1442. COMMON LAW, Codification of.
—Whether we should undertake to reduce
the common law, our own, and so much of the
English statutes as we have adopted, to
a text, is a question of transcendent difficulty.
It was discussed at the first meeting
of the committee of the Revised Code [of
Virginia] in 1776, and decided in the negative,
by the opinions of Wythe, Mason and myself,
against Pendleton and Thomas Lee.
Pendleton proposed to take Blackstone for that
text, only purging him of what was inapplicable
or unsuitable to us. In that case, the
meaning of every word of Blackstone would
have become a source of litigation, until it
had been settled by repeated legal decisions.
And to come at that meaning, we should have
had produced, on all occasions, that very pile
of authorities from which it would be said he
drew his conclusion, and which, of course,
would explain it, and the terms in which it is
couched. Thus we should have retained the
same chaos of law lore from which we wished
to be emancipated, added to the evils of
the uncertainty which a new text and new
phrases would have generated. An example of
this may be found in the old statutes, and
commentaries on them, in Coke's Second Institute,
but more remarkably in the Institute
of Justinian, and the vast masses explanatory
or supplementary of that which fill the libraries
of the civilians. We were deterred from
the attempt by these considerations, added to
which, the bustle of the times did not admit
leisure for such an undertaking.—
To John Tyler. Washington ed. vi, 66.
(M.
1812)
