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This is evident from the very fact that within this limit it supersedes the rules and policy of the common law, even when contrary to it. Custom, says the ancient maxim, is the life of the common law. Every particular custom, then, has a vitality of its own, drawn from the same source; and it is the aggregate of all these vitalities which make up that of the common law; in the same manner in which, according to an observation of Gravina, the aggregate of the forces of individuals constitutes that of the body politic.
Whenever any custom by this process has acquired the form of a law, it can only lose its force in the same manner in which we have described all the changes and alterations in the laws as taking place. It no longer rests in evidence, but upon the testimony of judicial records, and cannot be affected by any parol evidence of the vulgar understanding of the custom, or by any presumption as to the intentions of the parties, which does not amount to a positive proof of an actual and mutual understanding.
Thus we see that a customary system of public laws is formed and perpetually forming, by the social action alone, in the same manner with the rules of morality; that it is in fact that part of the code of conduct, thus perpetually forming, which the order of society requires should be reduced to a regular plan, and enforced by its sanctions. It is that part of the laws of a nation which is produced by the self legislative instinct of society. All the organs of its formation are as absolute within the sphere of their jurisdiction (which includes all those operations of men, wbich do not come within the province of the political government) as this government itself ; whose assistance it only requires to correct the mistakes which are beyond its own self corrective power, and to introduce such disciplinary rules of police, as cannot conveniently be introduced without some legislative formality, not on account of the arbitrary power which they require, but on account of the arbitrary nature of the regulations which they introduce. Considered as emanating from its courts, it is a system of paternal, regulating, construing, preservative legislation, which does not aim to restrain or control, but only systematizes, harmonizes, and combines the enterprises and inventions which men voluntarily undertake, and digests and shapes the materials which are presented to it. And herein consists one of its chief excellencies, that it does not interfere
except when its aid is called for, and that the system of political economy happily inherent in its constitution, is that which leaves men to make their own arrangements, and contents itself with regulating them. And as its rules are only applied to obviate those difficulties in the execution of the plans of individuals, which in their study of those parts of it which tend only to effect their main object, the applicants bave neglected to provide for ; that part of each custom which a succession of such plans establishes, or in fact of the law, which is inventive, comes from individuals; and that which is corrective and which tends to give permanency and security to them, and to make them most permanently effective of their objects, comes from the court. Thus those individuals who are most interested and most conversant with the subject, serve as a committee by whom the first draught of the plan is to be drawn up, to be completed and perfected by the judges. They therefore legislate with all the materials for testing the correctness of their opinion; they arrange, having all the subjects of their disposition directly in view, so that none of the minute points or intricate parts escape their observation; thus bringing to their task minds improved by the study of the science of jurisprudence, and sharpened by the practice of applying them to the affairs of men, and having at the same time all those opportunities for minute and accurate observation, which, according to the experience of Mr. Burke, often gives to men of inferior understanding the power of correcting the conclusions of superior minds.
ART. IV.-DANE'S ABRIDGMENT.
A General Abridgment and Digest of American Law, with
Occasional Notes and Comments. By NATHAN DANE, L. L. D. Counsellor at Law. Vol. IX. Boston. Hilliard, Gray, Little, & Wilkins. 1829. pp. 860.
MR. DANE, having devoted a long course of years to the laborious study of the law as a science, as well as to the active practice of it as a profession, has dedicated the best fruits of these labors to the public, and indeed twice so dedicated them,
for he has not only spent many years alınost exclusively in preparing his gigantic work for publication, but has also assigned the profits to the establishment of a professorship in the law school at Cambridge, as a perpetual spring for fertilizing the field, which he has himself so long, so assiduously, and successfully cultivated. Until very recently, we in the United States, had hardly ventured upon any original extensive works upon law, but had contented ourselves with republishing English treatises and compilations, adding only some scattered notes of our statutes and decisions ; so that American law, whether of the United States or any state, instead of appearing to be any entire system, seemed to be merely the right of selecting from the inexhaustible magazines of the mother country, what might be adapted to our circumstances and wants, with the addition of some small supplement of our own. It was no doubt fortunate for the country to possess so complete a system of jurisprudence, so well accommodated to our social habits and institutions, so that without experiments in legislation or the necessity of collecting a mass of domestic precedents, resorting to long standing usages, or of drawing practical rules by doubtful analogies and deductions, from a few general principles, the new communities of British America found themselves possessed, by inheritance, of an entire practical system of laws, from which they had merely to select what was applicable to their new condition. Neither at the first settlement of the country, nor at any subsequent time, was it absolutely necessary, nor urgently demanded by the social welfare, to sit down to the arduous and hazardous task of making an entire code. A single short sentence put the community in possession of a better body of laws, than would probably have been formed by the ablest set of lawgivers who could have been appointed to the task. They had only to enact that the English common and statute laws should be in force within the colony as far as they were applicable to its circumstances; and the great work, which had cost other countries centuries of experiments, was at once accomplished. Until a very recent period, it would have been beyond the powers of the wisest and most learned legislators to devise and propound a system of laws so practically useful and convenient, and so easily and equitably adapting itself to contracts and private relations and rights, as the code which thus, in a manper spontaneously, sprung up among a people too much occu
pied with metaphysical speculations in theology, and subduing the forest and its tenants, to allow them leisure for the deliberate formation of codes.
