addressed on this subject to America, is immediately applicable to England; and a matter of greater or more increasing importance can hardly be presented to our view. In spite of the panegyrics which have been so often pronounced upon our laws, and upon the administration of them, no person who is practically acquainted with our English system of jurisprudence, and who will speak of it ingenuously, can deny that it is attended with great and numerous mischiefs, which are every day be coming more intolerable. The difficulties, the expense, the tedious length of litigations, the uncertainty of their issue, and, in many cases, the lamentable delay of decision, are but too well known to the great number to whom all this is a source of profit, and to the far greater number on whom it brings down calamity and ruin. What are the causes of these evils it would be rash in any one to pronounce, before he had fully and anxiously examined every part of the subject. They are evils, however, of such magnitude, that every discussion which affords a chance of leading us to the discovery of their causes, and consequently to the providing against them an effectual remedy, must be regarded as highly beneficial. Considered in this point of view, the question, whether the common, or unwritten law, be better calculated than a written code, to provide effectually for the security of men's persons and properties, in a state as far advanced as England is in civilization and refinement, is one of very great public interest; and we shall therefore make no apo logy for proceeding to the discussion of it, or for mixing arguments of our own with those, which either we have found in the work before us, or have been suggested by its perusal.

The first step to be taken in this inquiry, is to ascertain the nature of the unwritten law by which England is at this moment governed. We are not then to understand that the rules by which property is to be distributed, and the conduct of men to be regulated, really exist only in oral tradition, and the imperfect recollections of individuals. What is called with us unwritten law, is in truth to be collected from a great number of written records and printed volumes; and, according to old Fortescue and to Blackstone, it is only by a twenty years' study of them that a perfect knowledge of it can be gained. It is by reading, and by reading only, that the lex non scripta, as well as the statute law, is to be acquired; but, in the one case, we find the law expressing its commands in direct and positive termswhile, in the other, we can arrive at a knowledge of it only through its interpreters and oracles-the Judges.

The common law is to be collected, not from the plain text of a comprehensive ordinance, which it is open to all men to

consult, but from the decisions of Courts of Justice, pronounc ed in a great variety of cases, and which have disclosed small portions of it from time to time, just as the miscellaneous transactions of men in a state of society may have chanced to require, or give occasion for its promulgation.

Of a law so constituted, it must necessarily happen that a large portion must always remain unpublished. The occasion for declaring it never having occurred, it must rest (as all that is now published once did) in a latent state, till some event happens to call it into use and into notice. Of a statute law, we know with certainty the whole extent,—and we can at once discern what it has not, as well as what it has provided; but under the common law there is no case unprovided for,-though there be many of which it is extremely difficult, and indeed impossible, to say beforehand what the provision is. For the cases on which no decision has yet been pronounced, an unknown law exists, which must be brought to light whenever the courts are called upon for their decision. For all practical purposes, a law so unknown is the same as a law not in existence: To declare, is substantially to enact it; and the Judges, though called only expounders of law, are in reality legislators. Of what importance is it, that, by a legal fiction, the law is supposed to have had preexistence, since, being unknown till it was premulgated by some tribunal, it was not possible that men could have conformed to it as the rule of their conduct ?—and yet, in this very circumstance, have some most eminent lawyers discovered a superiority in the common law over all written statutes. Lord Mansfield, for example, when pleading as an advocate at the Bar, is reported to have thus expressed himself. ⚫ Cases of law depend upon occasions which give rise to them, All occasions do not arise at once. A statute very seldom ⚫ can take in all cases; therefore the common law that works itself pure by rules drawn from the fountains of justice, is superior to an act of Parliament.' (Atkyn's Reports, vol. i. 32, 33.)

The law thus unknown to others till it was promulgated in some decision, can hardly be said to have been previously known even to the judges themselves. When some new question is brought before them to decide, those oracles of the law do not, like the oracles of old, (the supposed sources of all wisdom and knowledge), immediately pronounce their authoritative and unerring responses; neither do they retire to their chambers, as if to consult some code of which they are the sole possessors, and then reveal in public, to the contending parties, the text which they have discovered. They profess themselves unquali

fied immediately to decide: They require to be themselves informed: It is necessary that they should hear, and compare, and examine, and reason, and be assisted by the arguments of others, before they are prepared to pronounce what the law has declared. They even call upon the litigant parties themselves to state, by their advocates, what they conceive the law to be, and to support their statements by reasoning and authorities, and analogous decisions; and it sometimes happens, that even with all this assistance, the Judges find themselves unable to declare what the law is, and require the assistance of a second argument, and by other counsel.

