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Mr. PRESIDENT: Every Nation must stand for, em- tions and duties, duties as citizens toward our counbody and represent some adequate, underlying princi-try, and duties as lawyers toward its laws and jurisple which permeates, vitalizes, and binds it together. prudence ? True, all sovereiguty must be founded on territory, I offer no apology for this line of remark, since it is since without territory it is impossible to conceive of impossible properly to estimate the merits and value National existence. But real National grandeur and of any system of laws, dissociated from the instituNational exaltation are not measured by territorial | tions out of which those laws spring and to which they area, but are determined by the moral and intellect- relate, and since also it ought never to be forgotten nal character, aspirations, ideas, aims and purposes of that our primary and fundamental relation is that of its people.
citizens. We were citizens before we were lawyers; Our system of government, State and National, em- the lawyer does not merge the citizen. It is not unbodies and rests upon the fundamental proposition of common to hear it said that although we have not as the absolute and essential civil and political equality yet gone to pieces, we are liable to do so; at any rate, of all its citizens, whose collective will, expressed by the practical workings of our institutions are unsatismajorities, is the rightful and only source of all politi- factory, and they have failed of real success. There cal power, and the only supreme majesty. By this will be found in almost every considerable city of Euprinciple, we must stand or fall. In adopting it, we rope an American colony, where it is rather the prereversed the accepted doctrines of the old world, Eng- vailing tone, especially among those without social disland included; which doctrines were, “that all popu- tinction at home, to talk in this deprecatory strain, lar and constitutional rights, all useful and necessary and to award to other governments and institutions a changes in legislation and administration, can only superiority to their own. As more than any other emanate from the free will and concession of the mon- class, the lawyers of a century ago shaped and moulded arch or instituted government.” You will recall the our institutions,* it is especially the duty of the lawdiscussion of this subject by Mr. Webster in the cele- yers of to-day, to show, in their lives and conversabrated Hulsemann correspondence. The political doc- tion, that they appreciate at their undiminished trine he asserted, as well as the elevated style and the value the free and popular institutious of their counsustained dignity, force and logic of this remarkable try, and to acknowledge that howsoever much we owe State paper, combined to fix upon it the attention of to law, we owe more to liberty. the contemporary world. Is this fundamental prin- Our institutions failed of success! I deny it. A ciple sound? As applied to our government, it has
thousand times, I deny it! In the name of every man, now stood the test of a century, overcoming our fears, who like myself, has come through the terrible orstrengthening and establishing our faith. I do not deal of poverty, and knows what it is; iu the name of purpose to discuss its soundness. The stage of discus- the unnumbered and unborn thousands of generous sion ended with us more than a century ago. We then youth, who must yet walk barefoot upon the heated adopted it. We staked everything upon it; our insti- ploughshares of this ordeal, I deny it; for the genius of tutions to-day have no other foundation, and by it “we our institutions will attend them, unseen throughout must sink or swim, live or die, survive or perish." We the fiery trial, and give them a safe deliverance. What, must believe and maintain, indeed, that such a gov- let me ask is the cause of our unexampled growth, our ernment rests upon the broadest, deepest, and most matchless prospects? Not alone, or chiefly, a favored secare of all possible foundations, since it rests upon climate and a fertile soil, but the magnetic force and the consent and interest of all; in a word upon the marvellous power of our free institutions, whose chief sovereignty of society at large, which possesses all the glory is, that every man is equal before the law, whose powers necessary to preserve and promote the general priceless benefaction is, that every man has equal opwelfare and safety, "powers which,” says Blackstone, portunities. no climate, no time, no Constitution, no contract, can It is, Mr. President, the laws and the legal in ever destroy or diminish. 1 Black. Com. 245.
stitutions of such a Nation, founded upon the sovIt would seem to result from this that our self-gov- ereignty of the public will, with the cherished tradierned Nation is fitted to live, that it ought to live, and tions and rich heritage of its past history and achievethat it will live so long as it promotes the interest, pro- ments, with its present greatness and grandeur, with tects the rights and liberties, and secures the general the bright visions of the future which it opens to our welfare and happiness of its people.
