law has declared that the eldest son shall be the sole heir, and that the half-blood shall not inherit, a court has no more liberty to depart from these rules, or to refuse to apply them to any case falling within them, upon any notion of hardship, or inconvenience, or ill adaptation to the exigencies of society, than it has a right to say, that a last will and testament shall be good, though not executed according to the requirements of a statute. In each case, it is bound, and bound to the same extent. If the question were, whether a positive code should contain a clause prohibiting courts of justice from deciding upon cases not within the purview of the code, there might be much to urge against the policy and reasonableness of such a clause; but it would furnish no objection to other parts of the code. The only point, with reference to a code, which, under this aspect, would deserve consideration, is, how far it would be desirable to provide for cases which may be foreseen, -but have not, as yet, actually been subjected to legislative decision. On one side, it may be said, that it would be best to leave all such cases to be decided, as they arise, upon the result of human experience and human judgment, then acting upon all the circumstances. On the other hand, it may be said, that it is better to have a fixed, present rule, to avoid litigation, and to alter it in future, if unexpected inconveniences should arise. The reasoning on each side is sound, when applied to particular cases. On each side, it admits of question, when applied to all cases. It may be best, in many cases, to leave the rule to be made, when the case arises in judicial controversy. In others, it may be far better to establish a present rule, to clear a present doubt, or fix a limit to what is now uncertain. Take the case of a bill of exchange, or promissory note; and suppose the question were, at what time demand of payment should be made, when it was payable on time, and no rule existed, and yet there was an immense amount of property dependent upon having a fixed, uniform rule; and, until so fixed, there must be endless litigation. Can any one doubt of the benefit of a rule, such as is now fixed in the commercial law of our country, for the purpose of securing certainty, viz. that payment must be demanded on the day on which it becomes due. On the other hand, suppose it were now proposed to make a law, fixing what should be the rate of wages in all future times, in all private employments; would it not, at once, occur VOL. VII. 50 to be impolitic to act upon a rule, the effects of which might immediately, or in future, press unequally and injuriously upon different interests in society? Again, it is said to be unnecessary to reduce the rules of the common law to a code, for they are as certain now as they would be in a positive code. They are even more so, because the legislature cannot be presumed able to lay down a positive rule, with all the limitations and qualifications of the common law. Now, both of these suggestions admit of a satisfactory answer. If the rule exists, and has certainty in the common law, it can be stated. If there are any known exceptions, limitations and qualifications, upon a rule, those also can be stated. If nothing beyond a particular limit is known, then legislation can, at least, go to that limit. And as to all other cases, the same uncertainty exists, both at common law and in legislation. The difficulty of the argument consists in assuming, that, because the legislature has prescribed the same rule as the common law, the courts are thereby prohibited from doing what they possessed the power to do before, in the absence of any rule, viz. to find out what is the rule that ought to govern. Now, the legislature may as well leave this power in the courts, after a code, as the common law; and it will be best, unless there is a positive prohibition to the contrary. The other part of the suggestion applies only to the point, whether the code is well or ill formed by the legislature. If badly formed, it will, of course, be proportionally bad; but that furnishes no objection to a code, but to the mode in which it is executed. Then, again, as to the suggestion that it is unnecessary, because the rule already exists in the common law, and has certainty: to this several answers may be given. In the first place, if it be conceded, that there is entire certainty in the rule, at common law, there can be no harm in making the rule positive. It may do good; for it will instruct many, in and out of the profession, in respect to their rights and duty, who are now sadly ignorant of both, or are liable to be misled by their imperfect inquiries, or their limited sources of information. Every man may be able to peruse a concise text; but every man may not have leisure or ability to study a voluminous commentary. Besides, even in relation to the doctrines of the common law, many of them lie scattered in different cases, and many of them are not so clear as not to admit of different interpretations, by minds of different learning and ability. Even lawyers of great research and accuracy, especially where the doctrine, though on the whole clear, is matter of deduction and inference, may not, at once, come to the correct conclusion; and others of less learning and ability may plunge into serious errors. Now, it would be no small gain to have a positive text, which should give, in such cases, the true rule, instead of leaving it open to conjecture and inference by feeble minds. Again, there are many subjects of great intricacy and complexity, which can be fully mastered only by very able minds, resting, as they do, upon nice, and, sometimes, upon technical reasonings, not seen by the common reader. In such cases, the text may admit of very exact statement, but the commentaries necessary to deduce it, may be exceedingly elaborate. The demonstration, or last result, may be clear, but the steps in arriving at it, exceedingly perplexed and embarrassing. It may require an analysis by the greatest minds to demonstrate; but, when once announced, it may be understood by the most common minds. For instance, the subject of contingent remainders and executory devises is of uncommon complexity in the common law, and many a lawyer may read Mr. Fearne's admirable treatise on the subject, without feeling competent to expound all its doctrines. And yet, put every principle into a positive text, with all its limitations and restrictions (not to be made out by argument and inference, but