CODIFICATION IN THE BRITISH EMPIRE AND AMERICA
BY
M. E. LANG






The British Library
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gÓpiFICATION IN THE BRITISH EMPIRE ANl) AMERICA






i " CODIFICATION
IN THE BRITISH EMPIRE AND AMERICA
PROEFSCHRIFT TEE VERKRIJGING VAN D$N GRAAD VAN DOCTOR IN DE RECHTSGELEERDHEID AAN DE RIJKS-UNIVERSITEIT TE LEIDEN, OP GEZAG VAN DEN RECTOR-MAGNEFICUS Mr A. J. BLOK, HOOGLEERAAR IN DE FACULTEIT DER RECHTSGELEERDHEID VOOR DE FACULTEIT DER RECHTSGELEERDHEID TE VERDEDIGEN OP WOENSDAG 12 NOV. 1924 DES NAMIDDAGS TE 4 UUR
door
MAURICE EUGEN LANG
PROCUREUR EN NOTABIS IN ZUID-AFRIKA GEBOREN IN LITHUANIA
H. J. PARIS
amsterdam mcmxxiv






DEDICATED TO MY MOTHER






PREFACE
In writing this book, the object has merely been to furnish an account of the practical manifestations of the movement for the codif ication of the law in the British Empire and in the United States of America. In doing this, I have confined myself, for the main part, to a description and examination of the practical efforts which have been made to replace the system of the unwritten Common Law, which is peculiar to England and the countries deriving their law from her, by the codesystem which prevails generally on the Continent. No attempt, however, has been made to deal with the controversy waged on general theoretical grounds as to the merits or demerits of codification. A great deal has been written in regard to this side of the question, which may appropriately be termed the theory of codification. In this connection, the reader is refêrred to the book of R. F. Clarke entitled The Science of Law and Law-making (NewYork 1898) which, although written by an uncompromising opponent of codif ication when applied to the private law, nevertheless deals as fully as one could desire with the theoretical arguments for and against codification which have been adduced by British and Amerian jurists.
Amsterdam, M. E. L.
November 1924.






CONTENTS
PART I
THE CODIFICATION MOVEMENT IN THE BRITISH EMPIRE
CHAPTER P««e
I. Aims of the Codification movement in
England 1
II. The English Legal System 9
III. The Codification Movement in England 28
IV. Practical Attempts at Codification . 40 V. The Im practica bility of codifying the
English Law 59
VI. Coddjtcation in British India 69
PART n
THE CODIFICATION MOVEMENT IN THE UNITED STATES
VII. The Legal System of the UNrrED States 99 VHI. Codification in New York and other
States 114
IX. Critical Consideration of the American Codes 160
X. Undjormity of Law in the United
States 187
BlBLIOGRAPHY 197
Index 201






PART I
THE CODIFICATION MOVEMENT IN THE BRITISH EMPIRE






CHAPTER I.
AIMS OF THE CODIFICATION MOVEMENT IN ENGLAND.
The question of codification is one of the most important in jurisprudence. On the Contment where the code-system prevails, the matter may be regarded as an academie topic; in England it is a vital practical question, Tor it means nothing less than the changing of the form of the English law, from its present unwritten nature, into the form of codes more or less similar to those which embody the law of Continental countries.
The people who advocate this change of form, point out the success which the code-system has achieved in France, Germahy and other countries, and argue that a similar success awaits it in England, if it were once adopted there. On the other hand therei has always been great opposition to the movement, more especially from practising lawyers. The question is of great importance not alone to England, but also to all the lands which derive their law from the English common law. In the United States and in the British dominions and possessions it has often been* raised, but except for the codes which are to be found in a few of the American states, and the Indian codes, very little has resulted from the movement, which at one time assumed the form of
1



2
a strong agitation, for the codification of the law.
The parallel drawn with France and Germany, is an unreal one. In England the alleged evils in the law which are to be remedied by a code, are uncertainty and lack of publicity. Both in France and in Germany, though these evils also existed there, the main object of codification was to obtain a uniform system of law.
Under the ancien régime in France, the law found itself in a most deplorable state. It suffered from the three great evils of disunion, uncertainty and insecurity, which together sapped its strength and reduced its practical value. The greatest evil however was disunion. Nearly each district or important town differed from the rest in its law and usages, justifying Voltaire's famous sarcasm, that in France a traveller had to change his law about as often as he changed bis horses l. AU in all about three hundred and sixty different bodies of local law existed in France at that time. Well may Sieyès have exclaimedinl790: "Purger la France des différentes coutumes qui la divisent" 2. it was not until the revolution had swept away all the ancient institutions and with them all the obstacles in *the way of legal unity, that the project of one law for the whole country could be seriously attempted with any prospect of success; and this was finalTy achieved through the Code Napoléon. To France unity of law was a social and national necessity8,
1 Oeuvres de Voltaire, Ed. Garnier, Paris 1877—1885, Vol. XXV; p. 577.
2 Quoted in introduction to 'Le code civil — livre du eentenaire', Sociétó d'etudes legislatives, 2 torn., Paris 1904, torn. 1, p. XXII.
3 In a speech in 1804 dealing with the fusion of the different Iaws into one code, Portalis, one of its drafters said: "Les hommes qui dépendent de la même souveraineté, saus être régis par les mêmes lois, sont nécessairement étran-



3
for nothing binds a people together more closely than a common language and a common law. And the urgent desire for one law common to the whole land forcibly manifested itself again and again throughout the revolution. It was unity, then, above all else that was the motive force behind the codification idea, though at the same time the desire for simplicity and certainty in the law was also present *.
In Germany when the Wars of Independence awakened in the people a spirit of nationalism, the idea of having one code for the whole nation assumed great importance. In 1814 its famous advocate Thibaut, actuated thereto by patriotic motives, wrote hispamphlet, Ueber die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland, which brought the matter to the forefront of practical questions.
Germany was then split up into numerous independent, states with as many divergent legal systems. There was Prussian, Roman, French, Bavarian, Danish and Austrian law prevalent in different parts of'the country, and a great deal of these laws were writtdfi in Latin or French8. The most important original source
gers les uns aux autres; ils sont soumis a la même puissance, sans être membres du même État. Ils forment autant de nations diverses qu'il y a de coutumes differéntes; ils ne peuvent nommer une patrie commune.... Nous ne serons plus Provencaux, Bretons, Alsacians, mais Francais." Locré, torn. 1, p. 348. 1 For the motives which actuated the French, and the expectations which were entertained by them in regard to codification, see articles by Professor J. van Kan in the Tijdschrift voor Rechtsgeschiedenis, Vol, 1, entitled "De rechtsgedachte der codificatie-beweging in Frankrijk, voor de revolutie", p. 191, and "De verwachting des volks in 1789 ten aanzien van de codificatie", p. 359. 3 C. P. Sherman: Roman Law in the Modern World, 3 vols., New Haven 1922, VoL 1, p. 324. 33 per cent of the Germans had their law written in Latin, 14 per cent in French. See Continental Legal History Series, Boston 1912, VoL 1 (General Survey), p. 449..



4
of the law was the old Roman law, which was, after all, the law of an ancient and alien people very different to the Germans. Thibaut described the deplorable condition of the law, which called forth his plea for a national code, in the foliowing words:'
"So ist also unser ganzes einheimisches Recht ein endloser Wust einander widerstreitender, vernichtender, buntsehackiger Bestimmungen, ganz dazu geartet, die Deutschen von einander zu trennen, und den Richtern und Anwalden die gründliche Kenntniss des Rechts unmöglich zu machen. Aber auch eine vollendete Kenntnis dieses, chaotischen Allerley führt nicht weit. Denn unser ganzes einheimisches Recht ist so unvollstandig und leer, dass von hundert Rechtsfragen immer wenigstens neunzig aus den recipirten fremden Gesetzbüchern, dem Kanonischen und Römischen Recht, entscheiden werden mussen" K
The particularism of the different states in the German confederation and the opposition led by von Savigny, who considered his generation not suffi'élently ripe for a code, prevented the execiftion of the work 2 until after the formation of the Germa» Empire in 1871, when the vital necessity of a common law for the new empire could no longer bedisregarded; and on the 18th August 1896 a code of civil law was promulgated which came into force on the Ist January 1900.
In Germany then, as in France, the main reasons for codification were the political and social require-
1 A. F. G. Thibaut: Über die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland, Heidelberg 1814, p. 14.
* Otto Stobbe: Geschichte der deutschen Rechtsquellen, Braunschweig 1860, Vol. II, p. 437.



5
ments of the country. For on the one hand it bound together more securely the different sections of the nation *, and on the other hand it conformed to an indispensible requirement, "zu einer schreyenden Nothwendigkeit", to use the words of Thibaut, by providing a uniform system of law.
In England however the position is quite different to what it was in France and Germany. There, a uniform system of law exists already from the thirteenth century, and the only motives for codification are the superior advantages of certainty and easy accessibility which a code is supposed to possess.
Besides this distinction between England and the chief Continental lands so far as relates to the motives for codification, there is also a difference between the method, or at any rate the most popular method, which the advocates of a code-system propose to employ in England, from that which was applied on the Continent.
Generally, there are three methods Which can* be adopted in codifying a nation' s law. Firstly, thefle can be constructed a new radical system of law unfettered though aided by the old law, and profiting from the laws and experience of other countries. Such a code would ündoubtedly be the best intrinsically from the standpoint of legal philosophy. In its construction great attention would be paid to the logical distribution and classification of material; to proper symmetry between the different parts; to consistency
1 As Thibaut well says: "Gleiche Gesetze erzeugen aber gleiohe Sitten und Gewohnheiten, und diese Gleiohheit hat immer zauberisohen, Einfluss auf Völkerliebe und Völkertreue gehabt". Über die Nothwendigkeit etc., p. 33.



6
of language, using the same word always in one meaning throughout the whole work. To such a work the term codification can be applied in its most proper sense. This method of constructing a code may be appropriately termed the philosophical method. Secondry, there are those who desire a code to be based entirely on the existing law, permitting here and there a change of substance, where this appears advisable and is of an uncontroversial nature, without interfering with any important and established principle of the old law. Here the main desire is to embody all the law in clear and concise legislative enactments for the purpose of securing certainty and publicity. This may be called the historical method. Lastly, there are those who wish to proceed about the work cautiously, dealing with the law piecemeal, codifying and enacting different sections of the law separately. This is the method of partial or gradual codification.
In the last two methods a careful compilation is made of the common law and statute law separately, in the first case of all the law, and in the second case of a particular portion of the law, finally combining the two compilations into one statute. This process can be more strictly described as digesting the law, or making a digest. In its form the digest is similar to a code (as understood in its best sense) but the method used in its construction is much less scientific. However, the words codifying and digesting are often used to mean one and the same thing.
The first method stated above has but rarely been applied to the work of codification. The tendency to abide by the existing substance of the law, to retain



7
unaltered the rules which have guided conduct in the past, is nearly always the predominant sentiment, and is quite understandable. A spirit of extreme radicalism towards the law has of course been known to exist in certain countries at certain periods of their history. This was the case in France during the first years of the revolution, when one scheme of codification was actually rejected on the ground that it was not radical enough *. A similar spirit exists to-day among the rulers of Russia, and can be seen in the work of partial codification which is being carried out there 2. There is a well-known draf t of a Penal Code in which this method was adopted in its preparation, namely the one which was prepared by Mr. E. Livingston for Louisiana although never enacted there. This code has reeeived great attention on the Continent and in the English-speaking countries, especially India3. The nearest example of a code drafted in accordance with this method and actually enacted is the Indian Penal Code*.
The second method, the historical one, has been generally followed on the continent of Europe, and in the United States. Thus, the codification of Roman
1 See M. Planiol: Traité élémentaire de droit civiï, Paris 1915, § 70. "Les membres de la Convention professaient un profond mépris pour le droit romain et le droit ooutumier, qu'ils traitaient de législations barbares et oorrompues. On voulait, disait Barrère, réaliser le rêve des philosophes, et faire des lois simples, démocratiques, aooessibles, a tous les citoyens." Planiol, § 70.
2 A codification of the law of marriage has been enacted.
8 This work is well known on the Continent in its French translation: Exposé d\ai système de législation criminelle pour 1'état de la'Louisiane et pour les Etats-Unis d'Amérique, 2 tom., Paris 1872. Livingston was one of the greatest American jurist», and played an important part in the codification of the law of Louisiana. 4 Infra.



8
law carried out under the auspices of Justinian was essentially a digest and reduction of the existing law l. The code of France was based on the old law and on the laws of the revolution 2. And in Germany notwithstanding the conflict between Romanists and Germanists, the method employed in the work of codification was the historical one. The civil and criminal codes drafted for New York — the former however not being adopted—and enacted with slight variations in several of the other states, is also nothing more nor less than a codification of the existing common and statute law 3.
The third method, that of partial codification, has been most generally followed in British India, where different sections of the law were codified, and codemeasures enacted, separately *. In England, though many advocates of codification desire nothing less than a complete code of the civil or criminal law, enacted at one and the same time, yet the most formidable body of opinion amongst thëm is in favour of the more cautious, though less scientific, method of gradual or progressive codification, which is at the same time easier of realization. This method has been the one usually adopted in the various attempts made in England to codify the criminal law5, and in the civil law certain such partial codifications have been carried out, namely the Büls of Exchange Act (1882), the Partnership Act (1890), the Sale of Goods Act (1893), and the Company Law Consolidation Act (1908).
1 R. Sohm: Institutionen, Leipzig 1899, p. 119.
2 Planiol: Traite élémentaire de droit civü, § 78.
3 Infra. « Infra. 5 Infra.



CHAPTER II.
THE ENGLISH LEGAL SYSTEM.
Bef ore proceeding to examine the movement to establish the code-system in England, let us first describe very briefly the establishment of the system existing there, and the manner in whieh it functions.
When the Normans conquered England, they found the law of the country composed of three different bodies of tribal customs: the Mercen-lage, the Westsaxen-lage, and the Danelage 1. They introduced certain Norman laws and usages, but on the whole, did not interfere with the existing Anglo-Saxon law2. The courts which administered this law remained, to all intents and purposes, the same under the Normans as before, namely the courts of the Hundred, and the County or Shire courts; and as a suprème court of redress (and in certain cases as a court of first instance) the curia regis of the Normans occupied the
1 "Legis eoiam Anglice trina est particio ad superiorem modum; alia enim Westsexie, alia Mireena, alia Denelaga est". Leges Regis Hendriei Primi VI § 2, in Ancient laws and Institutes of England, 1840, p.p. 221—222. * The Laws of WUliam I, the Charters of Henry I and Stephen state that the law to be observed is the law of Edward the Confessor, which was however by that time, in a state of great confusion. This law, as added to and modified by the Norman, is contained in the Leges Hendriei Primi (about the year 1118), the Quadripartitus (1113—1118), the Bilingual Laws of William I, and the Leges Edwardi Confessoris. W. S. Holdsworth: A History of English Law, 3 Vols., London 1922-23, VoL 1, p. 23.



10
same place as the court of the King and his Witan (wise men) of the Anglo-Saxons *. Besides the courts, already bef ore the Conquest there existed ecclesiastical and private courts which exercised judicial functions, and which, with the Manorial courts connected with the feudal organization of the Normans, covered the whole country. The customs dealt with by the local courts differed from county to county, and the law thus lacked uniformity 2. This was the state of affairs when Henry II came to the throne. He inaugurated a new era.
Itinerant judges were appointed, who traversed the country supervising the local courts, and also encroached upon their functions 8. The King's Court (curia regis) too, greatly expanded its jurisdiction at the expense of the local courts. And this process went on all through the reigns of Henry II and his two successors. The royal courts, both itinerant and curia regis, gradually assumed the complete supremacy over the local courts, which correspondingly deteriorated. In place of the varying and contradictory decisions of these latter courts *, the royal judges evolved from the mass of tribal and local customs which came before them in the course of their duties, a body of judicial decisions, which gave to those customs definiteness,
1 F. Pollock: "English Law before the Norman Conquest", in Law Quarterly Review, 1898, Vol. XIV, p. 293.
2 Edward Jenks: Edward Plantagenet, the English Justinian; or the making of the Common Law. In Select Essays in Anglo- American Legal History, 3 vols. Cambridge 1907, voL 1, p. 164.
* Holdsworth's History of English law, voL 1, pp. 33 and 113. Also Anglo-
American legal History, voL 1, p. 130.
4 Anglo-American legal History, VoL 1, p. 136.



11
consistency and uniformity h These decisions, which were also called the Customs of the King's Court2, were the authoritative expression of the customary laws, and possessed on that account the force of precedents. By the time of Bracton3, the work of creating precedents out of the customs had resulted in the formation of a single uniform law for the whole land; the Common Law of England4. Bracton collected in his Notebook some two thousand cases from the records of the royal courts, and according to Professors Vinogradoff and Maitland used this Notebook in the compilation of his famous treatise on the laws of England6. Bracton can be regarded as having Consolidated the law, for he put the work of the judges into a compact and harmonious system.' With his work the common law ceased to be in an embryonic state and acquired a definite and distinctive form 6. Since then it has developed as it was originally formed;
1 James Bryce: Studies in History and Jurisprudence, 2 vols., Oxford 1901, vol. 1, p. 368.
2 J. C. Carter: Law, its Origin, Growth and Function, New York —London 1907, p. 63.
3 Henry Bracton was the greatest writer on English law before Blackstone.
4 J. M. Zane says: "The long period from the conquest in 1066 to Bracton's death in 1267 has been a period of marvellous growth. It began with a varied assortment of local courts lacking settled rules, and endb with a highly organised system of courts administering a settled and rational system of law." The five ages of the Bench and Bar of England, in Anglo-American legal History, vol. 1, p. 646.
5 Holdsworth's History.of English law, Vol. II, p. 188. Jenks says "He [Bracton] draws the body and bones of his work from the records of the Bench and oircuit Courts". Anglo-American Legal History. Vol. 1, p. 166. Bracton's treatise entitlad-De legibus et consuetudinibus Angliae, was published in 1260.
• "Succeeding ages" says Zane", have merely amplified and glossed the distinctive rules of Bracton". The Eïve Ages of the Bench and Bar of England, AngloAmerican legal History, VoL 1, p. 646.



12
by transforming customary rules into legal principles expressed and evidenced in judicial decisions. Thus, comparatively early in its history, England acquired a uniform or common law for the whole land, whereas the great Continental nations have only been able to achieve this within the last hundred and twenty-five years. Naturally, geographical and political considerations must be taken into account to explain this, for the insular position of England rendered her immune from the territorial reshuffles which took place on the Continent, so that the formation of a uniform and purely national law was a comparatively simple matter.
Now, in a legal system in which not only the application of the law, but also to a great extent its formulation is left over to the courts of law, the question naturally arises, how in a law thus unwritten, resting entirely on decisions of particular cases, is certainty and continuity secured? Bentham, the greatest protagonist of codification in England, maintained indeed that these qualities were not possessed by the English law. Let us examine, then, the English system in its actual working, and see to what extent, if at all, Bentham's assertion ïs justified by the facts.
There is nothing more characteristic of the English legal system than the binding force of previous judicial decisions, or rather such of them as have the force of precedents. "For", as Blackstone states, "it is an established rule to abide by former precedents, where the same points come again in litigation; . . . . to keep the scale of justice even and steady, and not



13
liable to waver with every new judges opinion" *.
Already in very early times, the importance and the necessity of this doctrine had been fully realized. For example, in the reign of Edward I, counsel tells the court that "le jugement qe vous freez ore de ceste chose servira apres ces ures en chescun quare non admisit en Engletere" 2. And to this day, a good many common law rules derive their authority directly from cases that were decided centuries back. For example, the leading case on the question of executed consideration, Lampleigh versus Braithwait was decided as long back as 1615 8. And there are numerous other such old cases, each establishing a leading prin* ciple of the common law4.
1 Commentaries on the laws of England, edited by R M. Kerr, London 1862, 4 vols., Vol. 1, p. 54. See Encyclopaedia of Laws of England and America, VoL 10, p. 301. Holland says: "In England and the United States a reported case way be cited with almost as much confidence as an Act of Parliament." Elements of Jurisprudence, Oxford 1924, p. 68. But why 'almost' ? There are numerous decided cases that are certainly as authoritative as any statute. What statute suggests greater certaintly or has a greater actual authority in courts of law, than say, the well known case of Carlill versus the Carbólic Smoke Ball Co. (I. Q. R. 256—1893), dealing with offers of rewards made to the public by commercial firms in advertisements. (W. R. Anson: Law of Contracts, Oxford, 1923, p. 57). And in the United States, statutes have been declared unconstitutional by the Courts; and in many cases, no doubt, counsel would quote a common law rule with more confidence than a new statute. a Year Books of Edward L Edited by A. 6. Horwood, London, 1864, XXXII p. 33. Kent's Commentaries on American Law, Boston 1896,VoL 1, p.649.Professor Maitland however doubted whether the doctrine of the binding force of precedents had attained any importance in the time of the earliest Year Books. See Introduction to VoL Hl. Year Books of Edward II, edited for the Selden Society by F. W. Maitland, London, 1905, p. X.
3 I Sm. C. C. 12th Ed. 159. Anson, Law of Contracts, p. 122.
4 As for example the following well-known leading cases: Weeks vs. Tybald (1605) Noy 11; Paradine vs. Jane (1647), Aleyn 26; Fetherstone vs. Hutchinson (1590) Cro. Eliz. 199; Butler and Baker's case (1591) Coke Rep. iii 266; The six Carpenters case (1611) I Sm. L. C. 12th. Ed. p. 145.



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But one cannot be too dogmatic in dealing with the doctrine of stare decisis. Ih America at all events, the almost holy veneration of the English lawyer for precedents is not so strongly manifested there. Much depends upon the character of the judge to whom a precedent is quoted. Strong and independently-minded judges like Mansfield and Jessel are not so absolutely hide-bound to precedents, as judges of the type of Eldon or Kenyon, the latter of whom once characterized some views of Mansfield as "loose notions". No cast-iron set of rules can therefore be laid down; and if this were done, it would be more a statement of what the writer desired should be the position, than what it really is. For after all, the duty of the judge is only to apply the law of the land as he understands it to be; and no power can compel him to abide by precedents if he chooses not to do so in any particular case. The "unwritten" rules of the doctrine of stare decisis answer a practical necessity, for otherwise all would be chaos with the unwritten law of England and of the United States.
We will now proceed to deal with the nature and the force of precedents. First, then, what is a precedent? True, it is an adjudged case. But not every adjudged case becomes a precedent. In a large number of cases the question to be determined is one of fact, and once this is decided, the law, which is not m dis» pute, is applied to it. Such a case does not become a precedent; for to become this the decision must settle a dispute concerning a question of law. Also, the judgment of the court must not be a mere dictum, that is, an expression of the opinion of the court



15
on a question of law, which was not necessary to the decision of the particular case; and it has no greater weight than as an indication of the court's ex parte opinion on the matter. Further, only the actual principle laid down in the decision is of any real importance, and the arguments. which the judges use in delivering judgment have no force whatever *.
A principle that has long been established by a line of clear decisions, is binding on all courts, "although they may feel the hardship or not perceive the reasonableness of the rule"a. Judge Maule remarked in one case (rather ironically): "As the rule is - well established by decisions, it is not necessary to give any reason in its support, or to say anything to show it to be a good and useful oile" 8. "The profession", observed Sir James Mansfield, "has always wondered at Dumpor's case; but it has been law for so many centuries that we cannot overrule it" *. Such old cases then are precedents not because they should have been so decided in the first instance, but because, as a matter of fact, they have been so decided. For, if this were not so, there would be no stability in the law. For example, the English law on seduction, according to which not the girl but her employer may sue for damages for loss of service, and which grew out of the law of Master and Servant, is in many respects absurd; for by a fiction of law,
1 Ia the case of In the International Pulp Co., (6 Ch. D. 656), Jessel J. refused to be bound by two decisions of a higher court because he could not recognise any principle established by the cases.
2 Kent's Commentaries Vol. 1, p. 660.
3 In re Emmens vs. Elderton (4 H. L. Cas. 624).
* Quoted in Law Magazine and Review, VoL XXVIII, p. 290.



16
the father is presumed to be the employer if the daughter merely lives at home, and does some service however small it may be. The law as it stands has been severely censured1, but being based on a long line of decisions it is binding on all courts, and can only be altered now by Act of Parliament2.
The position however is quite different when the precedent is a case that has been recently decided. In. dealing with such a case the courts are graded "in a regular hierarchy"3. First, as regards the court in which the decision was given. If it is the House of Lords, it is absolutely bound by its own decision 4, and only legislation can change the law laid down by it. The same applies to the Court of Appeal, but not so absolutely, for it can probably overrule one of its own decisions if it was obtained by the casting vote of the president. The Privy Council, however, is not bound by its own decisions5.
As regards decisions of co-ordinate courts no hard
1 Sir F. Pollack in bis Law of Torts, London 1912, p. 238, quotes Sergeant Manning as saying: "The quasi fiction of servitium amisit affords proteotion to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers."
1 For example, the Trade Disputes Act of 1906 was passed to alter the law in regard to the intervention of trade unions in inducing their members to strike, which was held to be actionable at Common law in South Wales Miners Federation vs. Glamorgan Goal Co. 1906. (A. C. 239). Anson: Law of Contracts, p. 275.
3 Holland: Elements of Jurisprudence, p. 69.
4 See Lord Halsbury's judgment in London Street Tramway Co. vê. London County Council, 1898, (A. C. 376).
6 So the decision that a colonial legislature had a power at Common Law to punish contempts, which was given in Blaumont vs. Barrett (I Moore P. C. 69—1836), was overruled in Kielley vs. Carson, (14 Moore P. C. 59—1836), the same judge delivering the opinion in both cases. J. C. Gray: The Nature and Sources of the Law, New-York 1921, p. 217.



17
and fast rule can be laid down; but these decisions are mostly abided by. Inferior courts are, however, absolutely bound by decisions of superior courts, except in a case of clearly apparent error on the part of the former court1. No superior court of course is bound by a decision of an inferior one.
Besides decided cases which have derived the force of established precedent, there are also certain ancient commentaries and text-books which can be regarded as possessing authoritative weight, such as the works of Glanvil, Bracton, Britton, Fleta, Littleton, Fitzherbert and Coke. The treatises of these writers are presumed to be the best evidence of the law as it existed at the time when they were written, and all of them are in fact based, or thought to be based, on the decisions of the courts2.
English law, then, obtained its peculiar unwritten form through the action of the judges in turaing established customs into legal precedents, and the doctrine of stare decisis acts as an ample safeguard against judicial arbitrariness and uncertainty. Indeed, so strong a hold did this doctrine obtain over the courts once the common law was fully and firmly established, that the strict adherence to it began to have a detrimental effect on the administration of justice, for the common law became positive and
1 For example, the decision of the Court of Appeal in the case of Coohney vs. Anderson (de Q. J. & S. 365—1863) was overruled by an inferior court on the ground that It was decided in ignorance of a statute.
2 Blackstone's Commentaries: Vol.l,p.56. Modern treatises possess no binding force, but the opinions expressed therein especially when the author was an eminent lawyer, are usually accorded great weight. See J. C. Gray: The Nature and Sources of the Law, p. 267.
2



18
fixed, and could not be accommodated with ease to the requirements of the changing conditions and circumstances1. New cases arose, to which the strict application of the rules of the common law would have caused injustice, or for which the common law remedies were inadequate and unsuitable; or there may even have been no rules by which they were to be decided. Judges became more and more dismclined to create new precedents, as it was difficult, in doing so, to avoid interfering with those that had already been established. But there was one power in the state that could exercise judicial functions independent of the common law courts, and that was the king. Where, then, the common law remedy was unsuitable or inadequate or caused injustice, or where the law was entirely silent, a party petitioned the king to exercise his royal prerogative to grant him redress or reliëf. At first these petitions were dealt with by the king personally or his council, or both. But later it became the practice for the king to refer these petitions to the chancellor, the "keeper ofhisconscience" as that official has been styled, for his attention and decision2. The chancellor would, if he thought fit, step in and prohibit the carrying out of a judgment obtained in the common law courts on the ground of its injustice or unfairness; or in other cases, com-
1 For the development of equity jurisprudence in England, see G. Spence: The equitable jurisdiction of the Court of Chancery, London 1846—'49,
2 Vols. VoL 1, Chapters 1 to IV.
* The early chancellors were ecclesiastics, who would naturally look to Roman Law for guidanoe, and in this way various principles of Roman law were introduced into England. Equity answers the description of scientific law more exactly than any other part of English jurisprudence. Sir F. Pollock: First book of Jurisprudence, London, 1923, p. 269.



19
mand a plaintiff to appear before him and do justice ex aequo et bono, instead of him pursuing his legal remedy. And where the common law supplied no remedy the chancellor assumed the function of original dispenser of justice, and decided the issue in an equitable manner. This extraor<ünary jurisdiction came to be known as equity in contradistinction to the common law1.
But this equitable reliëf which was at first a matter of royal grace, came in time to be regarded as a right to which the subject was entitled 2. Also the classes of cases which were dealt with in the court of the chancellor, became clearly defined; such as those arising out of trusts, married women's settled property, undue influence, fraud, mistake, account, partition, and partnership, in which the court either enforced rights which were not enforceable at law, or provided a more adequate remedy than did the common law. Soon equity jurisdiction was confined to a body of fixed rules and doctrines which acquired the force of judicial precedents2, and by the 17th century it in its turn, became as fixed as the common law itself3.
So, for many centuries, there existed in England two parallel systems of jurisprudence with separate courts in which the common law and equity were respectively administered. In the beginning of the nineteenth century, people began to agitate against
1 Blackstone defines equity as "a more speeific reliëf, more adapted to the circumstances of the case than can always be obtained by the generality of the rules of the positivo or common law." Commentaries, VoL 1, p. 75.
2 Blackstone's Commentaries, VoL UI, p. 459.
3 Pollock: First book of Jurisprudence, pp. 258—259



20
the continuance of this state of affairs, for as one Lord Chancellor expressed himself, it was "a burning shame that a party could recover a judgment on one side of Westminster Hall, and on the other side be branded as a fraudulent rogue for having recovered it" *, The result was that the separate courts administering law and equity were amalgamated by the Judicature Acts of 1873 and 1875. But this did not do away with the distinction between the two types of cases which stül exists though no longer exclusively adnubistered in separate courts2
Although both the common law and the rules of equity are seemingly rigid, they are yet sufficiently flexible to allow for a certain amount of growth and development in the law; and here much depends upon the individual- judges. So, for example, the maritime law of England was built up by Lord Stowell, and Lord Mansfield did very much to evolve the commercial law. But this flexibility does not allow the judge any degree of absolute arbitrary power. Every new case is decided in accordance with the legal principles already prevalent, which possess the quality of being able to be applied to almost any set of facts. Thus, the principle, the ratio decidendi, of one case, is by analogy applied to a case in which the facts are quite different. The result of this may sometimes not be in accord with the rational concep-
1 Lord Westbury. Quoted by H.M. Field: Life of David Dudley Field, New York 1898, p. 63.
* The changes wrought by the Judicature Acts were really not as sweeping in their nature as they would appear to be; for although the old Court of Chancery was abolished, equity is to day administered in the Chancery division of the Suprème Court which carries on the traditions of the old independent Chancery Court. The Acts, however, rendered procedure more simple and uniform.



21
tion of justice, but if that be so, it is time for the legislature to step in and provide a new rule by legislation. The role of the legislature as respects the private law is essentially of a supplementary nature; the unwritten law is thereby added to, or modified, so as to bring it into greater harmony with the requirements of the time.
The decided cases of the courts are contained in law reports, and similarly the statutes, of what nature soever, are all included in statute books; and it is the enormous bulk of these law reports and statute books that lends so much apparent force to the arguments of the advocates of codification, that the law is uncertain and inaccessible. They point out the great accumulation of these books into many thousands of volumes and as much as state: "It is in there that you have to search for your law to-day, but if you accept our plan you will only have one or two books in which all this law, duly improved, will be stated, sö that you will experience no difficulty in finding with ease the law relating to any particular subject." Thus Lord Brougham in his well-known speech in the House of Lords, on law-making, sajd: "In England more than in any other state, more even than in Rome, when Justinian began his labours at a time when the civil law was said to be a burden for many camels, this process [of digesting the law] has become absolutely necessary, because our law, whether made by parliament, or existing in tradition, or declared by the judges, has attained an unprecedented bulk. The reports of cases in the courts fill 500 volumes, the statutes nearly 40, or between thirty and forty



22
quarto pages — while Napoleon's whole codes, five in number, crept into 750 duodecimo pages. Well might he boast that he should descend to future times with his code in his hand!" 1 This was said in 1848, and though the position is considerably worse to day, codification is yet farther from sight than it was in Brougham's time.
The law of England is contained in the law reports commencing with the Year Books, and being added to year by year, as well as in Acts of Parliament from the reign of Henry Hl. The Year Books begin in the year 12922, and continue until the reign of Henry VHI when they cease. Then towards the close of this reign modern reporting begins with the reports of Plowden and Dyer. In 1895 Sir FTederick Pollock reckoned that there were at least 1800 volumes of reports in existence; that is English reports alone. Including Scotch and Irish cases, as well as the reports of the colonies and the United States which are now being quoted more and more in the courts, he thought that there were no less than 18,000 volumes 8 The American writer Sherman reckons that in 1917
1 Hansard 3rd. series, Vol. XCVm. May 12th 1848. p. 911. "Every year", said Bentham, "brings forth its increase of voluminousness, uncompactness,' immensity, indeterminateness." Papers relative to Codification, London 1817 p. 138, Col. 1.
2 These Year Books were not official as is alleged by Blackstone (Commentaries, VoL L p. 66). The opinions of learned sergeants are sometimes given as great and even greater weight, than those of judges, whose peculiarities and short' commgs are occasionally pointed out and commented upon by the reporter himself! These Year Books, wrote Prof. Maitland, "should be our glory, for no other country has anything like them: they are our disgrace, for no other country- * would have so neglected them." Pollock & Maitland, History of English Law Cambridge 1898, VoL I, p. XXXV.
* lïrst book of Jurisprudence, p. 314.



