James Wilson to William Bingham
[Philadelphia, c.24 August 1791]
While I am employed in the Trust committed to me by the House of Representatives; I conceive it my Duty, from Time to Time, to inform them through you, of the Steps, which I have taken and of those, which I mean to take, in order to accomplish the great End, which is in View.
From the Records deposited in the Rolls-Office I have taken an Account of all the Laws made in Pennsylvania from its first Settlement till the Beginning of the last Session of the Legislature. They are, in Number, one thousand seven hundred and two.
Their Titles I have entered in a Book in the Order, usually chronological, in which they are recorded. On some of them, especially those of an early Date, I have made and minuted Remarks, and have left ample Room for more in the Course of my farther Investigations.
I have also reduced their several Subjects into an alphabetical Order, by entering them regularly in a Common-Place Book This Process required Time and Care and a Degree of minute Drudgery; but it was absolutely requisite to the correct Execution of the Design. How can I make a Digest of the Laws, without having all the Laws upon each Head in my View? This View can, in the first Instance, be attained only by ranging them in an exact Common-Place.
But Something more must still be done. To rank in a correct Edition, the several Laws according to their Seniority, or to the Order of the Alphabet, would by no Means, be correspondent to the enlarged Plan signified by the Resolutions of the House.
It is obvious, and it was certainly expected, that under each Head, the different Regulations, however disposed at present among numerous Laws, should, in the Digest, be collected in a natural Series, and reduced to a just Form. This I deem an indispensable Part of my Business.
But the Performance of this indispensable Part gives Rise to an important Question—In what Order should the methodised Collections be arranged?
A chronological Order would, from the Nature of those Collections, be impracticable: An alphabetical Order would be unnatural and unsatisfactory.
The Order of legitimate System is the only one which remains. This Order therefore is necessarily brought into my Contemplation. I contemplate it with the just Degree of Solicitude and Diffidence. To form the Mass of our Laws into a Body compact and well proportioned is a Task of no common Magnitude. Arduous as it is, the enlarged Views of the House of Representatives stimulate me to attempt it. In such an Attempt it will not be dishonourable even to fail.
Of this System I have begun to sketch the rough Outlines. In finishing them and in filling them up, I mean to avail myself of all the Assistance, which can possibly be derived from every Example set before me: But, at the same Time, I mean to pay implicit Deference to none.
The Acts of the Legislature of Pennsylvania, though very numerous, compose but a small Proportion of her Laws. The Common Law is a Part, and by far the most important Part of her System of Jurisprudence. Statute Regulations are intended only for those Cases, comparatively few, in which the Common Law is defective, or to which it is inapplicable. To that Law those Regulations are properly to be considered as no more than a Supplement. A Knowledge of that Law should, for this Reason, precede, or, at least, accompany the Study of those Regulations.
“To know what the Common Law was before the Making of any Statute,” says my Lord Coke in his familiar but expressive Manner, “is the very Lock and Key to set open the Windows of the Statute.”1
To lay the Statute Laws before one, who knows Nothing of the Common Law, amounts frequently to much the same Thing as Laying every third or fourth Line of a Deed before one, who has never seen the Residue of it.
It will, therefore, be highly eligible, that under each Head of the Statute Law, the Common Law relating to it should be introduced and explained.
This would be an useful Commentary on the Text of the Statute Law; and would, at the same Time, form a Body of the Common Law, reduced into just and regular System.
With such a Commentary, the Digest, which I shall have the Honour of reporting to the House, will be accompanied.
The Constitution of the United States and that of Pennsylvania compose the Supreme Law of the Land: They contain and they suggest many of the fundamental Principles of Jurisprudence; and must have a governing and an extensive Influence over almost every other Part of our legal System. They should, therefore, be explained and understood in the clearest and most distinct Manner, and should be pursued through their numerous and important, though remote and widely ramified Effects. Hence it is proper that they also should be attended with a Commentary.
These Commentaries, however, will not form a Part of my Report. They must stand or fall by their own Merit or Insignificance.
Another Question, of very considerable Importance, has occurred to me: The Result of my Reflexions upon it I beg Leave to lay before the House.
In what Manner should the Digest of the Laws of Pennsylvania be composed? Should it imitate the Stile of the British Acts of Parliament, and those Statutes, which have been framed upon their Model? Or should it be written in the usual Terms of Composition?
To professional Gentlemen it is well known that in England all Bills were anciently drawn in the Form of Petitions—that those Petitions, with the King’s Answers, were entered on the Parliament Rolls—and that, at the End of each Parliament, they were reduced into Statutes by the Judges.
Hence the Form, “May it please your Majesty that it may be enacted,” and “be it enacted” &c. This Form, like many others, has been continued, in England, long after the Reason of it has ceased. This form, like many others, has been introdused into the Colonies, and, among the Rest, into Pennsylvania, where the Reason of it never existed.
Thus almost every Sentence in our Acts of Assembly begins with a “be it enacted.”
This Form, though without Foundation in Pennsylvania is not, however, without its Inconveniencies.