given in a direct form), and his labors and his reasoning would be materially abridged, and certainty exist where darkness before overshadowed his mind. Again, the common law has now become an exceedingly voluminous system; and as its expositions rest, not on a positive text, but upon arguments, analogies and commentaries, every person, who desires to know much, must engage in a very extensive system of reading. He may employ half his life in mastering treatises, the substance of which, in a positive code, might occupy but a few hundred pages. The codes of Justinian, for instance, superseded the camel-loads of commentaries, which were antecedently in use, and are all now buried in oblivion. The Napoleon codes have rendered thousands of volumes only works of occasional consultation, which were before required to be studied very diligently, and sometimes in repeated perusals. Again, what is to be done in the common law, where there are conflicting decisions on the same point, or converging series of opposite doctrines, approaching towards a conflict? The rule is here confessedly uncertain. Why should not the legislature interfere, in such a case, and fix a rule, such as, on the whole, stands upon the better reasoning, and the general analogies of the law? In point of fact, this is often done. Declaratory laws, in form, are unusual among us; but laws to clear doubts and difficulties are very common. Such interferences ought, doubtless, to be made with caution and prudence, and great deliberation. But this furnishes no just objection to a reasonable exercise of the power. But in the practice under the common law, there is a still stronger ground for interference. In the first place, what the common law is, is always open to question; and if authorities are suggested on either side, it is common enough to find the rule deduced from them, doubted, denied, or explained away, by parties in an opposite interest. Courts are bound to hear as well as to decide; and although a court may think the rule of the common law clear, from their own prior researches and reasoning, it will rarely feel at liberty to stop eminent counsel, when they deny the rule, or seek to overthrow the authorities and reasonings by which it is supported. The spirit of our tribunals, and the anxious desire, not only to do, but to appear to do justice, lead to a vast consumption of time in these discussions. If the legislature had once recognised the rule in a positive code, there would be an end of all such reasoning. The only question which could remain, would be, whether the rule were applicable to the case. In the next place, there are, upon some doctrines of the common law, a vast multitude of authorities to examine, compare and understand, which requires not only great diligence, but great skill. In some cases, there are shades of difference fit for comment; in others, obiter dicta, which are to be qualified; in others, doubts thrown out upon collateral heads; in others, reasoning not altogether satisfactory. Under such circumstances, what is to be done? The advocate on the one side comments on every case, and the language of every judge, which furnishes any color of support for his client. His arguments must be met and answered on the other side, not only because no advocate can know what the judges will decide, but what will be the influence upon their minds of a dictum, or doubt, or incidental remark or reason. It is indispensable, therefore, to examine the whole, although, perhaps, neither party doubts what the amount of authority, on the whole, supports. On one point (we believe) a learned English judge said, many years ago, that there were then more than 170 authorities. It is most probable that the number is now doubled; and yet, upon this very point, a legislative enactment of three lines might put controversy at rest for ever. Perhaps no man in or out of the legal profession would now doubt what the rule ought to be. The difficulty is, that a rule has either been adopted which works inconveniently in particular cases, or a rule has grown out of a hasty adjudication, which subsequent judicial subtilty has been desirous of escaping from; but it is not easy to do so, without breaking in upon the acknowledged force of the rule. Hence distinctions, nice, and, perhaps, not very satisfactory, are found, as blemishes in some parts of the law, which need the legislative hand to extirpate or correct them. But it has been urged, as has been already incidentally noticed, that it is a great advantage to have law a flexible system, which will yield to the changing circumstances of society; and that a written code gives a permanence to doctrines, which would otherwise be subject to modification, so as to adapt them to the particular character of the times. This objection has been already in part answered. In respect to the connon law doctrines, they cannot now be changed, whatever may be the changes of society, without some legislative enactment. They furnish a guide to all cases governed by them, until the legislature shall promulgate a new rule. Courts cannot disturb or vary them; and the question of their application to new cases is equally open, whether there be, or be not a code. The legislature can, with the same ease, vary its code as its common law. It can repeal, amend or modify either. But another principal objection is often suggested, and that is, that all the parts of the common law are not in a state susceptible of codification; and that, as we cannot form a complete system of it, one great object of a code must fail. It may be admitted, that some parts of the common law are too imperfectly settled in principles, and too little understood in practice, to allow of any exact codification. But these parts are principally obsolete, or of rare occurrence and application in the common business of life; so that, if they admitted of being reduced to a text, it may be well doubted if they were important enough to deserve it. There are other parts, again, which have grown up in modern times, which may be admitted to be yet in an immature and forming state, in respect to which, perhaps, it were better to wait the results of experience, than to anticipate them by positive law. Conceding all this, it falls far short of establishing the inutility of a code in other departments of the common law, not open to the like objections. Because we cannot form a perfect system, does it follow that we are to do nothing? Because we cannot, without rashness, give certainty to all possible or probable