note whether, if that case were arising as a new case under this code, we could predict anything as to what the decision would be; and, if so, with how much certainty. And we should find, as a result of such tests, that in using the words "within specified local limits" in this Indian Contract Act, instead of the words "within a county" used in the Field Code, the Indian Contract Act has lost in definiteness and has gained in equity. We should further find that in adding the proviso, "provided that such limits appear to the Court reasonable, regard being had to the nature of the business," this Code has introduced a reference to the reason of the rule without stating what that reason is. We should also note, that even this reference to a reason has improved the substance of the law, as compared with the Field Code, where no such reference is made, and has given the court an opportunity to construe the code rule on the same lines that the past experience of the common law decisions has marked out. We should further find the result to be that the power of predicting the decision of a special case is not any more certain, in fact, is less certain, than under the case system. We should further find that this

Indian Code has a similar merit to the case law, in that the reason of the rule is the guide up to a certain point; and it is less perfect than the case law, in that the guidance of reason stops at a fixed point, and from that point the language, instead of the reason of the rule, governs the result. But space fails us for the details of this analysis.

Note to all the Codes

And so the Codifier ends where he began. His object is to do away with the common law. He drafts his Code. He must either make it so indefinite that it amounts to no rule at all, and we are left to the vacillating possibilities of the arbitrium of the judges (French Code): or, he may lay down his principles in connection with special

facts; in which case his code has all the uncertainty arising from the construction and interpretation of words as applied to complicated transactions; and, in the end, we must apply the rule without regard to the equity of the result; and so produce as much or more injustice than justice (Field Code): or, he must express his code in more studied general phrases, and attach a reference to the reason of the rule, or rather say that the rule should be reasonable (Indian Contract Act); in which case, we merely reintroduce either the vacillating uncertainty of the arbitrium of the judge; or, to escape that greater evil, the case law again.

And so the codifier travels in a circle which he attempts to square; and his efforts, in the region of law, are not likely to be crowned with any greater success, than have resulted from similar efforts, in the region of geometry.

The difficulty lies in the attempt to reason from fixed and arbitrary abstractions of phenomena to phenomena; instead of from phenomena to phenomena.

CHAPTER VII

ALL THE LAW IS WRITTEN—THE LIKENESS AND UNLIKENESS

TITLE I.-THE TRUE DISTINCTION LIES IN A DIFFERENCE BE-
TWEEN THE RULES OF CONSTRUCTION Applied to STATUTES
AND REPORTS

TITLE II. THE DIFFERENCE IS INTRINSIC, NOT ACCIDENTAL
SUMMARY.

222

230

230

231

232

248

258

TITLE I

THE TRUE DISTINCTION LIES IN A DIFFERENCE BETWEEN THE RULES OF CONSTRUCTION APPLIED TO STATUTES AND REPORTS

In such manner and form do the Legislature and the Courts, respectively, prescribe in writing the laws of the land. As between the two bodies thus prescribing the law, the Legislature is supreme. If the Legislature prescribes that a certain rule shall apply to, and govern the decision of, any dispute arising out of special facts, the Court must follow the rule so laid down, must render the decision the Legislature has enjoined. Another, and not less important fact is, that in all cases of disputes arising between men where the Legislature has not expressed its will, the Courts must discover, and apply, the rule required to decide the controversy.

While, then, all the law is written, it is divided into two great classes of writings; namely, Acts of the Legislature, and reported decisions of the Courts. With a view to this difference in authorship, and mode of promulgation, the old lawyers stated the distinction by a curious

classification. Blackstone divides the Common Law of England into the "Lex scripta," written law, or statute law; and the "lex non scripta," unwritten law, or reported decisions of the courts in adjudged cases. This division has been attacked as unscientific, for all the law is written. The real distinction is between laws enacted by the Legislative Body, and laws declared by the decision of Judges; Legislative and Judiciary Law.

As will be noted from the examples given above, statute law states in written language the rule of conduct prescribed for a certain class of cases by the Legislature. Thus, in the Statute of Limitations cited, actions are classified so that, in some cases, suit must be brought in six, in others, four, in others, two years. Again, these limitations do not apply in certain classes of excepted cases thus the rule applies to "all actions of accompt and upon the case other than such accompts as concerns the trade of merchandise between marchant and marchant." What are accounts between marchant and marchant? And who is to decide whether any particular account in suit is such an one or not, so as to come under this exception?

Again, in the Statute of Frauds cited, we have the classification of promises coming under the act; as, "any special promise to answer for the debt, default or miscarriage of another," and "Contracts for the sale of real estate or any interest therein "; and, "any agreement for the sale of goods and chattels of the value of £10 or over"; unless part payment, delivery or earnest occurs,— shall be void unless in writing, etc. As to what agreements, out of the mass of contracts, come under, and what are excluded from, these classes, the Legislature have given us no guidance save the expression in language of their intention. When a special case arises, it is left to the Courts to find out whether the special case is within, or without, the classification made in the statute.

1 Austin's Province of Jurisprudence, § 897.

This is so because of the difference in the time and occasion on which the two authors of the law respectively act. The Legislature does not pass an act in this way: "Be it enacted that the promissory note made by Thomas Brown to the order of John Smith, and now owned by John Smith, not having been sued upon for over six years since it fell due, is hereby barred from suit hereafter." But it does enact that: "In all cases where Thomas Browns make notes payable to the order of John Smiths, and the John Smiths do not sue on such notes until after six years from the date of maturity of such notes, such suits shall be thereafter barred."

The Legislature, then, does not decide any past disputes between men, nor does it decide any definite particular number, or class, of past controversies between men. It prescribes a general rule that shall govern the decision of future special disputes, including in the facts involved certain specially selected facts. Thus, Legislative Law is essentially prospective, and deductive. The Legislature leaves to the Courts the decision of all special cases as they arise. It could not do otherwise, without itself becoming a Court. But, in some instances, the Legislature states the general rules of public policy which shall be followed by the Courts in deciding certain cases. The Courts, on the other hand, never lay down a general rule applicable to future cases, except in the presence of the special facts of a past dispute then presented for decision, and as a means of arriving at a just decision of that case. The question of whether a subsequent case shall be decided according to the rule so laid down, is a question to be argued and decided when the facts of the subsequent case, claimed to be controlled by the earlier decision, have all happened, and, as a past transaction, come before the court for investigation, and decision. Thus case law is essentially retrospective, and inductive.

Statute Law, then, states in written language the rule