away these enormous excrescences, supply these palpable defects, reduce this chaos to order and proportion, arrange these scattered principles into a consistent science, and pour light into these dark recesses? The work has been done in other ages, and countries, and it can be done again, and at home. Let the legislatures, of the larger states at least, employ the first legal talents and researches within their reach to accomplish the reform; and, within the limit of a few years, it may substantially be accomplished. Not that the work will be perfect, for that is impossible; but a radical improvement, a vast relief from overwhelming burdens, will be obtained. The age, the country, the profession, are almost clamorous under the evil: why then refuse to adopt the remedy? Such is the argument, weighty no doubt in many of its details, easily understood by other than professional men, and to the fair statement of which we are not conscious of having done injustice. Admitting, however, in its full force, all that can justly claim admission, we must still take leave to dissent from its conclusion, and for two short reasons: we believe, that the formation of the code proposed, is in a great measure_impracticable; and that, so far as it is practicable, it would be useless.

The COMMON LAW (and under this phrase, in its comprehensive sense, are included legal and equitable doctrines respecting every species of property and personal rights, as well as penal law, and that of the courts of admiralty) is our rich inheritance, and deserves the title it has received-the Law of Freemen. Its origin is lost in remote ages, but its progress during the last three centuries can be clearly traced. Its boast is, that it has ever been expanding, to meet the changeful relations of the people it has governed; in other words, that wherever its protection is claimed, a remedy is afforded. During its early existence, when the English nation were few in number, imperfectly civilized, and limited in their social intercourse and wants, many of its principles, though the same then as at the present day, were of very narrow application. As society slowly advanced in numbers and refinement, as property became subject to more frequent and complicated transmission, as men assumed new relations and duties; so the law underwent a corresponding enlargement-not by a change in its radical doctrines, but by modifying, restricting, or extending their influence, as the exigency of each peculiar class of cases demanded. Where its provisions were imperfect, and new states of society called for essential alteration, the legislature interposed, and aided, by its statutes, the inferior jurisdiction of the tribunals. As the nation continued to advance in numbers and social improvement, as the countlessly varying relations of men as members of a political community, became every year more and more developed; so the common law kept equal progress, its decisions increased, its precedents became

more particular and precise, and the published opinions of the judges with the elementary treatises, filled in time a large number of volumes. Extending this sketch of its advancement to the present day, we have the real history of its progress, and of the multiplication of published works of law. As an example, let us look at the progress of the Law Merchant, or, to use the modern and better term, of Commercial Law. Until the commencement of the last century, the commerce of Great Britain was very limited, and the decisions of the courts upon doubtful points in commercial law, had been necessarily very few; so that a single treatise or volume of reports would perhaps contain almost the whole of this branch of law in existence at that date. During the last one hundred and thirty years, the commerce of Great Britain has increased probably twenty fold, and the necessary consequence has been, that an inconceivable number of new relations, of varieties in commercial intercourse, have arisen, and have been perpetually originating new cases for legal decision. The law of Insurance, of Bills of Exchange, of Shipping, of Agency, of Partnership, of Bankruptcy and Insolvency, etc. has thus expanded, from a few leading principles, into ten thousand details. The principles remain the same, and govern each of these numberless cases; but when we proceed to their application, some new relation, some slight change of circumstances, some feature in the point presented for adjudication, distinguishing it from all those already decided, regulates the decision pronounced upon it; and the law when pronounced is a recognition of the principle, as affected by the peculiarities of the case. In this manner, the Reports and the treatises upon commercial law, have been amplified from two or three volumes, into a moderate library. The same remarks apply in substance, though not in an equal degree, to the whole body of the common law. Such has been the nature of its progress, thus has its countless list of cases been formed, thus has its immense mass of precedents been accumulated, and thus has the number of English law-books grown from solitary treatises and scattered Reports, into a thousand volumes.

But does this account of the progress and present state of the law furnish room for reproach upon the law, or upon the courts that have been its expounders? Far from it, as we conceive; nay, we aver it to be its greatest praise. Had its history been the reverse, it would have involved much shame and measureless injustice; but in the very nature of the case, no other state of things could have existed. Law is properly defined to be, a rule of conduct; and the more explicit and precise the rule, the happier is their condition whom it directs. The progress of society, the improvement of civilized man, is every year and every day giving birth to transactions and cases to which the rule must be applied,

or the parties must be permitted to take the administration of justice into their own hands. When the rule has been applied,—in other words, as each successive case is decided,-shall the principle thus established perish with the incidents which called for it, and shall the community and the tribunals continue in the dark until the same principle has been again decided-only to perish once more, and the law thus become a chaos of fugitive, forgotten dicta; or shall a record be made of the case, and the principle be preserved in the Reports as a land-mark for subsequent ages? To these questions there can be but one answer. Had the course we

have supposed really existed, society would have stopped in its career, and become stationary at once; and the advancement of five hundred years would have had no being, except in the visions of romance. But if the law is to meet reproach for these characteristics of its history, let it be impartially bestowed. What other progress has been made by theology, or medicine, or mathematics, or physics? In each of these sciences, and in every other, the sphere of discovery and research has been enlarged from narrow enclosures to an immense territory; and thus must the enlargement proceed, while man remains an intelligent being.