view, and which expanding illimitably as we gaze, Let us rise, if we may, to adequate conceptions. We
swell our hopes and exalt our pride; a homogeneous bave already a population exceeding 50,000,000, a num
people, widely distributed over a Territory of more ber greater than all the other peoples who speak the En- than imperial extent, with a common language, with glish language, iuhabiting 38 States and 9 Territories, common interests, with common aspirations and reaching in unbroken continuity from ocean to ocean, hopes; it is the laws and legal institutions of such a and from the lakes to the gulf. Behold the map of country, that are placed under the immediate guardour country. How fortunate that the great mountain ianship of the bar of America, and in no small degree ranges and the intervening rivers run from north to of this association, which is National in its membersouth, nature's eternal ligaments. If the Rocky moun. ship and objects. tains or the Mississippi river had been co-incident
The lawyers of America ought especially to rememwith what was ere while known as Mason and Dixon's ber that the strength of a Nation largely depends line, the Nation probably had not come out of the upon its laws and the manner in which they are adcivil war undivided. Consider not only its territorial ministered. Are the laws just and are they justly adextent, but the variety of climate, soil, productions ministered? The inquiry must be answered by the and resources. Territory suited to the most varied * In one of the greatest of all his speeches, “For agriculture, vast plains adapted to grazing; coal and Conciliation with America,” March 22, 1775, Burke obiron lying side by side; long stretches of mountain serves of the American Colonies, “in no country, perranges rich with deposits of the precious metals. If haps in the world, is the law so general a study. The We apply to the future the law of our past growth profession itself is numerous and powerful and in (and why may we not?), there are those present who most provinces it takes the lead. The greater numwill live to see our country with a population of 100,- ber of the deputies sent to Congress were lawyers. I
hear that they have sold nearly as many of BlackShall we, the lawyers of America, be insensible to stone's commentaries (then recently published) in the responsibilities growing out of our two-fold rela- America as in England.”
000,000 of people.
divine test. “By their fruits, ye shall know them. hand, the eulogies so vften pronounced upon it, or on Do men gather grapes of thorns, or figs of thistles ?" the other, the complaints so frequently made against Justice is the fruit of good laws, well executed; and it. Such a survey will moreover tend to define the ex
'Justice,” says Sir James Mackintosh, in his famous tent to which the “ choice and tender business" of inlectures, delivered in Lincoln's Inn Hall, “is the per- troducing changes therein seems to be practicable and manent interest of all inen and of all Common- | expedient. wealths.” Conscious of its general truth, we give a It is observed of the constitution of the human ready assent to this sentiment, without often pausing mind, that it "continually oscillates between an incli · to inquire why it is that justice is of such command nation to complain without sufficient cause, and to be ing and supreme importance to the Nation as well as too easily satisfied." Guizot Hist. Civ. Europe, Lect. the individual. It is the justice of good laws, well en- 1. Either extreme is injurious. If we erroneously forced, that restrains and punishes the criminal; that conceive an institution or system to be perfect, it inerects the only effectual barrier against the uncurbed duces self-satisfaction and inactivity. If we magnify and multitudinous passions of men as they come snrg. its defects, it may discourage the needful attempt to ing on with the power of the ocean, and proclaims remedy them. Let us come then to this inquiry, not “thus far and no farther;" that protects with abso- as partisans, nor with the zeal and bias of the advolute impartiality every right recognized by the law, cate, but with the “cold neutrality of impartial whether in favor of natural persons or corporate, of judges." “Paint me as I am," was the commaud ot the weak or the strong, against any who menaces or Oliver Cromwell to Lely. “If you leave out the invades it; that stands as the impersonation of the wart, the scars, or tbe wrinkles, I will not pay you a highest attribute of God, not passively with her scales shilling." in equipoise, but with flaming sword, to guard the in- Now the great fact, which as we approach this subjured and the innocent, and to strike down the high-ject meets our view, is that the common law (includhanded or the fraudulent wrong-doer.
