New-York daily tribune., 1865-11-25

rS Pro'luo iof them All thGt processes IT, 10 s'o
the general rules upon the SUBJECTS TO which reies
which are now known and recognized. 10 far as they
ought to be retained. with such amendments aa seee
best TO be made and saving always such OF the racs ~
may have been overlooked. In cases where tie 'am
not declared by the Cone it is to he hoped ths,
gies mhy'neyeitheess be- discovered when WI" i'gv
the courts 10 decide IT, in any such case az ho over,
cannot bo found, nor any rule whicn nas o;,her to
louked and omitted then the courts VIII bao
decide. at present, without reference W done
rule OF law or to leave the undecided as va so
by Lord Mansfield, in King vs. my, !.asss ."
trusting future legislation for utuie c,'es sr,d aeon
The language of the Code in this respect shou'u See
to &c sufficiently guarded thus; and of conduct pre.
SIC 2. Law is rule OF properly y, p,o Va -
scrit Ell by the yerrign power OF the stare .,a.
SEc 3 The will OF soveresn power Is , ~ H. nan
/ Nv The Constitution which te organic sc' VI 'no p'o
By statutes which are the acts OF the Legsa,ue roy
the ordnance, ofoihsr snd ,ny tho.e rules
3 By the ud.neii,, Of the tribunils ehIoiclns "o
which ,hou:b not enacted form what known as customary
SEC 4 The coumou law i divided into:
| /. rubio law, or the law 81 ha'ion'i
! 2 Don,estic or municipal law.
sRc Tho evidence Of the common law iound IN thc ue
ci.ions Of the tribunals.
SIC G. In thi. sae there q no common law in any case
| where the lsw il declsred by the hve Codes.
SIC 052 The statutes in derosstion OF the com
mon ~ bs strictly construed, has no application 10
SIC 2a An statutes ,w, and rules heretofore in force in
THE state inconsistent With tie provisions Of TN Sod- st
doe not revive any o'mef aw heretofore repealed nor dot
1, ah c any rgh already existing or accrued or any Pfooeeo
ing already taken except a. IL tins Code provided ,
Therefore, II there be an existing rule Oi law on'leu
from this Code and not inconsistent with II, that RUE
viii continue TO exist In the form in which Vt now
exists while II any new rule, now for the II ~ tune III
toduccd should not answer The good ends for wch II
s intended which can he known only from expe ienoe
il can be amended or ahrogated by the same la~gying
department which made II; and If new cases arse as
they viii which have not been f0rescen, they may pe
decided. If decided at n precisely rs they would now
he decided that Is to saw analogy 10 some rule In Tue
Code to rule omitted from the Code and there
fore s existing or by the dictates Of natural Justice
Anoher objection 10 the expediency Of Code. IS s
supposed uncertainty The argument Is this: In Tie
attempt to he systematic and concise you must OF neces
ry leave the language open 10 different Interpretations
Now Il Is Quite true that, ss word has often various
Ueaur rs aud A change ia the structure OF sentence
may suggest different ideas II il difficult to frame
section al NAV not he tOrured into meaning uhIhe
that which its trainers attached 10 u. But gi"a'
mistake 10 consider this true onv Of the concise prppO'
sione Of Code Diinseness Is not help to ciesines
lhe longest Judicial opinions are generally the least
precise and tne least Comprehcnded. As long dOeu'
Ineni is usually mole obscure than short one; as
statute Of many sections Is commonly less understood
than one Of O few; many words tend Ia cobfu Ion
rather than enlightenment, 30 single proposition care
1y expressed and made US concise es possioe Is more
likely To- be pecise and susceptible Of one meaning Only
than II tie same idea put into different form ana
n greater number of words.
II il be urged that ieIorted decisions have TINS nd
vantage in point Of certainty that being made In each
cGse Nth reference to given state o facts. those
icts are ustI ations of the rule announced and tend
TO expsin It, the answeris that the facts OF case re-
ported serve for Limitation, as well as husraiOn ahu
lust In that proportion the rule announced s partial and
and gene al and II acted upon as general tends ="
mlsead 70 that. after all. are brought back 10 the
sane voDt which l.. that the rule Of the decls0n whnt
ever Il may be- partial or general can be more precise
y and accurately stated in a few short sentences than
in the opinion, more or less difuse In when ~ 10
stated or from which /; may be evolved.