Now what is the course to be adopted by the student, in acquiring the knowledge necessary to his profession, in the use which he is to make of this vast collection of law-books? We answer, precisely the same course which is adopted by the divine, or the mathematician, or the natural philosopher. He does not, like a child, begin with the earliest law book, and pore his way onward till he has read through the last volume of Reports. As well might he attempt to read through the library of the Vatican. He commences his efforts by acquiring a knowledge of legal principles, principles which shall guide him through his whole subsequent career. In these efforts he is not left to grope in the dark, to glean here and there a random doctrine among the chaff of a thousand volumes; he is furnished at the outset with elementary works, which have collected all these principles, and which diffuse light and order through all this seeming obscurity. The first author that he reads is Blackstone: and we assert with confidence, that not a single department of science, excepting that of mathematics, can furnish a work more logical in its plan or more perfect in its execution; a work more lucid in its definitions, more satisfactory in its illustrations, or more free from all technical obscurity. As his knowledge of elementary principles advances, the student proceeds to their specific and particular modifications and details, as they are contained in the Reports; and he never fails to find works of undoubted authority, to direct his inquiries. Such is his course at the outset; such is his course, so far as circumstances permit, through his professional life. When he finds it necessary to apply VOL. II.

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his acquisitions, when a client asks his advice, or when he prepares to argue a contested case before the judges, he first compares the point in question with some of the leading doctrines of which he has made himself master; and if he there finds no principle exactly similar, he then examines the works with which he is already familiar, the Reports, the elementary treatises, the digests, etc., to discover some kindred or collateral precedent, and in the end, his researches are rarely unavailing. It is thus that the profound lawyer is made profound. His mind is at first disciplined by a course of legal analysis, and is then enriched by another course of synthetic illustration, till it comprises within itself, and as it were, becomes, a rich and accurate digest of the law. All this indeed, cannot be done without intense study: here, if ever, the "viginti annorum lucubrationes" are indispensable. His mental toil by day, and his painful vigil by the lamp, must be repeated month after month, and year after year: his cheek may grow pale, and his heart at times may sink within him, from the severity of his application. But still the effort must be perseveringly made, and when we have said this, what more have we said than is true in every department of mental labor. What critical scholar, or profound theologian, or learned physician, ever became such without intense exertion and to throw the necessity of this exertion, as a reproach upon the law in its present state, evinces but little acquaintance with the existing intellectual condition of man.

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After this brief notice of the progress of legal science and of the mode of legal study, we are better prepared to come directly to the question is it practicable, to form the written code referred to in our preceding pages? With the aid of the statements already made, the inquiry seems to answer itself. But we ask in return, how can it be accomplished? How in the nature of the case is it possible, to comprise, within one or two volumes of moderate size, the innumerable principles and precedents which are diffused through many hundreds of volumes? We grant that a large mass of this learning is obsolete, or unfitted to our American institutions, and not a small portion of it is obscure or contradictory; but lop off all this with an unsparing hand, and the sound portion remaining is more than a moiety of the whole. If it is said, that a complete incorporation of the law is not contemplated, that its condensation and abridgment only are designed, that leading principles may be thus collected, and inferior points and precedents excluded; then we reply, that such a code would be most palpably inaccurate and defective, and if adopted as a guide, would constantly mislead and betray. Suppose that a particular case arises, and the lawyer consults his code; he there finds some principle bearing indefinitely upon the question, but aiding him as little in its specific solution as an axiom of geometry. His client is the holder of a bill of ex

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change which has not been paid, and he has omitted to give the requisite notice to the drawer of its non-payment, but the drawer, knowing this fact, has still promised to pay the holder; now the code, when consulted, determines that this want of notice may be waved, but does not decide what circumstances amount to a waver. Here then the lawyer is absolutely at a loss. His former authorities would solve the doubt in a moment, but they have become useless, they are all merged and extinguished in the new codethe condensed essence of the law; and he is compelled to inform his client, that once he saw, but now he has become blind. not this be called an unfair example. We insist that it is just, and that cases of this description, and with such results, would be constantly occurring. But we shall pursue the illustration still farther. The elementary treatises upon Commercial Law alone, are contained in not less than from twenty to thirty volumes. The treatises on Pleading, with the requisite forms, occupy at least the same number. Those referring to Real Property are probably twice as numerous; and in the same manner we might augment the catalogue, through every Title in the law. But this class of law books is merely an abridgment of the Reports, in which is embodied the whole science. Now again we ask, how is it possible to digest this large library into the compass of one or two volumes, and still preserve unimpaired its principles and precedents? We shall take leave to answer, it cannot be done. As well might the science of astronomy be digested into an almanac, or the bible into a catechism.

Assuming then the formation of the code proposed, to be impracticable, we shall proceed to inquire as to the benefits to be derived from the formation of a code, which perhaps is practicable; a code, which shall contain the generic and specific principles of law, but which shall be essentially defective in its particular points and precedents. Such a code, if prepared in the best possible manner, we contend, would be, to all important purposes, entirely useless. But very serious obstacles exist at the outset, in the way of its adequate preparation. The only persons who could be trusted for a moment, who are in the least degree competent to the task, are lawyers of first rate ability, learning and experience, and judges of the same character. Of the correctness of this position, the warmest advocates for the measure have no doubt themselves. But where is the certainty, we may almost say, where is the probability, that such men, and such men only, will be appointed by the legislature of any State, (and it is solely by virtue of such appointment, that the code will possess the least authority,) for this purpose; or, that if appointed, they could devote themselves to its adequate accomplishment? We speak no treason, no secret, when we af