details of jurisprudence, shall we leave every thing uncertain and open to controversy? There is not a single state of the Union that has not repeatedly revised, changed, and fixed, in a positive code, many of its laws. The criminal code has almost every where received, in some of its principal branches, a methodical form. Virginia, long ago, reduced some important portions of her law to a positive text. New York has recently gone much farther, and, in the form of a revised code, made very extensive alterations in her common law, as well as in her statutable law. England, in our own time, has consolidated the most important heads of her criminal jurisprudence, in a new and methodized text. No man can doubt, that revisions of this sort may be useful, and, indeed, indispensable for the wants and improvements of society, in its progress from one stage to another. The question of more or less is a mere matter of expediency and policy. It is not a little remarkable, that, in England, almost every change in the general structure of her laws, by positive legislation, has, in all ages, met with a similar objection and resistance, and, when once adopted, has been generally, if not universally satisfactory. But there are many branches of the common law which can, without difficulty, be reduced to a positive text. Their main principles are embodied in treatises, accurate and full, and there can be no want of learned men ready to form an outline of them for the consideration of the legislature. Our commercial law is generally in this state. The law of bills of exchange and promissory notes, of insurance, of shipping and navigation, of partnership, of agency and factorage, of sales, of bailments, and many kindred titles, admits of codification to a very high degree of certainty; and yet, in these branches, there is still room enough to controvert particular decisions and authorities, to make it desirable to give a positive sanction to the better doctrine, and thus to save the profession from laborious researches, and the public from expensive litigation. The ordinance of Louis XIV, on commercial law, dried up a thousand sources of disputation; and the present code of commerce of France has settled, in a positive manner, most of the questionable points, which had been found unprovided for by that ordinance, and were resigned to judicial decision in the intermediate period. Besides, a code furnishes the only safe means of incorporating qualifications upon a general principle, which experience has demonstrated to be proper and politic. Courts often lament that a principle is established in too broad terms for the public good, and yet do not feel themselves at liberty to interpose exceptions which the principle does not sanction. This article has already spread out into a great length, and must now be closed. The result of the whole view, as to codes, is, that neither the friends nor the opponents of them are wholly right in their doctrines or their projects; that, in every civilized country, much may be done to simplify the principles and practice of the law by judicious codification, and to give it uniformity and certainty; that How much ought to be done? is a question not admitting of any universal response, but is, or may be, different as to different countries, or, in different ages, as to the same country; that every code, to be useful, must act upon the existing institutions and jurisprudence, and not, generally, supersede them; that what, with reference to the customs, habits, manners, pursuits, interests, and institutions of one country, may be fit and expedient, may be wholly unfit and inexpedient for another; and that the part of true wisdom is, not so much to search out any abstract theory of universal jurisprudence, as to examine what, for each country in particular, may best promote its substantial interests, preserve its rights, protect its morals, and give permanence to its liberties. LANCASTER COUNTY, the richest and most fertile in Pennsylvania, contains, at present, 27 townships. Its population, in 1810, was 53,927; in 1820, 68,358; in 1830, 76,558. It contains 7 furnaces, 14 forges, 183 distilleries, 45 tan-yards, 22 fulling-mills, 164 grist-mills, 8 hempmills, 87 saw-mills, 9 breweries, 5 oilmills, 5 clover-mills, 3 cotton factories, 3 potteries, 6 carding-machines, 3 paper mills, 1 snuff-mill, 7 tilt-hammers, and 6 rolling-mills. LANCASTER; a city of Pennsylvania, 13 mile west of Conestoga creek, which falls into the Susquehanna, 62 miles west of Philadelphia; lon. 76° 10′ W.; lat. 40° 3 N. Population, in 1810, 5405; in 1820, 6663; in 1830, 7684; was laid out in 1730. It is a pleasant, healthy and flourishing city, finely situated in a fertile, highly cultivated and delightful country. The houses are chiefly built of brick and stone. The town has an extensive trade with the surrounding country. The inhabitants are mostly of German descent, and the German language is spoken by many of them; but the English predominates, and most parents give their children an English education. The banks are 3. The churches and places of public worship are 11;-2 German Lutheran, 1 German Reformed, 1 Presbyterian, 1 Episcopalian, 1 Roman Catholic, 1 United Brethren, 1 Methodist, 1 African, 1 Friends' meeting, 1 Independent Methodist. There is an academy with a classical and English departments; a seminary, on the plan of mutual instruction, in which 500 children of both sexes are instructed in English, and several private schools and academies. Franklin college was founded in 1787. It has a large brick building and some funds, but is not in operation. There are two libraries, a reading room, several charitable and religious societies, and a museum. Eight newspapers are published in English, and four in German. There are 17 distilleries, 4 tan-yards, 5 breweries, and 2 potteries. Lancaster was early celebrated for the excellence of its stockings, saddles, and guns, and is still famous for its rifles, and the number and excellence of the stage-coaches built here. LEE, Francis Lightfoot, one of the signers of the declaration of independence, was born in Virginia, October 14, 1734. Ilis education was directed by a private tutor, and he inherited an independent fortune. In 1765, he became a member of the house of burgesses of Virginia, and continued in that body until 1775, when the convention of Virginia chose him a member of the continental congress, in which he remained until 1779, when he entered the legislature of Virginia. He died at Richmond, in 1797. |