So far as reported cases ioi ilustrston. the
present Code akes Of them for the references to
adudced case,, which. 10 most instances, follow The
sections intended much 20 snsv er the purpose OF
illustration justify the text. IL 10 fat onto dea
With many that Tor promoting ccrtainty the propo-i'
tnns OF Code shond he accompanied ty Illustrative
examples. Whatever advantage there may be 10 tins
meh0n these references 1t Is supposed. VIII ah'id tue
| beat kind Of ilasraiion.
st II further objection 10 tho e1pediency Of Code
is its supposed nfs fs1ibilty Expressed IN formal pIoro
ions and eouched in positive terms 1t 10 not ~ hcli
ble soy the oojrctoIs a. tle common law: ihs . .He
Code and 1t should therefore receive the most csioiu
consideration It may be hr- oosery ed tha, ns,oiy
law have rather Tint 10 Inconsistent WITH
the idea Il law As the law Is rue OF pr"pofy "a, s,a
\ rule ade for a certain state OF fdcts. may not be ap
pcabe to different state Of facts. that will not he de
pued if 1t be meant that such rule ought not 70 O'
e applied to the same state Of facts unhef all ercum
q stances the objection amounts only 10 tins, that Tie
4 ule is too broadly stated II II be meant hat rule
ought be subject 10 the discretion OF the Judges TIE
proposition unsOund for the Judges should not have
n dispensing power
Anntnrr way Of stating the objection is 10 say that
while tie Is expansive. tDue
pand adsp, itself to the expanding e1geneies "i so
n cety derent phrase FOR the sane iGeg Is tfat TIE
!. common Law is elastic and accommodating, and that
Code will be the opposite. Now, TO say that la" u
expansive elastic or acc immodaing II much g.
say that II 10 law at all The real sguihcnnce 81 ho
objection If it has any significance, H. tna II is better
to let the Judges make the law as tey along than u
b. have the Law giver make II beforehand. For II thC
Judges are decide according 10 known rules those
rules be written by the lawgiver as easily as they
cen be spoken from the bench or taken down by tl'
A n,
Judges should fail TO ind such rules and should have
j. TO make rules az the cases occur, that too. car
Il be done as easily when the known rules are place.
}. IN Code. as when they repose IN the breasts o
l. Judges, or in the leaves Of reports 20 long o.
"a Code IL confined to the rules 0f law a. they now
exist il is neither moro nor less eIpausVe than tE
common law. When the inquiry concerns new cases
IL divsibe into two parts one relating to those cnse
which are foreseen aud the other 10 those which arr
moi forescen Those which are foIeseen the law give
can povide for and hs duty TO provide for them
Those ich not foreseen. cannot be provided ioi
except by directing tie courts to decide acco'dinf
tho analogy OF eiIsing TDler wien lhere IN ruch al
analogy ard when there il none then 10 decide accord
hg dictates of natural justice In this last re
spect the judges will be In the ,me predicancnt unde
: Code as der the common law; 80 that really, th'
only point Of difference respects those cases Nhci
can bc reasonably anticipated and II there
be PERSONS who think that for such cases II Is better
kat the Judges should make the law htcT The case
arise than fOr the Iegslaure ia make IL guide b.
iorehhnd then they think that Government ought no
10 be divided according 10 the fundamental American
maxim into three separate ttls.atNe ehCcuuNe hnu
Judicial departments.
live look for example, at any Of the leading cases
reported We the facs given the conclusion OF The
Judgts and the ronsOing by which the conclusion
reached Whatever legal proposition is nec.ssary u
VOWED iD this conclusion II 20 be deemed established
rule al law This rule may be written In Code or II
NAV be left in the Reports. Is IL any more flexible in
the oe form thnn in the otheri Certainly not unes,
The Judges feel themselves st liberty 10 depart from IT,
20 long as il remains IN the Reports alone But that
would be To declare that the decision Is not law.
....
and juiesbiity In the other las from not sui
GENTLY attending TO tie distinction between general