ing in the phrase "common law” as here used, the The most satisfactory ideal, I have ever been able supplemental equity system of the court of chancery to form of justice is embodied in the picture of a which grew out of the common law and constitutes a judge, courageous enough “to give the Devil his part of it), underlies the whole system of American due," whether he be in the right or in the wrong. jurisprudence. The expression “the common law" is
It is to protect public and private rights that courts, used in various senses; (a) sometimes in distinction with their judges and officers, their jurisdiction and to statute law;(b) sometimes in distinction to equity macbinery, are established and maintained. Their law; and (c) sometimes in distinctiou to the Roman or usual function, their most obvious use is to decide civil law. I use it in this address in the latter seuse. civil and criminal causes. But this is far from the I do not stop to inquire how the common law came to measure of their usefulness. We readily see how im- be introduced here, and adopted by us. I deal with portant the admistration of justice is to the individual the fact as it exists, which is, that the common law is but why is it so important to the Nation. What how the basis of the laws of every State and Territory of ever, let it be asked, is the Nation but the aggregate of the Union, with comparatively unimportant, and individual citizens? In our times, certainly in our gradually receding exceptions. And it is indeed a country, no government is secure that does not rest most fortunate circumstance, that divided as our Terupon the interest and affection of the governed. Or- ritory is into so mauy States, each supreme within the dinarily wben things are moving on in the even, ac- limits of its power, a common and uniform general customed tenor of their way, we lose sight of the vital system of jurisprudence underlies and pervades them dependence of National life upon National justice | all. But let the safety of the Nation be threatened from Taking into consideration the genius and situation within or without, in the pressure and stress of such of our people, and the nature of political institutions an exigency, which comes sooner or later to all Na- at which, with this view, I have already glanced, the tions, then is instantly perceived and felt the vital re- inquiry presents itself, what is the general character lation between the National justice and the National of the common law? What its adaptation to our peoexistence. If all interests in the State, tbore of labor ple and our situation? what its merits? what its de and those of capital, which are always closely allied | fects ? and rarely antagonistic except as the result of laws The first observation I submit is, that the common which operate unjustly upon the one or the other; if law, as well as the institutions which it developed or all persons within the State regardless of birth, race, along side of which it grow up, is pervaded by a spirit religion, or condition feel that the State is the highest of freedomn, which distinguishes it from all other sysembodiment of practical beneficence, and surely to tems and peculiarly adapts it to the institutions of a be relied on to do equal and exact justice to all men self-goverved people. It is clearly established by the and all interests, then in the moment of peril, all per-| laborious and learned researches which have been more sons rise and rally, dilated and transfigured by a sub- recently made, that the germs and elements of this law Jime and irresistible patriotism, bringing as free-will and of English polity are of Germanio origin. Stubb's offerings their treasure and lives to defend and pro- Const. Hist. ch. 1, et seq. The Saxon conquerors of serve laws and institutions which they have found to Great Britain were not mere bodies of armed invadbe so dear. Then especially it is that the strength of ers. They went to England during several centuries popular institutions, such as ours, is revealed and dem. | in families and communities. And what manner of onstrated.
men were they? Guizot, certainly no partial witness, If these observations be well founded, can the law-dwells upon the fact that the distinguishing character yer, statesman or citizen, conceive any inquiry more of the Germans was "their powerful sentiment of perimportant than an examination into the character and sonal liberty, personal independence and individualcondition of the laws and jurisprudence of his coun- ity.” He affirms and repeatedly reiterates, that it try.
was they who “introduced this sentiment of personal I therefore purpose to attempt a survey, necessarily independence, this love of individual liberty, into Eubrief, of the general nature of our system of laws and ropean civilization; that this was unknown among the its practical workings, with a view to see how far it is Romans; unkuown in the Christian church; and unconsonant with our political institutions, and adapted known in nearly all the civilizations of antiquity. to the temper and wants of our people, and with the The liberty which we meet with in ancient civilizations further view to see how far it deserves on the one is political liberty-the liberty of the citizen, not the
personal liberty of the man himself.” Hist. Civ. Eu- fairs of each road-district, school-district, township, rope, Lect. 11.
