might arise.

But all this is more fully explained in sub(See Chapters V and VII.)

sequent chapters.

THE BOOKS IN WHICH LAW IS WRITTEN

The books that contain the law as declared by the legislature in statutes are called the Statutes.1 When a statute covers, or attempts to cover, the whole law, or a province of the law; and expressly or impliedly assumes to furnish guidance throughout the entire subject, excluding all reference by the Courts to any other source of law than the language of the statute, then a statute becomes a Code. This idea is implied in the continental conception of a Code. It is not, however, an essential part of the conception. Codes can and do exist in conjunction with a Case Law, construing and applying them. The result is, that this Case Law becomes more important than the Code itself. In most States whose laws are codified (France, Germany, etc.), Case Law does not exist except clandestinely, or by sufferance. In other words, the decisions made by Courts of special cases arising under the Code are not reported; or, if reported, they are not binding as precedents upon the judge in deciding like cases afterwards arising. But even in those systems of law where penalties have been fulminated against those who would create or follow precedents, the natural tendency of the human mind to rely upon and follow past experience has proven too strong to be wholly fettered by legislative fiat.

The books that contain the law as declared in the cases are called the Reports. These books consist of written reports of certain disputes that have arisen between litigants regarding their rights; and embody an account of who the parties were, and what they quarrelled about, and

1 See Exhibits A and B, Chap. V, for concrete examples of statutes. 2 See Exhibits M, N, and O, Chap. VI, for concrete examples of codes.

3 See Chaps. VIII and IX for a full discussion of this.

how the judges decided the quarrel, and the grounds the judges gave for deciding as they did. In theory, and generally in practice, the statute law is supreme. When a case arises which the Court must decide, the source at which the Court seeks the law is, first, the statute book. If nothing is found covering the case, the Court then seeks the rule in these reported cases, and in the principles involved in, and established by, them.

The law of England, then, consists of these two kinds of law, Statutes and Cases. The law of the different States of the European Continent consists of Codes. It is, in theory at least, all composed of Statutory Law. A question of transcendent importance to the English-speaking people of to-day is, whether they, likewise, shall reduce all of their law to Statutory form.

THE DISTINCTION IS BETWEEN CODE AND CASE LAW.
AND COMMON LAW

PAGE

17

18

20

21

NOT CODE

THIS PROPOSITION DISPUTED BY THE CODIFIERS

THE ARGUMENT FOR THE PROPOSITION

THE SELECTION OF CASE OR STATUTE LAW A QUESTION OF MIXED
FORM AND SUBSTANCE

THE CONFLICT IS BETWEEN CODE AND CASE LAW

THE CRY OF THE CODIFIERS

THE ANSWER OF THE PRACTITIONERS

THE IMPORTANCE AND PRACTICAL NATURE OF THE QUESTION

022

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31

In the last chapter we ascertained that there could be but two forms of law: either a rule laid down in express language to cover future cases, Statutory or Code Law; or, a rule asserted or implied in the decision of a tribunal deciding a special case and so applicable to the decision of other like disputes, - Case or Judge-made Law. The history of legal systems bears out the statement.

THE TWO GREAT SYSTEMS OF LAW

On

Two great systems of law exist to-day in our Western civilizations. On the one hand the Code system. the other hand the Common law. On the one hand the Code systems of Germany, France, Austria, Switzerland, Italy and Spain derived from the Roman law; on the other hand the Case law system of England, America, South Africa 1 and Australia derived from the Common law of England.

1 Except as modified by the Roman Dutch Law prevailing at Cape Colony. See 19 Law Magazine and Review, 94.

c

"The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code," says Sir Henry Maine. He refers to the Roman law, its beginning in the Twelve Tables, and its ending in the Codes of Justinian. Out of this prototype have been built up the systems of law prevalent in Continental Europe. However striking the epigram, Maine himself calls attention to its incompleteness. He proves that Case Law, the decisions by judge or king of special cases, constitutes a beginning of law earlier than any Code of Greece or Rome.

The celebrated system of jurisprudence known to the world as the Common law of England emerges from an unknown antiquity as a whole composed of two distinct parts, the Case and the Statute law; and so, through many centuries down to our own times, continues the

same.

Sir Matthew Hale spoke of attempts to fathom the dark origin of the English Common law, the unwritten laws of the Britons, Romans, Picts, Saxons, Danes and Normans as "an unsearchable inquiry."2 Yet recent investigations have done much to shed light into this dark corner of our legal history. So far as we have gone we have still found Case and Statute Law. On the other hand, as Maine has shown, the Roman and Grecian Law can be traced back to an era before the Codes when the decisions-the Cases the Themistes, were the only law known.1

THEIR ORIGIN IN A COMMON FORM

Is it possible, then, that these two systems were differentiated from the first? The trained lawyers have given us the result of their researches. It remains for the Man of Science to answer the question by a broader generalization.

1 Maine's Ancient Law, Chap. I, p. 1.

2 Hale's History of the Common Law, 60.

8 Pollock and Maitland's History of English Law before Edw. I. 4 Maine's Ancient Law, Chap. I, p. 5.

On first principles it might be argued that if the Roman law, which has developed into a Code or complete body of Statute law, began as a series of particular decisions; then it is more than likely that the English Common Law, which still remains a discrete whole made up in part of statutes, and in part of particular decisions, should have begun as a series of particular decisions. Curiously enough, the common lawyers of one and two hundred years ago held the view that the original fountain head of all the law was the legislature, and that so much of the common law as they could not find in the Rolls of Parliament were but ancient statutes worn down by time.1 Thus Lord Chief Justice Wilmot in Collin vs. Blantern, WILS. Part 2, pp. 348, 351, said, "The common law and the statute law flow originally from the same fountain, the legislature, the statute law being the will of the legislature, remaining on record in writing; the common law, nothing else but statutes anciently written, but which have been worn out by time. All our law began by consent of the legislature and whether it be now law by custom, by usage or by writing it is the same thing." This was written in 1767. The last sentence breathes the spirit of the exploded "Social Contract" theory of Society.

While historical research fails to lift the veil of antiquity, a comparative study of like civilizations leads to true conclusions. There was a time when legislatures did not exist, and hence there could not have been Codes or Statutes. To arrive at just conclusions as to how laws arose in the societies formed by our immediate ancestors, we may best study savage societies of this date now passing through like stages of civilization. From these we learn that first and last "law is mainly an embodiment of ancestral injunctions."2 And that "while in the course. of civilization written law tends to replace traditional

1 Hale's History of the Common Law, Chap. IV. See also p. 3, note E. 2 Spencer's Principles of Sociology - Political Institutions, § 535, p.