23
there were 10,000 volumes of American and 6,000 volumes of English law reports in existence1. It has been estimated that at the present time there are 80,000 volumes of British and American reports in the United States, which are being added to at the rate of 1,500 volumes a year2.
Also, down to 1928 there are 101 volumes of statutes in existence in England 8. The publications of these statutes duly revised are now contained in 43 octavo volumes 4.
On the face of it, this is a truly perplexing position. But without touching here on the question of- the avoidability or unavoidability of law reports, let us point out however, certain important facts which are likely to be overlooked when the above figures are marshalled together for the purpose of lending force to the arguments for codification.
In the first place, one must not loose sight of the amount of duplication which is to be found in the reports. Rival publications exist resulting in duplication, and this fact should not be forgotten when reading the figures given above6. Then there are
1 Roman Law in the Modern World, Vol. I, p. 293 note. a American Law Review, VoL LVlil, No. 3, p. 482.
8 Ruffhead's edition of Statntes-at-Large contftins 18 volumes up to 1800. 30 more volumes were added by various editors to 1869, and from then the king's printer has issued one volume every year. This makes the total to 1923, 101. See Law Magazine & Review Vol. XXXVI, pp. 129, 130. « The Statutes from Henry DTs reign have been revised in 20 vols. and since then one additional volume is issued each year.
« See Enoyolopaedia of Laws of England, VoL VH. p. 324. Since 1865 the Council of Legal Reporting under the auspices of the Bar Associations publishes reports which have to a great extent, but not quite, supersedad the many private publications. In U. S. A. the reports of the Suprème Court and most State Courts are in the hands of puèlic officials. See Kent's Commentaries, Sec. XXI.



24
hundreds of thousands of cases contained in the reports in which no question of law was involved, and thus form no precedents. Further, there is another great volume of cases which merely reiterate principles laid down in previous leading cases, in accordance with which the former were decided1. Actual leading cases having the force of precedents could be included in a few books, and this indeed is actually done in text books which are daily quoted to, and relied upon, by the courts.
But how does the practitioner find his law? Is the task for him really a case of looking for a needie in a haystack? No, on the contrary, we venture to surmise that the English lawyer does not experience greater difficulty in finding bis law than does the continental lawyer. One would think from some of the statements one reads, that finding the English law is like searching for some bidden mystery, and that he who can find some ancient, long-forgotten case having some relation, more or less, to the case in dispute, has a great advantage over his adversary. This however is hardly the case. For of what value would such a find be? The judge would certainly not be bound to follow it, for being
1 In the Report of Lord Westbury's Commission on the Digest of the Law the followmg appears with regard to this matter: "A large proportion of these cases are of no real value as sources or expositions of law at the present day Many of them are obsolete; many have been made useless by subsequent statutes on which the cases were decided, or otherwise; some have been reversed on appeal or overruled in principle; .... many are limited to particular facts or special states of circumstances furnishing no general rule; and many do no more than put a meaning on mere singularities of expression in Instruments (as wills, agreements, or local Acts of Parliament), or exhibit the application, m parücular instances, of established rules of construction. A considerable number of the cases are reported many times over in different publications. Pari. Reports; Commissioners, VoL XTX, (1867)»'



25
an isolated case and probably an old one at that, it would not be a precedent, and would not possess greater value than as a mere expression of opinion of the particular judge who delivered it, and if it be in any way in conflict with modern decisions, would have no weight at all. On the contrary, the well-accepted principles of law which alone possess indisputable authority in a court of law can be found in any good text-book, and if it is necessary to have recourse to the original report of the leading case laying down any such principle, reference thereto can be obtained from the text books. In practice it is usually found that both sides have perused the very same reported cases which bear on the subject in question.
The true perspective to adopt when regarding the thousands of volumes of law reports, is that of a huge library containing the archives, the detailed history of the law. The larger that this great library — this great repository of legal "specimens" in which the slow evolution of the English law can be traced — becomes, the greater also becomes its intrinsic value. The law reports contain the isolated cases, from which the general rules of law have been deduced, in the same manner as in other sciences general scientific principles are formed by observing special phenomena. It is the general rules that form a science, and not the isolated cases from which these rules have been deduced. Siniilarly the common law is composed of principles deduced from isolated instances, and these principles are established by leading cases which are well known, or easily ascertainable, and the



26
law reports are, besides being histories of these isolated cases, also the best evidence of the principles laid down in the leading cases or precedents.
Of the substantive value of these reports no better tribute can be adduced than that of the great Bentham himself."Traverse", said he, "the whole continent of Europe, — ransack all the Ubraries belonging to the jurisprudential systems of the several political states, — add the contents all together, — you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement — in a word, all points taken together, in instructiveness — to that which may be seen to be afforded by the collection of English reports of adjudged cases, on adding to them the abridgements and treatises, by which a sort of order, such as it is, has been given to their contents"1. And on another occasion he wrote: "The greatest quantity of wealth, possessed in this shapë (reports) by any other nation, is penury, in comparison to that which has been furnished by English common law" 2.
The expansion of English law has been vast. It has extended to England's previous colonies, the United States of America8, and the British dominions and possessions. In the dominions with the exceptions of South Africa and Lower Canada, the English law, modified to suit local conditions, was introduced at the time of their settlement. Lower Canada possesses a civil code based on the Code Napoléon*. In South
1 Papers relative to Codification, Letter to President Madison, p 37 1 Ibid., p. J14, CoL H.
3 Infra.
4 Infra. •



27
Africa, which was formerly a Dutch possession, the Roman-Dutch law still flourishes, though much has been adopted from English law, notably in the sphere of mercantile law K This is also the case with Ceylon 2. Of other British territories we may here mention the Channel Islands, which still retain the old customary law of Normandy, le Grand Coustumier du pays et duché de N&rmandie" 8, and Mauritius and Seychelles, once French possessions, which have been permitted to retain the French codes 4. In India the code-system has been introduced, and a good deal of the law now exists in the form of codes5.
1 Roman Dutch law has also been introduced into Southern Rhodesia and South West Africa.
8 In Ceylon there still exists besides Roman Dutch law, much native law and custom. See J. C. W. Pereira: The laws of Ceylon, Colombo, 1913. In British Guiana which was also formerly a Dutch possession, very UtÜe remains over of the Dutch law there. See R. W. Lee: An introduction to Roman-Dutch Law, Oxford 1915, p.p. 22, 23.
* A. W. Renton and G. G. Phillimore: Colonial Laws and Courts, London 1907, p. 132 et seq.
1 Mauritius was ceded to England in 1810. The 8th. Article of the Capitulation dated 3rd. Dec. 1810, preserved to the inhabitants their religion, laws and customs amongst which were the French Civil Code, Code of Civil Procedure, and Code of Commerce. Ibid. p. 199. 6 Infra.



CHAPTER III.
THE CODIFICATION MOVEMENT IN ENGLAND.
The idea of reducing the common law into a digest or code is not a new one in England. For, as far back as the reign of Henry VHI, the formation of a code was, so it is stated, strongly advocated by Reginald Pole. To him the English law appeared as but a confused mass of uncertain rules of conduct which required to be put into order by the same remedy as that applied by Justinian to the Roman law, when this law was in a state of great chaos K And indeed it is possible that Henry VIII actually contemplated the compilation of a civil code 2. In 1549 in the reign of Edward VI the House of Commons proposed to the House of Lords that both the common and statute law be digested in the form of a code, but the matter was not further proceeded with, as it was feit that it was of too important a nature to be attempted under an infant king.
1 Thys ys no dowte", he is alleged to have said, "but that om* law and ordur thereof ys overconfuse. Hyt is infynyte, and without ordur or end, .... Therefor, to remedy thys mater groundly, hyt were necessary, in our law, to vse the same remedy that Justynyan dyd in the law of the Romaynys, to bryng thys infynyte processe to certayn endys, to cut away thys long lawys, and, by the wysdome of some polytyke and wyse men, instytute a few and bettur lawys and ordynancys." English Law and the Renaissance, by F. W. Maitland in AngloAmerican Legal History, Note to Page 172. * Ibid., p. 190.



29
In 1607, in a speech delivered atWhitehall, James I brought the matter up for the consideration of paiiiament, and expressed the desire that "by parliament our lawes might be cleared and made knowen to all the subiects" K What he evidently intended was the conversion of the unwritten common law into written and statutory law, for, said he, "rather it were less hurt, that all the approved cases were set down and allowed by parliament for standing lawes in all time to come; for although some of them, peradventure, may be vniust, as set downe by corrupt iudjes; yet better it is to have a certaine law with some spots in it, nor live vnder such an vncertaine and arbitrarie law" 2. And on a subsequent occasion, in 1609, this monarch, who appears to have taken much interest in the matter, expressed similar views on the subject of the conversion of the unwritten law3.
Bacon too, recommended that the law reports should be properly revised and abridged so that the law
1 Parliamentary Reports; commissioners. VoL XXXV. 1S36. 1 Parliamentary Reports; Commissioners, Vol. XXXV, 1836. » In a Speech at Whitehall in March 1609 he said: "Yet ootdd I wish that some more certaintie were set downe in this case by Parliament; for since the very reports themselves are not always so binding, but that divers times iudges doe disclaim them, and recede from the judgment of their predecessors, it were good that vpon a mature deliberation the exposition of the law were set downe by Acte of Parliament, and such reports therein confirmed as were thought fit to serve for law in all times hereafter, and so the people should not depend vpon the bare opinions of iudges, and vncertaine reports. And lastly, there be in the Common Law divers contrary reports and presidents, and this corruption doeth likewise concerne the statutes and Acts of Parliament, in respect there are divers crosse and cutting statutes, and some so penned as they may be taken in divers, yea, contrary sences; and therefore would I wish both those statutes and reports, as well in the parliament as common law, to be once maturely reviewed and reconciled." Parliamentary Reports; Commessioners Vol. XXXV. 1835.



30
could be contained in one or more volumes, and later even offered to prepare a digest of the laws of England in mitigation of his punishment and disgrace which he had to suffer for his dishonesty in the execution of his duties as lord chancellor.
In 1653 a committee was actually appointed, "to consider of a new model or body of the law", but nothing came of this \
Again under Cromwell's regime the state of the law and the question of changing its form again attracted attention. John Coke wished to clear the law of everything "either properly and directly, or collaterally, and obliquely, repugnant to the law of God", and ten years later Bulstrode advocated the reduction of the law "into a sound and solid body". Moreover a committee appointed by parliament composed a concise system of law which was presented to it but not proceeded witha.
Once more in 1666 a committee was appointed to prepare a code of law, and once more the plan did not fructuate8. Fate seemed stubbornly determined to continue the existence of the common law in its traditional form of unwritten law.
But it was not tül the close of the eighteenth century that the movement in favour of codification, • which ebbed and flowed throughout the last few centimes, was to take up a place of importance and per-
1 Hansard, Vol. CLXXI. p. 789.
2 See Essay by R. Robinson: Antioipations under the Commonwealth of Changes in the law. In Anglo-American legal History, VoL I, pp. 481, 482.
3 — Ibid. — p, 482. "The value of a Civil Code to the laity",says Robinson, "was even more exaggerated under the Commonwealth than it now is", p. 482.



31
manence in English legal science and become for a time a question of practical politics.
The man to whose labours this is due, and with whose name the movement for codification in England has ever since been identified is Jeremy Bentham (1748—1832). Philosopher, philanthropist, economist, it is in the role, however, of a fearless and untiring advocate of legal reform that he is most renowned He stands out as a giant in modern English legal history. During a long life, active until the last, he strove unceasingly to improve the state of the English legal system, in point of substance, form and administration. But we are here concerned only with his activities in the matter of codification, which word was coined or at any rate introduced into the English language by him 2. In 1802 his "interpreter" Dumont, published the "Traités de legislation" which contained plans of codes prepared from manuscripts handed him by Bentham, who almost immediately thereupon obtained a cóntinental reputation. His influence was feit all over Europe, and his works were mentioned in connectoin with the drafting of the Code Penal of Napoleon3; especially in Russia his writings gave impetus to the codification movement there4. Like
1 Brougham once said of Bentham that "No one before him had ever seriously thought of exposing the defects in our English system of jurisprudenoe". Speeches, Vol. II, p. 287. Bbert designates him as "the greatest of English law reformers." Legislative Methods and Forms, Oxford 1901, p. 125. On it being remarked to Talleyrand that more had been stolen unacknowledged from Bentham than from any other writer, this keen judge of men replied: "Et pillé par tout le monde, il est toujours riche". C. M. Atkinson: Jeremy Bentham, London 1905, p. 207.
2 Murray's dictionary of the English Language.
3 Exposé des motifs du Code Pénal (2. Feb. 1810). pp. 19 and 24.
* "It is not only Alexander the First who desires to give her a Code, Russia



32
his countryman Bacon, his fame came to his own country from abroad1. His disciples were men as eminent as Romilly, James Mill, John Stuart Mill, Lord Brougham and, one may also add, John Austin, though however the last-named differed from him on many points. Macaulay places him next to Galileo and Locke, and declares him to have found "jurisprudence a gibberish and left it a science" 2, a rather exaggerated opinion not quite justified by the facts.
Bentham overrated the possibüities of legislation, and exaggerated the defects of the institutions he attacked. He was a theorizer of theorizers, and did not always measure his theories with therod of actuality. This can be accounted for by his secluded manner of living, with the result that he did not come into daily contact with the realities of life. His quaint style made his writings, to use a word of his own, "incognoscible"3. Still he remains a giant. This then was the man who was for many years the chief apostle of codification in England.
Though he was essentiaüy a theorist, yet if there was one thing which Bentham desired above all ethers, it was an opportunity to put bis theories into practice. His great ambition was to be commissioned to draw
herself demands one .... let Jeremy Bentham prepare it." Letter from General Soblonkoff to Bentham's brother. Quoted by C. M. Atkinson: Jeremy Bentham, p. 150.
1 The Edinburgh Review averred that his reputation had become "thoroughly European .... a sort of jurisconsultal bishopric in partibus transmarinis .... they have got an idea on the Continent that there is such a thing as the philosophy of legislation". VoL XLVLTI. p. 458. * Edin. Review. Vol. LV, p. 652.
3 "No terms seemed accurate enough for him but those mentioned by himself, and no sentences complete which leave anything to be understood." Sir R. K. Wilson: History of Modern English Law; London 1875, p. 140.



33
up a code of laws. He despaired of his own country "a country of slaves" as he styled it \ and offered his services to the United States and to Russia2, but with no success. Undaunted by disappointment, he continued in his work and in 1823 published bis Codification proposal which was followed by De Vor~ ganisation judiciaire et de la codification, prepared by Dumont. In 1829 he published a Petition for codification for presentation to the House of Commons but apparently could not find anyone among his friends to introducé it3.
No one has attacked the English legal system with more vigour than Bentham. The common law he called "counterfeit" law in comparison with the only real law, the statute law. The former he said was made by judges, who, he informed the Americans, were "the creatures, the ever removable and completely and perpetually dependent creatures of the king alone"4, a description which was absolutely incorrect. These judges, who, in his view, usurped the functions of the people or rather of their representative body, the legislature, exerted their "power everywhere arbitrary, with the semblance of a set of rules to serve as a screen for it", and the people's most important interests were based or rather fluc-
1 Papers relative to Codification, p. 136.
2 He addressed letters asking for a commission to construct a Civil Code to President Madison, October 1811; to the Go vernor of Pennsylvania, July 1814; to the respective governors of the different states of America July 1817, and to the citizens of the United States generally in an open letter in August 1817. Besides these, he addressed a similar letter to the Emperor of all the Russias, July 1814.
3 See Atkinson; Jeremy Bentham, p. 201.
4 Papers relative to Codification, Part I, p. 105.
3



34
tuated" on some random decision, or staring of frequently contradictory decisions, pronounced in this or that barbarous age, almost always without any intelligible reason, under the impulse of some private and sinister interest" K The statute law, too, was produced by the legislature in a haphazard and confusing manner without any regard to order or proper publicity, "as if from a rubbish-cart, a continually increasing and shapeless mass of law is from time to time shot down upon the heads of the people" 2. In short, the whole law, both common and statute law, was in a chaotic condition, which made it impossible for the layman to know it, and most difficult for the lawyer who "monopolized" all knowledge of it, to find it. The lawyers, Bentham regarded with undisguised disdain, as "the implaceable enemies and oppressors" 8. of the people. And furthermore the "voluminousness, uncompactness, immensity, indetenninateness"4 of the law which was the cause of its uncertainty and the resultant insecurity, increased from year to year, as the decisions of the judges and the statutes accumulated.
The two great evils then, with which the English law was beset, were, uncertainty and incognoscibüity or the difficulty of ascertaining it, because of its great bulk and its form, which was mainly unwritten5. The remedy, the only remedy for these ever growing maladies, was codification. Bentham's great dislike
1 Papers relative to Codification, Part n, p. 14. * Ibid, Part IL Note to p. 101, Column II.
3 Ibid, Part I, p. 66.
4 Ibid, Part H, p. 138, Colomn L
8 Uncertainty, said he, was "the inherent disease of that wretched substitute of law, which is called unwritten law."



35
of the common law, mainly on account of its form is best illustrated by the following hysterica! exhortation to the people of the United States:
"Yes, my friends, if you love one another — if you love each one of you his own security — shut your ports against our common law, as you would shut them against the plague. Leave us to be ruled — us who love to be thus ruled, leave us to be ruled by
our gang of self appointed : by out lawyer-ridden,
by our priest-ridden : leave ustobe ruled, by those
— who never cease to call upon us to rally round our ,
— that poisoned and poisonous , by the name of
which they have made us slaves. No: never, never let slip out of your niind this lesson — wheresoever the common law is harboured, security is excluded" *.
From the many other advocates of a code system for England, it will suffice here to enumerate the views of the famous English jurist, John Austin. Austin was a more sober and restrained advocate of codif ication than Bentham, and suffered from none of thedelusions which lent an air of over-exaggeration and unreality, sometimes amounting to the absurd, to the work of the fermer.
In Austin's view the natural evolution of the law proceeds in the following order: first, rules of positive morality; then judge-made law, followed by judge-made law supplemented by statute law; and finally all the law embodied in a code. He has not however the- same contempt as Bentham for judge-
1 Papers relative to Codification, Part II. p. 136, Column I. The words omitted in this quotation were most probably left out purposely by the printer, who had dono this on another occasion. See Atkinson: Jeremy Bentham, p. 158.



36
made law, which he rightly points out is in no sense arbitrary law, but is effectually controlled by public opinion and the legislature, which always has the power to alter the law as laid down by the judges. But at the same time he agrees with Bentham that to the great majority of the people, the law is both unknown and inaccessible, mainly because of the great bulk of the law reports and statutes and the difficulty of extracting the ratio decidendi, or rule of law, from the particular circumstances of the case with which this rule is interwoven; nor he maintains is this an easy task even for the lawyer. But still, and in this respect Austin is more rational than Bentham, he does not believe that the law could ever be so condensed and simplified as to make it possible for any considerable section of the community to know all or a great portion of it; yet he saw no reasonwhy the law could not be so condensed as to be known in its entirety by the lawyers.
Two of his objections to the English system are that the judiciary law is made by the judges in haste, and that it is ex post facto. Both of these views flow naturally from his presumption that law is actually made by the judges, for if this view be correct, then sufficiënt time is not devoted by them to so important a task as the creation of rules of law, and so far as this is necessarily ex post facto, the result is that the people have no conceivable means of knowing the law until it is made by the judge. In our opinion, however, a more correct theory and one which is historically justifiable is that law is not made by the judges but merely found and declared



87
by them, so that the inconvenience of the law arising from its being ex post facto is more apparent than real. Moreover, even Austin admits that the judges do not make law arbitrarily so as to be able to surprise, as it were, the people and cause uncertainty to arise in their daily transactions and intercoürse.
The question of codification itself is considered by him from two standpoints, the abstract and the concrete. In the abstract, a code of the existing law was a practicable project; though his argument? in fact, only goes to show that is was possible to construct such a code; for before any such work can be said to be practicable, it must also be considered in the concrete, which is quite another matter. For the existing system of law must not be compared "with the beau ide'al of possible codes", but with the particular code which would result from a codification of the particular law in existence; and Austin did not favour the construction of a code which was not based exclusively on the pre-existing law. In considering the matter in the concrete, regard must be had to the peculiar circumstances of a given people, and in this respect Austin puts the same questions as von Savigny: Is the particular community ripe for the codification of its law? Are there mensufficiently competent to accomplish such a task successfully? And in his opinion, on the answer to these questions, rests the advisability or inadvisability of adopting a code-system for any particular country *.
1 For Austin's discussion of the question of codification, see his Lectures on Jurisprudence, Campbell's edition, London 1911, VoL II—lectures XXXVII to XXXTX, pp. 620-681.



38
Of other English advocates of the code-system, Sir Frederick Pollock, T. E. Holland, and Sheldon Amos are amongst the best known. The more modern supporters of codification occupy substantially the same ground as did Bentham and Austin before them, so far as the arguments against the present form of the English law and the motives for adopting the code form are concerned. As an example the views of Sheldon Amos may be summarized as follows:
(a) The law is uncertain owing "to the obscurity, indefiniteness and conflict of the authorities from which a knowledge of it is derived". A good deal of time is thus wasted by lawyer and judge in ascertaining it.
(b) The law, because of its lack of accessibility makes it difficult for persons to know their rights and duties; and because of this evil the legislature is hindered in its work of amending and supplementing the common law l.
Thus, ever since Bentham inaugurated the modern movement for codification in England, the cry of the codifiers has remained the same: "certainty and cognoscibility" in place of the chaos in which the English law appears to them to be in. Yet since his time the decisions of the judges have increased voluminously, and the legislature has not ceased to "pour forth" numerous statutes, and still the English law as a system remains to this day uncodified, though the logical result of a hundred years of evolution on the old lines and in the old form which Bentham con-
1 Sheldon Amos: The Science of Law, London 1874, p. 364.



39
demned so vigorously, should have so considerably aggravated the evils which in his view flowed therefrom, as to make matters intolerable. But on the contrary, as will be seen further on, there does not exist to-day in England any manifestation of a demand for a code on the part of the general public, the greatest section of which is blissfully ignorant of the whole codification movement with its aims and aspirations; and practising lawyers regard any scheme to changej the form of the common law with extreme disfav*>ur. Even amongst the theoretical jurists for whom codification seems always to have a certain attraction, one recognizes a note of scepticism as to the practicability of codifying English law at the present time or in the near future, if not also as to its advisability; and in the United States especially, the arguments of the codifiers have been subjected to severe criticism, and the many advantages which they maintained would be derived from a code shown to be chimerical and unattainable.



CHAPTER IV.
PRACTICAL ATTEMPTS AT CODIFICATION.
The influence which Bentham and his disciples ex'erted on the movement for law reform which was inaugurated by the former, succeeded in many spheres; but in their advocacy of a code for England, in which work they expended no little energy, they were not destined to gain any real successes nor to reap any important practical results. Brougham for nearry half a century kept this favourite project of the Benthamite School continually before the legislature. Many commissions were appointed to inquire into the matter of digesting the criminal law in the form of a code, and several Bills were introduced into parliament as a consequence of the work of the commissions; but the actual practical results of all this activity has been so small, one may even say, so negligable, as to give very little encouragement to those who still cherish the desire of seeing the English law completely codified.
In England, the project of codifying all the law in one bold stroke, so to speak, has never won much favour with the more practical advocates of codification; but on the other hand the method of partial codification possessed many supporters. Thus, when the government in which Lord St. Leonards was



41
chancellor, decided to digest the criminal law into one code, the method which was to be adopted was to digest the law piecemeal, enacting the different parts in many separate codifying acts\ Such a code, so enacted, would be liable to suffer from many faults which would give rise to much uncertainty. There would almost certainly be lacking the necessary unity of conception and execution in a work carried out in this manner by perhaps different bodies of men at different and probably widely separated periods of time. The interrelation of different departments of the law cannot be lost sight of. For example, to know the law relating to theft, it is also necessary to know the private law relating to rights of property, and to understand the law of embezzlement an acquaintance with the law of trusts is indispensible. Similarly, the law of libel can involve civil or criminal consequences. To draw, then, an absolutely clear dividing-line between certain branches of the law is not always possible or practicable.
If there is to be a good code-system in England, this will only be possible if all the law is codified as a whole, based on a definite plan in which there is a regular connection and subordination of parts to each other and to the whole design. Symmetry in construction, harmony in distribution, and consistency of language, is to our mind, essentials of any good code. But on the other hand the method of partial codification would certainly have a greater chance of success with the English people, because of their
1 Hansard, Vol. CXXTV, 1853, p. 525.



42
natural conservatism and their extreme wariness of new ideas, than a method which would effect one great sweeping change in the form of the law which has prevailed for so many centuries. To the English mind, revolutionary measures are extremely distasteful, while it is just the opposite with results brought about by gradual .change slowly evolved by time. And it is doubtless the consciousness of this national trait, which has influenced the supporters of codification to be satisfied, in the main, with advocating a gradual codification of the law.
The practical attempts to digest the English law have been almost solely directed to the criminal law. With most of these attempts the name of Brougham is intimately connected. "We shall act more judiciously", he said, "if we at first rest satisfied with forming and passing a digest of the criminal law, by far the most imperatively required" 1.
A start was made on the 23rd July 1833 when a commission was appointed by William IV to go into the question of digesting the criminal law. The members of this commission were T. Starkey, H. B. Ker, W. Wightman, Andrew Amos and John Austin; and they were required to report whether or not it would be advisable "to digest into one statute all the statutes and enactments touching crimes, and the trial and punishment thereof, and also to* digest into one or other statute or statutes all the provisions of the common or unwritten law, touching the same, and to inquire and report how far it may be expediënt to combine both those statutes into one body of the
1 Hansard, VoL XCVT.il, 1848, p. 912. .



43
criminal law, repealing all other statutory provisions1".
The commission, after carefully considerinjg the matter, duly reported that in their opinion the statute and common law touching crimes and punishments should be digested into statutes, and that these statutes should be subsequently combined. In its report2, the conmiission set out fully its opinion of the common law in regard to crimes, which they had no hesitation in stating needed not only a change of form but also a good deal of improvement in its substance. Their desire was not merely to make "a servile digest of the existing criminal law" but also to effect the changes and improvements which they deemed necessary in its substance. A digest of the common law dealing with theft was annexed to their report. This report was received by Lord Brougham, who was then chancellor, to whom the recommendations of the commission must no doubt have been very welcome indeed. A second report was later presented by the same commission, in which it deals, by special request, with the questions relating to the defence of prisoners by counsel, and capital punishment8.
On the 21st October 1836 the commission was renewed and David Jardine appointed in the place of John Austin who had resigned. The work of digesting the criminal law was continued, and a further report (the third) was presented dealing with the law relating to juvenile offenders4.
The powers of the commissioners were now greatly
1 Pari: Reports; Commissioners, VoL XXVE, 1834, Crirninal Law Report.
2 Dated 24th June 1834, ibid.
» Pari: Reports; Commissioners, VoL XXXVI, 1836, dated 9th June. « Pari: Reports; Commissioners, VoL XXVI, 1834.



44
extended, for a letter from Lord Melbourne gave them authorjty to frame a detailed plan for digesting the whole criminal law into one statute, with power also to make such "partial alterations" as they considered necessary1. This additional power was construed as being limited to the making of such alterations only as would not involve a change in any of the essential features of the law. They accordingly started off with a digest of the law of persons "partially" improved by them, as well as one of the law relating to criminal violation of the rights of property. These digests they annexed to their fourth report, which they presented on the 8th March 1839 2.
The work was continued during the four succeeding years, and a fifth3, sixth4, and seventh5 report was duly presented, the first two containing further instalments of the digested law. In the last report, the work was reported completed and a full digest of all the law relating to crimes and punishments was included therein.
The digest was now ready to bè dealt with by parliament. Accordingly, Lord Brougham introduced a Bül in the House of Lords embodying the digest; but was persuaded by the chancellor, Lord Lyndhurst, to withdraw it, on the latter undertaking to issue a new commission for the purpose of revising it 6.
So, yet another commission was appointed on the
1 Pari: Reports; Commissioners VoL XIX, 1839.
* Ibid.
3 Pari. Reports; Obmmissioners, dated 22nd April 1840 Vol. XX (1840).
4 Pari. Reports; Commissioners, dated 3rd May 1841 VoL X (1841).
■ Pari. Reports; Commissioners, dated llth March 1843 VoL XTY (1843).
• See Hansard, Vol. XCVHI (1848) p. 912.



45
22nd February 1845, composed of the three former commissioners Messrs. Starkey, Ker and Amos, with the addition of Sir E. Ryan and R. V. Richards. Messrs. Starkey and Ker were authorized by this commission to complete the digest of the law of criminal procedure, which had been undertaken but not f inished by the- previous commission. In an eighth report they accordingly presented a draft Bül regulating criminal procedure l. The commission as a whole was instructed to consider the reports of the last commissioners and the alterations suggested by them, and whether it was expediënt to digest the law in this manner, as also to draft the necessary Bül to be introduced in Parliament2.
Again the work of producing reports commenced, with the old commissioners Starkey and Ker revising their own previous reports and plainly dominating the work. Five more reports were drawn up by this commission, which agreed with the last ones in the absolute necessity of a digest of the criminal law. The first four reports contain the complete revised digest in the form of a Bill 3.
Brougham in the House of Lords once more introduced a Bill enacting "A criminal code — a code defining all crimes, with their punishments", which he proposed to follow by another code dealing with criminal procedure, as soon as the commission had
1 Pari. Reports; Commissiones, dated öth July 1845 Vol. XJV (1845). * Ibid.
» Ist. Report dd. 30th May 1845, ParL Reports, VoL XIV (1845); 2nd report dd. 14th May 1846. VoL XXIV (1846); 3rd report dd. lOth June 1847 VoL XXV (1847); 4th Report dd. 30th March. VoL XXVII (1848); 5th Report dd. 13th June 1849 VoL XXI, (1849).



46
completed the drafting of the same H The Bill was read a first time and then referred to a select committee of the House of Lords to be revised for the second time.
Nothing further was done untü the 16th November 1852 2 when the chancellor announced that the Government intended to introducé into Parliament the different parts of the digest, this time in several Bills3. The chancellor however expressed himseJf as generally opposed to codification, but feit that after all that had happened, it was his duty to proceed with these Bills. He was fully aware of the dangers of the undertaking, for, "unless we are careful", he told the Lords, "we may collect a set of bad treatises and give them a binding effect. Valuable treatises are now resorted to by the judges for information,
but they are not bound by them But if effect
be given to like treatises as statute law, the judges must follow them implicitely and thus great difficulty will arise"4. Still at the same time, he feit that if codification was to be attempted at all, it could be applied more successfully and with less difficulty to the criminal law than to any other branch of the law. "But," added the Lord Chancellor, "it may after all be a dangerous experiment and it must not be considered as a pledge on the part of the government to proceed beyond the digest of the criminal law" «.
1 Hansard, Vol. XCVm. (1848) p. 877.
» The matter however was raised in Parliament by Brougham on 30th March 1852 and by Lyndhurst on 12th Nov. 1852. Hansard, Vol. CXXUI. p. 125.
3 Hansard, Nov. 16th 1852. VoL CXXUI. pp. 191,192.
4 Ibid. p. 191. * Ibid.
L



47
These are hardly optimistic words to use in introducing so important a measure effecting as it did a revolutionary change in the form of the law; and the attitude of the government to the proposed measures could, at best, be described as only lukewarm.
Two Bills were accordingly introduced in the House of Lords, one dealing with the criminal law relating to the law of persons by Lord St. Leonards, now no longer chancellor, and the second dealing with the law of property by the new chancellor, Lord Cranworth. The former Bill was read a first time *, and referred to a select committee including Lords Lyndhurst, Brougham, Campbell, Truro and the Chancellor, which carefully reconsidered the measure and improved it by many alterations. This committee then decided to take the opinions of the judges on the contents of the two Bills introduced.
It is surprising that this step had not been taken much earüer in the proceedings. For, in England, greatest expositors of the law and the main authorities thereon have always been the judges. Now at last it was decided to submit the measures which were intended to alter the form of the cruninal law to the men best capable to judge of their utility and practical value, and who above all others, would know the defects of the common law which they daily administered and the desirabüity, if any, for the proposed change.
In October 1853, then, the chancellor addressed a circular letter to the judges soliciting their opinion on the contents of the two Bills that had been intro-
1 Hansard, VoL CXXIV Feb. lOth 1863. p. 10.



48
duced in the House of Lords by Lord St. Leonards and himselfl. In a second letter he requested them also to give him their opinion as to whether the bringing of "the whole criminal law as far as relates to offences and their punishment, into one or more statute or statutes, would be a measure likely to produce a benefit in the administration of justice or the reverse" a. Thus, after twenty years work had been expended on actually preparing the necessary measures to accomplish this, it was only then decided to inquire into its advisability. The attention of the judges was directed mainly to the first of the Bills which had undergone so much revision at the hands of the Royal Commission and the select committee of the House of Lords (including all the law lords) that it was, in the words of the chancellor, "as perfect in its main features as it could be made, and.... a fair specimen, or nearly a fair specimen, of the degree of precision and accuracy which it would be possible to attain" 8.
The replies of the judges came as a great disappointment to the supporters of the Bills, and damped what little ardour there was for the work in those who, like Lord St. Leonards and the chancellor, hesitated to make the Benthamite creed their own. In fact, never was a proposition more decisively, more unreservedly, and more unanimously rejected.
A few extracts from the replies of some of these judges, many of them men bearing names of great lustre in English legal history, will serve to show
1 Letter dated lat October 1863 in Pari. Accounts and Papers, Vol. LUI (1864).
* Letter dated 15th December 1863, Ibid.
• Ibid.



