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APPENDIX. (LAW, LEGISLATION, CODES.)

589 law has declared that the eldest son shall to be impolitic to act upon a rule, the be the sole heir, and that the half-blood effects of which might immediately, or shall not inherit, a court has no more lib- in future, press unequally and injuriously erty to depart from these rules, or to upon different interests in society? Again, refuse to apply them to any case falling it is said to be unnecessary to reduce the within them, upon any notion of hardship, rules of the common law to a code, for or inconvenience, or ill adaptation to the they are as certain now as they would be exigencies of society, than it has a right to in a positive code. They are even more say, that a last will and testament shall be so, because the legislature cannot be pregood, though not executed according to sumed able to lay down a positive rule, the requirements of a statute. In each with all the limitations and qualifications case, it is bound, and bound to the same of the common law. Now, both of these extent. If the question were, whether a suggestions admit of a satisfactory answer. positive code should contain a clause pro- If the rule exists, and has certainty in the hibiting courts of justice from deciding common law, it can be stated. If there upon cases not within the purview of the are any known exceptions, limitations and code, there might be much to urge against qualifications, upon a rule, those also can the policy and reasonableness of such a be stated. If nothing beyond a particular clause; but it would furnish no objection limit is known, then legislation can, at to other parts of the code. The only least, go to that limit. And as to all other point, with reference to a code, which, cases, the same uncertainty exists, both at under this aspect, would deserve consider- common law and in legislation. The difation, is, how far it would be desirable to ficulty of the argument consists in assumprovide for cases which may be foreseen, ing, that, because the legislature bas pre-but have not, as yet, actually been sub- scribed the same rule as the common law, jected to legislative decision. On one the courts are thereby prohibited from side, it may be said, that it would be best doing what they possessed the power to to leave all such cases to be decided, as do before, in the absence of any rule, viz. they arise, upon the result of human ex- to find out what is the rule that ought to perience and human judgment, then acting govern. Now, the legislature may as well upon all the circumstances. On the other leave this power in the courts, after a code, hand, it may be said, that it is better to as the common law; and it will be best, have a fixed, present rule, to avoid litigation, unless there is a positive prohibition to the and to alter it in future, if unexpected incon- contrary. The other part of the suggesveniences should arise. The reasoning on tion applies only to the point, whether the each side is sound, when applied to par- code is well or ill formed by the legislaticular cases. On each side, it admits of ture. If badly formed, it will

, of course, question, when applied to all cases. It be proportionally bad; but that furnishes may be best, in many cases, to leave the no objection to a code, but to the mode in rule to be made, when the case arises in which it is executed. Then, again, as to judicial controversy. In others, it may be the suggestion that it is unnecessary, befar better to establish a present rule, to cause the rule already exists in the comclear a present doubt, or fix a limit to what mon law, and has certainty : to this is now uncertain. Take the case of a bill several answers may be given. In the of exchange, or promissory note; and first place, if it be conceded, that there is suppose the question were, at what time entire certainty in the rule, at common demand of payment should be made, law, there can be no harm in making the when it was payable on time, and no rule rule positive. It may do good; for it will existed, and yet there was an immense instruct many, in and out of the profession, amount of property dependent upon have in respect to their rights and duty, who ing a fixed, uniform rule ; and, until so are now sadly ignorant of both, or are fixed, there must be endless litigation. liable to be misled by their imperfect Can any one doubt of the benefit of a inquiries, or their limited sources of inforrule, such as is now fixed in the commer- mation. Every man may be able to pecial law of our country, for the purpose ruse a concise text; but every man may of securing certainty, viz. that payment not have leisure or ability to study a volumust be demanded on the day on which minous commentary. Besides, even in it becomes due. On the other hand, sup- relation to the doctrines of the common pose it were now proposed to make a law, many of them lie scattered in differlaw, fixing what should be the rate of ent cases, and many of them are not so wages in all future times, in all private clear as not to admit of different interpre. employments; would it not, at once, occur tations, by minds of different learning anıl VOL VII.

