every point, would produce, in a greater or less degree, the same saving of time, which James Otis ascribed to the publication of the Commentaries. To that small portion of litigation, which arises from an uncertainty on the part of clients as to what the law is, it might gradually be expected to afford a remedy. It would also go far to enable persons, not lawyers, to acquire a liberal knowledge of the law of the land. Fortescue more than three centuries ago said, that this could be done in a year, without the neglect of other employments. It must, however, be a very superficial knowledge, that could be obtained on those terms.

A code of law may be conceived of in two forms; that of a work, like those of Justinian or Napoleon, an authoritative body of law, enacted by the legislative power of the state; or that of a mere learned production of a private jurist, as the work for instance of Domat. The questions of expediency would receive different answers, no doubt, according as one or the other species of code was projected. The severest friend of the system as it is, would probably welcome the appearance of a work, in which every rule, maxim, and injunction of English or American law should be propounded in natural order, and in the simplest form, by a jurist like Coke or Mansfield. What good the work would do, would depend on the use it was put to, and the hands into which it fell. To one man it would be invaluable, to another worthless. Some it would assist and some it might mislead. But all this may be said of every other book ever written, on the law, or on any other subject. We may add, that approaches to a work of this kind have been frequently made and with entire success. Every elementary treatise on a title of law partakes of the nature of such a work, and some attempts at this private codifying of the common law, in the strictest form, have also been made.

But the more common understanding of a code of law is, that of a body of law compiled and enacted by the legislative power, like the Code Napoleon. Would this be useful? This is the great question, on which we do not mean to enter. We think ourselves, knowing that our opinion, as such, carries no weight with it on the point, that it would be highly useful. We see no reason why a work, which we

have supposed would be of universally admitted utility, as a private enterprise, would diminish in utility, in consequence of being drawn up with the greater deliberation and solemnity, necessary to a legislative ordinance. The work of course would be prepared by the ablest lawyers and judges of the day, who are authorised on every point to decide what the law is; and would receive the sanction of the legislative body, which is authorised on any point to declare what the law ought to be, within the limits of the Constitution. Moreover, approaches have been made even in England and America to codifying, in this sense; and further approaches are daily making. Every consolidated act is of the nature of a chapter of a code. Two such chapters in the code of the United States have passed the House of Representatives the last winter; one merely administrative, the other in the highest walks of penal jurisprudence. We allude to the Post Office bill, and to Mr Webster's law against certain crimes and misdemeanors. Every bankrupt act is an important section of a code. Lord Ellenborough's Statute, 43 Geo. III. c. 58, was such a section, and scarcely a session of Parliament or of Congress passes without one. The work, therefore, is constantly doing in part, and irregularly? Why not do it in the form of an entire perfect system? But it is idle to make remarks on a subject, which volumes would not exhaust, and we therefore drop it.


ART. VIII.—1. An Oration pronounced at Cambridge, before the Phi Beta Kappa Society, August 27, 1824. By EDWARD EVERETT. Published by Request. 8vo. pp.

67. Boston.

2. An Oration delivered at Plymouth, December 22, 1824. By EDWARD EVERETT. Boston. 8vo. pp. 73. Cummings, Hilliard and Co.

As the occasion on which the first of these orations was pronounced, in presence of the Nation's Guest, and before an assemblage of eminent persons from all parts of the Union, was one of rare occurrence and deep interest, so the subject

« PreviousContinue »