49
what their opinions were of this measure in particular and such measures in general.
As to the inadvisabüity and even the danger of the proposed change in the form of the law, the judges speak with a unanimous voice. Thus, the Chief Justice, Jervis, expresses it as his opinion that if the first of the two Bills "is to be taken as a fair specimen of the
accuracy with which the work might be performed
[it] would produce no benefit in the administration of criminal justice" l. And not only would it do no good, but in the view of Baron Parke, the measure would be a decided evil. So Baron Alderson considers the Bül in the form in which it was drafted to be "worse than useless" and "founded on a totally wrong principle", so that it "wül involve the administration of criminal justice in great difficulty". Judge Coleridge on his part warns the chanceüor to "expect no benefit, and fear some inconvenience from the measure", and a reply similar in its import is furnished by Judge Maule. Judge Wightman, who was himself a member of the criminal law commissions referred to above, untü he was appointed a judge, now feels that the work of his late confrères, as "perfected" by the select committee of the House of Lords, "wül embarrass rather than aid those who have to administer the criminal law". And Judge Talford, in pointing out many errors detected by him in the Bül in the coursë of a vigorous criticism on the manner of its construction, claims that if "such a Bül, so framed, so introduced, so corrected, so nearly perfected, so justly exhibited
1 All the extracts here given are taken from the letters of the judges oontained in Pari. Account and Papers, Vol. LUI (1864).
4



50
as a fair specimen of the precision and accuracy it is possible to attain, should be found from first to last deficiënt", then there would be little difficulty in determining "whether it would be expediënt to prosecute a scheme of codification of which such a specimen has been produced under such auspices", and after careful consideration he gives it as his conclusion, that "the complete accomplishment of the work proposed is hopeless, and the attempt to accomplish it perilous", and the Bill if enacted would be bound to cause "certain mischief and probable danger" especially when one sees the palpable defects in the measure presented "almost as a model". Similar quotations could be given from the letters of all the other judges whose opinions were sought. Not one of them (there were sixteen in all) saw any benefit that would be likely to result from the measure.
And one can well understand this attitude of the judges, for no one knew better than they, the many holes and pitfalls which abound in Acts of Parliament, and thus a fortiori in a code or digest, as well as the great trouble -and expense incurred in settling unforeseen difficulties when applying and interpreting many of these Acts. As Judge Pollock points out in his rep!y> "anY consjderable change in the law is always followed by litigation and expense, which continues until the doubts are exhausted by judicial decisions to which the new law has given rise."
The common law which the codifiers found so full of uncertainty, so difficult to find, and so little known, is far from being in disfavour with these men who had recourse to it every day; they can see in it no



51
such great evils as to justify a change in its form. On the contrary expressions of satisfaction, even of révérence, are found whenever the common law is referred to, and many judges express their disapproval and fear of any tampering with its form. "I cannot but express an earnest hope," writes Lord Coleridge, "that our common law, may not be taken from us. Like many other things in our constitution, it may seem objectionable in theory, but in its results is found to produce the greatest good." And Pollock too, points out the great merit of the common law which amply secures the peace of society, and the safety of individuals, but cannot feel the same security "if the common law is abolished, and we have nothing to look for but a code."
The commissioners had often, in their reports, referred to the great uncertainty which they found to prevail in the English'law, and to remedy this was one of their main objects in preparing the criminal law digest. The judges however are not aware of any such uncertainty as to necessitate the change. Thus Pollock J. says: "I am not aware that there is any such doubt in point of law as to the offences referred to as to call for the interpretation óf the legislature at all," and feels certain that the new Bills would "furnish great room for doubt and uncertainty, which at present does not exist." Also Baron Parke does not appear to see any "glorious uncertainty" in the common law, the rules of which he thinks "are clear and well understood, and have the incalculable advantage of being capable of application to new circumstances." So too Alderson J. feels that "it cannot be too fre-



52
quently repeated, that in fact no real or great difficulties exist at present requiring any remedy at all", and Compton J. is also "not aware of any such difficulty or uncertainty in the general administration of the criminal law as renders it worth while to take the course suggested".
In the opinion then of the judges, who, no one can deny, are best qualified to know of any defects that there may be in the law, uncertainty, or at any rate so great a degree of uncertainty as would justify a change in form does not appear to exist. To them the law does not seem to be jungle of doubts and uncertainties. On the other hand the cure recommended, appears to the judges to be far worse than the alleged malady. The Bills which were designed to remedy this evil of uncertainty, would according to them, have the opposite effect. For, says Pollock, "I feel very confident that an attempt to reduce all such offences within the verbal descriptions of a new code. would create very very much more doubt than now exists, in proportion as the meaning of the language is much more uncertain than the decisions of law", and the Bills submitted to him would be "much more fertile in raising doubts, than happy in resolving them". And Parke B. states that according to his experience, "many more questions, — indeed the great majority, — occur not in discussing or applying the maxims of the common law, but in the construction of Acts of Parliament". Similar views are expressed by Judges Coleridge and Compton. Wightman J. is of opinion that the Bill which digests the criminal law relating to persons, shows "so much



53
of doubt and uncertainty as likely to arise upon the conversion, that I cannot think it expediënt to adopt it", and Cresswell J, expresses his view that the Bill will "give rise to many more doubtful points than they now have to deal with", while Judge Platt thinks it generally "calculated to give an air of uncertainty to the administration of justice". And all the more significant do these words become when it is recognized that one of the Bills had, in the words of Lord St. Leonards, undergone "as much consideration, and as much discussion as, probably, had been applied to the Code Napoléon" *.
Enough has here been quoted to ülustrate the unfavourable attitude which the judges adopted towards the work of digesting the criminal law in the form of a code.
With regard to the question of the consolidation of the statute law, no one has any objection to this work, provided it is very carefully executed. The general attitude of the judges on this question may be summed up in the words of Judge Maule: "if carefully done it will do no harm, and a little good; and though really a small matter, many people think it a great one, and it may therefore be expediënt."
The effect of the judges' replies was to discourage the government, which had all the time been lukewarm on the matter, to proceed with the bills, which were to have been first instalments of a great scheme of digesting the whole criminal law and procedure, with the possibility of later applying the same process to the private law. In the end the project was dropped
1 Hansard, VoL CXXIX July 12th 1853. p. 158.



54
by the government, to the great disappointment and sorrow of its life-long sponsor, Lord Brougham K
In this way the first great attempt at codifying, or more correctly, digesting the criminal law of England, ended in failure, after twenty years work had been expended on it at a cost to the state of £ 50,000 2. The various royal commissions had produced, in all, thirteen voluminous reports in which the whole law dealing with crimes and punishments had been digested and subsequently revised, and all this labour proved in the end to have been thrown away, at any rate so for as it failed to achieve its immediate object.
The matter, however, was not destined to remain in the background for long. In 1868 it was again introduced by Lord Westbury, the Lord Chancellor, in a speech in the House of Lords, in which he dealt with the question of digesting the whole of the criminal law, which he considered vitally necessary 3. Accordingly a commission was again appointed to consider the matter and report on the advisability or otherwise of the proposed digest4. This commission presented a first (and an only) report in which it recommended the digest of the law as it then was, without introducing any changes in its substance. Also the common law
1 Hansard, VoL CXXXI, March 6th 1854, pp. 331, 346.
* See ParL Accounts en Papers (total cost £ 49.716). Vol. XLIII, (1854—5) p. 4. » Speech in House of Lords on 12th June 1863, Hansard, VoL CLXXI.
* The commission was dated the 22nd November 1866, and the members appointed were Lords Cranworth and Westbury, Sir H:M. Cairns, SirJ.P. Wilde, Robert Lowe, Sir W. P. Wood, Sir G. Bowyer, Sir R. Palmer, Sir J. G. S. Lefevre, SirT. E. May, W. T. S. Daniël, H. Thring and P. S. Reüly, and their funotion was "to inquire into the expediency of a digest of law, and the best means of accomplishing that object, and of otherwise exhibiting in a compendious and accessible form the law as embodied in judicial decisions." Reports, Commissioners, Vol. XTY, (1867).



55
was to remain the law of the land, so that the digest would then have served merely as a kind of vade-mecum of the common law. The commission requested to be given the necessary instructions to draw up a specimen portion of such a digest, but this was not done, and the second attempt at a digest of the criminal law resulted as the first in complete failure1.
Now we come to the most important attempt that had yet been made to codify the English criminal law. In 1877 Sir James Fitsjames Stephen returned to England fresh from his coilifying labours in India, and wrote his well-known Digest of the Criminal Law, which so impressed the government with its excellence that it requested him to draft a criminal code to be introduced as a bill in parliament. This he consented to do, and out of the work he produced,the government selected the portion dealing with indictable offences, which was on the 14th May 1878 introduced in the House of Commons by the AttorneyGeneral, Sir John Holker, "as an experiment", under the title of the Criminal Code (Indictable Offences) Bill.
We will examine the proceedings in the House of Commons in order to try and gauge its attitude on this matter, especially as this was the first time that such a measure was introduced in that House, for hitherto the consideration of the matter had been exclusively confined to the House of Lords.
"The law", said the Attorney-general in introducing the bill, "is now, for the first time, drawn completely from its various hiding places and laid bare to the public view.... Up to this time, no serious effort
1 lor Report of Commission, see Pari. Reports; Commissioners, Vol. XIX, (1867).



56
has been made to completely codify any branch of the law", but though the desirability of codification was recognized by him, yet "it was clear that the whole law could not be codified at once. A commencement must necessarily be made with some branch or section of the law. It seemed to be most essential to condense, to simplify, to explain, and amend — for codification means condensation, simplification, explanation and amendment — the criminal law rather than any other branch" h Here the Attorney-General gave expression to the typically English view of codification. The objections to this. method of procedure were voiced however in the debates on the bill in the Commons. As one member stated, "the code ought to be a complete corpus juris of the criminal law of England, and unless it was complete it would be worse than nothing"2.
The several occasions on which the measure was debated were remarkable for the small attendance of members, and this fact was more than once remarked upon. The apathy which was exhibited towards the bill was truly extraordinary when one comes to consider its importance, and only a handful of members took part in the debates. There appears to have been no discussion of the general principle of codification, though the bill was generally welcomed by those who spoke on it. Nevertheless, the debates clearly demonstrated the impracticability of any such measure being passed in England so long as its legislative institutions continue to remain the same. Without
1 Hansard, VoL CCXXXIX, p. 1938.
2 Hansard, Vol. OCXLV, p. 1762.



57
the Bill ever even reaching the committee stage, the number of objections, the number of additions, which were proposed by a mere handful of members must have driven the most optimistic codifier to despair of this or any similar bill ever becoming law. And it was generally realized that if the bill were to be carefully discussed, seetion by section, it would take years before it could be passed into law. But the suggestion that the Bül should be enacted en bloc on the faith of an expert commission, called forth the most emphatic protests1. "To request the House to adopt the proposed changes in the criminal code on the faith of three or four gentlemen, however eminent they might be, was," i» the opinion of one member, "equivalent to asking the house to abandon its position as representing and legislating for the country" 2. And another member "was not going to act on the servüe doctrine that because judges had gone through it, [he] must take the measure on trust" 8. And several others also expressed the same opinion.
Then again, for some the bül was too ambitiousa measure, it codified too much in one attempt; whilst for others it was not complete enough 4. One member suggested that it should be cleared of aü contentious matter and the rest of it enacted. It became clear that the only measures of codification which would not meet with numerous difficulties which
1 The Bill had been referred to a royal commission consisting of Baron Blackburn, Judge Barry, Sir John Lush and Sir James F. Stephen. For report see Reports; Commissioners, Vol. XX, (1878—9).
2 Hansard, Vol. CCXLV, p. 327. » Ibid., p. 1756.
* Ibid., p. 1760 et seq.



58
would make their enactment impossible, were those dealing with matters of non-contentious import such as were in fact later enacted namely, the Bills of Exchange Act, the Partnership Act, the Sale of Goods Act, and one or two other such measures. The bill, after being before the House for a couple of years was finally dropped. No perceptible public desire was manifested for it, and the opposition which, it was anticipated, it would arouse in committee of the House, decided the government not to proceed any further with it.
Since the failure of this last and most important attempt at the codification of the criminal law, no further attempts have been made in this direction, and the matter has now been laid to rest, at any rate for the time being.



CHAPTER V.
THE IMPRACTICABILTTY OF CODIFYING THE ENGLISH LAW.
It wül have been seen from the last chapter, that any project to codify the English law or any section of it, wül by no means be found easy of accomplishment, if the experience of the several attempts at the partial codification of the criminal law can be taken as a reliable indication of what would occur with gimüar such attempts in the future. For the faüure upon faüure of these attempts is an ominous foreboding, not to be lightly disregarded.
Forty years, more or less, were spent in digesting the criminal law, and at great expense. Yet whenever it was sought to give legislative effect to this work, a kind of paralysis seemed to arrest its advance, and made all headway impossible. It found itself bereft of all power, of aü vitality to make the necessary progress through parliament. It lacked sufficiënt breath to sustain life, and after a few short gasps it inevitably expired. This power to live, to survive through the crisis, which it lacked, was the power and the force of public opinion. For in England there has not been manifested any general desire for a code by any large section of the people. The judges, in so far as they have given expression to their views on the subject



60
of codif ication, do not want it; the profession looks askance at it; and the people on the whole know pratically nothing whatever about it. So small is the importance of the codification movement in England, that no political party has, at all events in our own times, given much consideration to the matter, let alone advocated it or placed it on its programme, which would surely have been done by some one or other set of politicians, usually only too ready to lend themselves to any popular movement, had such a movement existed amongst the people in respect to codification. And this is all the more significant when it is remembered that the English are a great commercial nation requiring, above all else, certainty in the law which governs their daily intensive activities.
In France, however, the position was quite otherwise. The codification idea was not one of the new and radical notions introduced there with the revolution. For though for some time before the revolution the movement did not amount to a popular demand publicly agituted, for criticism of the then existing order of things was not always a safe matter, yet in books published mostly outside France, in private letters, in memorandums to be read after the death of the writer, expression was given to the need, the urgent need, of one unified law for the whole country in place of the disunited, obscure, uncertain and very insecure law under which the people lived h Indeed in the old days, when the States-General used
1 See article by Professor J. van Kan entitled, "Stemmen voor de Codificatie onder de Regeering van Lodewijk XVI", in the Tijdschrift voor Rechtsgeschiedenis, VoL H, p. 149, and also the articles in voL I of the same periodical which have already been referred to.



61
still to assemble in order to give expression to the desires of the people, attention was often directed to the great uncertainty and diversity of the laws, and on at least three occasions, in 1560, 1576 and 16142. their compilation in one or more law-books was pointed to as the remedy for these evils 1.
The revolution removed the gag which had suppressed the voice of the French people, and now a loud and certain demand resounded through the nation for a better legal system 2. The Constituent Assembly, the Legislative Assembly, the Convention, the Directory, each in its turn took up the question of a code for the French people, and under their auspices several plans were drafted and submitted to them, without however the slightest real progress being made, untü finally Napoleon, on becoming First Consul and virtually obtaining the reigns of power in his own hands, perceiving the national necessity of a code, as als oprobably, even at that time, its international importance 3, determined to honour the promises of the revolutionary assemblies, and satisfy the desires of the people, by enacting one as speedily as possible.
But when the work of drafting the code was completed, Napoleon discovered that his real difficulties only then began. The opposition which the draft
1 Planiol: Traité élémentaire de droit civil, tom. 1, § 55.
2 See the article by Professor J. van Kan entitled, "De rechtsgedachte van het Codificatiewerk der Eevolutie", in the Tijdschrift voor Rechtsgeschiedenis, VoL H, p. 359.
» Von Savigny credited Napoleon with having had greater intentions with regard to the code than of merely secuxing a national system of law for the French people. Napoleon, he wrote, "diente der Code als ein Band mehr, die Völker zu umschlingen". Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, Heidelberg 1814, p. 57,



62
code experienced in the legislature (in the Tribunat and the Corps Législatif) proved so strong that Napoleon decided to withdraw it. In order to accomplish his object he was compelled to resort to a sort of coup oVétat to eliminate the opposition, and reorganized the tribunate so that that body contained none of the members who stood in his path. In this way, by such methods, was it possible for Napoleon to give France a civil code, and this could only have been done by an autocrat such as he virtually was. "Ce que ni Pancienne monarchie ni la révolution n'avaient pu faire, 1'ambition d'un seul homme 1'exécuta" h
In contrasting then the movement resulting in the codification of the French law with the English movement, the circumstances peculiar to the former must be kept in mind, namely: the chaotic state of the French law which caused widespread discontent, the effect of the revolution which swept away the old traditions and institutions and made the construction of a new legal system possible, and finally the absolute power and the will of Napoleon which proved to be essential to the accomplishment of the work.
The Germans, on their part, were no strangers to the code-system before the enactment of their civil code
1 Planiol: Traite élémentaire de droit civil, torn. 1, § 75.
The great importance which Napoleon himself attached to the code, and the pride which he feit for his share in its preparation and enactment, can be seen from the following oft-quoted words of nis": "Ma gloire n'est pas d'avoir gagné quarante batailles et d'avoir fait la loi aux rois.... Waterloo effacera le souvenir de tant de victoires.... Mais ce que rien n'effacera et qui vivra éternellement, c'est mon code civil;.... c'est enfin le bien que j'ai fait comme administrateur, comme organisateur de la grande familie francaise." Montholon: Récits de la captivité de Pempereur Napoléon a St. Hélèna, Paris 1847, torn. 1, p. 401.



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in 1896, for in many of the states the Pandect law had already given place to codes. The enactment of a national code accordingly introduced no novelty in the way of legal system, and all obstacles gave way to the paramount importance of possessing one united civil law for the newly established German Empire.
It is not safe to presume that the experience of one country in any particular matter will necessarily also be the experience of another country in a similar matter, even if all the circumstances are practically similar. But in the matt*ÉF of codification we can learn much concerning the difficulties which may be encountered in an attempt to codify English law, when we realise how difficult, how extremely difficult, the accomplishment of the French codification was found to -be, and this in spite of the strong incentive of popular clamour which was brought to bear on the work, and the spirit of radicalism which prevailed throughout the period of the revolution and which öbviously had the effect of considerably lightening the task, by allowing freeer play to those engagedin the construction of the code; neither of which powerful aids to success exists in England. And above all,no English parliament constituted on present lines will be found to abdicate its function of legislating for the people, in favour of any body of legal experts whose work of codification it would be called upon to accept on trust. Such a course could only be successfully applied in England, as it was applied in France, by the methods of an autocrat.
It must generally be conceded that a full and proper discussion of a code project in the English



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parliament would occupy so enormous an amount of time, as to leave no doubt as to the impracticability of attempting to codify the English law as a whole, as was done in France. And this applies, though to a lesser degree, to any large-scale codification of any one important branch of the common law. The failure of all the attempts that have been made in connection with the criminal law, which have been detailed in the last chapter, only serves to strengthen the view that any substantial measure of codification will not manage to survive through its ordeal in the English parliament, as it is at present constituted. And the opinions of illustrious English judges confirm this view. Thus chief justice Jervis writing in 1854 on the question of an English criminal code, expressed his belief that "it is practically impossible to frame and carry such a measure through parliament", for, as he well pointed out, you need merely to touch on the subjects of treason, offences against religion, and other such matters of a controversial nature "and you provoke endless and bitter discussion, which would not only impede the passage of any measure upon such subjects, but Would disturb that calm deliberation which alone is fitted to such occasions, but without which it would be useless to attempt to frame and pass a criminal code through parliament" h
1 Letter to Lord Chancellor dated 20th Jam. 1864, in Pari. Accounts and Papers, Vol. LUI, (1864), Replies of Judges, pp. 4,6. Note the like view expressed by Napoleon (or rather the government of which he was the head) when withdrawing the draft civil code from the Corps Législatif on account of the criticism which it encountered in that assembly: "Le gouvernement.... s'est convaincu que le temps n'est pas venu oü Pon portera dans ces grandes discussions le calme et 1'unitë d'intention qu'elles demandent." Planiol: Traite élémentaire de droit oivii, torn. 1, § 79.



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And Lord St. Leonards in introducing a Bill in the House of Lords to digest a certain branch of the criminal law explained that he was not attempting anything similar to the Code Napoléon, "for it is impossible for us with our system of legislation to revise the law in the manner in which the laws of France were discussed and revised before binding effect was given to the Code" l.
The public apathy, then, the opposition of an influential section of the bench and bar, the great difficulties to be surmounted in parliament, all tend to impress one with the view that a code for the English people is not to-day, nor for some time to come, capable of realization 2.
* Hansard, VoL CXXUI (November löth. 1862) p. 192. In 1864 he stated that if a Committee was appointed to report on the advisabiüty of proceeding with this measure, and their report was unfavourable, as he in fact thought it would be, then at any rate "they had done the best they could, and.... abandoned the measure only because it was found it would turn out impracticable." Hansard, VoL CXXX, p. 206.
» The question may perhaps be raised as to whether there exists in England in our generation the necessary legal talent to draft a satisfactory code, and this question is spécially pertinent in view of the legal training of the English lawyer in which the code-system finds no place. We believe ourselves, that the talents of the legal community in England is of a sufficiently high order to make it possible to accomplish a work in every respect as good as the best of the Continental codes. However, it is interesting to read the opinion of a foreign writer, H. B. Gerland, on this point. He writes as follows:
"Whether anything will come of this [codification movement] within measurable time seems to me more than doubtfuL For the unsystematic training of English lawyers renders codification on a reaUy large and systematic scale exceedingly difficult if not impossible. How can mere case lawyers create on abstract code? And even if a legislator of great genius should arise and accomplish so enormous a task by consolidating the Common law and the myriads of decisions, is it likely that the case lawyers would know how to make use of the code ? The ultimate reason for the opposition to codification, which is so oommonly found among English lawyers, has its principal roots, as it seems to me, in the last-named circumstance." Journal of Society of Comparative Legislation, Vol. Hl, p. 142.
6



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But although so very little has been achieved in England in the way of codifying her law, important measures of codification have been carried through in other parts of the British Empire. The greatest achievement in this direction goes to the credit of Lower Canada where a civil code and code of procedure were enacted.
When Quebec, or Lower Canada, was owned by the French, the law which prevailed there was the custom of Paris — la coutume de la prévóté et vicomté de Paris1. On the capture of the territory by the British in 1763, the French law, with the exception of that relating to criminal matters which was replaced by the rules of English criminal law 2, was permitted to continue in force, and this as time went on, was modified by provincial statutes, or by the introduction of English law in certain cases. With the settlement there of British colonists, the population lost its exclusively French character, so that the great bulk of the law was to be found in a language foreign to a great part of the inhabitants who spoke only English, while other portions were not in the mother tongue of those of French origin. Moreover, the old French law had itself been generally discarded in France and replaced by the codes, thus putting an end to the production of commentaries on the old law which could be utilized in Canada; and also, copies of the old commentaries were becoming more and more difficult to obtain 3. These, as well as other difficulties,
1 Edmond Lareau: Histoire du droit Canadien, 2 tom. Montréal 1888—'89, torn. 1. pp. 139,140.
2 By statute of 14 George HL chap. 83.
3 See preamble to "Act respecting the Codification of the Laws of Lower Canada



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led the people to follow the example set by France and seek a remedy in codification. The causes which led up to this step are stated by Lareau, an emment Canadian legal historian, in the following words: "Trois causes principales ont motivé ce grand travaü: la confusion des lois résultant de leur défaut de coordination et leur dissémination dans un grand nombre de volumes, 1'existence du texte en une seule langue et les modif icatkms que le temps avait rendues tiéces-
saires" *. . , , -
Accordingly in 1857 the legislature provided for the appointment of a commission of three to prepare a code of private law2. The members of this commisson were Judges Cawpn, Day and Morin. In 1866 the work which was modelled on the Code Napoléon8, was completed and the civil code presented to the legislature, which duly enacted it. Besides the civd code, a commission consisting of Judges Caron, Day and Baudry, also prepared a code of civil procedure which was promulgated in 1867. The rest of Canada is governed by law adopted from England. A criminal code was enacted in 1882, modelled to a great extent on the draft of a code prepared in England in 1880 based on Sir James Stephen's Digest of Criminal Law.
Several other parts of the British Empire possess codes of criminal law. New South Wales has a criminal code of 1883, Victoria a Crimes Act of 1890, New Zealand a criminal code of 1893, and Queensland
relative to Civil matters and Procedure." Consolidated Statutes of Lower Canada, chap. 2.
1 Lareau: Histoire du droit Canadien, tom. II, pp. 275, Z7Ö.
2 Consolidated Statutes of Lower Canada, Chap. 2.
3 Lareau: tom. II, p. 276.



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one of 1900. So also several of the Crown Colonies possess criminal codes. Ceylon and the Straits SetÜements have measures prepared on the same lines as the one in force in India. And Mauritius and Seychelles, where the Napoleonic criminal code was never promulgated, now possess besides their other codes, also Penal Codes h The work of codification in India is dealt with in the next chapter.
1 See Sir Courtenay Ilbert: Legislative Methods and Forms, pp. 200, 201.



CHAPTER VI.
CODmCATION IN BRITISH INDIA.
The codification movement has made great strides in India, and this chapter is devoted to a brief account of what has been done there in this connection.
Though there are many different races in India, distinguished from one another in language, traditions, and government, yet it has been truly remarked that it is "creed, not race nor allegiance by which men are divided and classified" 1 in that great and populous land. And this division on religious lines has its legal counterpart; for in India the law, with the exception of the part introduced by the British, applicable to any particular native, corresponds to the religion he professes. The predominant creeds are the Mohammedan and the Hindu, the first introduced from Central Asia, the second being of an indigeneous origin 2.
When the English came to India, they found the two great systems of Mohammedan law and Hindu law. These bodies of law related mainly to inheritance, succession, marriage and the famüy 3. Besides this, there was a large body of customary law relatmg,
» James Bryoe: Studies in History and Jurisprudence, 2 Vols. Oxford 1901, Vol.
» Other creeds are Buddhist, Sikh, Jain, Parsee, Atomist and Chnstian. 3 Bryce: Studies in History and Jurisprudence, VoL 1, pp. 113,115.



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for the main part, to the occupation and use of land and other agricultural and pastoral matters, which was mostly unwritten and varying widely in different parts of the country \ The Hindu inhabitants who were governed by Moslem potentates were allowed by these to conform to the laws prescribed by their own creed, except in criminal matters, to which Mohammedan law was made applicable 2. Courts of justice were established by the English in the thrée presidency towns of Madras, Bombay and Calcutta, which had to administer English law so far as it was applicable to Indian conditions3.
When in 1771 the East Indian Company took over the administration of the province of Bengal, the question as to what law was to be applied to the natives became one of great importance. The policy which it was the desire of the early British administrators to pursue, and one which was certainly the most convenient, was te disturb as little as possible the existing state of things 4. A plan, generally known as the Plan of Warren Hastings, which was drawn up in 1772 to deal with the administration of justice in the interior of Bengal, applied this policy of nonintervention to the law6. In regard to civil matters,
1 Ibid., p. 115. There was also a body of customs relating to the transfer and pledging of property, and to certain contracts, but this was in an undeveloped state, and not of a general nature. 1 Ibid., p. 114.
* Sir C. Ilbert: The Government of India, 3rd. Ed. Oxford 1915, p. 353. 4 Ibid., p. 355.
6 See General Begulations for the administration of Justice made and ordained by the President and Council in Bengal, on 21st. August 1772, Supplement to the Digest of the Regulations and Laws enacted by the Governor-General for Bengal, James E. Colebrooke, Calcutta 1807, p. 15.



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it was provided in this plan that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions the laws of the Koran with respect to Mohammedans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to; on all such occasions the Moulavis or Brahmans shall respectively attend, to expound the law; and they shall sign the report and assist in passing the decree" 1 Similar legislative provisions followed with * the aim of securing to the people of India fee exercise and enjoyment of their own particular law and usage .
There existed, however, wide gaps in the indigeneous law. Both civil and criminal procedure required systematic regulation, for there was hardly any remedial law to speak of under native administration. Also, the law of torts was most scanty, nor was the law of contracts and property in any way complete or sufficiently developed8. These gaps had to be füled, and this could be done in two ways; either by legislative enactment or by the action of the courts. But the British adniinistrators were extremely unwühng to introducé legislation supplementing or modifying native law4, and preferred to leave this task to the latter agency, which certainly worked in a less con-
i Rule 23 of the Plan. The word Gentoo is derived from the Portuguese Gentio,
meaning a gentile or heathen, and ifl used * <^te' Hindua.
* See Biiay Kisor Aoharyya: Codification in British India. Calcutta 1914 pp.
26Ï-266 and Ilbert: Government of India, pp. 356-360. As regards natives
"g Ier religions, the tendency both of courts, at £
was to apply to them a policy similar to that embodied in the Plan oi Warren
Hastings, except where they themselves showed a preference for the Enghsn
Law. Ilbert: Government of India, pp. 359-360.
» Bryce: Studies in History and Jurisprudence, VoL 1, p. n».
* Acharyya: Codification in British India, pp. 80-81.



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spicuous marnier. In many enactments the judges were expressly directed to decide cases falling into this category in accordance with justice, equity, and good conscience1. This provision, in reality, meant the introduction of the rules and principles of English law, which one would expect to generally coincide with an English judges conception of justice, equity and good conscience; so that both Mohammedan and Hindu law were in process of time supplemented, modif ied, and to some extent even replaced by English law 2.
In criminal cases, the courts were originally left to administer the prevailing law as they found it, which was generally Mohammedan law3. But, dismclined as the early British administrators were to interfere with the native law, they soon found it impossible to continue to countenance, and still less enforce, many of the practices connected with the various religious rites and customs of the people; such as the Mohammedan punishments of stoning for adultery, amputation for theft, and retaliation for murder4; though perhaps, the cruelties and abuses that were perpetrated at that time in European countries, and vigorously assailed by Bentham and Beccaria, were not in any way more in accordance with enlightened thought and humane feeling. All
1 Ibid., pp. 81, 94, 96.
* Ilbert: Government of India, p. 360.
3 Acharyya: Codification in British India, pp. 272—273.
* Ilbert: Government of India, p. 356. So also, the practice of throwing children into the sea at Sagor and other places was made a punishable act, as also the burning of wives on the death of their husbands, and sla very, was prohibited.



78
these most glaring defects were removed by cautious legislative enactments and regulations based generaUy on English principles *.
Thus, three systems of law have come to be administered 'by the courts in India, namely, Mohammedan law, Hindu law, and law introduced by the British rulers either by legislation or the action of the courts, based for the most part on the principles of the English law, and usually described as Anglo-Indian law. The jurisdiction of the two native systems is determined by a religious criterion; it is therefore purely personal in its application, in contradistinction to that of the system introduced and developed by the British, which, with a very few exceptions, is territorial in its application.
The condition of the law in the early period of British rule left much to be desired. Its defects and shortcomings were due to three principal causes: first, the unsatisfactory administration of justice m general; second, the defects inherent in the substantive law administered; and third, the mode adopted by the British to supplement and modify the native law.
The first evil from which the law suffered was the great difficulty experienced by those who had to administer it to ascertain what actually was the native law on any particular subject. For the early administrators usually did not know Arabic or Sanskrit, and had to rely on the opinions and advice of the native legal men, the Kazis and the Pundits. These men were very of ten unreliable guides, susceptible
1 Ibid., pp. 272—284.



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to being influenced by those interested, to give an opinion to conform with the latter's desires h The consequence of this was that a matter governed by Mohammedan or Hindu law would be decided differently by different judges, who based their decisions on the interpretation of the law as expounded to them by the native expositors. This resulted in grave uncertainty and insecurity 2.
But besides this there was a second evil. The substance of the native law, both Mohammedan and Hindu, was in state of great uncertainty and confusion. The Mohammedan law which prevailed in India was contained in the many commentaries on the Koran and the traditions that had grown up around it, which were produced by the various and conflicting schools of expositors8. Hindu law was derived from books of great age, which, according
1 One who had great experience in the administration of justice in India at that time wrote as follows: "My experience justifies me in declaring, that I could not with an easy conscience concur in a decision merely on the written opinion of native lawyers, in any cause in which they could have the remotest interest in misleading the Court; nor, how vigilent however we mightbe, woulditbe very difficult for them to mislead us, for a single obscure text, explained by themselves, might be quoted as express authority, though perhaps in the very book from which it was selected, it may be differently explained, or introduced only for the purpose of being exploded." Lord Teignmouth: Memoirs of the life,writings,and correspondence of Sir William Jones, Edited by 8. C. Wilks, (Letter to Lord Cornwallis dated March 19th 1788), VoL H, London 1835, p. 93. And a similar view in regard to the "partiality and tergiveration" of native lawyers was given expression to by Sir Francis Workman Macnaghten in his book entitled "Considerations on the Hindu Law as it is current in Bengal", Senampore 1824, preface, p. XL
1 Sir Francis Macnaghten pointed out that the tenure of property by Indians was most precarious, and that "wealth might be either given or taken away, under the same circumstances by the same law." Ibid., preface p. XVII. 8 For Mohammedan Law, as it is administered in India, see Sir R. K. Wilson's book: Digest of Anglo-Muhammedan Law, London 1915.



75
to the belief of the Hindus, were of divine origin1, and the commentaries and other books relating thereto were conflicting and contradictory «. As has been already stated, both these native systems were entirely süent on many subjects, and defective and incomplete as regards many others. Now, on these two systems were ingrafted English law principles, arismg out of the customs of people living under widely different conditions, and which it was sought to apply to people who, in their whole civüization, in their very conceptions of life and death, of right and wrong, differed almost entirely from those for whom these rules of conduct were primarily intended. To fuse the infusible, could obviously only lead to confusion and uncertainty worse than had existed before the advent of the British.
Then lastly, the law was in a state of disunion. There were eight chief courts, each of which was absolutely independent of the others, and each creatmg
i Notes on Hindu Law, by Babu Nobin Chunder Dey, Bankipore 1901. The Hindu Ci^o te found fa the SankiMs i. e. Institutes, - of the holysages, about Wen* fa number, the most famous of which is the Mitakshara, m commenSs an" gLses, and digests and general compilations made by emment punS from time tö time. The last two sources of law are later works written
Sere are al o treatises on special subjects. Custom has also playedaconsiderable partfathe f ormation of the Hindu law. Differences of opimon and mterpretation Sa^dtifemit authors resulted fa the formation of five schools or sUs-
tl £££ ™ Z ü Sir Francis Macnaghten wrote as f oUows: «TÏose who have perused them, must be convfaced, that they contam enough, JtÏout beL aidedby the eraf t or the cunning of a Pundit, to mislead any man;
the negative of almost every question." Considerataons on the Hmdu Law, Fre ^e P XI Much of the Hfadu law was also obsolete or declared to be mappheable to new conditions. Ibid, p. XV.



76
its own body of case-law. There were also five different legislative bodies, enacting five different sets of statutes *„ This lack of unity inevitably resulted in grave inconsistencies between the law as administered in the different territories. Especially was this the case with the criminal law, which differed widely from place to place2. The law accordingly suffered from the evils of inaccessibility and unascertainability, uncertainty and insecurity, and disunion.
This was the state of affaire in 1833 3. In that year
1 Acharyya: Codification in British India, p. 81.
2 See introductory letter of the Law Commission dated the 14th October 1837 addressed to Lord Auckland in presenting the draft Penal Code, pp.2,3. Por a good picture of the Criminal law as it was at that time, see John Herbert Harington: Elementary Analysis of the laws and regulations enacted bytheGovernor-General in Council at Fort William, Bengal, 3 Vols. Calcutta 1805—'17, Vol. 1, 2 nd. part, dealing with the criminal law. Section I deals with Mohammedan criminal law, section II with the modifications and additions to it contained in the regulations of the British rulers, section III with the magistrates' and criminal courts.
* The condition in which the law then found itself was described by the judges of the Suprème Court at Fort William (Calcutta) in 1829 in the following words: , ,No one can pronounce an opinion or form a judgment, however sound, upon any disputed right of persons respecting which doubt and confusion may not be raised by those who may choose to call it in question; for very few of the public or persons at home, not even the law officers, can be expected to have so comprehensive and clear a view of the Indian system as to know readily and familiarly the hearings of each part of it on the rest. There are English Acts of Parliament specially provided for India, and others of which it is doubtful whether they apply to India wholly, or in part, or not at all. There is the English Common Law and constitutiön, of which the application is in many respects still more obscure and perplexed; Mohammedan law and usage; Hindu law, usage, and scripture; Charters and letters patent of the Crown; regulations of the government; some made declaredly under Acts of Parliament particularly authorizing them, and others which are founded, as some say, on the general power of government entrusted to the Company by Parliament, and as others assert, on their rights as successors of the old Native Governments; some regulations require registry in the Suprème Court, others do not; some have effect generally throughout India, others are particular to one presidency or one town. There are commissions of the governments, and circular orders from the Nizamut



77
the English parliament had to consider the question of renewing the charter of the East India Company which was to expire the following year. Before doing so, however, parliament made an extensive enquiry into the marnier in which India was being administered, and this drew attention to the unsatisfactory state of the law.
One great remedy was indicated for the evils from which the law was suffering, and that was codification. Lord Macaulay gave expression to this view when he stated in parliament, "I believe that no country ever stood so much in need of a code as India, and I believe also that there never was a country in which the want might so easüy be supplied" \ And this was the view generally held at that time both in England and in India. Accordingly the new charter of 1833 2 — a great year in the history of the codification movement in the British Empire, for it also saw the appointment of the first codification commission in England — after stating that it was expediënt "that such laws as may be applicable in common to all classes of the inhabitants of the said territories, due regard being had to the rights, feelings, and peculiar usages of the people, should be enacted, and that all laws and customs having the force of law within the same territories should be ascertained
Aduwlut, and from the Dewanny Aduwlut; treaties of the Crown ; treaties of the Indian Government, besides inferences drawn at pleasure from the application of the «droit public', and the law of nations of Europe, toastate of circumstances which will justify almost any construction of it, or qualification of ïté force." Hansard, 1833, Vol. XVUI, p. 729. 1 Hansard, VoL XIX, p. 531. * Charter Act of 1833, 3 and 4 Will. IV. c. 85.



