Southport telegraph. [volume] (Southport, W.T. [i.e. Kenosha, Wis.]) 1840-1850, 1846-08-04
THE COMMON LAW.

mere are many inconsistencies inter-
woven into our American Jurisprudence
which the great mass of the people never
stop to investigate although the rights OF
persons and of property are affected by
certain arbitrary rules Of law, yet the OBJ
security in which those rules are shrouded,
prevents a general attention to their origin
or justice. OF the common law, we pre-
tend 20 know but little, save its definition,
as found in the authorities Of the number
less and complicated rules Of action of
which it is compounded, we are mostly ig
norant, and we doubt not the great body Of
the people are equally ignorant with our.
self. The most distinguished and eloquent
expounder Of common law, Sir William
Blackstone, defines It to be he +" un,rritten
lac Of England" consisting of general
CUSTOMS" "partfcu,ar customs" and GER
tain A." particular laws, which, by custom,
are observed only in certain courts and ju.
rsdictions."
Now in free government like ours,
it would seem that every legal;zed rule Of
action, should enianate directly from the
people, and that the just powers Of the gov.
eminent in all its departments, should be
established by The consent of the governed
But by what statute has the common law
been adopted by the people, or when have
they assented 10 receive it as q regulator
Of their civil conduct 1t would hardly be
supposed that an enlightened people would
ever consent to adopt a system Of law, the
contents of which are inexpI;cable mystery
to the mass, and but imperlectly understood
by the learned. Laws to be obeyed, must
be understood and 10 be understood, they
must be placed within the reach, and adapt
ed TO the comprehension of the governed
1t will not be pretended that the common
law, voluminous and intricate as ii is, is
adapted 10 the general understanding, or,
is accessible to any considerable portion
Of the people. A writer in the Democratic
Review uses the following strong language
in relation TO the common law: We
cannot conceive a system, making preten-
sions 20 rational .principles, having any
thing to do with that tumble Of arbitrary
rues-as much at war with the common
sense Of men. as the common dictates of
justice oh is recognized as au,horl,ive
by the courts Of the United States |, has
been extoled by its admirers, Us The per-
lection of human reason; but TO US, it
seems more like negation Of reason
How il has so long retained its ascendancy
in the jurisprudence OF civilized nations, is
we confess, an occasion Of wonder. Moth
ing but the crosses, illusion on the part of
the people, could have enabled it to endure
to such a venerable old age. Present it 10
an enlightened inhabi,ant Of the Sandwich
Islands, he would be struck with astonsh~
ment either at our stupidity or at our slavish-
ness. He would point TO its uncertainty,
10 lis obtruseness, to its Inconsistencies,
its actions, IFS patry details, and its gener
al want o.: justice, as things which barba-
rians would hesitate TO submit 10, much
less 10 adopt, and Of whicha civilized people
should be ashamed"
The necessity for retaining the common
law, al least for any con siderable length of
time, as a part of our svs'em Of jurispru-
dence cannot be regarded with proprieiy.
The state Of louisiana furnishes an ex-
ample Of code, which rejects altogether
reference to what is known as the common
code. The practical working OF the
Louisiana code of procedure has met the
most sanguine expectations OF law reform.
The constitutional convention now in ses
sion in the stale of New York has already
had this subject incidentally under discus
sion, and ii viii doubtless receive the alten-
ton il merits before the termination of that
body. Many Of the ablest men in that
convention, are known TO be favorable 10
extracting from The common law, whatever
is worth preserving, and reduce it 10 COM
prehensive written code. or il this cannot |
be accomplished. discard i, alioge,her.-
Mr.. Hoffman, an acknowledged leader Of
reform in the N. I. convention, says, :" lei
all that is good, jus; and enlightened be
selected from.the mass, and make parcel of
the code. Nothing right and necessary
should be omitted or destroyed, and all de-
fects should be supplied. 1t will be some
years before a code can be formed, and
although The best uses of The books now il
use, will have been realized in their cnn
iribuiion 10 that Gods. it ~ill no, be long
before they will cease 10 be useful or even