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need not be in any haste about it. And if you ever come into our place, except in haying time or harvest, and will call on me, I shall be glad to see you, in an old fashioned one story house, built before orders and proportions were invented, where you shall be welcome to as clean a bed, and as good fare at table, as the country can furnish.
I am sir, your most humble servant,
Rip Van BOSKERK.
ON THE SUBSTITUTION OF A WRITTEN CODE, IN THE PEACE
OF THE COMMON LAW.
The purity and perfection of the laws of his country is an object that should be dear to the heart of every citizen. Like the rain which falls from heaven equally upon the just and upon the unjust, the laws exert their all-pervading influence over every class, order and degree, in the community. It is not, therefore, to be wondered at, that it seems always to bave been the leading object with mankind, to ascertain and settle such general principles and lines of conduct as might best promote the attainment of that great point in the social compact, of securing the greatest possible amount of good, at the least possible sacrifice of natural rights. And it is still less singular that this object should stand prominent and foremost amongst those which engage the deep attention of the people of this country. It is, indeed, gratifying to every mind devoted to the cause of truth and the best interests of man, to witness the attention which seems of late to be paid to this subject, and the specimens of talent, learning and eloquence to which the investigation not unfrequently gives rise. This is exactly the true course to be pursued in this country; and every possible facility and encouragement should be rendered to all attempts at an examination into the foundation and condition of our laws, which are marked with sincerity, candour, and good sense. Nothing but manly, generous, and learned discussions and expositions can so direct the public attention in the right course, and fix it on the proper objects, as to lead eventually to a fair view of this great subject, and render the people competent to form on it a sound and enlightened opinion.
It is therefore with great pleasure that we hail the appearance of that spirit of inquiry which is going forth in the country at large, and more particularly in our own state. It is a spirit which bids fair in the event to lead to results of the highest importance; and hence the necessity that every man who
duly appreciates his privileges and his duty, as a citizen of this free and rising republic, should keep a steady and watchful eye on the course to which public opinion may incline; and, however small may be his mite, throw it, modestly indeed, but fearlessly, into the public mint.
In a state, the very breath of whose existence is public opinion, and in times characterized by “strange doings,” every man should be encouraged to think boldly and honestly for himself. It is under such impressions that we have been induced to throw out such hints and suggestions as have presented themselves to our mind on the question which has been for some time pretty freely agitated as to what is termed, a Reform in our Laws. The matter has long supplied food for private conversation ; but, within some few years, has been at times rather more distinctly brought before the public eye. We have seen treatises, penned with no little ability, and even have heard insinuations from leading men in our legislature, which might cause us to apprehend that there is some radical defect in our laws, which must be cured, at the hazard of losing all that is valuable in our civil and political institutions ; and if this is really the case, it is time for us to throw off our lethargy, andawake to a just sense of our situation. But if not; if the alarms which have been sounded are but the mere spectres of heated imaginations, or the chimerical suggestions of restless, however honest theorists, we may calmly rest secure in our institutions, and smile at the harmless tempest which has been conjured up around us. Perhaps, too, we may conclude, upon examination, that although every thing may not be exactly as we might wish, yet that the changes proposed would only lead to a worse state of things, and remain contented until some plan may present itself which our sober reason may approve:
Reform, when admitted to be such upon a full survey of all the circumstances, few men would oppose. But change is not necessarily reform ; nor is every moment equally favourable for its introduction. Men may often see and feel a matter to be wrong, and yet not offer a better substitute : nay, a man may have good sense enough to observe the defects of any given system when in actual operation, and yet be totally destitute of that practical perspicacity and discernment which might teach him that a proposed change would be infinitely for the worse. Persons, however, are to be found now-a-days who talk and write as if shrewdness of judgment, originality of design, and decision of character, were all on the side of the advocates for change, be it what it may; and timidity, indifference, and meanness of spirit, to be found only among those who refuse to join
in the cry of “overturn.” Many even affect the deepest pity for those who may entertain doubts as to the practicability, necessity, or expediency of such measures as are thrown before them, in however crude and undigested a form.
Why surely it can hardly be necessary to assure such persons, that changes have taken place in the world before their day, and that men have been found in all ages ready with their views of things-that, in fact, the world has exhibited but a tissue of changes, in which, where one has been for the better, too many have been for the worse. If Solon was a reformer, só also was Draco: if Brutus was a reformer, so also was Cæsar: if Martin Luther was a reformer, so also was Ignatius Loyola : if Henry Laurens was a reformer, so also was Robespierre. The cry of reform, although claimed to be, is not, in fact, a child of modern times : it is as old as ambition, discontent, or usurpation. And many too, be it remembered, who joined loudest in the shout before the battle, have proved weakest when called on to bear its shock. Whilst then every man should be willing to assist and forward every plan which he sincerely believes may tend to the public good, let no man be terrified into the belief, that because he cannot sanction such plans as may be offered for his approval, he must therefore, necessarily, be either a coward or a fool.