county, town and city locally self-managed, includThus conquering and colonizing England, they car- ing the administration of local justice. Every townried with them “from lands where the Roman eagle ship in the United States has a local court with power had never been seen, or seen only during the momen- to summou a jury of the vicinage, thereby bringing tary incursions of Drusus and Germanicus” (Freem. justice home to the business and bosoms of the peoNorm. ('onq., ch. 1), their language, their religion, ple, and making it their own affair. We are sometheir customs, their laws and their organizations. what apt to look with disdain upon the courts held by These were indigenous-homebred, without trace or justices of the peace. But in reality, we have few tincture of the Roman law and institutions. Digby, more useful institutions. The eyes of the ordinary 11, 12 They borrowed nothing from antiquity or justice have not indeed been couched to the “gladfrom surrounding people. They founded, and in the some light of jurisprudence.” He may be prone to course of centuries their successors and descendants, make technical mistakes, but in general, he manages the people of England, built up their institutions on by himself or the jury to work out substantial justice their own model. Macaulay speaks of this with his ac- in the decision of the disputes arising out of the everycustomed vividness. “The foundations of our Con- day affairs of the people. It is in no slight degree institution," he says, “were laid by men who knew structive to trace the institutions of this new country nothing of the Greeks, but that they had denied the back to the germs of the Saxon or Anglo Saxon polity, orthodox procession and cheated the crusaders; and for when we touch to-day, even in our frontier settlenothing of Rome but that the Pope lived there. Thosements the electric chain wherewith Providence bath who followed contented themselves with improv- bound the ages and the generations of men together, ing on the original plan. They found models at home; we discover that we are in historic communion with and therefore they did not look for them abroad." rude and remote ancestors although separated from us Essay on Hist. In words, well known, the author of by seas, mountains, and centuries. the Spirit of the Laws, referring to the checks and The States of this country bind together the congebalances of the English Constitution, says: “This ries of local municipal institutions, which they soverbeautiful system bas been found in the forests of Ger- ally create and regulate independent of Federal conmany.” Ce beau système à été trouvé dans les bois. trol; thus happily preventing a concentration at the Montesquieu, Book 11, ch. 6.
National center of the governmental power and duty This love of personal freedom and independence of legislating for and regulating the affairs of local was impressed upon the institutions they founded, or communities throughout a country of such vast exadopted or modified.
tent, that with its exact situation, wants, and interLearned investigators differ concerning the extent ests, it would be impossible for Congress to become acto which Roman law existed and prevailed at the curately acquainted. time of the Saxon conquest, and the extent to which So in the ascending scale, the Federal Constitution it was adopted or incorporated into the English laws, constitutes the States and the people of all the States usages and institutions. But there is a universal as- into a National government. It defines the relations sent to these propositions, viz., that the Saxon spirit of the States to each other and to the general governof freedom was embodied in the various local courts; ment, and limits the power of the States under any that it was in these popular tribunals that the princi- pretext, to deprive any citizen however humble of the ples of law and local government were cultivated and great primordial rights of freedom and equality before disseminated; that the Saxons breathed into the En- the law. glish government and institutions "a spirit of equity Magna Charta remains to-day one of the chief founand freedom which has never entirely departed from dations of English liberty.* Its chief glory is the prothem." Mackint. Hist. Eng., vol. 5, ch. 1; Reeves vision “that no freeman shall be imprisoned or Hist, Com. Law, Introduction by Finlason; and that diseized of his freehold, but by the lawful judgment of in the course of time the common law intertwined its his peers or the law of the land." This provision, meroots and fibres inseparably into the Constitution. morable in its origin, historic in its associations, lumipolity, local, and municipal institutions, the civil and
nous with the light of universal justice, beneficent in criminal jurisprudence, the family relation, and the its effects, and long ago embodied in all of the State rights of person and of property. So from an imme- Constitutions, has been recently carried into the Fed. morial or early period, the local territorial subdivis- eral Constitution, thereby placing the rights of life, ions of England, such as towns and parishes,enjoyed a liberty and property, as against invasion by the degree of freedom and were permitted to assess States, under the protection of the National authorupon themselves their local taxes and manage ity. The ancient lawgivers, to induce the highest postheir local affairs. The rate-payers were thus sible veneration and esteem for the laws, taught that dignified by being an integral part of the com- they came from Heaven and were sacred. If any humunal life; the founda.ions of municipal liberty man work ought to be regarded with sanctity by us, were laid ; political power was decentralized; knowl, it is the Constitution of the United States. Unmatched edge of the laws and reverence for the obedience to and matchless instrument; source and guaranty of them were coustantly taugbt by a participation in National life, of general prosperity and of countless their administration and enforcement. This is ex
blessings-making the States and the people one great, actly the opposite of the systems prevailing on the free, happy, united Nation. continent, where the central power absorbs, governs, If the Supreme Court during the period of active regulates every thing, thereby destroying municipal National development covered by the long official freedom and the capacity to enjoy and exercise career of Chief Justice Marshall had put a narrow and it. as well as the power to defend and preserve inelastic construction upon the Federal Constitution, it.