78
and Consolidated, and, as occasion may require, amended", made provision for the appointment of a Law Commission to enquire fully "into the jurisdiction, powers, and rules of the existing courts of justice and police establishments in the said territories, and all existing forms of judicial procedure, and into the nature and operation of all laws whether Givil or criminal, written or customary, prevailing and in force in any part of the said territories" *. The members of the commission — the first Indian Law Commission — were appointed in the following year, and were T. B. Macaulay, J. M. Macleod, G. W. Anderson and F. Mület. The commission sat in India, and busied itself first with the preparation of a badly-needed code of penal law, the draft of which was presented to the Governor-general, Lord Auckland, on the 2nd May 18372.
In preparing the penal code they found that neither of the three systems of criminal law established in the country could furnish them even with the rudiments of a satisfactory code, and for the purpose of their work consulted the most celebrated systems of western jurisprudence, much valuable assistance being derived from the French code, and Edward Livingston's draft of a code for the state of Louisiana s.
This code was only regarded by the commissioners as a first instalment of a complete codification of the whole body of the law, substantive as well as remedial,
1 Section 53 of Charter Act.
2 A Penal Code prepared by the Indian Law Commission, Calcutta, 1837.
3 See introductory letter of the Law Commission to Lord Auckland in presenting the draft Penal Code, pp. 3, 6.



79
for, they state in presenting the draft penal code, "such is the relation which exists between the different parts of the law, that no part can be brought to perfection while the other parts remain rude. The penal code cannot be clear and explicit while the substantive civil law and the law of procedure are dark and confused" and this is very true having regard to the intimate interrelation of different portions of the law with one another.
With the draft penal code the great work of codifying Indian law, portion for portion, began; each part being contained in a separate act, each considered separately on its merits, and enacted separately. This is known as the process of partial, gradual or progressive codification, and is a typically English conception of the most suitable method to employ in codifying the law of a people — a conception actuated by the desire to use all caution in so great a work, and to deal with each branch exhaustively and thoroughly. Of the methods of codification, the one employed on the Continent and in America of preparing and enacting codes of the law, especially of the whole private law, as one great and complete whole, is no doubt the more scientific, though the English method seems essentially more practicable in England.
Once all the law was enacted in separate statutes, in accordance with the scheme of gradual codification, there was still the question left as to whether the different statutes should be co-ordinated and amalgamated in a scientific marnier into one complete civil code. As to the advisability of doing this, there existed
1 Ibid. p. 1.



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a difference of opinion amongst those who were engaged in the work of codification. Sir James Stephen was of opinion that it was more advisable not to have this done, and this view was concurred in by Sir Henry Maine. They considered that only a provisional convenience was the utmost that could be achieved by such an amalgamation and arrangement i. On the other hand, the Law Commission appointed in 1879 held the opposite view in regard to this matter. Its view was expressed in its report, from which the following may here be quoted: "Although it is necessary, in the circumstances under which Indian legislation is carried on, to deal with the several branches of the law by distinct acts, yet the ultimate design of forming these acts into a general code ought never, in our opinion, to be lost sight of. Every statute, if it is to be self-consistent and duly proportioned, must be framed with reference to some central group of ideas which dominate the whole work.... The impressions received from a study and application of one branch of the law cannot be cast off in expounding and applying another; .... If a code cannot be thrown off, as we know it cannot, by one effort of a wise and comprehensive intellect, the ultimate system should be brought as nearly as possible to such a production by being animated throughout with a uniform spirit and logical method, securing, so far as may be, an essential harmony amid multitudinous details" 2. And similarly the Government of India thought it to be desirable to amalgamate and
1 Acharyya: Codification in British India, pp. 300—301.
2 Report dated 15th. November 1879, pp. 2—3.



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arrange scientifically the various acts in the form of a civil code k
The Indian codes introducé an important novelty in their construction, namely the use of ülustrations to elucidate the meaning and explain the application of very many of their sections. Whenever it appeared to those engaged in the work of preparation that the language used by them was at all likely to be misunderstood or not fully comprehended by the ordinary reader, then as many ülustrations were added as were thought necessary to elucidate it. The whole law on the particular subject dealt with was contained in the sections of the code, and the appended ülustrations made nothing law which would not have been so without them; their purpose was merely to exhibit the manner in which the law would function in actual practice, and what its effects would be on the events of daüy life *.
* Letter of the Government of India dated lOth May 1877, Ibid. p. 2.
» Introductory letter of the Law Commission to Lord Auckland in presenting
the draft Penal Code, pp. 6, 7.
Two examples choeen at random showing the use of ülustrations in Indian legislation may here be given:
Penal Code (India Aot No. XLV of 1860), section 230:
Coin is metal used for the time being as money and stamped and issued by
the authority of some State or Sovereign Power in order to be so used.
Coin stamped and issued by the authority of the Queen, or by the authority of
the Government of India, or of the Government of any Presidenoy, or of any
Government in the Queen's dominions is the Queen's coin.
Ülustrations:
(o) Cowrles are not ooin, as not being metal.
(6) Lumps of unstamped copper, though used as money, are not ooin.
(c) An ancient Denarius is not now a coin, inasmuch as such pieces are not now used as money.
(d) Medals are not coin, inasmuch as they are not intended to be used as money. ,
(e) The ooin denominated as the Company's rupee is the Queen s coin.
6



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The Commissioners proceeded with their activities and drafted a code of civil procedure, and an act dealing with the law of limitations. The reports which they made from time to time, contained many suggestions on improvements which should be effected in the law, and were a valuable source for subsequent Indian legislation; but with the departure from India of Lord Macaulay, who was the moving spirit in the work, the commission lost much of its vitality, and was finally allowed to expire 1.
A second Indian Law Commission was appointed by virtue of a provision of the Charter of 1858 2, and consisted of Sir John Romüly, Sir John Jervis, Sir Edward Ryan, Messrs. R. Lowe, J. M. Macleod, C. H. Cameron and T. E. Ellis. It was required to examine and consider the recommendations made by the last commission, and the drafts of the measures prepared by it. The venue of this commission, unlike the last, was England. The recommendations and measures of the previous commission were approved, and further, the new body evolved a new judiciary system. "What India wants", wrote the commissioners, "is a body of substantive civil law, in preparing which the law of England should be used as a basis,
Contract Act (India Act No. IX of 1872), section 36:
Contingent agreements to do or not to do anything, if an impossible event happens, are void, whether the impossibüity of the event is known or not to the parties to the agreement at the time when it is made. Ülustrations:
(o) A agrees to play B 1000 rupees if two straight lines should enclose a space.
The agreement is void. (ï>) A agrees to pay B 1000 rupees if B will marry A's daughter C. C was dead
at the time of the agreement. The agreement is void.
1 Bbert: Legislative Methods and Forms, p. 130.
2 Charter Act of 1853, 16 and 17 Victoria c. 95 section 28.



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but once enacted should itself to the law of India on the subjects it embraced", and it should be prepared "with a constant regard to the conditions and institutions of India, and the character, religions, and usages of the population" », The tottd result of the work of the two commissions, was the enactment of a code of civil procedure 2, and an act relating to the law of limitations8, in 1859; the Penal Code, which had been prepared so long back as 1837, in 18604; and a code of criminal procedure in the following year.
Still another commission was appointed in 1861, whose function was stated to be "to prepare for India a body of substantive law, in preparing which the law of England should be used as a basis, but which once enacted should itself be the law of India on the subject it embraced; and also for the purpose of considering and reporting on such other matters relating to the reform of the laws of India as may be referred to them by the Secretary of State" 8. Four of the members of the last commission were reappointed to serve on this new body, namely Lord Romüly, Sir E. Ryan, Mr. R. Lowe and J. M. Macleod, and two new members Sir W. Erle and Mr. Justice Willis were appointed to serve with them. Subsequently Sir W. M. James and Mr. J. Henderson took the places of Sir W. Erle and Mr. Justice Willis, and later Mr. Henderson was succeeded by Mr. Justice Lush. This commission
1 Second report of Indian Law Commission of 1853 dated 13th Deo. 1855.
2 India Act VTLT of 1869.
3 India Aet X of 1859.
« India Aet XXV of 1861.
s Ist report of Indian Law Commission of 1861.



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prepared and reported the drafts of a Succession Act which at first bore the title of "Indian Civil Code Chapter I", a Contract Act, a Negotiable Instruments Act, an Evidence Act, and a Transfer of Property Actl. The first of these was passed into law in 1865 2. But a controversy arose between this commission and the Government of India over some of the provisions of the Contract Act, which led to the resignation of the Commissioners8.
In the meantime there was another agency busy at work codifying various branches of the law. The eminent jurist, Sir Henry Maine had become the law member on the Council of the Governor-General, and under his able guidance the following measures were prepared and enacted: a Companies Act based on the English Companies Act of 1862, which became law in 1866 4, a General Clauses act passed in 1868 6, and a Divorce Act passed in 18696. In 1869, Mr. Fitzjames Stephen, another great lawyer, succeeded Sir H. Maine as law member on the Council, and he continued the work of codification. Accordingly, during his regime, a Limitation Act7, an Evidence Act *,
1 Ist report (1863) contained the draft Succession Act; 2nd. report (1866) the draft Contract Act; 3rd. report (1867) draft Negotiable Instruments Act; 4th report (1867) dealt with certain matters relating to Specific Performance; 5th report (1868) contained draft Evidence Act; 6th report (1870) a draft transfer of Property Act; 8th. report (1870) a revision of the Code of Criminal Procedure.
2 India Act. No. X of 1866.
* Ilbert: Legislative Methods and Forms, pp. 133—135.
4 India Act No. X of 1866. See New Act No. VTL of 1918.
* India Act No. 1 of 1868.
* India Art No. IV of 1869.
7 India Act No. IX of 1871.
8 India Act No. I of 1872.



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and a Contract Actl, were successively prepared and passed into law. Also the Code of Criminal Procedure was again revised and re-enacted. In 1874, Mr. Wodehouse was appointed to take the place of Mr. Stephen, but by this time the enthusiasm for codification had cooled down very much, and here and there voices of protest were beginning to be heard, and the new law member on the Council was advised to take heed of these signs and slaeken the pace that was being taken along the road of codification2. Mr. Hobhouse did this, and his only contribution of importance was the Specific Reliëf Act of 1877 3.
Since the resignation of the last Indian Law Commission, no fresh one was appointed, though the provision for such an appointment was contained in the Indian Councils Act4, and in subsequent legislation. In 1875 Lord Salisbury, then Secretary of State for India, drew the attention of the Government of India to this fact, and intimated to it his intention "to entrust to a small body of eminent draftsmen selected for the purpose, the task of preparing for the Legislative Councü, the remaining branches of the civil code". On the suggestion of the Government of India the work of codification proposed by him was confined to the law relating to trusts, easements, alluvion, marter and servant, negotiable Instruments, and transfer of property6;
1 India Act No. IX of 1872.
* Ilbert: Legislative Methods and Forms, p. 138.
» India Act. No. 1 of 1877.
« 32 and 33 Vict. c. 98. j ' See dispatch from Secretary of State for India to Government of India dated 4th March 1875; dispatch from government of India to Secretary of State



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and drafts of acts relating to these matters were prepared by Dr. Whitley Stokes.
A new commission consisting of Sir Charles Turner, Raymond West and Dr. Whitley Stokes, was appointed to consider these draft acts K and as a result of their work, acts were passed relating to negotiable instruments2, trusts8, transfer of immovable property4, and easements 8. A Probate and Administration Act was also prepared and became law in 1881 6. Here the work of codifying the law of India which had been proceeded with for fifty years, came to an end, without the completion of the original plan of enacting codes of the whole body of law. Still, very much had been achieved, for both the penal law and the remedial law as well as a great portion of the private law comprizing succession, contracts, negotiable instruments, trusts, transfer of property and easements were now in code or statutory form.
Although much has been done in revising the enactments already in existence, no appreciable progress has been made since 1882 in the codification of Indian Law. A considerable portion of the private law has it is true been codified or regulated by statute, but there are many and important branches of the law which are still outside the confines of the
dated July 6th 1876; dispatch from Secretary of State to Government of India dated 9th. August 1877.
1 Commission issued llth. February 1879, report of Indian Law Commission 1879, p. 1.
* India Act No. XXVI of 1881. 3 India Act No. II of 1882. « India Act No. IV of 1882. 8 India Act No. V of 1882. 6 India Act No. V of 1881.



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written law. There can be little room for doubt that the original intention of all concemed, the Home Government, the Indian Government and the various Law Commissions, was to provide India with a complete civü code K Yet, almost abruptly, the work came to an end without the original plan being carried out in Ml. Whether in fact the suspension of the work was really necessary and advisable, is a question upon which those who are best competent to express an opinion on this point, are at variance. Lord Bryce, surely a competent authority, who has studied the question on the spot, declares that "further action might displease either the Hindus or the Musulmans, probably both: and though there would be advantages in bringing the law of both these sections of the population into a more clear and harmonious shape, it would in any case be impossible to frame rules which would suit both of them, and would also suit the Europeans. Here religioh steps in, a force more formidable in rousing opposition or dissatisfaction than any the Romans had to fear" 2 And this view of the matter is in every way substantiated by Sir Courtenay Dbert who was himself at one time law member on the Governor-General's council. On arriving in India to take up his appointment, "he was told from all quarters that the legislative department had recently been too much en evidence, and must content itself, at all events for the present, with
» See Correspondence already referred to between Secretary of State and Government of India, and also dispatch from Government of India te Secretary of State dated lOth May 1877.
» Bryce: Studies in History and Jurisprudence, VoL 1, p. 123.



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assuming a more unobtrusive part" K And this advice coincided with the hints given him by the India Office before leaving England2, and was concurred in by two of his predecessors, Sir Henry Maine and Sir James Stephen3, both of them prominent advocates of codification.
Sir Courtenay Hbert states three reasons for this antagonistic attitude towards further codification in India. The first is that the view existed thatl egislative activity was being overdone; the second, that judges and officials had, as they complained, to devote all their time in criticising new measures and becoming familiar with new acts; the third, that there existed "a widespread feeling that India was being made the subject of legislative experiments of questionable utiüty and of unquestionable cost, and Anglo-Indian and Native journals were for once unanimous in their protests" 4. There can be no reason to doubt the absolute correctness of these allegations which are certainly made as a result of first-hand knowledge of the facts by one whose special business it was to enquire into them. Yet, on the other hand, no less an authority on Indian legal questions than Dr. Whitley Stokes, for very many years actually connected with the legislative department of the Indian Government and also an ex-law member of the Governor-General's Council, who was himself responsible for a considerable portion of the work of
1 Ilbert: Legislative Methods and Forms, p. 146.
* Ibid.
* Ibid., p. 147.
* Ibid., p. 146.



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codification actually carried out, has this to say on the matter:
"It is plain that the suspension of the undertaking can only be justified by necessity. Such necessity
has certainly not arisen To all appearance, the
Indian Government has at last yielded to influences resembling those which in India pigeonholed the Penal Code for more than twenty years, and which here in England deprive the nation of the priceless boon of a body of substantive law not only wise, but clear, compact, and easüy ascertainable. It cannot with truth he said that the feeling of the people of India is, or ever was, one of these influences" h And this last statement is borne out by at least one eminent native lawyer, Sir Sayyid Ahmad a.
If it would not be presumption on our part to vouchsafe an opinion on this question, in face of the divergent views held thereon by men who, because of their local experience, are regarded as authorities on Indian legal matters, that opinion would be that codification could still be extended so as to cover
» Whitley Stokes: The Anglo-Indian Codes, 2 Vols, Oxford 1887, general introduction to VoL 1, pp. XX—XXI. . » «So far as I am aware", said Sir S. Ahmad, "the Native pnbHo has never raised its voice against codification. To them, the codif ied laws mean the introduction of certainty where there is uncertainty, precision where there is vagueness. Nor can it be said that codification is unpopular even among the most conservative sections of my oonntrymen.... To say that the native mind is unfamihar with the idea of living under systematically codified law, is to say what the truths of history do not justify. The Institutes of Manu furnish a noble example of ancient codification.... The history of the Mohammedans furnishes a long series of attempts to codify their laws.... there can be no justification for saying that the mind of the native public is unprepared for codification, or that attempts on the part of the Government to supply them with a systematic code will be regarded with feelings other than those of satisfaction." Proceedings of the Legislative Council of the Governor-General, 26th January 1882, pp. 63-64.



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the law of torts or a great part of it, and such a measure had in fact been drafted by Sir Frederick Pollock, but failed to obtain enactment" K Perhaps also it may be extended to some of the branches of contract law — such for example as master and servant — not comprized in the Contract Act, and to one or two matters relating to property, such as the subject of alluvion. But as regards the law of inheritance and the family, which is still governed by the respective religious laws, there can be no question of enacting a uniform code dealing with these matters in substitution for the personal laws and customs, though this may have been the intention at one time *. And, as a fact, much of what has been so far enacted, has been considered unsuitable for application to all Indians generally, and important limitations and exclusions had to be made. At one time, for instance, the Indian Succession Act, excluded from its operation the majority of Indians.
As to effecting separate codifications of Hindu and Mohammedan Law, as such, this too is a matter fraught with the greatest diff iculties. To be of any use, codes of these bodies of law would have to be acceptable to the native peoples concerned. A code of Hindu law would have to secure the consent and agreement of the Hindu legal expositors. So various
1 See Draft of a Civil Wrongs Bül in Poüock's Law of Torts, p. 601.
2 Macaulay had stated: "We are commanded by Parliament to ascertain and digest the laws of India. The assistance of a Law Commission has been given to us for that purpose. As soon as the code is promulgated the Shasters and the Hedaya will be useless to a Munsif or Sadr Amin." Minute on Indian Education, see Sir Robert K. Wüson: An introduction to the study of Anglo-Muhammadan Law, London 1894, pp. 127—128.



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are the interpretations placed upon Hindu law by the different schools, so tenacious are the devotees of that faith to its ancient doctrines and rules, to whom any idea of change would appear the greatest of sacrilegious sins, so much is the legal scheme bound up with deep-rooted local customs varying from place to place, that any idea of compiling a single and uniform body of Hindu law in the form of a code, seems, at all events at present, to be beyond the bounds of possibility. Mohammedan law does not stand quite on the same ground. The Arabian sources of the law are far more compact and harmoneous than the Sanscrit, and at least one authority on Mohammedan law as administered in India, Sir R. K. Wilson, holds the opinion that its codification is both possible and advisable1; and if an attempt in this direction were to be made, his digest of Anglo-Mohammedan law would be found to be an excellent basis for such a work 2. Be this as it may, there should be no two opinions as to the advisabüity of leaying this matter severely to the Indians themselves, who are as a rule extremely sensitive to legislative interference with matters relating to their religious practices and observances, and in this connection it is as well to recollect the words of Sir Francis Macnaghten, which, though applied specially to Hindus, are equally applicable
i Sir Robert K. Wilson: Introduction to theStudyof Anglo-MiihammodanLaw,
f 'si! C Hbert however believed that Sir R. Wilson much underrated the difficulties of such an undertaking. It would, in his opinion, be impossible in many cases to frame rules so that they would recive any measure of general acceptance. "The difficulty begins when a particular code is presented in a concrete form.... And any code not based on general agreement would either cause dangerous discontent or remain a dead letter," Government of India, p. 370.



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to the Mohammedans and other native peoples, that "their laws and their religion are so blended together, that we cannot disturb the one, without doing violence to the other" K
If codes of the native law are to come, let them come from the people themselves; nothing should be done which would lend the faintest colour to an impression that such codes are being imposed upon them by a foreign people. A great nationalist agitation is sweeping through India at the present time: home-rule, self-determination, are its watch-words 2. This may or may not, in the long run, bear the desired fruits. The question is one of great importance and delicacy, and fraught with the gravest consequences and dangers. But if there is one province in which the doctrine of self-determination can be applied in practice, both with safety and with righteousness, it is that relating to the personal laws of the natives. This indeed has been the enlightened policy pursued by the East India Company and manifested in the Plan of Warren Hastings, and this is the policy which is being followed in India to-day 8.
1 Sir Francis W. Macnaghten: Considerations on the Hindu Law, pref ace, p. VI. s The opinion of Bijay Kisor Acharyya, a native lawyer and professor, who has made a close study of the codification question should be of especial interest. In his work entitled, Codification in British India, he writes as follow: "The main difficulty [of codification] in this country is that there is little or no appreciatdon of the practical evils arising from diversity of law.... At the beginning of the twentieth century after a century of British rule in this country, both the national and legal consciousness of the people have been roused and now this is the time, when the people are striving for national unity, to make them understand that national unity means unity of law and unity of law cannot be attained without codification." p. 138.
* And as far back as the days of Sir William Jones (1788), that acute judge realized both the justice and advisability of such a policy. Teignmouth: Memoirs, of Sir William Jones, Vol., II, p. 92.



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Has the work of codification carried out by the British in India proved a success? The answer to this is as follows: The codes of civil and criminal procedure and the penal code have met with general approbation. But the Evidence Act and the Contract Act, both drafted, it may be noted, by Sir James Stephen, have been subjected to much adverse criticism1. The other measures all appear to work in a satisfactory manner. On the whole, then, the above question can be answered in the affirmative.
This, however, proves very little or nothing in favour of a codification of the law of England. The peculiar conditions which prevailed, and still prevaü, in India made it both desirable and possible to restate much of the law in statutory form, and to achieve a large measure of success thereby8.
Codification was desirable in India, so as to secure the element of certainty in a law which would have compared unfavourably, in respect to its uncertainty, even with the French law prior to its codification. One of the reasons, or excuses, for the British assumption of the internal administration of India was to guarantee security to thevnative population and to extricate them from the consequences of Indian misrule. It was necessary to have a definite written law to realize this desire for security. The law, such as it was, did not possess the merit of being easily accessible and ascertainable. This also was, to a great
1 Bryce: Studies in History and Jurisprudence, Vol. 1, pp. 128—131.Stokes: Anglo-Indian Codes, Vol. 1, p. 634.
» Amos states: "It is scarcely necessary to insist on the absence of any parallel between circumstances calling for a code in India, and the present state of things in England." An English Code, London 1873, p. 88.



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extent, remedied by codification. And finally the "law suffered from the evil which, more than any other, has been the compelling power behind codification, regarded as a world movement — namely disunion or diversdty of law.
Codification was therefore most desirable and suitable for India. It was also easy to achieve there. "It is a work", said Macaulay, "which cannot be well perfbrmed in an age of barbarism, which cannot without great difficulty be performed in an age of freedom. It is the work which especially belongs to a government like that of India — to an enlightened and paternal despotism"x. The people themselves had no say in the laws by which they were to be governed. Whether good or bad, these were made for them by the co-ordinated efforts of a few men sitting in India, and a few sitting in London. However difficult the work of codification itself may have been, its enactment depended merely on the approval of the small body of men composing the Council of the Governor-General.
If the work has met with success in practice, this is, in all likelihood, due less to the intrinsic merits of the measures themselves as codifications, than to the circumstances and manner in which they are applied. They have been so watered down by exceptions, and exclusion of particular classes of persons, as to be often inapplicable to the greater part of the population. Many of these measures which have been administered smoothly in India contain provisions draf ted in such a manner as would, without doubt, have
1 Hansard, VoL XIX, p. 631. isS&A'



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given rise in England to considerable litigation as to their exact meaning and application. It also happens in India that an act remains for many years after its enactment, to all intents and purposes, adead letter.
The peculiar conditions therefore which contributed both to the need and to the success of codification in India are peculiar to that country, and coincide largely with relativery similar conditions which prevailed in some of the great continental countries before they adopted the code-system; but in England where unity of law was achieved at an early period in his history, the great incentive to codification — diversity of law, is wholly absent, and any other defects which may be associated with the Common Law are not of such pressing importance as to justify the embarkation on any comprehensive experiment in the way of codification, which would result in a complete transformation of the law from its traditional unwritten form into a written or code form.






PART II.
THE CODIFICATION MOVEMENT IN THE UNITED STATES.
7






CHAPTER VII.
THE LEGAL SYSTEM OF THE UNITED STATES.
Having dealt with the movement for the codification of the law in different parts of the British Empire, we now turn our attention to that other great domain of the unwritten law, the United States of America.
In the United States the codification movement has assumed much greater proportions than in England, and has, moreover, met with a certain measure of success. In the first place, however, it is necessary to give a brief description of the legal system existing there.
In the beginning of the seventeenth century, the English established coloniés, or plantations as they were then called, in the new continent. Now, it is a principle of the Common Law that when Englishmen emigrate and form settlements in a country not already under the dominion of any recognized sovereign power, and where there is no proper legal system already in existence, they take to their new home the law of the Motherland as it then is (i. e. the common law and the statute law existing at the date of the formation of the colony), to the extent that this law can be applied in the new territory, regard being had to the different conditions prevailing there1.
1 Halsbury's Laws of England, London. 1907—'17, VoL X, p. 568, Sec. 987. Also J. Story: Commentaries on the Constitution of the United States, Boston 1873, VoL 1, p. 100.



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And this theory of the transfer of the bulk of the Common Law to the English settlements in North America, has been adopted by the courts of the United States as an enunciation of the genesis of the municipal law of the various states h with the exception of Louisiana, which was not originally an English settlement, and where the French and Spanish laws are the basis of the legal system prevaüing there.
Historically, however, the view taken by the courts, which certainly has its advantages from the point of view of legal certainty, is not quite correct.
In the early days of the settlements there was a general tendency amongst the colonists to make new bodies of law for themselves. In this way Massachusetts in 1641 drew up a code of rules based on "the word of God" and known as the Body ofLiberties, and codes drawn up on similar lines are found to have existed in Connecticut and New Haven. The early colonists of New York had a body of laws called the Duke of York's Laws; and there were codes inPennsylvania, New Hampshire, Rhode Island, Virginia and the Carolinas. These codes were for the most part of a very primitive nature, exhibiting little of any legal knowledge on the part of their drafters, though in some cases Common Law principles were declared to be the basis of the law, a profession more formal than real. However, they were regarded by
1 Essay by P. S. Reinsch entitled, "The English Common Law in the early American Colonies", in Select Essays in Anglo-American Legal History. VoL 1, p. 368. See also the leading case of van Ness vs. Paclcard, decided in 1829, 2 Peters,144. Por a discussion of the decided cases hearing on this question see article of B. C. Dale": The adoption of the Common Law by the American Colonies", in The American Law Register (New Series), Vol. XXI 1882, pp. 663—574.



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the colonists as answering sufficiently to their simple requirements l.
But as the plantations developed, and their social organizations became more elaborate, the rude local laws were very soon found to be inadequate to the increased and increasing wants of an advancing community, and attention was consequently directed to the highly developed legal system of England, which had all the time occupied a place in the background, and which was now, in its pre-colonization state and in so far as it was applicable to American conditions, declared to be the law, either directly by legislation, or indirectly by the action of the law courts2. In short, there had been a reception of the English law in the American colonies, though in many instances, the early legal conceptions of the colonists, differing in important matters from the English law, such as for example on the law of succession, retained their places in American jurisprudence. 3 Apart however from the inevitable differences in substantive law, and also in procedure, the American legal system assumed the peculiar characteristics of the English system, notably its unwritten form and the doctrine of judicial precedents.
When, as a result of the revolution and the separation from England, the colonies became the United
1 See the essay of P. S. Reinsch referred to above, which is an excellent study of the earliest laws of the colonists, and their attitude towards the Common Law.
2 James Kent: Commentaries on American Law, Vol. 1, p. 537.
8 For a comparison between the English common law and the law of Pennsylvania as it stood in 1776, see Francis Wharton: Commentaries on Law, Philadelphia 1884, p. 38.



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States of America, the existing laws were not affected more than was inevitable as a result of the change from a colonial to a sovereign status. And as the Union was augmented from time to time by new states, these, with one exception, also adopted the English law, except such parts of it as were not suited to their circumstances h The one exception was Louisiana.
In 1699 the French established a permanent settlement in Louisiana2, and not long after in 1712 the monopoly of its entire commerce was granted by royal charter to one Antoine Crozat, a merchant. By the same charter the laws, edicts and ordinances of France and the custom of Paris were extended to the new territory8. In 1717 Crozat surrendered his privilege 4, which was regranted to the Western Company (Compagnie d'Occident), specially formed to carry on the commerce of both Canada and Louisiana; and in the new charter the legal provision contained in the old one was maintained 5. After owning the territory for 63 years, France in 1762 ceded to Spain all that part of it situated west of the Mississippi
1 See Emily Kempin: Die Pvechtsquellen der Gliedstaaten und Territorien der Vereinigten Staaten von Amerika, Zürich 1892, p. 27 et seq. The sources of the law of each state are here given in very eoncise form.
* Judge F. X. Martin: The History of Louisiana, New Orleans 1882, p. 98.
* Letters Patent dated 14th Sept. 1712, sec. VII, reads as follows: "Nos Edits, Ordonnances et Coustumes et les Usages de la Prevosté et Vicomté de Paris, seront observés pour Loix et Coustumes dans ledit Pays de la Louisiane." For text see Dernis: Becueil ou collection des titres, édits, deolarations, arrêts, règlements et autres pièces concernant la Compagnie des Indes Orientales, Paris 1746—46, tom. II, pp. 502—610.
4 Martin's Louisiana, p. 123.
* Letters Patent dated August 1717, sec. XV. For text see Dernis: tom. m, pp. 103-122.



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together with the city of Orleans and the island on which it stands1, and soon thereafter the French law was replaced by the laws of Castille and the Indies 2. But Spanish rule was not destined to last long, and on the 21st March 1801 Louisiana was formally retroceded to France8, only to change hands once more, and for the last time; for on the SOth April 1803, it was purchased from the French by the United States of America4. The acquisition was subsequently divided up, and part of it became the territory of Orleans 6, which about coincides in area with the present state of Louisiana.
In 1805 the legislature declared the English common law and practice to be the basis for the most part, of the law and practice in criminal matters a, in the place of the archaic law of the Spaniards; and steps were also taken to devise a new system of civil law, as the existing law was in a state of great uncertainty 7. A digest of the law was accordingly prepared,
1 Martin's Louisiana, p. 193.
* Ibid, p. 211. An English translation of the ordinances and instructions of the Spanish Governor, Don Alexander O'Reilly will be found in The Louisiana Law Journal, VoL 1. No. 2 (1841), pp. 1-66.
« Martin's Louisiana, p.287. France, however, only received formal possession on the 30th November 1803, ibid. p. 296.
* Martin's Louisiana, p. 293. « Ibid., pp. 319, 320.
* W. W. Howe: Studies in the Civil Law and its Relation to the Jurisprudence of England and America, Boston 1905, p. 138.
» Martin in describing the condition of the Spanish written laws states: "Of these musty laws the copies were extremely rare; a complete collection of them was in the hands of no one, and of the very many of them, not a single copy existed in the provinoe. To explain them, Spanish commentators were consulted and the corpus juris civilis and its own commentaries were resorted to, and to eke out any deficiency the lawyers who came from France or Hispaniola read Pothier, d'Aguesseau, Dumoulin, etc." History of Louisiana, p. 344.



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which closely followed the arrangement of the project of the French civil code x, and was adopted by the legislature in 1808, though the previous law, in so far as it was not inconsistent with the digest, still remained in force, until fihally repealed, with one reservation, in 1828 2. A commission had been appointed to draft a civil code3, which upon completion, was promulgated in 1825, a code of practice being added the same year. In 1870 the civil code was amended so as to omit the provisions relating to slaves 4.
The law of Louisiana, then, differs from the law of the other states of the Union in that it is based on the French and Spanish laws, which again can be retraced to a common fountain-head — the law of Rome. In commercial matters however, as there is no code of commerce, the English law-merchant and the laws of the other states are generally followed6.
The circumstances under which the code-system was adopted in Louisiana are different to those pre-
1 The drafters were Moreau Lisiet and Brown, and the work was entitled "A digest of the civil laws now in force in the territory of Orleans, with alterations and amendments adopted to the present form of governmen*.'' The project of the French civil code was used in the work, for the Code Napoléon itself, though promulgated in 1804, had apparently not yet reached New Orleans. Ibid., p. 344.
2 Howe's Civil Law, p. 139.
3 One of the drafters was Edward Livingston, a follower of Bentham. In 1821 he was commissioned by the General Assembly to revise the entire system of the criminal law of the state. He prepared "ASystem of Penal Law" comprising a code of crimes and punishments, a code of procedure, a code of evidence, and a code of reform and prison discipline, as well as a book of definitions. The legislature, however, did not adopt his work. See, C. H. Hunt: Life of Edward Livingston, New York 1864, chapters XII and XIII; also J. F. Dillon: The Laws and Jurisprudence of England and America, Boston 1894, p. 337 note.
* Sherman, Roman Law in the Modern World, pp. 252, 253. E Howe's Civil Law, p. 139.