50

ability. Even lawyers of great research approaching towards a conflict? The and accuracy, especially where the doc- rule is here confessedly uncertain. Why trine, though on the whole clear, is matter should not the legislature interfere, in of deduction and inference, may not, at such a case, and fix a rule, such as, on the once, come to the correct conclusion; and whole, stands upon the better reasoning, others of less learning and ability may and the general analogies of the law? In plunge into serious errors. Now, it would point of fact, this is often done. Declarabe no small gain to have a positive text, tory laws, in form, are unusual among us; which should give, in such cases, the true but laws to clear doubts and difficulties rule, instead of leaving it open to con- are very common. Such interferences jecture and inference by feeble minds. ought, doubtless, to be made with caution Again, there are many subjects of great and prudence, and great deliberation. intricacy and complexity, which can be But this furnishes no just objection to a fully mastered only by very able minds, reasonable exercise of the power. But in resting, as they do, upon nice, and, some- the practice under the common law, there times, upon technical reasonings, not seen is a still stronger ground for interference. by the common reader. In such cases, In the first place, what the common law is the text may admit of very exact statement, is always open to question; and if authoribut the commentaries necessary to deduce ties are suggested on either side, it is comit, may be exceedingly elaborate, The mon enough to find the rule deduced demonstration, or last result, may be clear, from them, doubted, denied, or explained but the steps in arriving at it, exceedingly away, by parties in an opposite interest. perplexed and embarrassing. It may re

Courts are bound to hear as well as to quire an analysis by the greatest minds to decide; and although a court may think demonstrate ; but, when once announced, the rule of the common law clear, from it may be understood by the most com- their own prior researches and reasoning, mon minds.' For instance, the subject of it will rarely feel at liberty to stop eminent contingent remainders and executory de- counsel, when they deny the rule, or seek vises is of uncommon complexity in the to overthrow the authorities and reasonings common law, and many a lawyer may by which it is supported. The spirit of read Mr. Fearne's admirable treatise on our tribunals, and the anxious desire, not the subject, without feeling competent to only to do, but to appear to do justice, expound all its doctrines. And yet, put lead to a vast consumption of time in these every principle into a positive text, with discussions. If the legislature had once all its limitations and restrictions (not to recognised the rule in a positive code, be made out by argument and inference, there would be an end of all such reasonbut given in a direct form), and his labors ing. The only question which could and his reasoning would be materially remain, would be, whether the rule were abridged, and certainty exist where dark- applicable to the case. In the next ness before overshadowed his mind. place, there are, upon some doctrines of Again, the common law has now become the common law, a vast multitude of an exceedingly voluminous system; and authorities to examine, compare and unas its expositions rest, not on a positive derstand, which requires not only great text, but upon arguments, analogies and diligence, but great skill. In some cases, commentaries, every person, who desires there are shades of difference fit for comto know much, must engage in a very ment; in others, obiter dicta, which are to extensive system of reading. He may be qualified; in others, doubts thrown employ half his life in mastering treatises, out upon collateral heads; in others, reathe substance of which, in a positive code, soning not altogether satisfactory Under might occupy but a few hundred pages. such circumstances, what is to be done? The codes of Justinian, for instance, su- The advocate on the one side comments perseded the camel-loads of commenta- on every case, and the language of every ries, which were antecedently in use, and judge, which furnishes any color of supare all now buried in oblivion. The Na- port for his client. His arguments must poleon codes have rendered thousands of be met and answered on the other side, volumes only works of occasional consul- not only because no advocate can know tation, which were before required to be what the judges will decide, but what studied very diligently, and sometimes in will be the influence upon their minds of repeated perusals. Again, what is to be a dictum, or doubt, or incidental remark done in the common law, where there are or reason. It is indispensable, therefore, conflicting decisions on the same point, or to examine the whole, although, perhaps, converging series of opposite doctrines, neither party doubts what the amount of APPENDIX. (LAW, LEGISLATION, CODES.)