so that it could not have expanded with the growth In our country, this system of decentralizing politi- and answered the necessities of a great people, it cal power, and of intrusting the direction of local affairs to the local constituencies, has from the earliest
*" The whole of the constitutional history of Eng. colonial periods been carried to a much greater extent land is little more than a commentary on Magna than in England. As you pass from one end of this Charta." Stubb's Const. Hist., vol. 1, ch. 12. Magna country to the other, alike in the older regions and in Charta is the key-stone of English liberty. Hallam the newest organized settlement, you will see the af- Middle Ages, vol. 2, chap. 8.
would bave been calamitous to an extent no words against the inconoclast who in the name of reform can portray, and no imagination can conceive.
comes to destroy the jury; against the rash surgery Marshall's judgments upon the National Constitu- which holds not a cautery to cure, but a knife to amtion are among the most original and massive works putate and excise. of the human reason. They are almost as important It is no part of my purpose to institute a comparias the texts of the Constitution which they expound. son between the civil and the common law, the one or Some of them were indeed criticised at the time; but the other of which constitutes the foundation of the they have immovably established themselves as right jurisprudence of every civilized Christian State. It is in the general judgment of lawyers, public men and undoubtedly true that abstractly considered in its enthe people. Although changes in political parties have tirety as a mere system of jurisprudence, the civil law, been reflected in the personnel of the bench; although elaborated and matured by Rome in the height of her unforeseen crises in the National life have been civilization was, until less than a century ago, superior reached and passed, it is remarkable that on not one to the common law, whose foundations were laid in of his many judgments has been written the word the twilight of the Nation, and which had not kept "overruled," and equally remarkable that no exist- pace in growth with the development and progress of ing political party proclaims or holds tenets or doc- the English people. The feudal system in its day made trines inconsistent with the principles on which those
serfs of the masses. It was a system in its nature at judgments rest. They have become primal lights, war with commerce. It was inimical to peaceful purshining with the steadfast and silent fidelity of the suits. Out of its logic sprang the most baleful docNorth Star or the Southern Cross, for the guidance trine that has blighted the English law, the doctrine of the inquirer after American constitutional law. of tenure. To gratify ancestral pride and maintain
For nearly fifty years after his death, the Nation family splendor, the feudal aristocracy tied up the failed to show in any overt manner an adequate ap. lauded property in the iron fetters of tenure; and preciation of the simplicity, worth, and dignity of his although it constituted the wealth of the Nation, it character, and of his extraordinary and unequalled was withdrawn from commerce and could not serve judicial fitness and qualities; at all events it failed to as a basis of credit. The feudal system is the source display any public memorial of gratitude for those of the laud-laws of Great Britain, which still press labors which not only so greatly contributed to make with such crushing weight upon the agricultural and the Supreme Bench so illustrious, but which enabled industrial classes. What singular phenomena we frethe country to attain unto its present stature without quently witness as the result of opposing forces. For any strain upon the Constitution. The bar and the example: Feudalism as a military system was logicNation have at length, though tardily and since our ally compelled to ignore the rights of woman. She last meeting, shown themselves worthy of the inherit- could not render military service. Upon marriage, ance of such a name and of such labors, by erecting his her legal identity was lost-merged in that of her busstatue, executed by the gifted son of his loved and band; and the old common law pressed this fiction ineminent associate, to the end that the chief executive, exorably to all its logical cousequences, consequences the legislator, the suitor, the lawyer, the judge, and which so often shocked the moral sense as to lead the the citizen, may in all coming time, as they go to or court of chancery timidly to take the wife partially return from the capitol, be reminded of the thought- under its benign protection. At the same time, it is ful features, the calm majesty, the placid courage, the curious to observe that it was feudalism in its effects lofty character, the inestimable public services of him upon the domestic life and manners in the castle, that whose uncontested and unenvied title is, that of the gave to woman, to tbe wife aud mother, an importgreat chief justice.