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vailing in the states where the question of codification has come prominently to the fore. There is a good deal to be said in favour or retaining the system of the unwritten common law where it is in vogue. But in Louisiana the old legal system was in too unsatisfactory a state to be preserved, and a new system became an imperative necessity. Either the introduction of the English common law or the preparation of a code meant in each case a vast improvement on the old system, and here the latter course was preferred.
With regard to judicial precedents, in the United States just as in England, decisions of the same or of co-ordinate courts are generally followed in subsequent cases \ So too, an inferior court in the United States abides by a precedent established in its superior courtsa. American judges however, do not exhibit, at any rate not to the same degree, that almost sacred respect for precedents as do their English contemporaries8, and in this respect American courts appear to be less conservative than the English courts. There is further one important difference between the English and American doctrines as to the binding force of judicial decisions, and that relates to the decisions of the highest tribunals. For whereas the House of
1 The doctrine of precedents applies also to Louisiana; for though it possesses a civil code its promulgation was held by the Suprème Court not to have "abrogated those principles of law which have been established or settled by decisions of the courts of justice". Howe's Civil Law, p. 139. The case-law of Louisiana is relatively not less bulky than that of a state where the unwritten law prevails.
i But the force of a judicial precedent is not so strong if it comes from a divided court. 8. E. Baldwin: The American Judiciary, New York 1905, p. 68. 3 J. C. Gray: The Nature and Sources of the Law, p. 242.



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Lords, as the court of last resort in England, is absolutely bound by its own previous decisions, the Suprème Courts of the various states, and the federal Suprème Court, are not considered to be similarly bound, and in several instances decisions on matters of great importance have been departed from \
Though it can hardly be disputed that conservatism on the part of the courts has the effect of maintaining certainty in the law, yet it is a question deserving of careful consideration, whether the exercise of wider and more discretionary powers of decision on the part of the judges, within well-defined limits and in accordance with certain recognized rules, would not perhaps be more beneficial to the interests of a modern and progressive community, than a too rigid adherence to precedents in the interests of legal certainty, with the complementary tendency, becoming more and more noticable in England, to leave the development of the law exclusively to the legislature. And this question assumes greater importance as one realizes the deficiencies of this body, as it is at present constituted, for the purpose of developing the private law. But with the exception of what has already been remarked, American judges are no nearer than English judges, to accepting the view that they should exercise more freedom of decision in questions of law; and even were they agreeable to this, it is doubtful whether it would meet with popular favour.
But there is an added complication in the American
1 J. C. Gray: The Nature and Sources of the Law, p. 242. And S. E. Baldwin: The American Judiciary, p. 56.



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system not to be found in the English system. For whereas in England an established precedent lays down the law on a particular matter for the whole country, this is not so in the United States. There, each state, which is an imperium in imperio, has an autonomous judiciary possessing, with the exception of certain reservations in favour of the national or federal judiciary1, all the powers and functions of the courts of an independent state2. Each state then possesses its own courts with a suprème court as a tribunal of last resort3. And furthermore besides these state judiciaries, each independent of the other, the United States as a separate political entity, possessing its own legislative and executive organs, has also its own federal judiciary, comprising a suprème court and inferior courts4. But, unlike the judicial powers of the state judiciaries, which are general and undef ined, being limited only by those exclusively possessed by the federal courts6, the powers which can be exercised by these latter tribunals are confined within certain limits by the United States' constitution. Thus, the suprème court of the United States possesses original jurisdiction only "in all cases affecting ambassadors, other public ministers and consuls,
1 The Judicial Code of 3rd March 1911, § 256 grants to the federal courts a jurisdiction in certain cases exclusive of the state courts.
8 "A state in the Union is for some purposes sovereign, for some purposes subordinate." F. N. Thorpe: The Essentials bf American Constitutional Law, New York, 1917, p. 119.
8 S. E. Baldwin: The American Judiciary, pp. 125, 174.
* Art. III, § 1 of the Constitution of the United States reads as follows: "The
judicial power of the United States shall be vested in one Suprème Court, and in
such Inferior Courts as the Congress may, from time to time, ordain and esta-
blish."
8 § 256 of the Judicial Code.



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and those in which a state shall be a party" *, and appellate jurisdiction from state suprème courts and the inferior federal courts, the extent of this appellate jurisdiction being fixed by Congress but not to go beyond certain classes of cases specified in the constitution of the United States 2.
The federal inferior courts are the District Courts established in the different States, the Circuit Courts of Appeals to entertain appeals mainly from the District Courts, a Court of Claims which adjudicates upon claims against the federal Government, a Court of Customs appeals, and a Commercial Court. The jurisdictions of all these courts, both territorial and as regards the classes of cases to which they extend — provided always that these are within the limits prescribed by the federal constitution — are fixed by congressional legislation3.
Thus, it will be seen that in the United States
1 United States Constitution Art. UI § 2 (2). The Suprème Court of the United States has also exclusive original jurisdiction in certain cases. The Judicial Code, § 233.
! For the appellate jurisdiction of the United States Suprème Court, see the Judicial Code, Chap. 10. Appeals from the state suprème courts can only be taken to the federal suprème court in cases "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of their validity; or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity especially set up or claimed, by either party, under such constitution, treaty, statute, commission, or authority." § 237. For appeals from federal inferior courts see § 238 et seq. The constitutional limits of jurisdiction are contained in Art. Hl § 2 of United States Constitution and the XIth Amendment.
* For jurisdiction of District Courts: See Judicial Code, § 24 original; § 256 ex-



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there are as many independent judiciaries as there are states in the Union, and an additional oneforming part of the federal organixation as a separate body politic. And these judiciaries each administer an independent legal system, for each state has its own law, the English common law to the extent to which it has been adopted in the particular state — with the exception of Louisiana — and developed by the judicial decisions of its courts, as well as the state statutory law. And, though it has been stated that the United States as a whole, has no common law \ yet it has a volwninous body of statute law which is of the greatest importance.
As a result of this organization of the judicial system in the United States, there arises this question: What weight is to be conceded, in the first place, by state courts to the decisions of the federal courts, and vice versa; and in the second place, by the courts of one state to the decisions of the courts of another state of the Union?
Except for the few cases in which exclusive or appellate jurisdiction has been granted to the federal suprème court, the state courts forming as they do an independent judicial body complete in itself, do not recognize the decisions of the federal courts as binding upon them in any way2. But the position
chisive; §§ 25, 26, appellate; for territorial extent of jurisdiction see §§ 69— 115. Jurisdiction of Circuit Courts of Appeals, §§ 128—136; territorial, § 116. Jurisdiction of Court of Claims § 145. Jurisdiction of Court of Customs Appeal, § 195. Jurisdiction of Commercial Court, §§ 207,208. There is an annotated edition of the Judicial Code by J. L. Hopkins, Chicago, 1911. 1 S. W. Baldwin: The American Judiciary, p. 170.
a In those cases in which an appeal can be had to the federal Suprème Court, the state court would, for obvious reasons, abide by the former court's decisions.



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is otherwise with the federal courts. The United States District Courts are situated in the various states and exercise original jurisdiction in regard to certain classes of cases, which to a great extent are not excluded from the jurisdiction of the state courts. ConsequenÜy certain cases can be brought either in the district or state courts at the option of the plaintiff % with the result that the same question can come up for decision in both courts in different cases. The state courts are naturally bound to administer the law of the state and, as has just been said, in doing so are not bound to follow the decisions of the federal courts.
With regard to the last-named courts the Judiciary Act of 1789 section 34 2, requires that "the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply". This section has been construed by the suprème court of the United States in the case of Swift vs. Tyson, decided in 1842 8, as being strictly limited in its application to "state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality.... and does not extend to contracts and other instruments of a
1 The defendant however can in certain cases procure the removal of a suit from a state court to a federal court. See §§ 28—39, Judicial Code.
* United States Revised Statutes, sec. 721. It is not affected by the Judiciary Act of 1911.
* 16 Peters' reports, p. 1.



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commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence" 1. And where the state courts have by their decisions established a certain rule of law, declaring for example that certain contracts are valid, and have subsequently departed therefrom, overruling their previous decisions so as to make such contracts invalid, the federal courts may in such cases abide by the previous ruling, so as to uphold the validity of a contract entered into on the strength of it2. The federal courts thus possess an independent jurisdiction, which is to a great extent concurrent with the jurisdiction exercised by the state courts, but in no way subordinate to it; and they will accordingly in some cases follow the decisions of the state courts and in others decide independently of them 3. This somewhat anomalous position would give rise to much confusion and discord were these evils not largely obviated by the desire always shown by federal courts to ensure harmony by tending towards an agreement of meaning with the state courts, where there is a doubt about the question of law involved *.
With regard to the weight to be attached by the courts of one state to the decisions of the courts of
1 Ibid. pp. 18,19. Quoted from the judgment delivered by Mr. Justice Story.
* See Gelpcke et al. vs. The City of Dubvqu*. 1 Wallace's reports (1864), p. 175; Burgess vs. Seligman, 107 United States Reports (1882), p. 20.
3 See the article of E. C. Eliot, "The Common Law of the Federal Courts," in the American Law Review, Vol. XXXVI No. 4, 1902, p. 498.
* See Kuhn vs. Fairmont Coal Company, 215 United States Reports 1909, pp. 349, 361.



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another state, the position is this. The judicial relations between the different states of the Union are practically the same as those existing between foreign states. If then a state court has to decide a question which is governed by the local law of another state K it will give authoritative weight to the decisions of the courts of the state in question, unless by doing so the course of justice would be departed from a. But in all questions turning on the law of its own state, a state court will not place more than consultative value upon the decisions in point delivered by a court of another state where a similar law prevails 3.
As in England, the advocates of codification in America point to the thousands of volumes of reports and statutes in which the law is to be found as in itself an eloquent argument in support of their case. In this respect America is even worse off than Eng* land, for besides the English reports and statutes which contain the law up to the establishment of British settlements in the transatlantic continent, there are at the present time forty-eight state judiciaries each turning out every year its own volumes of decided cases. And then there are also the independent federal courts adding their quota to the total yearly accumulation. Harvard University, which probably has the most complete collection of American reports, had in 1916 over thirteen thousand volumes of these reports *. Furthermore there are forty-eight state
1 This would not include questions of general commercial law.
* S. E. Baldwin: The American Judiciary, p. 178.
* Ibid., p. 179. J. C. Gray: The Nature and Sources of the Law, p. 243.
* Centennial History of the Harvard Law School, Cambridge U. S. A. 1918, p. 111.



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legislatures and the federal legislature adding every year a mass of statutes in augmentation or amendment of the law. In the case of the statutes much has been done in the way of consolidation and condensation.
8



CHAPTER VIII.
CODIFICATION IN NEW YORK AND OTHER STATES.
On the tomb of David Dudley Field (1805—1894) there is written this epitath:
"He devoted his life to the reform of the law:
To codify the common law;
To simplify legal procedure;
To substitute arbitration for war;
To bring justice within the reach of all men V
In these few simple words are recorded the aspirations and labours of one who was amongst America's most public-spirited citizens — a lawyer possessed of great ability, whose remarkable genius for constructive reform earned for him a great reputation which was not confined to his native land, and a place besides such men as Bentham, Brougham and Romilly, in the front rank of the great law reformers of the nineteenth century2.
For a period of more than forty years, Mr. Field championed, with pen and with speech, the cause of codification in the United States, especially in his own state, New York, and the history of the movement there is inseparably identified with the life
1 H. M. Field: The life of David Dudley Field, New-York 1898, preface p. X. ! On one occasion in 1867, John Bright said to Field's biographer: "I wish we had a man in England to do for us in the way of the reform of the law what your brother has done for America." Ibid., p. 95.



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story of this man who, undaunted by the determined opposition and obstruction which he encountered in every step he took, never once relaxed his efforts on behalf of the cause which had become the ruling passion of his life h Nor was he merely content to advocate the adoption of the code-system, but also devoted his energies during eighteen years of his life to the very difficult and exacting task of preparing the codes which he desired to see replace the unwritten common law and statute law, with what results wül be seen later. He was however no idle visionary possessed of a desire to compose a brand new body of law to regulate men's actions; for he was too practical a man to entertain any dilletant schemes for effecting radical changes in the substantive law. His aim was to convert the whole of the existing common law into one or more codes, and thus to preserve the old and established legal principles and traditions of the past in a new and, what was considered by him, a better form 2. Where in his work of code-drafting he deviated from this conservative policy and introduced changes in the body of the law, these were in the nature of suggested improvements which he, or rather the codification commissioners, perso-
1 "The reform and the reformer were attacked with argument and ridicule: by lawyers and judges; in courts and legislatures". Ibid., pref ace p. VHI. And Field himself described his experiences as follows: "Now that my work is finished, as I look back upon it, I am amazed at the difficulties I had to overcome, and the little encouragement and assistance I received. It seemed as if every step I took was to be impeded by something laid across my path. I was opposed in everything. My life was a continual warfare. Not only was every obstacle thrown in the way of my work, but I was attacked personally as an agitator and a visionary, in seeking to disturb long settled usage, and thinking to reform the law in which was embodied the wisdom of ages." Ibid., pp. 82, 83. 1 Ibid., pp. 73—74. This is clearly apparent from all his work.



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And the second provision, the twenty-fourth section of the sixth article, which concerned the remedial law, similarly required the appointment of three commissioners, whose duty it should be, "to revise, reform, simplify and abridge the rules and practice, pleadings, forms and proceedings of the courts of record of this state, and to report thereon to the legislature, subject to their adoption and modification from time to time" x.
The law which was the subject of these stipulations in the constitution of 1846, was mainly derived from England. For, although the state of New York forms part of the territory originally settled by the Dutch and called by them New Netherland, the law of Holland which prevailed there at that time2, was supplanted, on the surrender of the settlement to the English in 1664, by the body of law known as The Duke of York's Laws, which in its turn was replaced, so far as applicable to the different circumstances of the country, by the English common and statute law, which together formed the common law of the colony3. England, indeed, had all along regarded this part of the American continent as rightly belonging to her, basing her title on the discovery of
* It was at first proposed to have one commission composed of five members which was to deal with both the remedial and the substantive law. Ibid., p. 749. 2 See preface, E. B. O'Callaghan: Laws and Ordinances of New Netherland, 1638—1674, Albany 1868.
» For a copy of the Duke of Yorke's Laws, see: Collections of the New York Historical Society, New York 1811, Vol. 1, p. 307.
So much of the common law and the statute Law of England as was applicable to the American colonies became the common law, rather than the common and statute law of the different colonies. Lincoln's Constitutional History, VoL IV. p. 176.



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the North American coast by the Cabots in 1498 x; so that in accordance with the principles of the common law, the law of England was, theoretically at any rate, already in force in the territory on the arrival of the Dutch — who were held to be in the position of intruders — and continued so throughout the period it was occupied by them 2. This historica! question is not without its importance in studying the law of the state, especially as Dutch law has been followed by the courts in several cases dealing with real property 3.
The English law, then, and the laws of the colonial legislature which, to quote the words of Mr. Field, "consisted mainly of efforts to adapt the law of aristocratie and kingly England to the circumstances and wants of settlers in the forest on a different side of the Ocean",4 governed the colonists of New York, and continued to do so after the colonies had seceded from the motherland, so far as its provisions were not inconsistent with the changed political position. A positive declaration to this effect was inserted in the first state constitution 5. This body of law was amended, altered and considerably augmented by enact-
1 Ibid., Vol. 1, p. 19.
2 See Artiele by L. M. Friedman, "The Changes in the AUegiance and Laws of colonial New York", in Harvard Law Review, VoL XV, pp. 810, 824.
3 See artiele entitled, "Observations on the particular Jurisprudence of New York" — author's name not given — in Albany Law Journal, Vol. XX, pp. 326, 466, 467.
4 Bïeld's Speeches Etc., Vol. 1, p. 505.
8 Artiele XXXV of the first constitution (1777) declared, "that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, 1775, shall be and continue the law of this state .... that the resolves or resolutions of the oon-



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ments of the legislature, as is natural in a progressive country. And the immigration into the state of vast masses of population from the old world, and the consequent spread of new ideas amongst the inhabitants has had a perceptible effect on the character of the law ut though the Continental influence on legal thought has not, until quite recently, been as great as might have been expected in the circumstances.
Accordingly, at the time when in 1846 the first move was made in the direction of codification, the substantive law, both public and private, was contained in the reports of the decisions of the English courts up to the time of the occupation of the colony by the English, the statutes of the British parliament to the same time together with a few that were passed subsequently and made specially applicable to the colony 2, the reports of the decisions of the colonial courts, the acts of the legislature of the colony, the resolutions of the provincial congress which functioned during the period of the revolution, the resolutions of the first constitutional convention8, the reports of the decisions of the state courts, and the enactments of the state legislature.
gresses of the colony of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this state; subject, nevertheless, to such alterations and provisions as the legislature of this state may, from time to time, make concerning the same." It should be noted that later constitutions do not refer to "the common law and statute law" of England as being part of the law, but merely to the "common law of the colony", which the adopted English law had become.
1 Field's Speeches etc., Vol. 1, p. 506.
2 Lincoln's Constitutional History, Vol. IV, p. 175.
2 Constitution of New York State 1821, Art. 7 § 13. Constitution of 1894, Art. I, § 16.



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to include in their revision, and like these codes together embraced the whole field of remedial law, civil and criminal, with the exception however of the law of evidence. A conservative spirit prevailed amongst the revisers, and most of the radical changes in procedure which were contained in the old codes were excluded from the new measures. As a result, the commissioners were more fortunate than their predecessors who had drafted the original codes, in the reception which was accorded their productions by the legislature. In due course they presented the draft of an "Act relating to Courts, Officers of Justice, and Civil Proceedings", which formed the first part of their work on civil procedure. This act proved acceptable to the legislature, which passed it into law on the 2nd June 1876, under the title of the Code of Remedial Justice1. The following year two acts were passed amending certain provisions of the code and its name was also changed to Code of Civil Procedure2. Four years later, on the 6th May 1880, the remaining part of the work of the commissioners relating to civil procedure similarly received the assent of the legislature s. The two parts of the code together contained 3356 sections. The Code of Procedure passed in 1848, and the many acts by which it was amended and supplemented were repealed4. In the same way an "Act to establish a code of crimi-
1 New York Laws, 1876, chaps. 448, 449, VoL II.
* New York Laws, 1877, chap. 416, Act of June 5; and Chap. 422, Act of June, 6. The code as amended by these last two acts is contained in New York Laws 1877, VoL IL
* New York Laws, 1880, VoL II, chap. 178, Act of May 6.
* New York Laws, 1877, chap. 417, Act of June 5. A new code entitled the Civil Practice Act became law in 1921.



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nal procedure" which contained 963 sections was introduced into the legislature, and was passed on the first June 1881\ Thus, at last, was accomplished the codification of the whole body of remedial law of the state of New York, excluding the law of evidence; and an important revolution in the domain of the law, which began as far back as 1846, was consummated.
The New York Code of Procedure of 1848 was the forerunner of similar codes in the majority of the states and territories of the Union. In thirty-one of these, codes were enacted in which its provisions were closely followed, namely:
Missouri (1849), California (1850), Kentucky (1851), Iowa (1851), Minnesota (1851), Indiana (1852), Ohio (1853), Oregon (1854), Washington (1854), Nebraska (1855), Wisconsin (1856), Kansas (1859), Georgia (1860), Nevada (1861), Dakota (1862), Idaho (1864), Arizona (1864), Montana (1864), North Carolina (1868), Arkansas (1868), Wyoming (1869), South Carolina (1870), Florida (1870) — but repealed again three years later, Utah (1870), Colorado (1877), Connecticut (1879), North Dakota (1889), South Dakota (1889), Oklahoma (1890), and New Mexico (1897) 2.
The system of civil procedure which exists in these states is known as code pleading, in contradistinction to the older system known as common law pleading which still exists in the other states, though often considerably altered by statutory enactments.
All the states mentioned above, excepting Connec-
1 New York Laws, 1881, VoL IL chap. 442.
* Library of American Law and Practice, VoL VH, p. 467. Georgia is omitted in the hst given in this work. The civil procedure in that state is regulated in Part. III of the code.



133
important a departure from the traditional form in which its law had up to then been expressed. But this distinction, as will be seen later, did not fall to their lot.
On the 8th April 1847, the legislature complied with the requirement of the constitution and appointed Reuben H. Walworth, Alvah Worden, and John A. Collier, to be Commissioners of the Code — the official name given them in the act — to hold office for two years \ Walworth declined the appointment, whereupon Anthony L. Robinson was appointed in his stead on the 13th May 1887 2. After the commissioners had been at work for some time, Collier, realizing only then the magnitude of the work and the time and labour it would involve, decided that its accomplishment demanded powers of endurance greater than he possessed, and consequently resigned his appointment on the 12th January 1848 3. In his place the legislature by resolution appointed Seth C. Hawley4-
Still, considerable doubt existed in the minds of many, both inside and outside the legislative body, as to the advisability or practicability of carrying out the task allotted to the conunissioners, and as a consequence the question was referred to the Judi-
1 New Vork Laws, 1847, chap. 59, §§ 1 and 3. * New York Laws, 1847, chap. 289,
8 New York State Assembly Documents, 1848, VoL n, No. 28. In his letter of resignation Collier expressed his "increasing doubts and misgivings as to the ultimate success of the undertaking, and especially if done in the hurried manner which the manifestations of such impatience [on the part of the legislature] are calculated to produce." p. 4.
4 Concurrent Resolution of Senate and Assembly New York Laws 1848, p. 579.



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ciary Committee of the Senate, which was desired to report whether it would not be wiser for the commissioners to confine themselves merely to a revision of the statutes. The committee, however, conceived this matter to be one solely for the commissioners themselves to decide, as they were required to do by the terms of the clause in the constitution, and maintained that neither the legislature, or any committee of it, had any right to arrogate to itself the function of deciding whether or not the proposed codification could and should be carried outl. All that the committee then did was to submit the inquiry of the senate to the commissioners and request them to give their opinions in answer thereto. This they did individually, their Communications nevertheless showing that entire agreement existed between them in regarding the project of a comprehensive codification of a geat deal of the unwritten and statute law to be both feasible and desirable 2. On proceeding further in their work, however, they seemed to have acquired a more conservative view of the extent to which their work of codification should be prosecuted. For, in their report presented to the legislature on the 8th April 1849 8, they declare that the two branches of the law, the common and the statute law, "are distinct in their character and cannot really be assimilated in their general and leading features" 4, and they further appear to have devoted their atten-
1 Report contained in New York State Senate Documents, 1848, Vol. II, No. 69.
2 The Communications from the commissioners are in the above report.
8 Ist report of the Commisioners of the Code, Albany, (Weed, Parsons & Co.) 1849.
* Ibid., p. HL



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tions exclusively to the statutes. The actual result of their labours of two years was a revision of the first six chapters of the Revised Statutes, the draft of which they submitted to the legislature with their report. This report was only signed by two of the commissioners, A. Worden and S. C. Hawley. Mr. Robinson had not been able to identify himself with the vieuw entertained by his two colleagues as to the scope of their labours. In a communication in which be relinquished his commission, he expressed himself against pursuing a policy of timidity and conservatism, and lamented "the limitability of human intellect and powers, which prevents the prudent from sweeping away in a moment, deposits of error for ages, lest something valuable be lost with them" *.
The period of two years for which the commissioners were originaUy appointed, expired on the same day on which they presented their report to the legislature. A new act was consequently passed on the lOth April 1849 appointing another commission composed of the two remaining members of the last body, together with John C. Spencer, to hold office for two years 2. Mr. Spencer, however, declined to serve, and the commission itself was abolished by an act of the lOth April 1850 8. "The commission.... failed", said Mr. Field, "because the men who were appointed to it had no faith in a codification of the Common Law; and neither appeared to understand what was meant
1 Assembly Documents, 1849, No. 223. 3 New York Laws, 1849, chap. 312 § 4. 3 New York Laws, 1850, chap. 281.



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of a crime, the distinction between felonies and misdemeanours, the functions of the jury, the limits of punishment where no special provision is made in any particular case, the persons who are liable to punishment for crime, and the differèntiation between principals and accessories. The rest of the code contains provisions relating to the different crimes, which are classified as being directed against the elective franchise, the executive power, the legislative power, public justice, the person, chastity and public morality, public health and safety, the revenue and property of the state, property, or as falling under the head of miscellaneous offences.
There cannot be much cause for finding fault with this arrangement. Crimes fall naturally into certain well-defined classes, and the work, of classification does not present any great difficulties to the draftsman. In the preparation, however, of a code of private law, the proper arrangement of its contents is a matter of great importance to the legislator, the lawyer, and the student. This part of the work of the codifier is fraught with many difficulties, chiefly because there is no clear line of demarcation between different subjects, as is mostly the case in criminal law. Questions will arise as to whether a particular subject should be dealt with under the law of persons, or under that of property; whether all delicts or torts should be treated of together in a separate portion of the code as a distinct class of obligations, or whether on the contrary libel, for example, should not be included in the part devoted to the law of persons, and nuisance amongst the provisions dealing



142
with property rights; or again, whether mortgage and other hens are not better classed under property as incumbrances, than under obligations, of which they are a particular type.
Like other codes before it, the Civil Code of New York has been subjected to criticism in regard to the arrangement of its contents on the ground that it is not based on scientific rules. The analysis of its provisions, which follows, will sufficiently ülustrate the method of arrangement which was adopted by the commissioners in its preparation H
The code contains 2034 sections and is divided into four divisions, relating respectively to the law of persons, the law of property, obligations, and general provisions.
The first division is comprised of four parts. Part one, under the heading persons, describes who are minors, adults, insane of persons — the latter including idiots, imbeciles and habitual drunkards; deals with contracts entered into by minors and insane persons, their liability for wrongs committed by them, and the manner of enforcing the rights of minors. It also states certain limitations upon the general exercise of rights by Indians. Part two defines the rights possessed by a person generally, and proceeds to deal with certain violations of these rights, namely, libel and slander, abduction, seduction, injury to a servant affecting his ability to serve his master, and declares that necessary force may be used in the
1 The analysis is a rather comprehensive one, but this has been thought advisable in view of the criticism in the following chapter of the arrangement of subject matter which is portrayed therein.



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protection from injury of the person and the property of oneself, and of certain other related persons enumerated therein. Part three is headed 'personal Telations', and concerns the relationships of husband and wife, parent and child, guardian and ward, master and servant, and describes their creation, the rights and obligations to which they give rise, and their termination, though not that of master and servant.
The second division has four parts. The first part contains provisions relating to property in general, defines the different kinds of property, deals with ownership, the various modifications thereof and conditions appertaining thereto, certain rights to which it gives rise, and its termination. Part two is devoted to real property, and deals with the several kinds of estates — with servitudes, rights and obligations of owners, uses and trusts, and powers in relation to real property. Part three includes under the title, personal property, the following subjects: shipping, corporations, products of the mind, trade-marks, good-will of a business, and title deeds. Part four describes the mode in which property may be acquired, namely by occupancy, accession, transfer, will and succession, and has provisions dealing with these various subjects in full.
The third division of the code, dealing with obligations, is also divided into four parts. Part one relates to the definition, interpretation, transfer and extinction of obligations; part two is devoted to the subject of contracts; part three treats of obligations imposed by law, arising from fraudulent deceit, wrongful acquisition of property, wilful acts of injury, and



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the governor *. It became law on the 26th July 1881, and went into force on the Ist day of May of the following year2. The Penal Code as enacted differs but little from the original draft of 1865, and the credit for it must really be ascribed to Mr. Field and the two other Commissioners of the Code.
Similarly, in 1884 it was proposed to make another attempt to obtain the enactment of the Civil Code. This proposal aroused considerable opposition. The Bar Association of the city of New York appointed a special committee to oppose the measure, and all efforts were made to insure its rejection when it came up for the decision of the legislature. A sharp controversy ensued between the supporters of the code and their opponents, which gave rise to the publication of certain important papers and pamphlets treating of the question of codification generally, from opposing aspects, and reminding one of a similar pamphlet war which was waged in Germany in the beginning of the century, following the appearance of Thibaut's famous paper in advocacy of a civil code for Germany. In this connection reference may here be had to the pamphlet written at the request of the committee of the Bar Association by James C. Carter, the most formidable adversary of Mr. Field, and entitled The proposed codification of our common law 8,
1 Field's Speeches etc., VoL II, pp. 480—481.
2 The code contains 727 sections. New York Laws, 1881, VoL TTI, chap. 876. * J. C. Carter: The proposed Codification of the Common Law, New York 1884. This was followed up by a pamphlet entitled, The Provinces of the Written and the Unwritten Law — an address delivered at the annual meeting of tbe Virginia State Bar Association 1889, in the American Law Review (1890) Vol. XXIV, p. 1; and by a paper entitled, The Ideal and the Actual in the Law — address delivered before the American Bar Association 1890, in the American



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but merely "the great fundamental principles of [the state's] jurisprudence, from whatever source derived, together with such legislative enactments of the state as the wants and circumstances of the people had, from time to time, shown to be necessary and proper" K and all that was claimed for it was that it would "fumish all the information, on the subject of law, required either by the citizen or the subonlinate magistrate"2. Evidently lawyers and judges were still to continue to refer to the original sources of the code for the law, and this they were expressly directed to do whenever the code was silent on any particular point 3.
1 Preface to original code p. TTT.
1 Ibid. Like most other codifications, except perhaps the most modern Continental ones, the Code of Georgia owes its existence in part to the desire, which was <blyft de selfde^during the greater part of last century, of making the layman his own lawyer. This is clearly apparent from the report of the committee appointed to examine the code. It says: "The mingling together in oöndensed and intelligible form the Common and Statute laws, constitutional provisions, and court decisions, and thus to place the whole body of all the law withui the reach of the people, was, in the opinion of your committee, the great end
aimed at by the legislature It has not been before so extensively attempted,
that the citizen should be referred to the whole embodiment of the law in a single volume to be exactly informed what are his rights in any and every exigency, and what his remedies for their enforcement and protection." Report of Committee, pref ace to Code, p. V. Though as a fact the code falls far short of this description in its comprehensiveness, this nevertheless illustrates the motives which actuated the codification of the law of Georgia. 8 The code is not so full as the one prepared for New York. It is really more in the nature of a digest than a code. Each section is annotated with the decision or the statutory provision to which it relates. All questions not embraced or provided for in the code are to be decided and settled by existing laws. (Preface VHI). § I of the code gives among the different recognized sources of the law the following: Decisions of the Suprème Court and the Common Law of England; so that lawyers at any rate would require to consult these sources in ascerUining the law. The code, however, is the exclusive souroe of the criminal law [§ 1 (3) e]. The meaning of words in the code is to be ascertained by resort to the common Law. (See note to § 1.)



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The completed code was carefully examined by a legislative committee appointed for the purpose, and was recommended by it for adoption.1 The committee also considered the method to be followed in the legislature in securing its enactment, and reported that in its opinion the usual procedure of considering measures in detail, section by section, was impracticable in the case of the code, containing as it did over four thousand sections. It was accordingly recommended that the legislature accept the work in toto by merely passing an adopting act2. This proposal was agreed to, and an "Act to approve, adopt and make of force, in the state of Georgia, a revised code of laws" was assented to on the 19th December 1860 3. Several revisions of the code have since been carried out, the first being undertaken in the year following its enactment and before it had yet come into force, so as to make it conform to the new constitution of the Confederate States; Georgia having seceded from the United States and become a member of the new southern confederation 4.
1 Report of committee included in preface to code of 1896. * "The reading [of the draft]", states the report, "accompanied by the unquestioned power to amend and discuss, according to the varied opinions and policy of our three hundred members, it need hardly he said, would occupy to say the very least, more than all the time.... limited [to a legislative session]. In the opinion, then, Of your committee, to read without amendment and discussion, would be idle and useless waste of time and money; and to read, amend and discuss impracticable". Preface to the code, p. VI.
8 This act only contains one section merely declaring the adoption of the code, and from when it was to take effect. See preface to code, p. VIII. 4 On the 18th. March 1861, a convention of the people, then in session, resolved that the code should be made to conform to the government of the Confederate States instead of the United States, and that the constitution of the Confederate States should be included in the code. Preface, p. IV.



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The Civil War ended in the victory of the northern states and this necessitated another revision1. In 1893 a commission was appointed to make a new codification of the law, and to follow, in doing so, the plan and system of the previous code 2. It was also required to annotate the sections of the new code with the decisions of the Suprème Court of the state in explanation of them, as well as to make marginal references to statutes. The method of revision and enactment of . this last measure was similar to that adopted in connection with the first code 3.
The states of North and South Dakota both have complete systems of codes. Until 1889 both formed part of the territory of Dakota, which seventy years ago was only known to the world as an immense stretch of land inhabited by the truculent Indian tribes, the Dakotas or Sieoux, and which had still to be penetrated by the civilization of the white man. The territory came into the possession of the United States in 1803 as part of the extensive Louisiana
1 This revision was carried out by David Irwin, one of the commissioners. (Code of 1863).
2 The commission comprised John L. Hopkins, Clifford Anderson and Joseph P». Lamar, and was appointed in accordance with an act dated the 19th. December 1893.
8 A joint committee of Senate and House of Representatives carefully examined the work of the commissioners, and reported in favour of its adoption. A short adopting act was accordingly passed enacting the code on the 16th December 1896. The code comprises: Vol. 1, a Political Code — §§ 1 to 1801; VoL II, a Civil Code — §§ 1802—4042, a Code of Practice (inclusive of the rules of the suprème and superior courts) — §§ 4042—6697, the federal and state constitutions- §§ 5698-6036; VoL IH, a Code of Crimes and Punishments — §§ 1— 730; (>iminal Practice Code - §§ 731—1277. All three volumes are coUectively caüed the Code of Georgia.