591

authority, on the whole, supports. On grown up in modern times, which may one point (we believe) a learned English be admitted to be yet in an immature and judge said, many years ago, that there forming state, in respect to wbich, perwere then more than 170 authorities. It haps, it were better to wait the results of is most probable that the number is vow experience, than to anticipate them by doubled; and yet, upon this very point, a positive law. Conceding all this, it falls legislative enactment of three lines might far short of establishing the inutility of a put controversy at rest for ever. Perhaps code in other departments of the common no man in or out of the legal profession law, not open to the like objections. Bewould now doubt what the rule ought to cause we cannot form a perfect system, be. The difficulty is, that a rule has does it follow that we are to do nothing ? either been adopted which works incon- Because we cannot, without rashness, veniently in particular cases, or a rule has give certainty to all possible or probable grown out of a hasty adjudication, which details of jurisprudence, shall we leave subsequent judicial subtilty has been de- every thing uncertain and open to consirous of escaping from; but it is not easy troversy? There is not a single state of to do so, without breaking in upon the the Union that has not repeatedly revised, acknowledged force of the rule. Hence changed, and fixed, in a positive code, distinctions, nice, and, perhaps, not very many of its laws. The criminal code satisfactory, are found, as blemishes in has alniost every where received, in some parts of the law, which need the some of its principal branches, a methodlegislative hand to extirpate or correct ical form. Virginia, long ago, reduced them. But it has been urged, as has some important portions of her law to a been already incidentally noticed, that it positive text. New York has recently is a great advantage to have law a flexible gone much farther, and, in the form of a system, which will yield to the changing revised code, made very extensive alteracircumstances of society; and that a tions in her common law, as well as in written code gives a permanence to doc- her statutable law. England, in our own trines, which would otherwise be subject time, has consolidated the most important to modification, so as to adapt them to heads of her criminal jurisprudence, in a the particular character of the times. new and methodized text. No man can This objection has been already in part doubt, that revisions of this sort may be answered. In respect to the consnon useful, and, indeed, indispensable for the law doctrines, they cannot be wants and improvements of society, in its changed, whatever may be the changes progress from one stage to another. The of society, without some legislative enact- question of more or less is a mere matter ment. They furnish a guide to all cases of expediency and policy. It is not a governed by them, until the legislature little remarkable, that, in England, almost shall promulgate a new rule. Courts every change in the general structure of cannot disturb or vary them; and the her laws, by positive legislation, has, in all question of their application to new cases ages, met with a similar objection and reis equally open, whether there be, or be sistance, and, when once adopted, has not a code. The legislature can, with the been generally, if not universally satisfacsame ease, vary its code as its common tory. But there are many branches of law. It can repeal, amend or modify the common law which can, without difeither. But another principal objection is ficulty, be reduced to a positive text. often suggested, and that is, that all the Their main principles are embodied in parts of the common law are not in a treatises, accurate and full, and there can state susceptible of codification; and that, be no want of learned men ready to form as we cannot form a complete system of an outline of them for the consideration it, one great object of a code must fail. of the legislature. Our commercial law It may be admitted, that some parts of is generally in this state. The law of the common law are too imperfectly set- bills of exchange and pronuissory, notes, tled in principles, and too little understood of insurance, of shipping and navigation, in practice, to allow of any exact codifi- of partnership, of agency and factorage, cation. But these parts are principally of sales, of bailments, and many kindred obsolete, or of rare occurrence and appli- titles, admits of codification to a very high cation in the common business of life ; so degree of certainty; and yet, in these that, if they admitted of being reduced to branches, there is still room enough to a text, it may be well doubted if they controvert particular decisions and auwere important enough to deserve it. thorities, to make it desirable to give a There are other parts, again, which have positive sanction to the better doctrine, and