That all these deliberations, and this laborious process, should be necessary, will not appear surprising to those who reflect what is the nature of the operation to be performed when we would discover what the common law is upon some point upon which it has never yet been declared. Dr Paley calls it, and not unaptly, a competition of opposite analogies. When a point of law,' he says, has been once adjudged, neither that question, nor any which completely, and in all its circumstances, corresponds with that, can be brought a second time into dispute; but questions arise which resemble this only indirectly, and in part, and in certain views and circumstances, and which may seem to bear an equal, or a greater affinity, to other adjudged cases; questions which can be brought within any fixed rule only by analogy, and which hold an analogy by relation to different rules. It is by the urging of the different analogies that the contention of the Bar is carried on; and it is in the comparison, adjustment, and reconciliation of them with one another, in the discerning of such distinctions, and in the framing of such a determination, as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger, that the sagacity and wisdom of the court are seen and exercised. '†

*Paley, Mor. Phil. Vol. II. p. 259.

+ It is very extraordinary, that, with such accurate notions as Paley appears to have had on this subject, he should not have seen, that this source of disputation,' as he calls it, was peculiar to an unwritten law. He strangely supposes it to belong equally to the statute as to the common law. After all the certainty and rest, that can be given to points of law, either by the interposition of the legislature, or the authority of precedents, one principal source of disputation, and into which, indeed, the greater part of legal controversies may be resolved, will remain still, namely, the competition of opposite analogies.' Difficulties undoubted

he says,

The common law was covered with a veil of antiquity ;—that veil has been, by the decisions of the judges, in part removed: What it is that still remains concealed from the public view, no one can with certainty tell. Nothing is left us but to conjecture, and our conjectures are wholly founded upon those various analogies of which Paley speaks. The best supported of those analogies is that which generally prevails; it is acknowledged, from that moment, as the law of the land, and as a point from which other analogies may in future be drawn.

It is not a little amusing to hear what Blackstone (who is, upon almost all occasions, the apologist for what he finds established) says of this unwritten law. The moment,' these are his words, that a decision has been pronounced, that which was before uncertain, and perhaps indifferent, becomes a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from;' and he accordingly tells us, that it is an established rule to abide by former precedents, where the same point comes again in litigation.' How, indeed, should it be otherwise? Where the authority of a written text cannot be referred to, it is from decisions alone that the law can be collected; and it should seem to be as necessary for those who administer the law, to follow those decisions implicitly, as to obey the plain injunctions of a statute: And yet, according to Blackstone, this rule admits of exception, where the former determination is most evidently contrary to reason, ⚫ and much more, if it be clearly contrary to the Divine law. Here are other sources, then, from which we are to collect the unwritten law-namely, the dictates of reason, and the declared will of God. But, unfortunately, the dictates of reason, which are at all times sufficiently uncertain as a positive rule of conduct, are rendered much more uncertain by the learned Commentator's explanation. For, in many cases, he tells usthe reason of a law cannot be discovered by any sagacity, and yet must be presumed to exist; and he proceeds to lay it down, as a maxim of English Jurisprudence, that it is only where a precedent, or the rule which it has established, is flatly absurd or unjust, that its authority may be disregarded.* The Cam

ly often arise in the application of written statutes, and Paley himself has well pointed them out; but they are quite of a different nature from those which attend the administration of the common law, and certainly cannot be surmounted by that competition of opposite analogies which he mentions. + Comm. Vol. I. p. 69.

The particular reason of every rule in the law cannot, at this distance of time, be always precisely assigned; but it is sufficient VOL. XXIX. NO. 57.

bridge professor, who has commented upon the Commentaries, controverts even this position, and most satisfactorily proves, that absolute demonstration of the absurdity and injustice of a rule, is not alone sufficient, at the common law, to detract from its binding force. By the law of England, till the Legislature interposed to alter it, every statute had a retrospective operation to the first day of the Sessions in which it passed; and acts, therefore, which were done after the Sessions had commenced, and before the law was made, fell under the animadversion of its ex post facto enactments, and subjected the author of them to the penalty of having disregarded prohibitions which had no existence. A stronger instance to prove that absurdity and injustice are not incompatible with a rule of the common law, could not have been adduced.

This source of uncertainty becomes the more formidable, from the consideration that the judges are themselves to determine, whether the former decision was or was not contrary to reason; or, in other words, whether it shall or shall not be binding on them. It must always therefore be in the power of the judge, notwithstanding the oath which we are told he takes, to determine, not according to his own private judgment, but accord· ing to the known laws and customs of the land.' To relieve himself from embarrassing precedents which may be cited, he has only to declare, that those precedents are contrary to reason, and were therefore themselves deviations from the common law, and to profess, in the language of Mr Justice Blackstone, that he is not making a new law, but vindicating the old from misrepresentation. This doctrine, that former determinations are of authority only as they are consistent with reason, affords, in the opinion of the same writer, good ground for those high strained panegyrics of the law which are so often pronounced by our judges. Hence,' to use his own words, it is, that our lawyers with justice tell us, that the law is the perfection of reason, and that what is not reason is not law.' An aphorism which is, however, involved in such a coud of mystery, that we are at the same time told, that not even the judges can, upon all occasions, discover in what that reason, the test of genuine

'that there be nothing in the rule flatly contradictory to reason, and 'then the law will presume it to be well founded. The doctrine of the law is, that precedents and rules must be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times, as not to suppose that they acted wholly without consideration.' Comm. Vol. I. 70. P