In one respect the American people were, it is true, upon the same footing with every recent people; they might adopt the laws and institutions of the mother country or of any other, that were found to be applicable to their circumstances, but there were these two distinctions between their condition, and that of almost every other nation in the early stages of its legislation and jurisprudence; in the first place the common law of England was, in many respects, an admirable system, and, in the second place, a great part of it, and that the most valuable, was adapted to their new institutions and condition, and to these advantages another very important one may be added, that the current and contemporary administration of the laws in England, has always, down to the present time, supplied precedents and constructions, which were equally applicable in this country, and the records of this administration were immediately put into the hands of the American lawyers and judges in the contemporary reports. So that England not only supplied a system of laws, but also a perpetual commentary upon its several provisions, and an uninterrupted series of practical applications in illustration, modification, or extension of its doctrines.
The state of Louisiana forms one exception to these remarks, and Florida will be another; and we accordingly see how early after becoming a part of the American republic, the former undertook the task of general codification; before in fact any other state in the Union had made so thorough a revision of its laws. The reason is obvious, for in becoming incorporated with the republic, the social condition of the people of Louisiana was so altered as to require a great modification of its municipal, as well as of its constitutional laws, whereas the only material change in the old states, consequent upon the revolution, was, that of the constitutional law ; while the municipal laws continued to be administered, with occasional amendments, much as if no revolution had happened. The precepts ran in the name of the state, instead of that of the king ; nothing more was necessary. The statutes of many of the other states have been digested and revised, for instance those of Maine at the time of its separation from Massachusetts, those of Rhode Island, Delaware, New Jersey, Virginia, and some others; and New York has led way in an entire reconstruction of its whole code, and like proceedings begin to be contemplated in other states.
This stir in legislation is not confined to the United States; similar movements are simultaneously made throughout the civilized world. The glorious success of France under Bonaparte, in condensing and arranging its laws into an admirable system, has roused the attention of other nations to the same subject, and we in this country feel the force of the general impulse. Some persons cry out, innovation! at any suggestion of a general revision of the laws, and expostulate against Benthamizing the statute book, not reflecting that all our legislatures, as well as congress, are codifying upon a small scale every year, and many of them semi-annually. They undertake (that is, if any committee or member volunteers for the work, to revise and improve some particular branch of the statutes, sometimes because they are multifarious and obscure, at others because they are defective in some substantial provisions. If the statutes of a country, like those of England, have run out into a great multiplicity, and are scattered in confusion through some seven or eight quarto volumes,-a dark forest, which the most intrepid lawyer never thinks of exploring beyond the margin,-it is very natural that, without intending to root up the whole, men not at all infected with the spirit of radicalism, would wish to have the territory surveyed and laid out anew, and to have enough of the useless encumbering branches lopped off, to let in a little light, and clear up the obscurity. The laws eventually become so perplexed, that it is perilous to attempt to mend any particular part separately, lest you should bring down a whole mass of ruins upon your head. It has happened in England more than once, and so even in our early legislative progress, that repealing a useless or pernicious law, which, perhaps, only by implication, and so not in a way to be readily discovered, repealed or superseded some old statute, all at once, to every body's surprise, has resuscitated a forgotten law, and let it loose, to the annoyance of the unsuspecting judges, lawyers, and, most of all, citizens, like some mischievous ghost, which all people supposed had been quietly laid, some centuries ago, by our pious ancestors. One important object of codification is the selecting, simplifying, and arranging, what is, on revision of the statutes, ascertained to be already the law, and this was one of the great achievements of