auce they never had before, and have never since lost. Cousonaut with the popular character of our insti- Having done its work, feudalisın is happily gone, but tutions are the grand and petit jury. They are ex- its choicest flower, the elevation, companionship pressions of the free and practical spirit of the com- and recognized dignity of woman still lives, and its mon law. They have a value, a deep value, too often fragrance yet fills the air; and her legal rehabiliment overlooked, beyond the specific functions they exer- is the work of our own time. cise. The jurors acquire and disseminate a knowl- But with the growth of commerce, the world's great edge of the laws among the local communities from civilizer; with the advancement and elevation of the which they come, and to which they return. We people and their constant progress toward liberty; with ought doubtless to reform the abuses of administra- the establishment and growth of the principles of tion in the jury system. But the complaints against equity under the great Hardwicke, aud a long succesthe system, so far as well grounded, arise largely from sion of illustrious equity judges; with the disapinexperienced or incapable judges, or from unwise pearance from the law courts of the refinements, substatutes curtailing the powers of the judge in jury tleties, and artificial logic of the schoolmen, wbich so trials to those of a mere moderator. I have given to long poisoned the common law; and taking law and this subject some observation and reflection, the re- equity as constituting together one single connected sults whereof I have elsewhere expressed. I will not system of jurisprudence as that system exists at this here repeat them further than to re-affirm that in my time in Great Britain; and in America it is, I think, judgment the jury is both a valuable and an essen- with all of its defects, the most splendid system of ential part of our judicial and political system. It is not lightened and practical justice, as applied to the affairs simply to be venerated as a reminiscence, but prized of mankind, that the world has ever witnessed. for its usefulness. Its roots strike deep into the soil The Roman law,on the revival of learning, conquered and cling to the very foundation stones of our jurispru- the nations of continental Europe. But the English dence. The system belongs to free institutions and people sturdily resisted it, and as a system it obtained tends to fortify and perpetuate them. I quite agree no foothold on English soil. Many of its enlightened with Chief Justice Taney, than whom few judges have and useful principles have been introduced into, and had wider experience and none, perhaps, have been have thereby enricbed the English law; but the commore capable of forming a sound and unimpassioned mon law has always maintained itself intact as a comjudgment. He has left on record his deliberate opin-peting, distinctive system. It must be confessed that it ion that our liberties are closely bound up with the lacks the artistic symmetry of its great rival: but it was preservation of the jury. Tyler's Life of Taney. I better adapted to the institutions and character of the protest against the continentalization of our law. I English people, and was for them at least, as it is for invoke the conservative judgment of the profession us, the better system.
It is not a speculative system. It has not been excogitated by doctrinuires and built up from without as a work of art. Its merit is that it is based upon the long experience of mankind; has grown out of real transactions, actually litigated and recorded. The principles of a judicial judgment, settled and announced after the argument of counsel, limited to the precise state of facts which the particular case presented, added that much, but only that much, to the existing mass of legal principles. The value of our system of law as we now have it is that it embodies the wisdom of time and long experience. “Everybody is wiser than anybody," said Talleyrand, and truly; and it is this general, accumulated wisdom that has been carried into our law.
Lord Hale, in his short tract on the “Amendment and Alterations of Laws, every word of which is golden, three times declares that “Time is the wisest thing under heaven," and that “time and long experience is much more ingenious, subtle and judicious than all the wisest and acutest wits co-existing in the world can be."'*
The most distinctive feature of the common law of England and America is the rule of judicial precedent or the binding force of adjudged cases as rules of decision for like causes. In no other system of jurisprudence is such force given to judicial judgments. The result is that elsewhere than in Great Britain and America the judicial reports are few, and of little prac. tical use since judicial judgments have no authority, and no higher rank than the expositious or commentaries of private writers. The corresponding result is that in 1881 the judicial reports in England numbered 2,914 volumes, and in this country 3,000; and they are increasing at the rate of over 100 volumes a year.
Where is this multiplication of reports to end? Is it to go on unchecked indefinitely? Is it desirable or practicable to check it? How far is it an evil, and what is the remedy? These, Mr. President, are inquiries of such pressing and serious moment that they may well engage the attention of the association.
