The Emperor Justinian, in one of the edicts which he published in confirmation of the authority of the Pandects, and prefixed to that work, expressly prohibited the civilians of his time, and those of all future ages, from writing any commentary upon his laws. The history of Justinian's reign shows the folly and absurdity of this attempt to bar all future innovation. Greater changes took place in a few years in the laws and jurisprudence of Justinian, said Montesquieu, than in the three hundred years of the French monarchy immediately preceding his time, and those changes were so incessant and so trifling, that the inconstancy of the emperor can only be explained by having recourse to the secret history of Procopius, where he is charged with having sold equally his judgments and his laws.

a Secunda Præfatio Digestorum, sec. 21. b Grandeur des Romains et leur Decadence, c. 20.



HAVING considered the nature and force of written law, and the general rules which are applied to the interpretation of statutes; we are next to consider the character of unwritten, or common law, and the evidence by which its existence is duly ascertained.

The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge," statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by consent of the legislature.

This is laying down the origin of the common law rather Source of the too strictly. A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the common law of England is “not the product of the wisdom of some one man, or society of men, in any one age ; but of the wisdom, counsel, experience, and ob

common law

a Lord Chief Justice Wilmot, 2 Wils. Rep. 348. 351. b Preface lo Rolle's Abridgment.

servation, of many ages of wise and observing men.” And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. “Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us, that new and unthought of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws, that concern the common justice applicable to a great kingdom, is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time, and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the productions of much wisdom, time and experience.".

But though the great body of the common law consists of a collection of principles, to be found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts; it is, nevertheless, true, that the common law, as far as it is applicable to our situation and government, has been recognised and adopted, as one entire system, by the constitutions of Massachusetts, New-York, New-Jersey, and Maryland. It has been assumed, or declared by statute, with the like modifications, as the law of the land in every

a Cicero in like manner ascribed the excellent Institutes of the Roman republic to the gradual and successive improvements of time and experience; and he held, that no one mind was equal to the task. Nostra respublica non unius esset ingenio sed multorum ; nec una hominis vita sed aliquot constituta sæculis el ætatibus neque cuncta ingenia conlata in unum tantum posse uno tempore providere, ut omnia complecterentur sine rerum usu et velustate. De Repub. lib. 2. 1.

state. It has been decided, that even English statutes passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. The best evidence of the common law is to be found in Force of nd

judged cases. the decisions of the courts of justice, contained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time.

The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labour of judges, are constantly required, in the study of the reports, in order to understand accurately their import, and the principles they establish. But to attain a competent knowledge of the common law in all its branches, has now become a very serious undertaking, and it requires steady and lasting perseverance, in consequence of the number of books which beset and encumber the path of the student,

a The Revised Statutes of Illinois, published in 1829, declared, that the common law of England, and English statutes of a ge. neral nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1817, the common law was adopted by statute in the state of Indiana ; and it is understood, that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the state of Mississippi.

b Patterson v. Winn, 5 Peters' U.S. Rep. 233. Sackett v. Sack. ett, 8 Pick. 309,

c The number of volumes of English reports, exclusive of reports relating to the courts of admiralty, elections, settlement cases, and Irish reports, amount at present, (1826) to 364, and to render their contents accessible, the digested indexes of the modern reports VOL. I.


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