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Purchase, and had previously passed under the flags of Britain, Spain and France *. In 1858 the number of citizens in Dakota totalled about two thousand 2. But the smallness of the white population and the primitive state of the territory did not deter, and perhaps even stimulated, the resolve of the legislature taken at its eleventh session to do what the "imperial state" had hesitated and finally declined to do. For the codes which were prepared for New York and turned down as unsuitable, mainly on the ground that they would increase rather than diminish legal difficulties, were taken up by this newly-settled territory as specialry adapted to its purposes. Thus the Civil Code prepared by the commissioners of the code in New York was adopted in Dakota within a year of its completion in 1865 3. A Code of Civil Procedure adopted from Ohio was enacted in 1862, but was repealed six years later and replaced by the New York Code of Procedure. Similarly a Code of Penal Law enacted in 1868, was repealed two years later and the Penal Code prepared for New York adopted in its stead, and this was followed in 1869 by the adoption of the Code of Criminal Procedure which was still unenacted in the state of its origin 4.
1 W. H. Blackburn: A history of Dakota in South Dakota Historical Collections, compiled by the State Historical Society .Aberdeen (South Dakota) 1902. Vol. 1, p. 44.
2 Ibid., p. 48.
8 The code was approved by the legislature on the 12th. January 1866. See the introduction to the Revised Codes of South Dakota.
* See preface to Revised Codes of North Dakota of 1895, p. IV. The legislators did not lack energy in their work of adopting codes prepared for other states. "In the early days of the territory of Dakota", states the pref ace to the revised Code of North Dakota, "the legislative assembly was as active on the subject



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An important revision of the codes and statutes of the territory was undertaken in 1876, which was completed and adopted by the legislature the next year1. In 1889, two states were formed out of the territory, named North Dakota and South Dakota respectively. The old codes continued to be the law, and have since undergone separate revisions in both states 2. The codes are seven in number, namely a Political Code, a Civil Code, a Code of Civil Procedure, a Justices' Code, a Penal Code, and a Code of Criminal Procedure.
California originally formed part of the Spanish
of codification as the most ardent reformer could ask. Hardly a session passed during the first 10 years — and the sessions were then annual — in which one or more codes was not introduced and adopted. The codes were taken either from those prepared by the New York commissioners, or from other states in which codes based on the work of the New York commissioners, had been adopted.... All the above codes were adopted by the legislative Assembly of Dakota without any revision by the commission and with only such adaptation to the other laws of the territory as could be given by the legislative eommittees." Preface, pp. 5, 6.
1 In 1875 the Legislative Assembly authorized the governor to appoint a commission of "three competent and worthy persons, learned in the law to revise and codify the laws of this territory". (Laws 1874—6, chap. 23). The three men selected for this task were P. C. Shannon, G. G. Bennett, and B. Tripp. They carried out a revision of the old code, being greatly aided by the system of codes adopted in California. See preface to Revised Code of South Dakota (1903), p. DJ. 1 North Dakota in 1891 provided for a revision of the codes by a commission composed of two lawyers and one business man. Nothing resulted from its work. Two years later another revision commission was appointed (Laws 1893, chap. 74) and their revised code was adopted by the legislature (Laws 1905, chap. 41). The revised code of 1905 contains annotations to its sections of all the decisions relating to them made by the Suprème Courts of the old territory of Dakota, and the states of North and South Dakota. See the Revised Codes of the state of North Dakota, Bismarck 1905.
South Dakota had the code revised by a commission appointed in 1901 (Laws 1901, chap. 183). The work was completed in 1903 and passed by the legislature after being examined by the judiciary committee of the House of Representatives and the Senate. See Revised Code of state of South Dakota, Pierre 1903.



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intellect and attainmentsx. Again, the law was to be found scattered amongst the thousands of volumes of law reports and the many volumes of statutes, and to ascertain it was therefore a matter of extreme difficulty 2. The introduction of the code-system would result in its reduction into only a few books easily accessible to all8, for having to obey it they have a right to know it4. And fihaliy in many respects, the
of the Roses, not of the deliverances of the American and French Revolutions." Artiele entitled, "Codification of the Common Law", in the American Law Review, Vol. XXTTT (1889). No. 3, p. 498.
1 The People, said Field, "want the law accessible and intelligible, and nothing will give them that but a code. There is as much reason why the American people should have their laws in four or five pocket-volumes as there is why the French people should have theirs. A general code .... could be easily placed in every household, if the people would but wiH it." Field's Speeches etc., Vo L L p. 377.
2 "The multiplication of these books is marvellous and appalling. Every state, every court, pours forth its volumes, good, bad, and indifferent, confusing or contradicting each other; some of them strong in logic and rich in learning; others weak and poor in everything; and still others swollen with platitudes. The lawyer of to-day is overburdened and overworked; staggering under a load of statutes and precedents, able to find a case to prove anything, and sure to be confronted with another to prove the contrary, he is brought in despair to the conclusion that a lawsuit has become very much a game of chance." Field's Speeches etc, Vol. I, p. 378. "The devotees of our profession are converted into antiquaries, whose never-ending task is to pour over the records of the past, in the hope of discovering that once at least before the date of research legal history recorded an example of similar contention", G. Hoadly in his artiele already mentioned, p. 503. The unwritten common law is described further on as "darkness obscured by the selections caüed American Reports' ". p. 512.
* Thus, a lawyer of Montana wrote the following, as a reason for codification: "So that a citizen of Montana who has but little money to spend on books, needs to have lying on his table but three: an English dictionary, the Book
of the law (codes); and the good old family bible." Field's Life, p. 92.
And again, "codification is peculiarly the boon and benediction of the poor, and it furnishes some facilities whereby the ignorant may beoome wise." p. 93 See also Field's Speeches, etc., Vol. 1, p. 510.
* "If the law is a thing to be obeyed, it is a thing to be known; and if it is to be known, there can be no better, not to say no other, method of making it
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law, mainly on account of its traditional nature and unwritten form, contained many- inconsistencies and contradictions, which gave rise to much uncertainty *. In its codification, the law would be purged of these bad elements, and certainty introduced,' where previously doubt prevailed.
The remedial law has been codified in most of the American states, and a few have also codes of substantive law, most of these based on the code prepared for the state of New York. It is therefore possible to ascertain, at all events so far as these codes are concerned, whether the predictions of the advocates of codification have been fulfilled, and justified by actual experience.
The first important result of the codification movement was the enactment of the New York Code of Procedure in 1848. It is this code, and not the later and more comprehensive one, which has been adopted as a model by the other states.
The code was received, in the words of Mr. Field, "with a preponderance of negatives at its introduction" 2. In the opinion of many, the changes embodied in it were far too sweeping and not a few of its innovations of doubtful benefit, and it was prophesied that it would be found to contain defects which would only become apparent in actual practicea; all of
known than of writing and publishing it," Second report of Commissioners of the Code, dated 31st March 1869, p. VII.
1 See artiele by Judge Cooley: "The uncertainty of the law", the American Law Review", Vol. XXII, p. 1354. 1 Field's Speeches Etc., Vol. 1, p. 366.
3 See report of the committee on the judiciary, on the Bill to continue in office



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which would give rise to many complications. Subsequent events have fully justified the original fears of those who were severely critical of the measure, as well as the doubts of those who were merely sceptical as to the great benefits to be achieved from it. For although the old system was ponderous and dilatory, yet its rules had long since been definitely settled by the decisions of the courts, and there were text-books which were regarded by all as authoritative guides to civil procedure, so that if the system was not wholly suited to modern circumstances and needs, it could hardly be impeached on the score of uncertainty. The results of ages of judicial application and determination were swept away by the enactment of the code, in so far as it contained a radically different system embodied in a new form \
But omissions and imperfections were soon detected which had to be made good by legislative amendments, and also the meaning and application of many of its provisions caüed for the interpretation and direction of the courts. The result was that every year produced its list of amendments, and added its share of decisions to the Practice Reports, which soon ran into many volumes2. Consequently, it became pathe Commissioners on Practice and Pleadings. Assembly Documents 1849, Vol. II, No. 47, p. 14.
1 It should be remembered that only part of the law of civil procedure was embraced by this code.
* "The new and untried code-system necessarily resulted in a great deal of litigation. While the code was small, the decisions as to what it meant were many. The statute itself was amended from year to year, and the decisions under it were gathered into series of 'Practice Reports'." G. A. Miller: An Introduction to Practice, with special Reference to the New York Code of Procedure. New York 1903, p. 1.



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and confusión which may be created by a bad system of procedure created by statute, let him survey the ponderous volumes of statutory law, and the enormous accumulation of gloss, comment and adjudication which it has necessitated, with which the practising lawyer of New York is now bewildered and confused" *.
And it is both interesting as well as only fair to point out that Mr. Field dissociated himself entirely from this last product of codification, by stating that the code "while retaining the essential features of the old work already in force, was so smothered with details and so reactionary in spirit, that the state of New York has since been working under a scheme of civil procedure which scarcely anyone approves and which is far enough behind what the framers of the original code designed and constructed".2 And similarly, Mr. Fowler feit no compunction in describing "the adjective law of New York", in the state in which it was in 1884, as "almost the worst in the world" 8.
The conclusions that must be drawn from the foregoing strictures, which represent the opinions entertained by the legal profession generally in regard to these codes, are, that instead of the procedure being simplified, it was made more technical and was more involved than ever; that as a result of the accumui a-
1 Carter: The proposed Codification of our Common Law. pp. 19—20.
* D. D. Field, in an artiele entitled, "Codification in the United States", in the
Juridical Review 1889, Vol. 1, p. 21.
8 Fowler: Codification in the State of New York, p. 66. The italics are oura. And another lawyer wrote: "A code of procedure swelling to 3,351 sections, is, by its very bulk, a monstrosity which probably does not exist anywhere in the world." C. M. Platt in an artiele entitled, "The proposed Civil Code of New York", in the American Law Review, VoL XX, p. 717.



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mastera follow immediately on the provisions relating to the subject of agency in general. The subjects of uses and trusts and powers in relation to real property, which similarly deal with fiduciary relationships, would perhaps have been more appropriately treated of with other trusts, instead of forming part of the division relating to property; for it is surelyinconsistent to classify trusts first as to the subject-matter to which they relate, and later on as to their consequences, namely the obligations they give rise to. One meets with different parts of the law of torts described in the code as "obligations imposed by law" — as if there were no other obligations, not being what in Roman Law is termed obligationes ex delicto, which are also imposed by law — in nearly every division of the code, as for instance, libel and slander under the title personal rights in the first division, fraudulent deceit and negligence in the division relating to obligations, wedged in between provisions relating to contracts in general and those dealing with particular kinds of contracts, such as sale, exchange, etc. Nuisance is to be found in the last division among general provisions. It would have been better to have dealt with all these matters together in a part of the code specially devoted to torts. These few examples must here suffice to illustrate the unscientific nature of the arrangement of the contents of the codel.
1 See also artiele by W. O'Morris entitled "The Civil Code of New York", in the Fortnightly Review, No. XLV, New Series, Vol. 8. (1870); Artiele byC. M. Platt entitled "The proposed Civil Code of New York" in the American Law Review, VoL XX, p. 713; Sheldon Amos: An English Code, pp. 94 et seq.



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It is strange that the Commissioners of the Code did not decide to have a Commercial Code embracing the subjects of corporations, partnership, carriers, maritime law, insurance and negotiable instruments. This has been done by practically every country that has adopted the code-system, and would have been especially suited to a commercial community like that of New York. Had this course been followed, it is likely that the codes may have received the support of the powerful commercial class, which may have made all the difference to their chances of success in the legislature. Sunilarly, there are no separate commercial codes in those states of the Union which have a complete set of codes.
The weakness exhibited by the code in the classif ication of its contents induced many to decide against it, who were otherwise strong supporters of codification. One of them, Mr. C. M. Platt expressed his opinion on this matter as follows:
"A code which illustrates sound principles of
classification so lucidly that they can be readily employed to reduce to mental order the chaos of statute and judiciary law beyond its scope, would be invaluable. Unfortunately the Civil Code of New York fails essentially to answer this description; and owing to the fundamental imperfection of its method, it could, if adopted, have no other effect upon the existing confusion in the form of our law, than to render that confusion more inveterate" 2.
And Mr. Sheldon Amos, who, it is quite evident,
1 C. M. Platt: "The proposed Civil Code of New York", The American Law Review, VoL XX, p. 717.



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the whole day in the labours of a large private practice and merely able to devote a few hours in the evenings to so difficult and responsible a task, was, no matter how eminent or learned, or how enthusiastic he may have been in the cause of codification, scarcely the right person to be entrusted with it. Working in this fashion the code designed for a progressive community like that of New York, was drafted within the remarkably short period of five years, much of this time being taken up with the preparation of the Political Code.
It is safe to say that of all the great codes that have hitherto been prepared, not one could have afforded so many difficulties in its preparation, or needed the devotion of more time and care as would be required in a satisfactory codification of the English law or its American counterpart, contained, as it is, in many thousands of decisions, and in numerous volumes of statutes. "A complete digest of our existing law, common and statute, dissected and analysed, avoiding repetitions and rejecting contradictions, moulded into distinct propositions, and arranged in scientific order, with proper amendments, and in this form sanctioned by the legislature, is the code which the organic law commanded to be made for the people of this state" *. This was the conception that the commissioners entertained as to the nature of the work to be carried out by them. Could this be done in a satisfactory manner in the time devoted to it by them, or more exactly, one of them? It certainly could not; and the actual product of their
1 Introduction to the New York Civil Code, p. XV.



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labours is confirmatory of this opinion. Thirteen years after the New York legislature had made its second appointment of Commissioners of the Code, a commission was appointed in Germany, having as its purpose the drafting of a code for the newlycreated German Empire. Thirteen years were spent in the preparation of the first complete draft of this code. After being submitted to the public for general consideration and subjected to voluminous comment and criticism, five more years were spent in its revision. The German civil code contains 2885 sections, and if one adds the 905 sections of the commercial code, the total number of sectiéns exceeds that of the New York code by 1257 sections. But, as finally adopted, it took, including the time devoted to a popular examination of its contents, much more than twice as long to prepare, than did the code intended for New York. And an even more relevant example may be found in the English attempt to codify the criminal law; a relatively simple matter when compared with a codification of the private law. It has been seen elsewhere, what time and labour, was expended on this work by men who were specially employed for the task — only to have it found in the end unsuitable for adoption by the English people.
The demerits to be found in the New York civil code cannot be held to prove anything against the expediency of supplanting the system of unwritten law by a code system. It merely demonstrates the dangers that lurk in a badly prepared code. But the disappointing result of this, the most comprehensive and important attempt yet made to codify the com-
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mon law, could not have been without its moral effect on the subsequent course of the codification movement % .
It is not easy to conjecture what would have been the subsequent history of the code had it been adopted. It is not likely that it would have received that almost sacred respect which has been accorded the French civil code by the people of France, who have shown remarkable scrupulosity in making alterations in or amendments to the text itself, so that to-day its provisions, with only certain exceptions, are still the same as when they were drafted a hundred years ago 2. This does not imply that for a hundred years there has been no progress in the domain of law, or that what was suitable so long ago is still so to-day. No, a body of law has grown up extraneous to the code3. Cautiously, very cautiously, the courts of France, have developed legal rules and doctrines which are not to be found in the code itself; the legislature has interfered but seldom. Whatever notions one may entertain as to the propriety of judges exercising the function of law-making, which some think is an unrighteous usurpation of the rights of the people's representatives4, no one will deny that the judge is better capable of taking an objective view of any proposed modification of the law, than the
1 The codes with which the New York lawyers have actually come into contact have doubtless been the cause of their hostility to codification. See C C. Booney's opinion in the American Law Review, Vol. XX, p. 27.
1 This fact was, curiously enough, used as an argument by Mr. Field in support
of codification. Field's Speeches etc., VoL I, p. 348.
* Planiol: Traite élémentaire de droit oivfl, tom. 1, § 90.
4 See introduction to the New York Civil Code, p. XXXI.



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legislator, if for no other reason than that his decision cannot affect his position as judge. This cannot be said of the legislator, on whom pressure can be brought to bare, though quite likely without avail, with the object of influencing his action one way or another. If the experience of the codes of procedure can be regarded as a reliable guide, then it would seem that the legislature of New York would not have shown the same reticence in regard to amending the civil code, as the French body in regard to this matter.
The analogy of the codes of procedure is quite a pertinent one, in spite of the essential difference between their substance and that of the civil code. New York lawyers, according to Mr. Field, were responsible for the continuous amendments to the procedure codes1. Now, if there is one thing that lawyers desire more than any other, it is stability in the remedial law. Yet, according to Mr. Field, they did not scruple to cause amendment after amendment to be added to it. What guarantee was there that the same procedure would not have been followed in the case of the civil code? Mr. Fowler complained of the employment of "crafty, debased and unSystematic legislation" to alter the procedure code; and the amendments were often made, according to the New York revision commissioners, "in order to affect the decision of a particular cause". Again, what guarantee was there, that the same would not have occurred to the civil code, when the inducement would in this case have been all the stronger, because the result would have been generally more advantageous. But
1 Field's Speeches etc., VoL TH, p. 232.



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better still, the Civil Code of Georgia has undergone this very process of continual legislative interference. This has been confirmed by a lawyer of that state, Mr. A. R. Lawton, who, in general, was favourable to codification. "I fear it cannot be said", he wrote, "that the code has had a tendency to diminish legislation in Georgia. Indeed, it is most convenient for a member smarting under some recent decision against himself or his dient, to secure the passage of an act to repeal or construe section 'number—' of the code, and thus right the wrong inflicted; and thus has hasty or ül-advised legislation sometimes 'patched and plastered' the careful and polished work of the original codificss" h To those who are acquainted with the uses and abuses of private legislation in the United States generally, and New York State in particular, these words have a familiar sound.
Nor is it likely that the code would have affected the authority possessed by the judicial law under the common law system, The New York code contains no such clause as the French code, prohibiting judges to decide cases on the authority of previous decisions2; though to all intents and purposes this provision is a dead letter, and decisions of the highest court, the Cour de Cassation, are generally
1 A. R. Lawton, in the American Law Review, Vol. XX (1886), p. 21. Mr. Carter predicted that if the code were adopted, then, "each session of the legislature would pour forth its quota of amendments, drawn by hands unfamüiar with the code itself, drawn sometimes by laymen, drawn in haste, drawn in ignorance of the true meaning of the code itself. What limit can be imagined to the confusion and uncertainty which must arise after a few years of such legislative experience T" J. C. Carter: The Proposed Codification of our Common Law, p. 86.
2 Code civil, art. 5.



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followed. Though the New York code does not make any reference to this question, there can be little room for doubt that the old-established doctrine of judicial precedents would have continued to prevail, for as long as the system of appeals remained, what would have been the use of departing from the decisions of the highest tribunal? 1 There has certainly been no change in this respect in the states which have civil codes, and each one of these possesses its set of reports of decisions 2. Whether the codes in these states have had the effect of retarding the accumulation of reports is a mute point. They may have done so, or they may have even increased them as a result of the numerous decisions relating purely to the interpretation of code sections 8.
Neither the New York civil code nor the codes adopted in several of the other states of the American Union are intended to repeal the old law in its entirety. Section 2033 of the New York civil code states that: "All statutes laws and rules heretofore in force in this state, inconsistent with the provisions of this code
1 Mr. Field seems to have entertained this view, Speeches etc., VoL TH, p. 186.
2 See, T. M. Cooley's contribution to the American Law Review in regard to the California codes, VoL XX, pp. 333, 334.
3 The opinion of one who has practised under American codes is worthy of note. "It is the letter that kills, and those who are so unfortunate as to practise under codes continually verify the old adage: Qui peret in litera heret in cortice .... What lawyer will pretend that he can master or even remember mere statutory verbiage as he can the rules of the Common Law .... In course of time, however, after incalculable expenditure of time and money, the code would be construed by the courts; and then we would know exactly what it means." Martin Marshall in an artiele entitled, "The advisability of abolishing the distinction between Law and Equity in matters of procedure," in the American Law Review, Vol. XXIII. (1889), p. 806.



185
grave1 dissatisfaction with the civil codes which are already in existence in the United States2. As a consequence of the revisions which they have undergone, and the annotation of the sections with the decisions of the courts, so as to iüustrate their proper meaning and application, these codes have become excellent digests of the law. For that in fact is what they really are. No one desires to see them discarded and a return made to the old system. After a code has been in existence for years, when people have regulated their conduct to accord with its provisions, when for many years the courts have been busy elucidating it and cloathing it with a new and more weatherable legal fabric, to disturb all this and revert to the status quo ante, and take up the threads where they were let go many years since, would be a great blunder, and is ineonceivable. But the fact that the code-system has been retained is yet no conclusive proof of its essential superiority over the common law system. Of all the arguments that have been adduced in favour of codification, the oft repeated one which asserts that the non-retum to the old system is sufficiënt demonstration of the superior merits
1 Even in Louisiana, it would appear that the Common Law is a most important source of law. See J. C. Carter: The proposed Codification of our Common Law, p. 6ö.
* In Georgia, there was opposition to the code after its enactment. The position there is described by A. R. Lawton in the American Law Review, as follows: "1. The experiment of codification in Georgia, begun and continued under circumstances favourable to success, has been so for satisfactory to the people of the state, and to the bench and bar, that no steps have ever been taken in all these 20 years to dispense with it and return to the old system. "2. The satisfaction is very general, but not universal nor always enthusiastic. The aquiescence is rather quiet and complacent in a system which has been ovr» for more than 20 years. It is un fait accompli." Vol. XX, p. 20.



186
of the new system, is probably the most unjustifiable *. For, once the boats have been burned and the Rubicon crossed over, there can be no turning back.
In conclusion, one may say that neither the civil code of New York which failed to be enacted, nor those actually enacted in the states of Georgia, North and South Dakota, California and Montana, have justified, to any appreciable extent, the claims and predictions of the advocates of codification, as to the benefits that would result from the adoption of the code-system. It has not tended to make the law more certain, and on the contrary, has probably added to any element of uncertainty that may exist in the common law. The codes, on the whole, may have proved more accessible than the common law, but the law remains essentiaüy a lawyer's law and has not become popularized to any apparent degree, and its simplicity and conciseness tend to delude the unwary student or reader into a false confidence as to his knowledge of the actual law, if that knowledge is derived exclusively and entirely from the text of the codes.
Where in America the code-system was adopted in regard to the private law, this was done in consequence of circumstances which rendered this step both suitable and advisable. Where, however, as in New York, it was judged entirely on its own merits as a system designed to replace the old and tried system of the Common Law, it was found wanting, and rejected.
1 See Field's Reply to Mr. Carter, Speeches etc. VoL IL p. 497; Fowler, Codification in the State of New York, p. 37, where this argument -is used.



BIBLIOGRAPHY 1
Acharyya, B. K. Codification in British India, Calcutta 1914. American Technical Society. library of American Law and Practice, Chicago 1922.
Amos, S. The Science of Law, London 1874.
„ An English Code, London 1893. Anson, Sir W. B. Principles of the Law of Contract, Oxford 1928. Association of American Law Schools. Select Essays in Anglo-American Legal
History, Cambridge 1907. Athinson, G. M. Jeremy Bentham, London 1905. Austin, J. Lectures on Jurisprudence, Campbell's Ed., London 1911. Blackburn, W. H. A History of Dakota, in South Dakota Historical Collec-
tions, Aberdeen (South Dakota), 1902. Baldwin, 8. E. The American Judiciary, New York, 1906. Bancroft, H. H. The History of Washington, Idaho and Montana, San Francisco
1890.
„ History of California, San Francisco 1890. Bentham, J. Papers relative to codification, London 1817. Blackstone, Sir W. Commentaries on the Laws of England, edited by R. M. Kerr,
London 1862. Bruce, A. A. The American Judge, New York 1924. Bryce, J. Studies in History and Jurisprudence, Oxford 1901. Carter, J. C. Law, its Origin, Growth and Function, New York 1907.
„ The proposed Codification of the Common Law, New York 1884.
„ The Provinces of the Written and the Unwritten Law, American Law
Review, vol. XXIV. „ The Ideal and the Actual in the Law, American Law Review, vol. XXIV.
Chalmers, M. D. An experiment in Codification, Law Quarterly Review, voL H. Clarlce, B. F. The Science of Law and Law-making, New York 1898. Colebrooke, J. E. General Regulations for the Administration of Justice in Bengal, Calcutta 1807.
"■;■$. The Continental Legal History Series.voLl, General Survey,Bostonl912. Cooley, T. M. Principles of Constitutional Law in the United States, Boston 1880.
1 Official publications and documents, such as codes, reports of commissioners, Hansard, parliamentary papers etc. have not been included in the Hst.



198
Dak., B. C. The adoption of the Common Law by the American Colonies, American Law Register (new series), voL XXI.
Dernis, Recueil ou collection des titres, édits, declarations, arrêts, règlements et autres pièces concernant la Compagnie des Indes Orientales, Paris 1846—'46.
Dey, B. N. C. Notes on Hindu Law, Bankipore 1901.
Dillon, J. f., The Laws and Jurisprudence of EnglandandAmerica,Bostonl894. Eliot, E. C. The Common Law of the Federal Courts, American Law Review, vol. XXXVL
Field, H. M. The Life of David Dudley FieH, New York 1898.
Field, D. D. Codification in the United States, Juridicial Review, vol. I. „ A Short Response to a long Discourse, New York 1884.
Fowler, B. L. Codification in the State of New York, New York 1884.
Friedman, L. M. The Changes in the Allegiance and Laws of Colonial NewYork, Harvard Law Review, vol. XV.
de Gallaix, M. L'incertitude et la complexité du Droit Américain et la création de P"American Law Institute", Revue de droit international et de legislation comparée, tom. V.
Gray, J. O. The Nature and Sources of the Law, New York 1921.
Halsbury, Lord. The Laws of England, London 1907—'17. vol. X.
Harington, J. H. Elementary Analysis of the Laws and Regulations of Bengal, Calcutta 1806—'17.
Harvard üniversity. Centennial History of the Harvard Law School, Cambridge (U. S. A.) 1918.
Hitteü, T. H. History of California, San Francisco, 1886—'97. '
Hoadly, G. Codification of the Common Law, American Law Review, voL
xxni.
Holdswortk, W. 8. A History of English Law, London 1922—"23. Holland, T. E. The Elements of Jurisprudence, Oxford 1924. Hopkina, J. L. The Judicial Code, Chicago 1911.
Hornblower, W. B. The Revision of the Code, Albany Law Journal, voL T.TTT. „ Conflict between Federal and State Decisions, American Law Review
(new series), voL I. Howe, W. W. Studies in the Civil Law and its relation to the Jurisprudence of
England and America, Boston 1906. Hunt, C. H. Life of Edward Livingston, New York 1864. Ilbert, 8ir O. Legislative Methods and Forms, Oxford 1901.
„ The Government of India, Oxford 1915. van Kan, J. De Rechtsgedachte der codificatie-beweging in Frankrijk, voor de
Revolutie;
„ De verwachting des Volks in 1789 ten aanzien van de Codificatie,
Tijdschrift voor Rechtsgeschiedenis, voL L „ Stemmen voor de Codificatie onder de Regeering van Lodewijk XVI; „ De Rechtsgedachte van het codificatiewerk der Revolutie. Tijdschrift
voor Rechtsgeschiedenis, voL DL



199
Ken-pin, E. Die Rechtsquellen der Gliedstaaten und Territorien der Vereinigten
Staaten von Amerika, Zürich 1892. Kent, J. Commentaries on American Law, Boston 1896.
Ken, J. M. The Nature and Interpretation of Uniform State Laws, American Law Review, vol. LV. Uniform State Laws and the Rule of Stare Decisis, American Law Review, vol. LVL
Lareau, E. Histoire du droit Canadien, Montréal, 1888—'89.
Lee, B. W. An Introduction to Roman Dutch Law, Oxford 1915.
Lewis, W. D. The American Law Institute and its work, Columbia Law Review June 1924.
Lincoln, C. Z. The Constitutional History of New York, Rochester New York 1906.
Le code civil — Livre du Centenaire, Paris 1904. Loert, La Legislation civile, commerciale et ciiminelle, Paris 1827—'32. Vol. 1. Macnaghten, Sir F. W. Considerations on the Hindu Law as it is current in
Bengal, Senampore 1824. Mallonee, L. D. Revised Statutes and Codes, American Law Review, vol. XLVIII Marshall, M. The advisability of abolishing the distinction between Law and
Equity in matters of Procedure, American Law Review, vol. XXIII. Martin, F. X. The History of Louisiana, New Orleans 1882. Merrill, O. An American Civil Code, American Law Review, (new series) vol. I. Miller, O. A. An Introduction to Practice, New York 1903. O'CaUaghan, E. B. Laws and Ordinances of New Netherland, 1638—1674,
Albany 1868.
O"Morris, W. The Civil Code of New York, Fortnightly Review, No. XLV, voL VUL
Pereira, J. C. W. The Laws of Ceylon, Colombo 1913. Planiol, M. Traite élémentaire de droit civil, Paris 1916. Platt, C. M. The Proposed Civil Code of New York, American Law Review, vol. XXX.
Pollock, Sir F. The Law of Torts, London 1912.
„ A First Book of Jurisprudence, London 1923.
„ English Law before the| Norman Conquest, Law Quarterly Review, voL XIV.
„ and Maitland, History of English Law, Cambridge 1898. Benton, A. W. and PhiUimore O. O. Colonial Laws and Courts, London 1907. Beviews, Codifieation, American Law Review, vol. XX. Observations on the Particular Jurisprudence of New York, Albany Law Journal, vol. XX. von Savigny, F.K. Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissen-
schaft, Heidelberg 1814. Sherman, C. P. Roman Law in the Modern World, New Haven 1922. Smith, M. State Statute and Common Law, Political Science Quarterly, vol. H.
„ State Statutes and Codes, Political Science Quarterly, vol. HL Sohm, B. Institutionen, Leipzig 1899.
Spence, O. The Equitable Jurisdiction of the Court of Chancery, London 1846-'49



200
Sprague, A. P. and Coan, T. M. Speeches, Arguments and Misscellaneous Papers of David Dudley Field, New York 1884—'90. , Stobbe, 0. Geschichte der Deutschen Rechtsquellen, Braunschweig 1860. Stokes, W. The Anglo-Indian Codes, Oxford 1887.
Story, J. Commentaries on the Constitution of the United States, Boston 1873. Teignmouth, Lord. Memoirs of the Life, Writings and Correspondence of Sir
William Jones, edited by S. C. Wilks, London 1835. Thibaut, A. F. O. Über die Nothwendigkeit eines allgemeinen Bürgerlichen
Rechts für Deutschland, Heidelberg 1814. Thorpe, F. N. The Essentials of American Constitutional Law, New York 1917. Wharton, V. Commentaries on Law, Philadelphia 1884. Wilson, B. K. A History of Modern English Law, London 1875.
„ An Introduction to the study of Anglo-Muhammadan Law, London
1894.



INDEX
A.
Ahmed, Sir S., 89. Alderson, Judge, 49, 51. American Bar Association 193.
„ Law Institute 194. Amos, A., 42, 45. Amos, Sheldon, 38, 173. Anderson, G. W., 78. Anglo-Indian Law, 73. Auckland, Lord, 78. Austin, John, 32, 35—37, 42, 43.
B.
Bacon, Francis, 29. 32.
Bengal, Law of, 70.
Bentham, Jeremy, 7, 12, 26, 31—33,
35, 36, 38, 40, 72, 114, 116. Blackstone, Sir W., 12. Bills of Exchange Act, 8, 58'. Book of Forms, 139. Bracton, Henry, 11, 17. Bradford, A. W., 136, 138. British Empire, Codes in, 66—68. Britton, 17.
Brougham, Lord, 21, 32, 40, 42, 43, 44, 45, 47, 54, 114.
ft
California, Codes of, 149, 182, 183,
184, 186, 188. California, codification in, 154—156. Canada, Criminal Code ,67. „ Lower, law of ,26, 67. „ „ codification in, 66-67.
Carter, J. C, 147, 148, 166. Castille and the Indies, laws of, 103. Ceylon, law of, 27, 68. Channel Islands, law of, 27. Circuit Courts of appeals, 108. Civil Code of New York, 8, 136, 138,
140, 142, 145, 146, 153, 170, 173,
177, 180, 181, 186.
Claims, Court of, 108. Code of CSvil Procedure, 127,130,166. Code of Criminal Procedure, 127, 169. Code Napoleon, 2, 8, 27, 53, 65, 67,
78,105,137,144,174,178,180,182. Code Pleading, 131. Code of Procedure, (New York), 126,
126, 127, 128, 129, 130, 131, 137,
139, 153, 165, 169. Coke, Judge, 17, 30. Coleridge, Judge, 49, 51, 62. Colonies, establishment of in America,
99.
Commercial Court, 108.
Commissioners of the Code, 127, 132, 133,135,136,137,147,153,173.
Commissioners of Practice and Pleadings, 124, 125, 126, 127, 130.
Commissioners, revision, 129, 165.
Common Law Pleading, 131.
Common Law Establishment of, 11.
Common Law, Growth of, 17.
Compton, Judge, 52.
Court of Appeal, decisions of, 16.
Cranwell, Lord, 47.
Cresswell, Judge, 53.
Criminal Code Bill, 56.
Criminal Law Commissions,42 —46,64.
Cromwell, Olivier, 30.
Customs Appeals, Court of, 108.
D.
Dakota (North and South) codification
in, 152-154. Dakota, codes of, 149, 154, 182, 183*,
186, 188. Dicta of Judges, 15. District Courts, 108, 110. Dutch Law in New York, 119, 120.
E.
East India Company, 70, 77, 92.



202
Edward VI, 28. Ellis, T. E., 82.
England, law of, 176, 177, 183. „ in American colonies, 99. „ Expansion of, 26. „ in Louisiana, 103. ,, reception of, in America, 101, 109, 183, 188. English law, codification, 8, 176. „ evils existing in, 2. „ impracticability of codifiying 39.
„ method of codification 8, 57.
„ Unity of, 5.
„ Legal System, 9. Equity in England, 19.
„ „ United States, 122; 123. Erle, Sir W. 83.
F.
Federal Courts, 108, 110—111, 189.
„ decisions of, 109. Field, D. D., 114—117, 118, 124, 125,
135, 136, 138, 147, 162, 164, 168,
175, 179. Fitzherbert, 17. Fleta, 17.
Fowler, R. L., 148,164,165,167,179. France, codification in, 2, 60, 61, 63,
64, 65, 100, 190, 195. French Civil Code, See Code Napoléon.
Cl.
Georgia, Codes of, 144, 149, 180, 182,
183, 186, 188. Georgia, codification in, 149,152,191. German Civil Code, 4, 177. Germany, codification in, 2, 3, 4, 8,
62, 147, 190, 195. Glanvil, 17.
H.
Hastings Warren, Plan of, 70, 92. Hawley, S. C, 133, 135. Henderson, M., 83. Henry II, 10.
_ HL 22.
„ VEEL 22, 28. Hül Jr., N., 124. Hindu law, 69, 72, 75. Holker, Sir J., 55. Holland, T. E., 38. House of Lords, decisions of, 16, 106.
L
Ilbert, Sir C, 87, 88.
Ülustrations in Indian Codes, 81.
India codification in, 8, 27, 69.
„ condition of law, 69—77.
„ partial codification in, 79.
„ suspension of codification in, 87. Indian Codes, Amalgamation of, 79.
„ Law Commission, 77, 80, 82 — 85, 87.
„ Penal Code, 7, 78.
J.
James I, 29.
James, Sir W. M., 83.
Jardine, David, 43.
Jervis, Chief Justice, 49, 64, 82.
Judge-made law, 36.
Judges, opinions of on draft Bills of
Criminal Code, 47—63. Judicature Acts, 20. Justinian, 8, 137.
K.
Ker, H. B., 42, 45. Koran, the, 71, 74.
L.
Lareau, E, 67. Lawton, A. R., 180. Lewis, W. D., 194. Iiberties, Body. of, 100. Littleton, 17.
Livingston Edward, penal Code of, 7, 78.
Louisiana, 100, 102, 109, 122, 166, 188.
Louisiana, condition of law, 102.
codification in 104, „ Purchase, 103, 162. Lowe, E., 82, 83. Lush, Judge, 83. Lyndhurst, Lord, 44, 47.
M.
Macaulay, T. B., 32, 77, 82, 94. Macleod, J. M., 78, 82, 83. Macnaghten, Sir F. W., 91. Maine, Sir H., 80, 84, 88. Mansfield, J. (Lord), 14, 15, 20. Maule, Judge, 63. 66. Mauritius, law of, 27, 68.