I suppose it to be undisputed that up to this time the existence of the Law Reports cannot be regarded otherwise than as an inestimable possession. Even Bentham, the bitter opponent of what he derisively styles “judge-made law," and advocate of that to which he *** It is most certain,” says Lord Chief Justice Hale, " that time and long experience is much more ingenious, subtle and judicious than all the wisest and acutest wits co-existing in the world can be. It discovers such varieties of emergencies and cares, and such inconvenience in things that no man would otherwise have imagined. And on the other side, in every thing that is new, at least in most things, especially relating to laws, there are thousands of uew occurrences and evtanglements, and coincidences and complications that would not possibly be at first foreseen; and the reason is apparent; because laws concern such multitudes, and those of various dispositions, passions, wits, interests, concerns, that it is not possible for any human foresight to discover at once or to provide expedients against, in the first constitution of a law. So that in truth ancient laws, especially that have a common concern, are not the issues of the prudence of this or that council or senate, but they are the productions of the various experiences of the wisest thing in the inferior world, to wit, time, which as it discovers day after day new inconveniences, so it doth successively apply new remedies; and indeed is a kind of aggregation of the discoveries, results and applications of ages and events, so that it is a great adventure to go about to alter it, without very great necessity, and under the greatest demonstration of safety and convenience imagivable.” Hargrave's Law Tracts.
gave the name of codification, declared of the “Report Books” (which in Benthamese stands for law reports) that “the greatest quantity of wealth possessed in this shape by any other nation is penury in comparison of that which has been furnished by the English common law. In this point of view (as a rich storehouse of materials for legislation ; such a storehouse that without it no tolerably adequate system of laws could be made it is a blessing even now. As a light to the legislator to assist him in making real law (that is, statute law), it is a matchless blessing; but this sham law (that is, judge. made law), as a substitute to real law, is a curse. Time was when for want of recorded experience the pen of the legislator could find no tolerably adequate indications for guidance. Time was—but that time is now at least at an end."*
To the subject of codification I will presently make a brief reference; but since it is clear that down to the present the law reports are such invaluable repositories of legal principles, the inquiry I wish now to consider is, whether they have lived out the period of their usefulness; that is, whether their continued publication is a benefit or'an evil. Undoubtedly it were better that mauy of the volumes of reports of inferior or over-worked courts had never appeared. Undoubtedly the weighty advice of old Bulstrode, so quaintly expressed in the dedication of his second volume, in the time of the Commouwealth, over two hundred years ago, has been too often disregarded: “ That as the laws are the anchor of the Republic, so the judicial reports are as the anchors of the laws, and therefore ought to be well weighed before put out." Undoubtedly it is to be regretted that so many cases have been and continue to be reported that contain nothing new or valuable.
But the inquiry is, Have we reached a stage in the history and development of our law when it is desirable that the doctrine of stare decisis shall cease? That no more law reports should be put out? That they should be superseded, by extracting from them all that is valuable and transmitting it into statutable form? It does not appear to me that the general answer to these several inquiries is difficult. The law, as a result of the ever-occurring changes in the condition of business and society, and of legislation, is constantly changing. How are these changes authoritatively to be ascertained and authenticated? The old is to a great extent so well settled and known as to have become elemeutary and indisputable. It is the new that is unknown and needs interpretation and definition. And as between the old reports and the new, the experience of every lawyer and judge is, I think, that the new are the most useful because the most needed; and while this is felt to be so, the publication of reports of adjudged cases will continue.
The inquiry however recurs, Is this to go on forever? If not, when and how is it to end? Will it break down under its own ever-increasing and insupportable weight, and end in eliminating the doctrine of judi. cial precedent from our law, and substituting the continental system? Or will it have its end in superseding the law reports by codification? Or will it have some other issue?
We have two great divisions of law-statute law and case law. The statutes are frequently fragmentary,
cross and intricate," superimposed one upon another. Case law has to be sought in almost numberless reports, and often among conflicting decisions. Our law is thus fairly open to the three-fold objection of want of certainty, want of publicity, and want of convenience. Its existing condition urgently calls for
*Letter IV of “Jeremy Bentham, an Englishmar, to the citizens of the several American United States" on the codification of the law, 1817.