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those of sir William Blackstone, which the legislature, after having revised and corrected it, might approve by some collateral enactments, as being of paramount authority, and as far as it should go superseding the authority of the common law precedents; but that they were to report a set of rules and propositions, expressed in a language which might without impropriety be assumed by the legislature. Accordingly, all expressions of mere opinion, of supposition, of doubt, of probability, of inclination to one or the other side of a question, and formal statements of grounds and reasons of the propositions laid down were to be avoided, and a direct assertion of what the legislature declared the law to be scrupulously adhered to in every part of the code; which would thus have the character of an act declaratory of the common law; this being the character which it was supposed the legislature intended to give to the work. At first the commissioners entertained serious doubts, whether the mass of materials before them could possibly be wrought into this form, without too much straitening and embarrassing the practical application of the rules so constituting the unwritten law, and destroying its elastic and expansible character, and rendering it too rigid and inflexible. But, upon the whole, they are well satisfied, upon experiment in the reduction of different titles to this form of expression, that the work may be so executed, and yet not be liable to such objection. The particular phraseology used in any part of the code might of course render it liable to the defect in question; but this, it is apprehended, would be owing to an injudicious and unskilful manner of executing the plan in any particular part, and not to any necessary result of the plan itself. It is true, that the propositions thus laid down as law must thereafter be taken to be the law, until it shall be otherwise determined by the legislature. In this respect, it will be precisely like those parts of the existing common law, which, as has been shown, must remain to be the law of the land until it shall be otherwise declared by the legislature. This is only saying, that they would be law, for a rule that is subject to be changed, without notice, is not a law, but merely the ground of a greater or less degree of probability of what may be law. It does not appear, that in any other respect, the proposed plan of the work, will necessarily render it liable to the objection above mentioned. This form of executing the work necessarily involves the not unfrequently clearing up, by legislative authority, the doubts, and ambiguities, and of settling the discrepances, and the conflicts of doctrine and authorities, presented in the books. It results in a revision of the common law by the legislature to the extent of the codification, and this is one object in view, as appears by their resolve. In determining on the form of the code, a consideration already mentioned had much weight, namely, that in some parts the common law supplies both the text, the inferences, and the comments; in other parts, the existing statutes form the text, and the common law is the comment. As far as any offence, or any variety or subdivision of an offence now punishable, is omitted in the written law, so far the unwritten law must supply the whole materials of the code. Now, as it is not contemplated by the legislature to change the provisions of the existing statute law, these must remain, and as far as they go, constitute the law under each title, and to these must be adapted, in a systematic form, the doctrines of the common law, relating to the same subjects. The statutes of the criminal law are in the form of decrees, commands and prohibitions. This is the appropriate form, where crimes are forbidden, and punishments assigned, or the duty of magistrates and officers prescribed. Whereas, an act declaratory of the common law has a different form of enunciation. Now as the common law proposed for codification consists partly of what are in effect, and practical administration, commands and prohibitions, and the resolve under which the commission is constituted, proposes the preparation of a “systematic code,” and as such a code can be framed, only by adapting the common law to the existing statute law, in such manner, that they may, taken together, being in fact only different parts of the same thing, form the entire systematic body of the criminal law, there seemed to be but two methods, in which the work could be executed. One method would be to reduce the common law to the ordinary statutory phraseology, and thus expand the existing statute law, so as to make it commensurate with the common law. The other method would be, to mould those parts of the common law, which are homogeneous with the provisions of the existing statutes generally, into a similar form of phraseology, and enactment; and to cast the rest of the common law, consisting of deductions, expositions and illustrations, in the form of a general declaratory act. This does not involve the necessity of two distinct statutes, for the same statute may be declaratory in part, and in part mandatory, and prohibitory. The commissioners had no hesitation in adopting the latter of the two methods. They propose accordingly to fill the breaks and chasms of the present statutes, by introducing the appropriate parts of the common law in a similar form of phraseology. It is true, that those parts of the common law, which only fill up chasms in the provisions of the existing statutes, might be all thrown together into a distinct additional act, but this would render it necessary to repeat many of the provisions of the present statutes, and would extend the additional act to a cumbrous magnitude, and make it of a very miscellaneous and wholly unsystematic and confused character, and render the revision of the work by the legislature exceedingly perplexing, by reason of the separation of the different parts of each subject matter.
Even if it should be deemed expedient eventually to throw those parts of the common law into a distinct additional statute, the decidedly best mode of presenting them to the legislature would seem to be, to present them in combination with those parts of the existing statutes with which they are connected, that it may more obviously appear how the whole law will read, when thus reduced to a written form. The commissioners would not be understood as intimating any doubt of the expediency of permanently connecting together, as above explained, all the law on each subject, both the existing written law, and that which is proposed to be made such, and do not see how the work when completed can otherwise be considered a systematic code; for the common law as already suggested being when wholly collected and arranged only a part or fragment of the subject, (where the existing statutes have covered any part of a title, as they do of most titles,) cannot of itself constitute a system; it is only as connected with the existing written law, that it can be rendered systematic; and the work would lose its symmetrical character by severing its parts, and disjoining and distributing their fragments in different places.
In regard to amendments of the common law, the commissioners do not understand it to be contemplated by the legislature, that they shall studiously seek to make them, but to confine themselves in this respect to such amendments as seem to be essential to the consistency and symmetry of the system, and such as may be forced upon their attention, by the plainest reasons. It will be obvious, on the reading of any title, that the work of codifying the common law, and forming it into a system, could not proceed to any useful purpose, without making amendments in those parts, which, when brought together, are found to present incongruities, and without the exercise of discretion in stating what is proposed to be considered the law on numerous doubtful points, instead of undertaking the all but hopeless task of nicely balancing conflicting authorities, and stating what it now is. Wherever an amendment is proposed, it will be mentioned in the notes, and the reasons given, unless they seem to be sufficiently obvious on the face of the amendment itself. Though the commissioners understand it not to be their duty under their commission to propose changes in the provisions of the existing statute law, and the difficulties and labor and responsibility of preparing the work will, without such addition, be quite as great as they desire, still this will not prevent them from occasionally suggesting to the legislature a modification of the provisions of the existing statute law, when it seems to be recommended by urgent considerations, and especially when it appears to be essential to the harmony and symmetry of our laws and jurisprudence. A case of this description appears to them to occur in the title of homicide, in respect to the distinguishing of murder into degrees, according to the greater or less atrocity of the crime, as will appear in the specimen accompanying this report. Upon this plan when completed, the entire body of the written criminal law will consist of two component parts, one comprising the mandatory, prohibitory, and penal provisions, and the leading and fundamental principles of the law; the other, of expositions, inferences and illustrations. The law now consists of these parts, and every body of laws must be so composed, whether existing in the form of written or unwritten law, or of both those descriptions, and in whatever proportions. The difference in form, between the plan proposed and the other codes, that have come under the observation of the commissioners, is, that in those codes, these two component parts are put together, in a continued text, though they generally contain but little beyond the provisions of the class first above mentioned;