now

thus to save the profession from laborious mills, 1 snuff-mill

, 7 tilt-hammers, and 6 researches, and the public from expensive rolling-mills. litigation. The ordinance of Louis XIV, LANCASTER ; a city of Pennsylvania on commercial law, dried up a thousand 11 mile west of Conestoga creek, which sources of disputation; and the present falls into the Susquehanna, 62 miles wex code of commerce of France has settled, of Philadelphia ; Ion. 76° 10 W.; lat. 40 in a positive manner, most of the ques- 3 N. Population, in 1810, 5405 ; in 1EN. tionable points, which had been found un- 6663 ; in 1830, 7684 ; was laid out in provided for by that ordinance, and were 1730. It is a pleasant, healthy and fourresigned to judicial decision in the in- ishing city, finely situated in a fertile, termediate period. Besides, a code fur- bighly cultivated and delightful country. nishes the only safe means of incorporat- The houses are chiefly built of brick and ing qualifications upon a general principle, stone. The town has an extensive trade which experience has demonstrated to be with the surrounding country. The inproper and politic. Courts often lament habitants are mostly of German descent, that a principle is established in too broad and the German language is spoken by terms for the public good, and yet do not many of them ; but the English prefeel themselves at liberty to interpose ex- dominates, and most parents give their ceptions which the principle does not children an English education.

Tbe sanction.—This article has already spread banks are 3. The churches and places out into a great length, and must now be of public worship are 11;-2 German Luiclosed. The result of the whole view, theran, 1 German Reformed, I Presbyas to codes, is, that neither the friends nor terian, 1 Episcopalian, 1 Roman Cath. the opponents of them are wholly right in olic, i United Brethren, 1 Methodist, 1 their doctrines or their projects; that, in African, 1 Friends' meeting, 1 Indeevery civilized country, much may be pendent Methodist. There is an acaddone to simplify the principles and prac- emy with a classical and English departtice of the law by judicious codification, ments ; a seininary, on the plan of mutual and to give it uniformity and certainty ; instruction, in which 500 children of both that How much ought to be done? is a sexes are instructed in English, and several question not admitting of any universal private schools and academies. Franklin response, but is, or may be, different as to college was founded in 1787. It has a different countries, or, in different ages, as large brick building and some funds, but to the same country; that every code, to is not in operation. There are two líbrabe useful, must act upon the existing in- ries, a reading room, several charitable stitutions and jurisprudence, and not, gen- and religious societies, and a museum. erally, supersede them; that what, with Eight newspapers are published in Eng. reference to the customs, habits, manners, lish, and four in German. There are 17 pursuits, interests, and institutions of one distilleries, 4 tan-yards, 5 breweries, and 2 country, may be fit and expedieut, may be potteries. Lancaster was early celebrated wholly unfit and inexpedient for another; for the excellence of its stockings, saddles, and that the part of true wisdom is, not and guns, and is still famous for its rifles, so much to search out any abstract theory and the number and excellence of the of universal jurisprudence, as to examine stage-coaches built here. what, for each country in particular, may LEE, Francis Lightfoot, one of the best promote its substantial interests, pre- signers of the declaration of indepenserve its rights, protect its morals, and dence, was born in Virginia, October 14, give permanence to its liberties.

1734. Ilis education was directed by a LANCASTER County, the richest and private tutor, and he inherited an indemost fertile in Pennsylvania, contains, at pendent fortune. In 1765, he became a present, 27 townships. Its population, in member of the house of burgesses of 1810, was 53,927 ; in 1820, 68,358 ; in Virginia, and continued in that body until 1830, 76,558. It contains 7 furnaces, 14 1775, when the convention of Virginia forges, 183 distilleries, 45 tan-yards, 22 chose him a member of the continental fulling-mills, 164 grist-mills, 8 hemp- congress, in which he remained unul mills, 87 saw-mills, 9 breweries, 5 oil. 1779, when he entered the legislature mills, 5 clover-mills

, 3 cotton factories, 3 of Virginia. He died at Richmond, in potteries, 6 carding-machines, 3 paper. 1797,

CONTENTS.