The plan that seems at present to have most advocates, and which carries with it the most plausible front, is that of the formation of a regular Written Code, which is to stand in the place of, and totally exclude the common law, technically so called, or that body of unwritten law, which forms the chief part of the law of England, and of this state. Now, the idea of a code combining in itself all the principles and rules of conduct by which our citizens are to be guided ; and that, too, in a compass so small as to put it in every man's power to be his own lawyer, particularly when contrasted with a law which is represented to be "destitute of fixed principles, without end,” and indeed “ where to be found," does certainly appear to possess a most manifest and decided advantage. We incline however to believe, that among all, even the most strenuous advocates for a code, there is not one who would not find himself
very awkwardly situated if called upon for a distinct and intelligible detail of his plan. If it does mean any thing, and any thing that is in reality a desideratum, it must of course mean something different from what we actually have ; and if so, it must, at the least, import a separate and complete collection of all such rules, maxims, principles and definitions, as now form the body of our unwritten law combined with such athers as different codes might furnish ; together with such
original regulations as private individuals, or the legislature itself might propose—the whole set forth in appropriate, distinct phraseology, and proclaimed by the legislature as the supreme law of the land, to the exclusion of every other. We do not say that this is all that such a code as is contended for imports, but that it imports this at the least.
It is not sufficient that this mighty and difficult collection be made under the patronage of the legislature, amounting howeverto nothing more than a private, though judicious selection of heads ; else it would be no more than a mere digest, such as abound at this day, and would but add one more to the many books of high authority, which tend only to lighten the labours of the lawyer. It must be a body of laws, emanating directly from the legislature ; a work of legislation, and clad with all the high sanctions of one of their public and official acts.
Nor is this all : it must be an exclusive system, neither to be restrained nor assisted in its operations by any thing else as law, but hanging on its own centre, it must itself furnish the rules and the spirit by which it is to be construed; else it would be but another, and let it be admitted, a superior book of rules, whose meaning, and spirit, and genius, however, is to be elicited by being brought in contact with that same common law, the destruction and abolition of which is the
end and object of the code. If this is not the true idea of a code, such as is urged upon us ; if its object and design—nay, if its very essential and fundamental principle is not the absolute exclusion of all other laws, and that it shall be a complete rule within itself-we are totally at a loss to attach any specific meaning to the proposal, or to discern the peculiar propriety or wisdom of the measure. If it means merely a revision of the laws, or an amendment of some particular branches, why not call it so at once? and admit that no other principle is contended for so violently, but what is on all hands allowed, and every day acted on by the legislature. When pressed upon this subject, the boldest champions for a code are apt to be unhorsed; and yet all their most plausible and showy arguments fall not a particle short of the total abolition of the common law. If it be any thing short of that indeed, it must, according to their showing, but increase the measure of the existing labour and uncertainty.
When viewed in this light; when the form of our government, and the habits and genius of our people are considered ; when the immense multiplicity of objects with which our laws are conversant, and the intinite variety and complication of detail which accompanied them, is taken into the account, we con
fess that the practicability of such a plan as would suit the çircumstances, and meet the exigencies of a great, improving, commercial, manufacturing, agricultural, free people, seems very problematical. To say the least of it, it is not an every-day work, nor one on a level with the capacity of every-day men. It looks to us very like setting in motion a power which it is much easier to start, than to stop or to regulate when fairly under way; and which, if not nicely and exactly managed, may possibly do more harm than had been apprehended. But leaving the demonstration of its practicability to those who think it feasible, we shall indulge in a few reflections on the necessity and expediency of such an attempt as the one which we conceive is generally meant when a code is spoken of.
The great objects proposed to be attained by a Code may be summed up generally in these two :—the one negative, that is, the emancipation of our citizens from the thraldom of what is termed that undefinable, unintelligible something, called common law, with its numberless absurdities and deformities," and the uncertainty consequent on such a system; the other affirmative, that is, the establishment of a rule more equal, clear, certain and defined, than that by which we have been hitherto regulated. It is therefore worth while to inquire, whether the evils complained of really exist; whether the common law of this state is involved in such absurdities as are spoken of; and whethér, considering man as an imperfect, erring creature, our rule of conduct is quite so uncertain as is pretended. The same course of reflection will also throw some light on the question, whether, supposing all this to be so, a code is to work all the wonders which its advocates anticipate.
Now what is this common law which many seem so anxious to get rid of? In the answer to this simple question, its adversaries have found abundant food for ridicule and triumph. The solutions proposed have been declared vague and unintelligible ; and finally, the common law has been denounced as a thing rather of imagination than reality, destitute of the characteristics of a science, and even incapable of a correct definition. Suppose this last, however, for a moment to be true ; suppose that like the terms time, gravity, matter, mind, liberty, or the multitude of other questions which are daily started in physics, pneumatology or politics, this was incapable of a definition, unassailable by objection, does it follow that it is less a science than either of them ? But let us first clear this subject of a little of the rubbish by which it has been surrounded, and then see if that simple operation does not of itself divést it of half that throws around it an appearance of mysterious deformity;