203
Merrill, G., 193, 196.
Method, of codification, 6, 40, 41,
64, 79. Millet, F., 78.
Mohammedan law, 69, 70, 72, 74, 90. Montana, codes of, 149,182,183,186, 188.
N.
Napoléon, 61, 62, 137.
New South Wales, criminal code of, 67.
New York, Civil Code, See: Civil Code.
codification in, 114, 186. „ Bar of, 122, 147. m Convention of state of,
118, 123. „ Law of, 119—121.
Penal Code; see: Penal Code.
New Zealand, criminal code of, 68. N9rmans, law of the, 9. Noyes, C, 136, 138.
P.
Paris, custom of, 66, 102.
Parke, Baron, 49, 61, 62.
Parker, A. J., 129.
Partnership Act, 8, 58.
Penal Code of New York, 8, 136, 139,
140, 146, 146, 147, 163, 169. Platt, Judge, 53. Platt, C. M., 173. Pole, Reginald, 28. Political Code (New York), 136, 138,
146, 148, 170. Pollock, Judge, 60, 51, 62. Pollock, Sir F., 22, 38, 90. Precedents, in England, 12—17.
„ in America, 101, 105-112. Privy Council, decisions of, 16.
Q.
Queensland, • criminal code of, 68. K.
Reports, law, 21, 23, 112. Bevolution, French, 2, 60, 62. Robinson, A. L., 133, 136. Romilly, Sir J., 82, 83, 114. Roman-Dutch Law, 27. Roman law, 4, 21, 174.
„ codification of, 8, 137.
Russia, partial codification in, 7. Ryan, Sir E., 46, 82, 83.
8.
Sale of Goods Act, 8, 68. Salisbury, Lord, 85. von Savigny, P. K., 4, 37. Seychelles, codes of, 27, 68. Sherman, C. P., 23, 193. Sieyés, 2.
South Africa, law of, 26, 27.
Spanish law, 100, 103, 188.
Spencer, J. C, 136.
Stare decisis, doctrine of, 14, 17.
Starkey, T. 42, 46.
States-General, 60.
Statutes, English, 23.
„ law consolidation, 63. in United States, 113. Stephen, Sir J., 66,67, 80,84, 85, 88, 93.
St. Leonards, Lord, 40,47,48,53,65. Stokes, Dr. W., 86, 88. Stowell, Lord, 20. Suprème Court
„ decisions of in U. S. A 106.
„ Jurisdiction of in U. S. A. 107.
t.
Talford, Judge, 49. Text-books, 17.
Thibaut, A F. G., 3, 4, 6, 147. Throop, H., 129. Twiner, Sir C, 86.
ü.
United States, codification movement in, 114, 169. Courts of — see Federal Courts. legal system of, 99,107. state law in 107, 188.
„ courts in 108, 189.
„ „ decisions of, 112. Condition of law of, 188—192. Uniform laws in 194. Uniformity of law in 194, 196.
V.
Voltaire, 2.
Victoria, Crimes Act of, 67.



204
Walworth, R. H., 133. Waterbury, N. J., 129. Werner, J. T., 129, West, R., 86. Westbury, Lord, 20, 54. Western Company, 102.
Wightman, W., 42, 49, 52. WiUis, Judge, 83. Wilson, Sir R. E., 91.
Y.
Year Books, 22.
Yorke's Duke of, laws, 100, 119.



STELLINGEN
I
Er zijn geen speciale gebieden van geschreven en ongeschreven recht.
De stelling "the king can do no wrong" is niet in overeenstemming met het "Common Law" van Engeland.
III
Het vereischte van "consideration" voor de geldigheid van een contract volgens het Engelsche recht is nutteloos.
IV
De uitspraak van de Engelsche rechtsbanken "guilty but insane" is irrationeel en moest slechts luiden "not guilty".
In het belang van het Zuid-Afrikaansche volk moest het erfrecht veranderd worden om te voorkomen dat de thans bestaande uitgestrekte hofsteden eventueel verdeeld worden in kleine boerderijen.-
VI
Het apart houden (segregation) van de inheemsche rassen in Zuid-Afrika is een economische npodzakelijktfeid.















155
possessions in America, and later passed under the sway of the Republic of Mexico. In 1848, as a result of the war between the United States and Mexico, the territory was annexed to the former. The law of Mexico remained in force1, though it may be added to a great extent only nominally 2, until it was supplanted, excepting for one provision, in 1850 by the common law of England so far as it was not inconsistent with the constitutional law of the state or the statutes passed by its legislature3, though there was some question as to whether the common law of England or the civil law as expressed in the code
1 The laws were ehiefly the decrees of the Mexican Congress, one of 20th March 1837, which dealt with certain branches of public law, and the other of 23rd. May 1837, dealing with the organization and jurisdiction of the Judiciary. See "Digest of Mexican Laws in Force at Date of Convention" by J.RossBrowne, in Appendix to "Report of Debates in the Convention of California," Washington 1850, p. XXV. These laws as far as they were not inconsistent with the constitution adopted in 1849, were expressly continued in force by § 1 of the schedule to the constitution.
8 The American settlers who came to California after it had come into the possession of the United States brought with them Common Law principles and Common Law forms, which were given preference over, or were supplementary to the Mexican customs and procedure, and some times supplanted the Mexican laws. T. H. Hittell: History of California, 4 Vols., San Francisco 1885—97, Vol. H, pp. 663, 780. "Though the Mexican law was supposed to be in force, and the judges, alcades and justices of the peace to administer it, nooneknew or cared anything about itor its provisions. "Stephen J. Field, who came to California in 1849 .... and commenced his judical career in January 1850, knew nothing about the Mexican laws and paid no attention to them." Und., p. 780. 8 An act adopting the common law of England so far as it was not inconsistent with the federal and state constitutions and the laws of the state then in force, was passed on April 13th 1850. (Statutes of California 1860, chap. 95). On April 22nd. a further act was passed which had the effect of abolishing — with one exception — all the Mexican law then in force, so as to leave the ground clear for a full reoeption of the English law. The exception just mentioned related to the Mexican institution of Jueces del Campo — judges of the plain — which was retained in the new judicial system. (Statutes of California 1850, chap. 125).



156
of Louisiana should be adoptedl. The same year (1850) saw the enactment of two acts regulating the proceedings in civil and criminal cases a.
In March 1868, a commission was appointed to revise and compile the laws; but very little was accomplished8. Another commission was appointed for the same purpose in the following year 4. In 1872 this commission reported to the legislature a Political Code, a Civil Code, a Penal Code, and a Code of Civil Procedure. After being examined «by a committee of the legislature they were all duty adopted in the same year6. But it was subsequently decided to have the codes re-examined, and a committee was appointed in June of the same year to undertake this, one of its members being Stephen J. Field, a brother of D. D. Field. This committee reported four draft acts containing amendments to the four codes, which were adopted by the legislature in 1874 6. An important revision was undertaken in 1895 7.
1 See Hittell's History of California, VoL H, pp. 797—799.
2 (o) An act to regulate proceedings in criminal cases passed on April 20. Statutes of California 1850, chap. 119.
(6) An act to regulate proceedings in civil cases passed on April 22. Statutes of California 1850, chap. 142.
3 The commissioners were G. B. Harman, John Currey and H. P. Barker. H. H. Bancroft: History of California, San Francisco, 1890. VoL VH, p. 249.
4 On April 4th 1870. Statutes of California, chap. 64. The members of the commission were C. Haymond, J. C. Bnrch and John H. Mc Kune.
1 "Adopt the codes and amend them af terwards", is said to have been the motto and policy of both the commissioners and the legislative committee. See preface to Revised Codes of North Dakota 1895, p. V.
• Ibid., p. V. As amended, the Political Code contains 4, 460 sections, the Civil Code 3.542 sections, the Penal Code 1714 sections, and the Code of Civil Procedure 2104 sections.
7 For annotated work on the revised Codes see: C. P. Pomeroy: "Codes & Statutes of California, San Francisco 1901. § 5 of the Civil Code reads as follows: "The provisions of the code, so for as they are substantially the same



157
And finally Montana. In the North West part of the United States there lies a territory three times the size of New York, which was once, within the memory of men still living, the abode of the outlaw and the bandit, of men who knew and recognized no law but the arbitrary rule of force, and where disputes were, as aften as not, settled with the pistol % With the increase of the population there followed the institution of tribunals, which ad'ministered a rude and popular justice, and decided each case on its merits, or more of ten perhaps, on the merits of the parties, without recourse being had to any known system of law 2. When in due course courts of law
as existing statutes, or the Common Law, must be regarded as continuations thereof, and not as new enactments." Also Penal Code, § 5. 1 See Works of H. H. Banoroft, Vol. XXXI: The History of Washington, Idaho and Montana, San Francisco 1890, pp. 637, 638. Montana also formed part of the Louisiana Purchase.
* The previous state of the legal institutions of a country is the vital factor when considering the motives which led upto the adoption of the code-system. The following quotation gives us an interesting pioture of the legal institutionsif they may be so designated — of Montana, before that state enacted codes. "From the time of the first settlement in Montana to May 1864 there was not an officer authorized to administer .... the laws in that territory. The primary tribunal, constituting what I would call the first period of judicial proceedings in Montana, was known as the Miners' Court, and regulated all rights,
legal, equitable and admiralty The occupied mineral regions were divided
into districts of convenient size. Public meetings were called, usually upon Sundays, when the people had leisure, and some citizens were elected president of the district, miners' judge, sheriff and coroner .... In a community where the criminal class possessed great strength, a prosecuting attorney was added to the list of officers. The entire strength of these districts was wielded by these officials in repressing and punishing crime, and for the vindicating of pecuniary rights or the redress of f inancial wrongs. These courts without hesitation granted divorces, and the judges performed marriage services without question. They summoned any party complained of into their courts, brought in juries of six citizens whenever demanded, listened to the lawyers with the customary impatience, declared the law dogmatically without question, instructed juries as to their duties, received their verdiets and entered judgment upon



158
were established, presided over by professional judges, the question arose as to what system of law should prevail in the territory, and here too it was decided to introducé the code-system, and the codes of California were adopted for this purpose, suitably altered so as to conform to local conditions and requirements K Montana possesses a Political Code, a Civil Code, a Code of Civil Procedure, and a Penal Code which includes provisions relating to criminal procedure.
Besides the five states which possess both civil and penal codes, there are a few which, like New York, have codes only of the criminal branch of the substantive law. These are, Texas, Utah, Idaho, Arizona, Oregon, Colorado and Wyoming 2.
The codification movement in the United States has therefore resulted in the codification of the remedial law in most of the states; of the penal law in a few; and the enactment of a civil code in only one
them, or set them aside with the same degree of regularity and sobriety which characterizes similar tribunals now .... Not infrequently cases were tried half a dozen times before a jury agreed.
"From this court an appeal could be had to a "miners' meeting" .... These tribunals were sometimes swayed by the politics of their cliënte or their counsel, and sometimes influenced by the liquid refreshments furnished by one side, or occassionally by a sordid motive; but whatever consideration determined the result, it was manifested by a vive voce vote of all present, except the litigants and their counsel, and was final .... There was a lofty scorn of technicalities about these courts, which treated with contempt a lawyer's suggestion of the illegality of a written contract which had less than the required number of the United States revenue stamps upon it"
Quoted from H. H. Bancroft's History of Washington, Idaho and Montana, page 655 note.
1 In December 1867, Ibid. pp. 651—658. Field's Life, p. 91. There was however some question of adopting the English common law as the legal system. Bancroft's History of Washington, Idaho and Montana, p. 655 note.
2 Emily Kempin: Die Rechtsquellen der Gliedstaaten und Territorien der Vereinigten Staaten von Amerika, pp. 57, 64, 62, 71, 69, 60 and 63 respectively.



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of the states that formed one of the original English settlements and where the common law had been established for any length of time prior to codification, and in several of the western states, which adopted the code-system within a comparatively short time of the settlement of white men within their borders.



CHAPTER IX.
CRITTCAL CONSIDERATTON OF THE AMERICAN CODES.
The advocates of codification in the United States claimed that the code-system had three great qualities not possessed by the unwritten law. The common law, declared they, was most intricate; very many of its rules originated in ancient customs which had prevailed in the days of feudalism *, and had been applied to the ever changing requirements necessitated by the onward march of civilization, by the introduction of legal fictions and artifical forms, so that law had become a highly technical science, a monopoly of the lawyer. Codification would make it so simple as to be understood by any person of ordinary
1 "Our law", wrote the Commissioners of the Code, "is the product of ten centuries, most of them filled with tumult and disorder; it is compounded of many incongruous elements, Saxon and Norman, feudal and Roman law, provincial usages and the decisions of various disagreeing tribunals .... society has undergone an entire transformation". Ist report dated 27th February 1858, p. VI. And Judge Hoadly wrote even more strikingly on this matter: "Removed more and more each day to a greater distance from the feudal ages, and the formative period of the common law, he [the American lawyer] strengthens the lenses of his legal telescope to suit his receding vision, and peers into the remote past, searching for the customs of England to guide the action of his American clients; customs which fortunately for the world have passed away; customs of war, not peace; customs of piracy and ransom, not of commerce; customs of the mud-road and the bridle path, not the railway; customs of the wain, not the luggage van or express car; customs of Richard Neville, Earl of Warwick, the king-maker, and the robber-castle, not of Bolton and Watt and Arkwright, the spinning jenny or the cotton mill; customs of the Wars



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critics that is next due for consideration. For in 1877 the code was superseded by the new and much more comprehensive Code of Civil Procedure prepared by them. It was a conservative measure, containing very few departures from the. established law *j and, furthermore, in its préparation there was the benefit to be had of twenty-five years of experience gained under the old code. The new measure was nearly nine times the size of the old and partial code, and nearly twice that of the complete code of civil procedure prepared by Mr. Field and the two other commissioners who were associated with him in the work. It treated of everything in great detail, and as one lawyer aptly stated, "was built up under a microscope" 2.
But the new code proved to be, if indeed that were possible, an even more complete failure than its predecessor. It also was not exempted from the solicitous attentions of the legislators, and with its greater bulk their scope was vastly extended. Also many of its provisions likewise required the interpretation of the courts to settle their meaning and application. Mr. Carter who had no principal objection to codes of procedure, however much he may have been opposed to the codification of the private law 8, had not a good word for this particular code. Seven years after the enactment of the first part, he wrote:
"If anyone wishes for an example of the miscbief
1 Report dated 15th. January 1874, Senate Documents, 1874, VoL II. No. 30, p. 17.
1 W. B. Hornblower in an artiele entitled, „The Revision of the Code", in the
Albany Law Journal VoL T.TTT (1896), p. 152.
* See, "The Provinces of the written and unwritten Law."



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tion of amendatory acts and of judicial decisions bearing on its provisions, the law of procedure was not made any more accessible than before, and that uncertainty, the greatest of all evils that can affect a legal system, was introduced in a branch of the law which was previously peculiarly free from it x.
When, then, these attempts at codification of that branch of the law which is admittedly more suited for the purpose than any other, failed so conspicuously to produce any of the benefits which are supposed to result from the adoption of the code-system — and it makes no difference whether the failure was due to actual defects in the codes, or to the necessary or unnecessary interference with its contents — and on the contrary suffered from all the chief ills which were said to be inherent in the old system, one can well understand that after such an experience the lawyers of New York, almost as a body, opposed all further experiments of this nature, especially where, as with the private law, the consequences of failure would be exceedingly more serious. And this opposition on one occasion prompted Mr. Field to declare, that "as a general rule we might as soon expect a Mohammedan to take a Christian to his bosom as a case-lawyer, or, I might say, a case-hardened lawyer, take a code to his" 2.
1 Nor did it beoome possible for the lawyer to dispense with his old law-books on procedure. Por Hoadly pointed out that after codes of procedure had been in force for 30 years, lawyers still studied Stephen and Chitty on pleadings as well as stored the memory with the differences between debt and assumpsit, or trespass and case. The American Law Review, Vol. XXHL No. 3, p. 497. A new Code was enacted in 1921.
* D. D. Field in his reply to Mr. Carter's pamphlet on the codification of the Common Law, p. 10.



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The two other codes which were enacted in New York, and relating to criminal law — namely, the Penal Gode and the Code of Criminal Procedure — do not give occasion for much comment. As regards the former of these, it may be pointed out that criminal practice is not nearly so intricate as civil practice, nor is it of the same consequence to the practising lawyer. The issue is arrived at without such important preliminaries as precede the trial of a civil action and control its course. And it is just these antecedent proceedings with which the intricacies and delicacies of practice are associated. Every lawyer knows the tactical value of an intimate acquaintance with the rules of procedure, and that causes, irrespective of their merits, can sometimes be won or lost, merely through the manner in which they are prosecuted prior to reaching the trial stage. It is precisely for this reason that so much attention was paid to the codes of civil procedure by the legal profession of New York, for the branch of the law which they embodied is, from the professional standpoint, the most important of all. It is otherwise with procedure in criminal cases, which is devoid of all such prosaic technicalities as are associated with civil proceedings, commencing as they do with the indictment, to which the prisoner pleads verbally. Further, criminal practice, except when specialized in, represents only a small share of the general practice enjoyed by the average professional man, and the consequent interest displayed in it is correspondingly smaller than in civil practice.
As regards the Penal Code, it may be stated that



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there was no principal objection to the codification of the criminal law, provided this was satisfactorüy carried out *. This did not prove a difficult matter in New York, or in any of the other states, as it already existed, to the greater extent, in statutory form. On the whole, these two codes seem to have given general satisfaction.
Of the two New York codes which failed to receive legislative sanction, the Political Code, regarded as a product of the work of codification, and not from the point of view of its contents, was of little account. It was a rearrangement and consolidation of various statutes relating to public law, and no particular effort was made to have it passed by the legislature a. Had the Civil Code been enacted, it would have been important merely as completing the codification of the entire law of the state.
The Civil Code however was in a different position, and really in a category all by itself. The great bulk of its contents was previously to be found in an unwritten form; it had for its Subject the most important branch of the law — the private law; and its adoption would have meant a legal revolution fraught with the most far-reaching consequences for good or for UI. Accordingly it was subjectedto careful consideration from every possible standpoint, and in the end found not to be preferable to the existing system of law.
Besides a discussion of codification in general,
1 See Carter's pamphlet; The Pro vinces of the Written and Unwritten Law. * See D. D. Field's artiele entitled, "Codification in the United States in the Juridical Review, VoL 1, p. 23.



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which the code gave rise to, the critics called attention to two matters relating to this specific measure itself. The first was its faulty arrangement, and the second, the defects in its subject-matter.
The arrangement followed in the construction of the code is in many respects curious. For example, the subject of corporations which clearly belongs to the law of persons, is included in the division relating to the law of property, where it is classed with shipping, products of the mind, and "other kinds of personal property". And though it is true that shipping is related to the law of personal property because ships have owners, yet this is no reason for including the rules of navigation in a code of private law, as is done here. Obviously, these rules rightly belong to the provisions of the political code. Section 873 in the division property says: "If the owner of a ship commits its possession and navigation to another, that other, and not the owner, is responsible for its repairs and supplies". This clearly describes an obligation of the shipmaster, but for the many other rights and obligations of shipowners one must look under obligations, nearly 700 sections further on. The subjects of assignments and insolvency which give rise to fiduciary ^relationships are hidden away among the general provisions, preceded by a provision dealing with fraudulent instruments and transfers, when from a scientific standpoint, it should have followed the title dealing with "trusts in general" in the division relating to obligations, especially as this is the course followed in respect to the subject of agency, where particular types of agency, such as auctioneers, factors, ship-



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made a careful scrutiny of its contents, after describing the code "as a codification of text-books on the English common law, than as a codification of English common law itself", proceeds in the following strain:
"Apart from occasional scraps of terminology and arrangement borrowed from Justinian's Institutes, and the Code Napoléon, the whole work reproduces, in an utterly undigested form; the notions and the very phraseology in which the English law is cloathed in the most hastily compiled text-books. There is scarcely a symptom of a single ambiguous term having been submitted to the crucible of logical criticism, or of a complex notion having been reduced to its component elements with a view to its being introduced afresh, under a simpler guise, into the body of the new code" $jj
Besides the criticism of the manner of its arrangement and construction, many of its provisions have been shown to give an erroneous exposition of the existing law; others, to give occasion to uncertainty as to their meaning; and still others to be liable to an interpretation not foreseen or intended by the drafters 2. The code also contains certain innovations deliberately introduced into it, though these were to be regarded as mere suggestions coming from the commissioners. Some of these were clearly beneficient, whilst the advisibility of adopting others was open to debate 3. But in f airness to Mr. Field who was almost entirely responsible for the preparation of the
1 S. Amos: An English Code, p. 99.
* See, for example, Carter's criticism of the clauses dealing with general average
in, "The proposed Codification of the Common Law", p. 99 et seq.
3 Many of these innovations have since become law in America and England.



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Civil Code, it should be pointed out that he was only too willing to make the necessary alterations and amendments which were proved to be necessary by the strictures of the critics. But this would probably have meant the preparation of a new code *.
On the whole the Code deserved to the full the adverse opinions which were entertained in regard to it, and the generally unfavourable reception which was accorded it2.
The commissioners of the Code had stated in their first report, that "nothing within the range of government can exceed in magnitude the task of collecting, condensing and arranging the jurisprudence of a people"2. No one will dispute this statement. Yet it is a fact that the code which they jointly presented to the legislature of the state as a measure most suitable to replace the existing law, was in reality the production of only one of them, Mr. Field, who treated the work entailed in its preparation as a diversion to be indulged in when the day's task was done 4. A lawyer engaged
1 Mr. Amos was also of opinion that "a code which in every line of it violates a familiar principle, or introducés a novel terminology, and yet is consistent in doing neither, would never hold up its head for so much as the first hour's debate upon its acceptance in the House of Commons". An English Code, p. 107. The changes in substantive law were neither so numerous or so undesirable as Mr. Amos would lead one to believe.
* Sir Frederick Pollock in a foot-note to an artiele by M. D. Chalmers entitled, "An Experiment in Codification", in the Law Quarterly Review, VoL H, No. VI. (1886), expressed, the following opinion: "I feel bound to add that for my o«r part, so for as I have been able to form an opinion of the draft Civil Code for New York, it is a decidedly unfavourable one. I am disposed to agree with the Bar Association of New York in thinking the present state of the law better than that code, or anything much like it. But I do not agree that this proves codification to be in itself undesirable or impracticable." p. 124.
3 First report of the Commissioners of the Code, p. VI.
4 Life of Field, pp. 50, 82.



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are hereby repealed or abrogated." Therefore, where not inconsistent with the provisions of the code, the old law was still to continue to have full effect. The law libraries containing the numerous volumes of old law reports were to remain, as it may be necessary to refer to them at any time. In this way a body of law, extraneous to the code, and undefined as to its extent, was to exist side by side with it. Provisions having the same effect are to be found in the codes of Georgia, North and South Dakota, California and Montana. There was however nothing novel in this, for contrary to what many believe, the French civil code was similarly not intended to repeal all previous law. The old law was expressly repealed only as regards th»subjects dealt with in the code — "dans les matières qui sont 1'objet desdites lois composant le présent code1". This kind of stipulation does not appear to have resulted in any inconvenience in France, or indeed affected, to any extent, the general applicability of the code. But the old French law was then a condemned and discared system; it could not Compare in prestige, with that possessed by the common law in America at the time when codes were being introduced, or attemps made to do so, there.
In the states which enacted codes, the result was as one may have anticipated. Instead of the codes retaining the predominent position which it was intended they should occupy, the common law, which previous to their enactment had not had the benefit of having been established for any length of time —
1 Law of 30 ventóse, year XII, Artiele 7. Planiol: Traité élémentaire de droit civil, tom. 1, § 82.



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except in the case of Georgia —, slowly asserted itself, and became as important as the code, if not more so, as a source of law. What happened in the states of California, North and South Dakota and Montana was certainly curious, and has an important bearing on the codification movement. Here we have certain states which are just emerging from a semi-primitive condition, with no satisfactory or well-established legal system. The English common law is introduced, but because of its unwritten form, requiring wellstocked libraries of law reports in order to furnish a first-hand knowledge of it, is manifestly unsuited to their requirements; and under the circumstances a code of private law prepared for another state, is adopted, which is less elaborate and possesses what for them was the inestimable merit of compactness and consequent easy accessibility. The conditions are ideal for the introduction of a code-system. But in time, the legal requirements of these communities increase as their social organization becomes more intricate. The merely general provisions of the code are soon found insufficiënt to meet their continually increasing requirements, so recourse must be had to some other source to make good the deficiencies, and for this purpose the English common law is found to be a rich fountain of precept and analogy, which, because of its intrinsic merits, continually increases in importance as a source of law, untü it finally becomes at least as important as the code itself.
This is what happened especially in California, the most important of the states possessing a civil code, and whose code is substantially the same as



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that prepared for New York. What the resultant condition of the law is these, can be adduced from the following words of Professor Pomeroy, one of the greatest jurists that California has produced:
"It seems to me that reasoning and experience alike show that a mere partial civil code, a code which only professes to contain elementary definitions, the most general doctrines and a few special rules, leaving the great mass of practical rules and doctrines still existing as a part of the common law and equity by its side, is only an additional source of uncertainty and confusion introduced into the jurisprudence of a state. As this description applies in the most direct manner to the Civil Code of California, the mquiry remains, how far may this uncertainty and confusion be lessened or removed by its judicial interpretation. The only mode by which its imperfections may be obviated and the benefits of codification be partially realized by it, is, I earnestly submit, by adopting and strictly enforcing this uniform system of interpretation, that all its provisions are to be regarded as simply declaratory of the previous common law and equitable doctrines and rules, except where the intent to depart from these doctrines and rules clearly appears from the unequivocal lang uage of the text" The suggestion contained in the last part of the above quotation would certainly have the effect of reducing the code to a subordinate position, if it has not indeed already sunk so low.
Still, there does not, on the whole, appear to be any
1 Quoted by R. F. Clarke: The Science of Law and Law-making, New York, 1898, p. 268.



CHAPTER X.
UNIFORMITY OF LAW IN THE UNITED STATES.
Hitherto we have dealt with codification as applied to the law of the individual states of the American Commonwealth, and notably to that of the state of New York. In this state where the code-system was advocated as an alternative and a superior system to the prevailing one, especial emphasis was laid on the evils of uncertainty and inaccessibility which were stated to exist in the unwritten law and the statutes supplementing it. However, the extent of these evils did not appear to be so great as to warrant the suggested radical departure from the old-established system. And the same may be said in regard to the attempts which were made to codify the criminal law of England. But in one important respect the United States differs from England, namely in her lack of one uniform law pertaining to the country as a whole.
The United States is a federation of forty-eight States, each of which possesses governmental autonomy in so far as this is not explicitely eurtailed by the written federal constitution. 1 The central government on the other hand possesses only a limited and clearly def ined
1 The IXth Amendment to the Constitution reads as follows: "The powers not delegated to the United States by the constitution nor prohibited by it to the states, are reserved to the states respectively or the people."



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authority; for it only exercises the powers and enjoys the rights which are expressly ascribed to it in the constitution. As regards matters touching the law, the federal legislature is, in this way, invested with power to establish uniform laws on the subject of bankruptcy, and to define and punish piracies and felonies committed on the high seas and offences against the law of nations.1 Otherwise, the different states possess entirely separate and independent bodies of law with which they can deal as they may wish except that no state can pass ex post facto laws or laws impairing the obligations of contracts 2, or which are contrary to or inconsistent with any of the general provisions of the federal and state constitutions 3.
Accordingly one finds that the law differs from state to state. Louisiana possesses a code-system based mainly on French and Spanish law; Georgia has a code of law peculiar to itself; California, North and South Dakota, and Montana have codes which are very similar to one another; the rest of the states have their substantive law for the most part in an unwritten form. All the different bodies of law to be found in the various states, though in the most cases derived originally from the law of England, have undergone continual change, so as to accord with local requirements, at the hands of the state legislatures and, to a
1 U. S. Constitution, Art. 1 § 8. * Ibid., Art. 1 § 10.
3 In cases in which the law of another state applies, questions of inter-state comity are raised, and except where there is special provision in the federal constitution, these are governed by the rules of private international law, just as if the states concerned were as foreign nations to each other. See T. M. Cooley: The General Principles of Constitutional Law in the United States of America, Boston 1880, p. 178.



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less extent, of the judges. The result is that there now exists a perfect wilderness of conflicting rules on many of the most important subjects, such as divorce, real estate, and commercial transactions. This is the state of the substance of the law; its administration tends to make things even. worse. As we have seen, one of the chief characteristics of American jurisprudence is the dual system of federal and state courts. Each state possesses its own judiciary and has also a federal court situated within its territory, both courts possessing a concurrent jurisdiction in a large number of cases, and administering the same law in relation to these, except in cases dealing with general commercial matters, with regard to which the federal courts follow a line of their own. Consequently, it is possible for the same question to be decided in one way in a state court and in quite another way in the federal court functioning in the same territory *.
If, then, one surveys the law of America from a national standpoint, one gets a picture of a legal system abounding in diversity and dissension, amounting indeed to nothing short of utter confusion. There, one finds forty-eight different bodies of private law each supplemented by a never ceasing stream of statutory enactments, and besides this, the federal statute law and a uniform body of unwritten law evolved by the federal courts relating to commercial matters 2. In the diversity of its law the American Common-
1 What can be more extraordinary than to have these two courts dealing with the same persons and oocupying the same territory, openly assert and maintain their inalienable right to differ for all time upon fundamental questions of law". W. B. Hornblower in an artiele entitled, "The Conflict between Federal and State Decisions", in the American Law Review, New Series VoL 1. No. 3. p. 211.
2 Sherman expressed the view that the present system is "the most intolerable



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wealth to day is strikingly reniiniscent of Germany, France and other continental countries before their adoption of uniform national codes of law.
Already in the early days of the Republic the lack of unity in the law attracted attention, and the state of confusion which would result therefrom was f oreseen *. But for a long time the diversity of the laws did not cause very much inconvenience, for in the first place there was more uniformity then than there is now. For it must be remembered that the legal systems of the various states being in most cases derived from the English law, there existed for some time a sort of affinity between the various bodies of law to be found in the different states. Legislation however has lessened this general similarity to a considerable extent. And in the second place inter-state business and other relationships were not of so intensive a nature as to cause the differences to be found in the different laws to attract popular attention. The similarity rather than the diversity was then most apparent; so much so, that in 1886 we find a well-known lawyer stating that the movements for codification on the Continent and in the United States, "are not analogous, but diametrically opposed. In Europe, the purpose of codification is to obtain common national law; in this country the effect of state codification is to destroy our national common law." 2 And up to about the early eighties of last century the lawyers of New York and other states
in the world, and perhaps the worst ever known to human history". Roman Law in the Modern World, VoL L p. 393.
1 See F. N. Thorpe: The Essentials of American Constitutionel Law, p. 116. * M. Smith: "State Statutes and Codes" in Political Science Quarteriy, Vol. 3, p. 161.



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appear on the whole to have known little and cared little about the law which prevailed in other states, and so much was this the case that the Commissioners who were appointed to prepare codes of substantive law for the state of New York were, during the whole period of their labours, unaware that during that time the state of Georgia had caused to be prepared and had enacted a complete set of codes1!
But the position to day is altogether different. Intercourse of every kind between the different states has been facilitated by the swift and cheap modes of communication of modern times; the train, the motor, the steam boat; the telegraph and lastly the radiograph have worked a revolution in inter-state relations, just as it has in international relations. The public law may remain substantially the same as it was a hundred years ago; constitutionally each state may still have a legal wall enclosing it, with a sort of servitude in certain instances in favour of the central federal body, jealously watched, to see that the general enjoyment of individual rights is interfered with as little as possible. But in practice nearly eveiything has changed completely and commerce stops to-day at no boundaries. Yet in the sphere of the law, state individualism has never been stronger than it is at the present time. There may not be actual uncertainty existing in the law of any particular state, but when the American citizen in carrying on his business in the country as a whole, finds himself confronted and having to contend with the many and different varieties of American
1 D. D. Field's artiele entitled "Codification in the United States", in the Juridicial Review, VoL I, p. 19.



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law, he comes face to face with the most profound uncertainty and chaos that is to be found to-day in any legal system the civilized world over. One result of this is, that in no country in the world is the layman so absolutely and entirely dependent on the lawyer for guidance in his daily transactions than in the United States; so that a knowledge of the law of other states thus becomes an imperative necessity to the American lawyer.
Force bf circumstances has consequently compelled the legal profession to turn its attention to the question of uniformity of law. Unity was now an essential element of progress, and the present position was clearly becoming more and more intolerable from year to year. But how is this uniformity, so much desired, to be achieved? The separate states may perhaps be able to arrivé at an agreement to each enact an identical code of laws. But these codes would only remain identical until the different state legislatures begin to pay their attentions to the measure, with a view to "improving" it for the benefit of the citizens of its own state, or of some of these citizens. To prevent this a further agreement could be reached between the states by which each state voluntarily foregoes its right to introducé alterations by subsequent legislation, and jointly vesting this power in some special body representative of all the covenanting states. To all intents and purposes, this would have the same effect as the investment of the federal government with power to enact a national code or other uniform system of law, and to have the sole future control of this law. Such a codification has found supporters in at least



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two well-known American lawyers, George Merrill and C. P. Sherman1. To achieve this would virtually require the complete delegation of all legislative functions and powers so far exercised by the states to the central federal legislature, and this would mean the transformation of the American Commonwealth from a federation to a union2. So momentous then would be the change to be effected in the American constitution before a uniform body of law could be secured via the federal congress. That such a course would meet with the most strenuous opposition goes, in our opinion, without saying. The states are still extremely jealous of their state rights and will not readily tolerate any interference from the central government. Thus, a recent writer deplores "the tendency to make Washington the lobby camp of the world and practically to destroy the last vestige of state rights." 8
But there has been for some time another movement on foot which has, in recent years, come into great prominence in the legal world, with the object of formulating and securing the adoption by the legislatures of the various states of uniform laws relating mainly to commercial matters, so as to secure uniformity in the statutory law as well as of the judicial interpretations placed on statutes dealing in each state with the same subject. The movement was started by the American Bar Association, which established a com-
1 George Merrill: "An American Civil Code", ia the American Law Review, (New Series). VoL 1, p. 663. C. P. Sherman: Roman Law in the Modern World, VoL I, p. 399.
2 In a Union the general legislative functions are exercised by the central government, c.f. Constitution of the Union of South Africa.
* A. A. Bruce: The American Judge, New York 1924, p. 61.
13



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mittee on uniform state laws which up to 1921 formulated twenty-seven various laws, most of which were subsequently enacted in the various states of the Union. Of these laws, the Negotiable Instruments Act was adopted by every state with the exception of Georgia.1
In 1923 a further step was taken in the direction of legal uniformity. On the 23rd. of February, at acongress of lawyers held at Washington, a new organ was formed for the special purpose of preparing and procuring the enactment of uniform laws, in the first place, dealing with the subjects of contracts, torts and those on which there is conflict between the various state laws. This new body is called the American Law Institute, the moving figure therin being Mr. William Draper Lewis2. It will be interesting to see what progress the Institute will make beyond what has already been achieved by the committee of the American Bar Association; the question however is attracting the increasing attention of the American lawyers, and great names in the legal world are connected with the latest endeavours to dissipate the unwholesome confusion in which the American law finds itself. Yet, it is difficult to see how the retention
1 See artioles by James M. Kerr entitled, "The Nature and Interpretation of Uniform State Laws", in the American Law Review, VoL LV (1921), No. 1, p. 106, and "Uniform State Laws and the Rtde of Stare Decisis", in the American Law Review, VoL LVL No. 4, p. 497.
2 See artiele entitled, The American Law Institute and its work, William Draper Lewis, in Columbia Law Review, June 1924. Mr. Lewis presented a highly important report to the congress of lawyers which created the Institute. [We have been unable to procure this report]. See artiele by M. de Gallaix entitled, "L'incertitude et la complexité du Droit Américain et la création de T'American Law Institute'," in Revue de Droit International et de Legislation Comparëe", tom. V. No. 3, (1924), p. 273.