Page.

Induction (în logic)

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Kentucky Canals 23 Intestine .

46
3
Georgia Canals
24 Intonation (in music)

47
Indulgence in the Roman Louisiana Canals « Intoxication.
Catholic system)

“ Intrenchment.

Indus, or Sindh.

5 Innate Ideas

" Intrigue

Ines de Castro..
“Innocent (several popes of

Introibo .
Infallibility

6
this name) :

"Intuition

Infant (in law)

7 Inns of Court.

26 Invalids

48

Schools (see Schools). 8 Innspruck, Inspruck, Inns- Invention (in science).
Infantado (duke of)

bruck, or Insbrugg

28
of the Cross

49
Infante, or Infant.
" Innuendo

" Inversion

Infantry

9 Ino

“ Investiture (in the feudal law)

Inferiæ (in Roman antiquities) 10 Inoculation (see Small Pox, Invocavit.
*Inferno

and Vaccination).

« Invoice.
Infinitesimals (see Calculus). “ In Palco. .

“ Involution (in mathematics)

Infinitive.

11 Pontificalibus

Inflammation of the Intes. Inquisition.

"Iodine.

51
tines (see Enteritis).
(Process of) 34 Iolaus (see Protesilaus)

53
Inflexion (Point of).
“1. N. R. J.

Iole (see Hercules).
Influenza (in medicine). Insanity (see Mental Derange- Iolite, Cordierite, or Dichroite .
Informer..

ment).

Infula.

12 Inscription (in archæology). "Iona (see Icolmkill)

Inge.
Inscriptions, Academy of (see

lonia:
Ingemann (Bernhard Severin) “

54
Academy).

35 Ionian Dialect
Ingenhouss (John)
“ Insectivora.

Islands

Ingot (in the arts)

13 Insects (in natural history)

Order (see Architec-

Ingria
“Insolvency (see Bankrupt)
39

55

ture):
Ingulphus
" Instance

Philosophy
Inhabitancy(see vol. iv. p. 613) “ Instinct

Sea.
Inheritance see Descent, and Institute (the National) 40 Ionians.
Estate)
“ Institutiones (see Corpus Ju-

Ionic Foot
Injections (in surgery and ris, and Civil Law). 41 Iota (see I)
anatomy)

« Instrument (in music). Ipecacuanha.
Injunction
« Instrumental Music

" Iphicrates.

Injuria (in law)

14 Insurance

“Iphigenia

56

Ink (Writing)

“ Insurrection (see Revolution) 43 Iphitus .
China, or Indian Ink 15 Intaglios (see Gem Sculpture) Ipsara (see Psara)
Printer's Ink

“ Integral (see Calculus). Ipsilanti (see Ypsilanti)
Colored Inks

“ Intemperance (see Temper- Irak Adjemi (see Persia)
Sympathetic Inks
ance)

Arabi .

Inland Navigation ..

16 Intenseness

“ Iran (see Persia)

Canals of Canada
« Interdict.

“ Ireland (island).

Canals of the United States Interest

44

William Henry) 61

Canals in New England « Interim of Augsburg.

« Irenæus (St.):

New York Canals 18 Interlude

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“ Irene (in mythology).

New Jersey Canals 19 Interment (see Funeral Rites) 45 Ireton (Henry)

62

Pennsylvania Canals . . . 20 Internuntius

Delaware and Maryland Interpolation (in algebra) “ Iriarte, or Yriarte (Thomas d")

Canals

21 Interpretation ..

« Iridium.

Ohio Canals

22 Interregnum (see Germany). “Iris

Virginia and North Caro- Interval

Flag, or Flower de

lina Canals

23 Intervention (in politics).

Luce..

(6

* Iria ...

66

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