To introduce every Sentence under the Government of a Verb gives a Stiffness—to introduce every Sentence under the Government of the same Verb gives a Monotony as well as a Stiffness to the Composition. To avoid the frequent Reiteration of those Blemishes, the Sentences are lengthened. By being lengthened, they are crowded with multifarious, sometimes with heterogeneous and disjointed Circumstances and Materials. Hence the obscure and confined and embarrassed Periods of a Stile with which the Statute Books are loaded and disgraced.
But Simplicity and Plainness and Precision should mark the Texture of a Law. It claims the Obedience: It should be level to the Understandings of all.
By the first Assembly of Pennsylvania an Act was made “for teaching the Laws in the Schools.”2
This noble Regulation is countenanced by the Authority and the Example of the most enlightened Nations and Men.
Cicero informs us, that, when he was a Boy, the Laws of the twelve Tables were learned “ut necessarium carmen,”3 as a Piece of Composition at once necessary and entertaining.
The celebrated Legislator of the Cretans used all the Precautions, which human Providence could suggest, to inspire the Youth with the greatest Respect and Attachment to the Maxims and Customs of the State. This was what Plato found most admirable in the Laws of Minos.
If youth should be educated in the Knowledge and Love of the Laws; it follows, that, the Laws should be proper Objects of their Attachment, and proper Subjects of their Study. Can this be said concerning a Statute Book, drawn up in the usual Stile? Would any one select such a Composition to form the Taste of his Son, or inspire him with Ardour for literary Accomplishments?
It has been remarked, with Truth as well as Wit, that one of the most irksome Penalties, which could be inflicted by an Act of Parliament, would be to compel the Culprit to read the “Statutes at large” from the Beginning to the End.
The Knowledge of the Laws, useful to Youth, is incumbent on those of riper years.
From the Manner, in which other Law Books, as well as Statute Laws are usually written, it may be supposed, that Law is, in its Nature, unsusceptible of the same Simplicity and Plainness as the other Sciences.
It is high Time that Law should be rescued from this injurious Imputation. Like other Sciences, it should now enjoy the Advantages of Light, which have resulted from the Resurrection of Letters; for, like other Sciences, it has suffered extremely from the thick Veil of Mystery spread over it in the dark and scholastic Ages.
Both the Divinity and Law of those Times says Sir William Blackstone, were frettered into logical Distinctions, and drawn out into metaphysical Subtilties with a Skill most amazingly artificial. Law, in particular, which being intended for universal Reception, ought to be a plain Rule of Action, became a Science of the greatest Intricacy; especially when blended with the new and oppressive Refinements engrafted upon feudal Property; which Refinements, were from Time to Time, gradually introduced by the Norman Practitioners with a View to supersede (as they did in a great Measure) the more homely, but more free and intelligible Maxims of distributive Justice among the Saxons.4
Such likewise was the Philosophy of the Schools during many Ages of Darkness and Barbarism. It was fruitful of Words, but barren of Works, and admirably contrived for drawing a Veil over human Ignorance, and putting a Stop to the Progress of Knowledge. But, at last, the Light began to dawn.
It has dawned, however, much slower upon Law, than upon Religion or Philosophy. The Laws, says the celebrated Beccarea, are always several Ages behind the actual Improvement of the Nation which they govern.5
If this Observation is true, and I believe it to be true, with Regard to Law in general; it is peculiarly true, and its Truth is of peculiar Importance, with Regard to criminal Law in particular.
It is the Observation of Sir William Blackstone, that, in every Country of Europe, the criminal is more rude and imperfect than the civil Law.6
Unfortunate it is that this should be the Case: For on the Excellence of the criminal Law the Liberty and Happiness of the Citizens chiefly depend.
We are told by Montesquieu, that the Knowledge with Regard to the surest Rules observed in criminal Judgments is more interesting to Mankind than any Thing else in the Universe. We are told by him further, that Liberty can be founded only on the Practice of this Knowledge.7
But how can this Knowledge be acquired—how can it become the Foundation of Practice, if the Laws and particularly the criminal Laws, are written in a Manner, in which they cannot be clearly known or understood?
Deeply penetrated with the Truth and the Force of these Remarks, which are supported by the most respectable Authorities, I shall not justly incur the Censure of Innovation, if I express my Opinion, that the Laws should be written in the same Manner, which we use, when we write on other Subjects or other Sciences.
This Manner has been already adopted, with Success, in the Constitution of the United States, and in that of Pennsylvania.
As, however, the Observations, which I have made and quoted, bear particularly upon the criminal Code; I propose to make, in that Code, the first Experiment of their Justness and Efficacy.
The criminal Law, though the most important, is, by far, the least voluminous Part of the System; and it can be easily formed into a separate Report. This I mean to do. By doing so, I shall have a fair Opportunity of exhibiting a Specimen of the Manner and the Merits both of my Plan and of its Execution.
Copy (in James Wilson’s writing), DLC:GW. Wilson provided marginal legal citations that are given in the notes.
1. Coke, Institutes of the Laws of England, Part 3, 308.
2. No. 60.
3. Cicero, De Legibus, 6.2. or 23.
4. Blackstone, Commentaries on the Laws of England, Book 4, 410; Book 2, 58.
5. Beccaria, Essay on Crimes and Punishments, Book 1, chap. 29.
6. Blackstone, Commentaries on the Laws of England, Book 4, chap. 3.
7. Montesquieu, The Spirit of Laws, Book 12, chap. 2.