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of uniformity of law' on a certain subject, once that uniformity has been obtained, is to be secured. This is the great question which must be dealt with before entirely satisfactory results can be obtained. And in this connection the following view of Sherman appears, in our opinion, to be the correct one. "There is only one route to permanent uniformity of law in-the United States — an Act of Congress. In no other way can one private law for our great republic be secured." 1
If France had to wait for the Revolution to sweep aside the numerous obstacles, before the people could obtain a uniform law; if Germany had first to become united politically into the German Empire, before the people there could enjoy the blessings of a national body of law; so also, to all appearances, a constitutional revolution must first be carried out in the United States before the American people can in its turn secure a uniform and national legal system.
"Let us endeavour", wrote Merrill nearly half a century back, "to do away with all unnecessary and perplexing differences, and seek to unite the citizens of all the states in the golden bonds of one universal law which shall be clear, liberal, and reasonable; so that rights and remedies may be everywhere the same, and that we may grow up into a homogenous, harmonious, and powerful nation." 2 The desire expressed in these words is as laudable as any a man can cherish; but to realize it in full, the American people will have to make a great choice: either state exclusiveness and
1 Roman Law in the Modern World, VoL I, p. 399.
* G. Merrill, "An Amerioan Civil Code", in the American Law Review, (New Series), VoL 1, p. 663.



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separantism on the old lines, or more national centralization of authority to accord with the general tendency of modern times for centralization in all things; either a constitution answering to the characteristics of a nation — one and indivisible, or to that of a confederation with the component states separate and distinct.






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nally thought desirable, and which would be retracted in favour of the existing law, should the alterations prove unacceptable §>«
One can hardly fail to appreciate the marked contrast which is afforded by a comparison of the personalities of Field and Bentham, each of them the originator and chief advocate of the movement to codify the law of his respective country. For although both men possessed to an equal degree an unflagging enthusiasm for the cause which they had at heart, they were yet remarkably dissimilar in many important respects. Bentham lived the life of a recluse, away from the world of reality, and exhibited many eccentricities of intellect as well as of habits. Field, on the other hand, was first and foremost a man of the world, who had travelled much, and diligently observed the legal systems and institutions of other countries; who was himself a lawyer in large practice 2, and a vigorous and effective controversialist. But above all, he was an extremely practical man. While Bentham, believing it utterly hopeless to expect to achieve anything in his own country in the way of codification, turned his eyes to other lands, which he had never seen, and offered to prepare codes of law for them if they would but accept his services to this end, Field, on the contrary, concentrated all his activities on trying to secure the complete adoption of the code-system in his own state, stubbornly refusing to be shaken in his purpose by an opposition far
1 See 5th Report of Code Commission dated 5th April 1862.
2 One of his friends described him as having been in his day "the most commanding figure at the American Bar." Life of Field, p. 99.



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more strenuous than anything that Bentham had had to contend with. Again, the latter did much harm to his case by excessive abuse of the unwritten common law system, and by the plainly apparent overstatement of both the evils of this system as well as the benefits to be derived from its supersession by codes, and so stimulated opposition by affording much scope for criticism and even ridicule. The claims, however, which were set up on behalf of the code-system by Field were so moderate and reasonable as to greatly enhance the plausibility of his arguments \
The movement for the codification of the law in the United States, originated in the state of New York, the most important of the Union, where it aroused very considerable interest which has by no means entirely abated yet, and gave rise to a controversy which, for duration and intensity, can hardly be surpassed in the annals of American legal history. From there it spread throughout the whole of the United States, meeting with varying success in the different states. In giving an outline of the movement, it is advisable and expediënt to confine it, in the main, to what took place in the state of New York and the few states which have gone beyond it
1 Besides his work in advocating and drafting codes of law for the state of New-York, Field also devoted much attention to the Law of Nations. He prepared a code of international law which he presented to the British Sooial Science Association at its meeting held at Norwich in 1873. For some time he was president of the Association for the Reform and Codification of the Law of Nations. See, Life of Field, chapter XVI; also, Speeches, Arguments, and Miscellaneous Papers of David Dudley Field, 3 vols, Vol. 1 and 2 edited by A. P. Sprague, New-York 1884, Vol. 3 edited by T. M. Coan, New-York, 1890, VoL I, p. 384 et seq.; and Outline of an International Code, New-York 1876.



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by enacting codes bf private law, which overshadows in importance the course of events in the other states.
As a result of the exertions of Mr. Field as well as of several other persons, and inspired largely by a series of articles from his pen which first appeared in the New York Evening Post, and later, in June 1846, collected in a pamphlet entitled, The Reorganization of the Judiciary, the Constitutional Convention of the state of New York held in 1846, for the purpose of considering reforms in the fundamental law, and in particular in regard to the judicial organization * inserted in the revised constitution of that year two provisions dealing with the codification of the law 2.
The first of these provisions, the seventeenth section of the first article, related to the substantive law, and read as follows:
"The legislature at its first session after the adoption of the constitution shall appoint three commissioners whose duty it shall be to reduce into one written and systematic code the whole body of the law of this state, or so much or such parts thereof as to the said commissioners shall seem practicable and expediënt, and the said commissioners shall specify such alterations and amendments therein as they shall deern proper" 8.
1 Charles Z. Lincoln: Constitutional History of New York, 5 vols., Rochester New York 1906, VoL H p. 164.
* The convention desired codification, "in order that the people may know the legal and equitable rules by which they must be governed — that litigation may be diminished, and justice more speedily admimstered". Journal of the Convention of the State of New York, Albany 1846, p. 124. Mr. Field himself did not sit in the convention, having failed to obtain nomination. Life of Field, p. 47.
* This provision was opposed by a considerable body of the delegates. TJltimately 60 voted for it and 45 against. Journal of Convention, p. 1382.



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It was the aim of the advocates of codification to collect and digest all this law, purge it of all inconsistencies, improve it where desirable, then rearrange it in the form of codes and have these enacted as comprising all the law of the state. The proposed execution of this plan as a whole evoked strong opposition, especially from members of the New York bar, who have been responsible for the failure of all attempts that have been made to secure the enactment of the civil code that was later prepared.
But, if there was considerable disagreement as to the advisability of codifying the substantive law, there were no two views concerning the need for a radical reform of the remedial law, though opinions differed as to the best method to be followed in carrying it out. This branch of the law was still in most essentials the same as that of the English courts K This applied equally to all the other states with the exception of Louisiana. There was the old distinction between law and equity with the corresponding division of the judiciary into a court administering the common law and a court of chancery. And it was not always a simple matter to decide in which court a particular case should be brought 8. The system of practice and pleadings was entirely different in both courts. The forms of action at law were antiquated and abounded in technicalities. Originally devised in the infancy of the English common law to expedite the administration of justice, they had long since become rusty with age, and their retention in the legal
1 2nd. Report of Practice Commissioners appointed in 1847, pp. 4, 5. 1 Ibid.



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machine considerably hampered its easy working. The pleadings were couched in a language only comprehended by the lawyers themselves. Procedure in actions at law had the semblance of ancient ritual, the import of which was known only to the initiated. This was not so much the case, however, with proceedings in equity. With the remedial law in such a state, proposals for its improvement had only to be made in order to secure general approbation.
The first step in the way of improvement was taken by the constitutional convention of 1846, when it inserted a clause in the constitution abolishing the Courts of Chancery \ and conferring on the Suprème Court jurisdiction in both classes of cases 2. But this did not do away with the distinctions between law and equity, and the two separate kinds of remedies, with the different systems of practice and pleadings, still continued to exist, though not having, any longer, tribunals exclusively allotted to each3. But the convention realized the further need for a thorough overhaul of this branch of the law, and accordingly made provision for the appointment of a commission
1 Constitution of New York State, 1846, Art. XTV, § 8. * Ibid., Art. VI, § 3.
3 In several of the United States, however, the two concurrent systems of law and equity are still separately administered, namely: Alabama, Arkansas, Delaware, Mississippi, New Jersey, Tennessee, and Vermont. The following states have abolished the distinction between actions at law and suits in equity: Arizona, California, Colorado, Connecticut, Georgia, Idaho, Indiana, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, Washington, and Wyoming. In the courts of the other states, as well as in the federal courts, equity is administered under chancery practice and forms in courts of law. Library of American Law and Practice, 12 vols., published by the American Technical Society, Chicago 1922, Vol. VUI, p. 21.



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for this purpose. It is just as well to note that the constitution made no direct mention of a codification of the remedial law, but merely stated that the commissioners were to "revise, reform, simplify, and abridge" it.
Having thus briefly stated the nature and condition of the law of the state of New York as it was in 1846, we will now proceed to describe the course of events which followed on the action of the convention of that year. Attention will first be directed to the law of procedure.
On the 8th April 1847, the legislature, as required by the constitution, appointed Arphaxed Loomis, Nicholas Hill Jr., and David Graham to be Commissioners of Practice and Pleadings, and instructed them to prepare a draft bill relating to the procedure of the courts, which should provide "for the abolition of the present forms of actions and pleadings, in cases at common law; for a uniform course of proceedings in all cases whether of legal or equitable cognizance, and for the abandonment of all Latin and foreign tongues, so far as the same shall by them be deemed practicable, and of any form or proceeding not necessary to ascertain or preserve the rights of the parties" \ Here again there was no mention of a code, though the duties of the commissioners were described with more precision than in the constitution. Mr. Field had been proposed as one of the commissioners, but his intentions were regarded as being of too radical a nature. Disagreement, however, arose between the commissioners as to the proper mode of carring out their mandate, and as a result Mr. Hill resigned his com-
1 New York Laws, 1847, Chap. 59 § 8, Act of April 8.



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mission in September \ whereupon Mr. Field was appointed in his stead2.
On the 29th February 1848, the commissioners presented their first report to the legislature8. It contained the draft of an "Act to simplify and abridge the practice and pleadings and proceedings of the courts of the state", but its provisions were confined to the procedure in civil cases only. It was carefully scrutinized by members of the legislature, and the greater part of it, after having been suitably amended, was enacted on the 12th April 1848 4, and took effect from the Ist of July6. The act had been drafted in the form of a code containing 391 sections; the commissioners taking it upon themselves to do this, as they considered it to be the best method of producing a better system of legal procedure, and it was accordingly named the Code of Procedure — a title far more comprehensive that was justified by its contents, which related solely to civil matters. It covered only a portion of the law of civil procedure, and the old practice of the courts, when not affected by the provisions of the code, was expressly retained 6. The following year the commissioners presented their second report recommending many amendments and additions to the code7, which was consequently
1 Fields Life, p. 49.
* New York Laws 1847, p. 744, Joint Eesolution of September 29.
* First report of the Commissioners on Practice and Pleadings. — Code of Procedure — Albany (C. van Benthuizen, Printer) 1848.
4 New York Laws, 1848, Chapter 379.
5 § 391 of the code.
6 § 389 of the code.
7 2nd report of Commissioners of Practice and Pleadings, dated 22nd January 1849, Albany (Weed, Parsons & Co.) 1849.



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re-enacted to include the suggested changes1. Itssize was increased to 473 sections. The code did away with the distinctions that had hitherto existed between the proceedings in actions at law and suits in equity, by providing a uniform system of practice and pleadings to be followed in all cases, but did not affect the two distinct types of remedies themselves, which still continued to exist. A new and simple form of action was introduced, and pleadings were stripped of all unnecessary verbiage and were to be couched in plain language.
In their first report, the commissioners signified their intention to proceed further with the work of reform and codification, of which the Code of Procedure was but an instalment, so as to embrace the whole law of procedure both civil and criminal, as well as the law of evidence 2. Two more reports, a third and a fourth, were presented to the legislature, both dated the 30th January 1849, the first recording the further progress made in the preparation of a complete code of civil procedure, and the second containing the draft of a code of criminal procedure 8.
The period for which the commissioners were appointed expired on the Ist February 1849, and an extention of time was required to enable them to complete their task. Before granting this request, however, the House of Assembly submitted the matter to the
1 New York Laws 1849, chapter 438, Act of April 11.
* Ist Report of Commissioners, p. V.
* 3rd Report of Commissioners on Practice and Pleadings — Code of Procedure — Albany (Weed, Parsons & Co.) 1849.
4th report of Commissioners, on Practice and Pleadings — Code of Criminal Procedure — Albany (Weed, Parsons & Co.) 1849.



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Committee on the Judiciary for its consideration. In its report this body declared itself opposed to the work of codification carried on by the Commissioners of Practice and Pleadings, expressed the opinion that this work encrouched upon the duties assigned to the Commissioners of the Code, and recommended that their term of office should not be prolonged, but that their functions be added to those of the lastmentioned commissioners, whose conservative tendencies were more in conformity with the inclinations of the committee x. This recommendation was, however, not adopted by the legislature, and the Commissioners of Practice and Pleadings were continued in office until the Ist of April 1849 2, and on the expiration of this term they were reappointed for a further period extending to the Sist December of that year 3.
With their fifth and final report dated the 31st December 18494, the commissioners submitted the results of their completed labours in the form of two codes, the first entitled the Code of Civil Procedure6, covering the whole ground of practice, pleadings and production of testimony in civil actions, and including the part already enacted as the Code of Procedure; the other dealing fully with the rules which were to be followed in all criminal proceedings, and called the Code of Criminal Procedure6.
1 Assembly documents, 1849, Vol. II, No. 47.
2 New York Laws, 1849, chapter 18, Aet of January 31.
* New York Laws, 1849, chapter 312, §§ 1 and 2, Act of April 10. 4 Assembly documents, 1850, No. 16. 8 Ibid.
« Ibid., VöL II, No. 18.



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It was one thing to construct these codes of procedure, but it was another thing to have them enacted as the law of the state. The first portion of the work, the so-called Code of Procedure, was already in force for a year and a half, and this specimen of the commissioners' work created a none too favourable impression amongst the legal practitioners generally. That which was at first welcomed as a measure designed to remove many of the faults in the remedial law, was found when applied in practice to be itself so full of pitfalls, and to give rise to so many controversies as to the meaning and application of its contents, that it became doubtful whether the remedy did not actually introducé greater evils than those it was intended to eradicate. Accordingly when the complete codes of civil and criminal procedure came up for discussion in the legislative, they were subjected to a much more critical examination than had been the case with the code of 1848 \ The opposition which these measures aroused proved strong enough to prevent their enactment; so that for some time, at any rate, the Code of Procedure of 1848 was the only part of the work done by the Commissioners of Practice and Pleadings which had actually received the sanction of the legislature. An act further amending it was passed in 1851 a, and the process of amend-
1 The codes were submitted by the Assembly to a special committee for examination. But this body did not complete its task and in a report not unmixed with humour, discussed the procedure to be followed by the legislature in dealing with the codes, and pointed out the undesirability of accepting the codes and passing them into law, without first subjecting them to a detailed examination, section by section. See report of the Committee on the Code, Assembly documents 1860, VoL VL No. 149.
1 New York Laws, 1861, chap. 479, Act of July 10. This act was itself conside-



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ment and augmentation went on the whole time that this code remained part of the law.
In 1870 three commissioners, Messrs. Montgomery H. Throop, Amara J. Parker and Nelson J. Waterbury, were appointed for the purpose of carrying out a complete revision and consolidation of all the statutes of the state of a general and permanent nature, which included the Code of Procedure * Mr. Parker resigned his office in May 1871, and Charles Stebbins was appointed to take his place in the following month2. Disagreement arose between the commissioners as to the plan to be followed in their work of revision, and as a result Mr. Waterbury vacated his seat on the commission, to which Mr. Jacob I. Werner was appointed in his stead on the 22nd March 1872 3. The following year by an act passed on the 9th May, the commissioners were authorized to incorporate in their revision the codes of civil and criminal procedure which had been prepared and had failed to receive enactment a quarter of a century back *.
In consequence of this last step, two new measures were prepared by the commissioners based to a great extent on the two codes which they had been instructed
rably amended the following year by an act dated April 16th. New York Laws, 1852, chapter 392.
1 Appointed in accordance with an act dated March 2nd. 1870, New York Laws, 1870, chap. 33. A Ist. report was presented on 13th Jan. 1871, outlining the plan of revision. Assembly Documents, 1871, No. 17. * Report of Commissioners to revise the Statutes dated Ist. Jan. 1872. Senate Documents, 1872, Vol. 1, No. 8, p. 5.
» Report of Commissioners dated 15th January 1874, Senate documents 1874,
Vol. II, No. 30, p. 5.
« New York Laws, 1873, Chapter 467 § li
9



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ticut, Missouri, Iowa, Nebraska, North Carolina, South Carolina, have also adopted codes of criminal procedure *. Texas, on the other hand, has a code of criminal procedure but no 90de of civil procedure2.
The state constitution of 1846, as was seen, also required the legislature, at its next session, to appoint three commissioners, whose duty it should be to make a codification of the whole body of the substantive law, or so much thereof as appeared to them to be practicable and expediënt. Of the two constitutional provisions, the one relating to the law of procedure and the one just mentioned, the latter was by far the most important, and was fraught with the greatest consequences to the law of the state, for it meant nothing less than to cause to be written down in the form of a statute, section by section, in concise terms, the whole body of unwritten law, hitherto evidenced in the decisions of the tribunals, from the time when, many centuries back, the Common Law first began to take definite shape on the other side of the Atlantic, up to, one may say, the last decision of a point of law of the suprème court of the state. And in this work would also be included all the general statutes supplementing this common law. If this project were accomplished and enacted into law within the time contemplatedby the legislature, then the people of the state of New York would have been the first great community of the English-speaking races to make so
1 Artiele by L. Dee Mallonee entitled "Revised Statutes and Codes", in American Law Review, Vol. XLVIII (1914), No. 1, p. 39. 1 Ibid.



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by it, nor were competent to undertake it if they had. They thought only of a new revision of the statutes. What we wanted was a codification of the Common Law" *.
The signal failure of this first attempt at codification of the substantive law, was a severe blow to all those who had desired to see the achievement of this far-reaching change in the form of the law, and to no one more than David Dudley Field. He now directed all his efforts to obtain a resuscitation of the code commission 2, and only after seven years did he at last succeed in his object. A bill for this purpose drawn by him, and subjected to much eriticism 3 was passed on the 6th April 1857, appointing him and two others, Curtis Noyes and Alexander W. Bradford to be Commissioners of the Code, to hold office for a period of five years, with instructions to prepare codes containing all the law not already dealt with by the Commissioners of Practice and Pleadings. The results of their work were to be embodied in three separate codes, a Political Code, a Penal Code and a Civil Code. They were required to submit to the legislature at its next session a general analysis of the codes to be prepared, and to make reports to it at each succeeding annual session describing the progress made by them in their work. As'soon as the codes were prepared, the drafts were to be distributed
1 Field's Speeches, J5te., Vol. I, p. 307.
2 An attempt was made in 1866 to resuscitate the Code Commission with Field as one of its members, bnt the bül which proposed to do this was strenuously and sucoessfuüy opposed. Life of Field, p. 74.
3 Field's Speeches, etc., VoL I, p. 338.



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amongst the judges and other competent persons for examination, after which they were to be revised by the commissioners in the light of the comments and suggestions made upon them by the examiners. Copies of the codes, as f inally agreed upon, were then to be sent to all the judges of the Court of Appeals, the Suprème Court, the Superior Court, and Common Pleas of the City of New York, and to all the county judges, surrogates and county clerks, six months before being presented to the legislature, the Penal Code to be distributed in like manner to the district attorneys of the several counties of the state. This was certainly a very wise provision, prescribing a course similar to that followed in the preparation of the French civil code. The commissioners were to receive no remuneration whatever for their labours h
A general analysis of the several codes was soon prepared and presented to the legislature with the first report of the commissioners, dated the 27th February 1858 2.
The condition of the common law was described to the legislature as being not unlike that of the Roman law, at the time of Justinian or of the French law at the time of Napoléon 3"; so that it had beeome necessary for the state of New York to emulate the examples set by these two rulers by reducing its law into the form of codes. The report showed that, at any rate, the commissioners realized to the full extent the
1 New York Laws, 1857, Vol. I, Chapter 266.
2 Ist Report of the Commissioners of the Code, Albany (Weed, Parsons & Co.), 1858.
* Ibid., p. 6.



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real nature and importance of the work that they had undertaken.
The brunt of the labours of the commission was cheerfully borne by Mr. Field, who undertook to prepare the drafts of both the Political and Civil Codes, the preparation of the Penal Code being left to Mr. Noyes. Mr. Bradford seems only to have contributed that part of the Civil Code which relates to the estates of deceased persons K
A second report was presented to the legislature of 1859, dated the 81st March, describing the progress that had so far been made, and containing the draft of the Political Code 2. This draft was duly distributed among the judges and others in accordance with the provisions of the act setting up the commission, and after having been reconsidered and revised by the commissioners, it was presented complete to the legislature with their third report, dated the lOth April 1860 8.
This code, which is mainly a revision and consolidation of statutory law, consists of 1136 sections and is divided into four parts. In the first part are enumerated the persons who compose the inhabitants of the state with their political rights and duties. Part two describes the boundaries of the state, the territories which are comprised in the different counties, and in the judicial and electoral districts, and also contains a list of all the towns, cities, and villages in the state.
1 life of Field, p. 81.
* 2nd. Report of the Cornmissioners of the Code, Albany (Weed, Parsons & Co.) 1869.
* 3rd. Report of the Commissioners of the Code, Albany (Weed, Parsons & Co.) 1869.



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Part three deals with the following subjects: the classification of public officers, the manner of their election or appointment, their functions and incidents of employment; the enumeration, use and control of the public ways and Communications; the systems of weights, measures, and coinage; the regulation of auction sales; fishing and hunting; and other matters of civil control. The last part contains the general provisions relating to the government of counties, cities, towns and villages.
By an act passed on the 16th April 1860 *, the commissioners were required to prepare a Book of Forms adapted to the Code of Procedure, which was submitted complete to the legislature with their fourth report dated the 30th March 1861 2. In the following year the term for which the commissioners were appointed expired, and an act was passed continuing them in office for a further period ending the Ist April 1865 8. Three more reports, a fifth, a sixth and a seventh followed, describing the further progress made in the work of codification * and in March 1864, the eighth report was presented including therein the draft of Penal Code, which had been sent to the judges and others for examination6.
On the 13th February 1865, the commissioners submitted to the legislature their ninth and last
1 New York Laws, 1860, chap. 13, Aet. of April 16.
■ Report dated 30th. Maroh 1861. Book of Forms, Albany (Weed, Parsons & Co.) 1861.
8 New York Laws, 1862, chap. 460, § 38, Act of April 23. 4 j^teti April öth 1860, April 15th 1862, and April 2nd. 1863 respectively. 8 Draft of a Penal Code for the State of New York, prepared by the Commissioners of the Code, Albany (Weed, Parsons & Co.), 1864. The 8th report is included therein.



140
report, informing it that the work of codifying the substantive law of the state entrusted to them in 1857, had been brought to its conclusion K The Penal Code was reported in its completed form, and the Civil Code, the revision of which had taken the commissioners longer than the time occupied in the preparation of the original draft completed and distributed in 1861, was in the hands of the members of the legislative body a short while after. Together, the work of preparing and revising the three codes — the Political code having been completed in 1860 — occupied nearly eight years.
The Penal Code embraces with slight alterations, all the law relating to crimes and their punishment as it then existed and which was contained, for the main part, in the statutes. Certain acts, hitherto not made criminal offences, but regarded by the commissioners as being of such a nature as to be deserving of punishment, were included amongst the crimes. An endeavour was also made to ensure a more suitable adjustment of the punishment to the crime than was then the rule, and to lessen the discretion possessed by the judges in passing sentence upon offenders.
The code has 1071 sections, and may be divided for convenience into two parts: the first, comprising titles I and II, has relation to crimes and punishments in general; the second, being the rest of the code, deals with each crime in particular. The first two titles thus give the general definitions
1 The Civil Code reported complete by the Commissioners of the Code, Albany (Weed, Parsons & Co.), 1865. The 9th. report is included therein. The report is only signed by D. D. Field and A. W. Bradford, Mr. Noyes having died on the 23rd. December of the previous year. Report, p. X.



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negligence; and part four, of obligations arising from the particular transactions of sale, exchange, deposit, loan, hiring, service, carriage, agency, partnership, nuisance, indemnity, guarantee and suretyship, liens, including mortgage and pledge, and negotiable instruments.
The fourth division contains general provisions applicable to persons, property, and obligations. Part one describes the reliëf obtainable by way of damages for breach of contract, or for wrongs, as well as other kinds of reliëf; part two deals with the special relations of debtor and creditor and the consequences resulting therefrom, including insolvency and assignment; part three is devoted to the subject of nuisance; part four contains maxims of jurisprudence, and the last part, definitions and general provisions.
It will be noted that on the whole there is a good deal of similarity between the arrangement of this code and that of the French civil code.
Although the state of Georgia had enacted a code during the time the commissioners were busy preparing the civil code for New York, yet this was, strange to say, unknown to them1, and they consequently missed the valuable aid which they would have been able to derive from it.
The codes being completed, all that remaineed to be done was to have them enacted as the law of the state. But it was soon realized that a great gulf had to be crossed before this could be achieved2, and
1 See artiele by D. D. Field entitled "Codification in the United States", in the Juridical Review, VoL I, p. 19.
* "To the last moment the legislature held the power in its own hands; and though the country lawyers were quite willing, as a matter of professional



145
that what has been built up with meticulous care at the expense of so much time and labour, may yet suffer shipwreck in attempting to negotiate the crossing. And this is exactly what happened with the three codes prepared for New York, though, as will be seen later, part of the handiwork of the commissioners, namely the Penal Code, was successfully salvaged many years after.
The history of these codes subsequent to their presentation to the legislature is truly remarkable, and offers a striking ülustration of one important feature of the constitutional law of Republican America, namely the power of the indirect veto. On and off for many years, the codes came up for discussion in the two houses of the legislature, and, as Field's biographer remarks, "there was not a meeting of the legislature that Field had not to go to Albany to appear before the committee of Senate or Assembly, where he was always sure to meet the determined opposition of some of the ablest members of the bar, in which they were supported by a large number of the legislators" k
The result of the deliberations of the two legislative bodies on the Civil Code — to which, as was natural, attention was mainly directed — was that it passed the House of Assembly four times, and both houses twice, but in both these last cases failed to receive the signature of governors Robinson and Cornell2,
curiosity, that Mr. Field and his assooiates should amuse themselves with their beautiful codes, it would be quite another thing to aak the whole bar of the state to put their necks under the yoke; and when it came to that point, the "reformers" might hear from the back districts!" Field's Life, p. 86. 1 Ibid., p. 87.
1 Field's Speeches etc., Vol. II, p. 480.
10



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on the ground one writer maintains, that it was "unscientific in structure and inaccurate as a presentation of existing law" *, but in all probability, more directly, because of the pressure exerted upon these officials by the powerful bar of New York, which was, as a whole, much averse to the measure.
In 1873, the commissioners who were then busy revising the statutes, were instructed to include in their revision, besides the codes of civil and criminal procedure already mentioned, the Political and the Penal Codes as well2, and two years later the Civil Code was added to the scheme of revision 8.
In 1879 the commissioners presented to the legislature the draft of an act relating to crimes and punishments. This measure was submitted for examination to a special committee of the Senate assisted by six members of the bar. The committee reported on it favourably and recommended its adoption. But once again the legislative comedy was enacted of a code passing one house, or the other, or both and then failing to receive the signature of the governor. In this case the bill was passed by both houses in the session of 1879 but failed to obtain the assent of the governor. It was even more unfortunate in the next session, for this time it only succeeded in passing one of the houses, the Assembly. But these checks proved to be merely temporary, and when it was again introduced the next year, it passed both houses of the legislature and also received the signature of
1 See artiele by Munroe Smith, "State Statute and Common Law", in the Political Science Quarterly, VoL II, (1887), p. 108. * New York Laws, 1873, chap. 467 § 1, Act of May 9. 8 New York Laws, 1875, chap. 520 Act of June 7.



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which is perhaps the most important, and certainly one of the best reasoned contributions to the discussion of the question of codification in the United States. Two replies to it were not long in forthcoming, one from the pen of Robert Ludlow Fowler, in a pamphlet called Codification in the State of New York1, and the other by Mr. Field himself, in a paper which suggests an air of haughtiness in its description as A short reply to a long discour se 2.
When in 1885 the Civil Code was again introduced into the legislature, the opposition was successful in securing its rejection, and a similar fate befell it in another attempt which was made to have it passed the following year. The measure was opposed by the majority of the lawyers, for whom Mr. Carter acted as spokesman, and the cause of the failure to secure the sanction of the legislature has been attributed mainly to his influence8.
The codification movement in the state of New York resulted, then, in the enactment of a code of Civil Procedure, a Code of Criminal Procedure and a Penal Code, while the Political Code and the Civil Code, the latter the most important of all, have been relegated to the obscurity which, many have maintained, the last-mentioned at least richly deserved.
But although New York declined to go further
Law Review, Vol. XXIV (1890), p. 762. In 1907 a book was published posthumously in which Mr. Carter made a study of the origiu and nature of law, and elaborated somewhat on the views expressed in the above papers. The book is entitled: Law, its Origin, Growth and Function, New York and London 1907.
1 Robert Ludlow Fowler: Codification in the State of New York, New York 1884.
2 D. D. Field: A short Response to a long Discourse, New York 1884.
3 Carter: Law, its Origin, Growth and Function", introduction p. HL



149
than adopt codes of procedure and criminal law, five states of the Union passed her by, and adopted civil and political codes, namely, Georgia, North and South Dakota, California and Montana.
Of these, Georgia, which was one of the original English settlements, was the only one in which the English common law had prevailed for any length of time previous to the introduction of the code-system.
On the 9th December 1858, the legislature of Georgia passed en act which required the appointment of three commissioners, "to prepare for the people of Georgia a code, which should, as near as practicable, embrace in a condensed form, the laws of Georgia, whether derived from the common law, the constitutions, the statutes of the state, the decisions of the Suprème Court, or the statutes of England of force in this state". The three men ultimately selected were D. Irwin, T. R. R. Cobb and R. H. Clark ». These commissioners confined themselves strictly to a codification of the law as it was, without attempting to change it in any important respect2. The code which they prepared was subdivided into four parts, the first relating to the political and public organization of the state, the second containing a civil code, the third a code of practice, and the fourth all the penal laws as wellas criminal procedure 8. It was not intended that the code should embody all the law,
1 Pref ace to original code included in the Code of Georgia 1895, p. m. a Ibid., p. VII.
3 The Penal Code originally had a separate division for the trial and punishment of "slaves and free persons of color." It is understood that the Civil Code was almost exclusively prepared by T. R. R. Cobb. A. A. Lawton in artiele entitled, "Codification", in the American Law Review. Vol. XX (1886), p. 17.



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tent to everyone, even to the staunchest believer in codification, that the measure which was intended to simplify the civil section of the remedial law had in fact resulted in producing uncertainty where very little had existed previously, and that even the semblance of conciseness and simplicity had departed from the new system, as the result of the accumulation of amendatory acts.
The consequent condition of the law of procedure evoked criticism and denunciation from all sides; even from many who were favourably disposed towards the codification movement generally.
The opinion which was held on this subject by Mr. Fowler, one of Field's lieutenants, may appropriately be quoted here. In his pamphlet in support of the codification of the common law, he states:
"The code of civil procedure enacted in 1848, was, taking all things into consideration a very wonderful piece of legislation, concise and comprehensive.... Had crafty, debased and unsystematic legislationreframed from meddling with the primitive practice code, there never would have been valid cause for dissatisfaction with these reforms which Mr. Field originally contemplated1." But, one may have asked, if the legislature was so incompetent or so untrustworthy as to continually allow "crafty and debased" legislation to pass it unchecked, how could it, on its own merits, and not merely because of the place it occupies in the social organism, have been regarded by him as a suitable institution from which to derive, to the
1 B. L. Fowler: Codification in the State of New York, pp. 54, 55. The italics are ours.



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exclusion of all other sources, every single provision of the law?
And to the above apologia of Mr. Fowler, may be added the following account of the ultimate state of the code before its supersession by the code of 1877, culled from a report of the commissioners appointed in 1870 to revise the statutes:
"It is unnecessary to specify, with any particularity, the obscurity and confusion which now characterize most of the provisions of that important statute [the Code of Procedure], Drawn originally as a temporary and imperfect measure, constituting part of a complete system, which has never been adopted; subjected in its passage through the legislature to alterations, which perverted the effect of many provisions and destroyed the harmonious relation between them and others; amended at nearly every subsequent session, sometimes by more than one act, and often in order to affect the decision of a particular cause; nearly every important section has now had so many amendments tacked to it, (which in turn have been repeatedly amended, repealed and restored), that the whole presents a tangle, at the sight of which the student and the foreign jurist stand aghast, and through which even our trained lawyers find it difficult to piek their way" *. Stronger condemnation than this, could hardly have been penned. The statement reveals the signal failure of the first venture in the way of codification.
Appropriately enough, it is the work of these last
1 Report dated Ist. January 1872, of Revision Commission, Senate Documents, 1872, Vol. L No. 8, p. 13.