Edward L. Pierce, Memoir and letters of Charles Sumner: volume 1

[189]

To Professor Mittermaier, Heidelberg.

Boston (Massachusetts, U. S. America), March 27, 1837.

my dear Sir,—My friend, Mr. Pickering,¹ has communicated to me the flattering terms which you have used in your letter to him with regard to the ‘American Jurist,’ a journal with which, for several years, I have been editorially connected. I assure you of the high gratification afforded to myself and to my associates by your favorable opinion.

You kindly promised, in your letter to Mr. Pickering, to furnish our journal with information respecting the law in Germany. Be assured that your communications will be highly valued. The subject of codification is beginning to excite a strong interest in our country, and we naturally look to Germany for light. Any views which you should be willing to furnish with regard to the present state of the controversy in Germany would be read with the deepest attention. Among us, the codification proposed is simply revision and redaction,—the reduction of a portion of the vast mass of decided cases (Jurisprudence des arrets) to a written text,—thus establishing, as it were, a stratum of written law, which will give firmness and solidity to that portion which remains unwritten. By such a course, it seems to me that we, in a great degree, avoid the evils pointed out by Savigny and the Historical School. We still preserve the historical features of the law, not presuming to frame a new system from new materials without consulting the previous' customs, habits, and history of the country. The error of Jeremy Bentham and of John Locke was in supposing that they, in their closets, could frame de novo a code for a people. Locke prepared a code, a century ago, for one of the North American colonies, which proved a signal failure. The attempt to codify the law in the United States is now making only in the State of Massachusetts. A resolve has just passed our Legislature, authorizing the Governor to appoint five commissioners to codify the criminal law, leaving the remaining portions untouched. Upon the success of this experiment will depend, in a great measure, future exertion on the subject. At the last session of the Legislature commissioners were appointed, at the head of whom was Judge Story, to consider the expediency and practicability of codification. Their report I shall forward to you with the numbers of the ‘Jurist,’² and also a report made to the Legislature at its present session on capital punishment.³

Some time ago I received from the Hon. President Quincy, of Harvard University, Cambridge, a diploma of Ll.D., to be forwarded to you, with an accompanying letter from the President. Allow me to express my great