ceases with the reason for it." On the one hand, the conservative spirit has appealed to the letter of former decisions on similar facts, and denied the existence of any necessity for an exception to the rule then established. On the other hand, the liberal tendency has appealed to the reason for the decisions on the facts in former cases, and claimed an exception to the rule was proper in the case in hand, in that the reason no longer existed because of some change in the combination of facts. And so the fact that the written Reports of adjudged cases or Judge-made Law contained not only the decision but the facts, and also the reason and argument for the decision on the facts, has been of incalculable benefit to the progress of the science. In fact, so thoroughly has the principle that a judgment must be founded on sound reason and common sense become a part of the common law, that many hundreds of cases have been overruled by later decisions for violation of this cardinal principle. And no less a decision than the last authoritative announcement of the Supreme Court of the United States declaring that the government can make anything it chooses to call a dollar "legal tender" for the solution of prior contracts calling for payment in dollars, must under the force of this great overshadowing principle be finally overruled. It would indeed be a reproach to any system of jurisprudence if such a decision as that set out in "The Legal Tender Cases" of 1876 could possibly remain the law for all succeeding ages.1 In extreme cases of outrageous error, therefore, the Common Law has within itself a corrective force. This force which thus, in some instances, triumphs over all else, is simply the force of reason.2 The influence of the 1 See the able dissenting opinion of Field J. in Legal Tender cases, 12 Wall. 457, 649, 655. 2 Our English cousins, though at first inclined to overrule cases not founded on sound reason, have lately developed the strict doctrine of absolute adherence to precedent (Pollock's First Book of Jurisprudence, 300, 311, 316, 319.) The American doctrine is more liberal. The Supreme rule of precedent is, however, so strong that in the great majority of instances a court, especially the court of last appeal, feels bound to follow a former decision although if the case were presented anew a different conclusion would be reached. And this fact renders necessary in some instances the interposition of statutory law to effect a reform in the rule. To attain a true knowledge of men and things, to lay down principles which when applied to our conditions will produce substantial justice, relative not absolute justice, is the constant aim of the Common Law. To effect this in each individual case there is an appeal to reason for the rule, and this appeal to reason is the chief merit of the Case Law as a System of Jurisprudence. Court of the United States, and the highest Courts of the different States, now and then overrule earlier decisions. CHAPTER VIII THE IDEAS AND ARGUMENTS OF THE CODIFIERS PAGE THE AGITATION FOR AND AGAINST CODIFICATION 264 NO CODE YET WRITTEN SUITS THE SCIENTIFIC CODIFIERS 266 267 CRITICISMS OF CODIFIERS ON FIELD'S CIVIL CODE SPECTACULAR THAN REAL 267 269 THE NEW YORK CODE OF CIVIL PROCEDURE REFORMS MORE FIRST. THe Alleged UNION OF LAW AND EQUITY 281 THE DIVERGENT VIEWS OF CODIFIERS AS TO WHAT A CODE AUSTIN ON THE FRENCH AND PRUSSIAN CODES THE QUESTION OF FURTHER GROWTH THE DISAGREEMENTS OF THE CODIFIERS THE COMMON LAW A FIXED QUANTITY-EASILY CRITICISED THE CODE AN UNKNOWN QUANTITYA SHIFTING CONCEPTION THE ARGUMENTS IN FAVOR OF CODIFICATION AS STATED BY PRO- ACCESSIBILITY. COMPENDIOUS BREVITY FORMAL ORGANIZATION DEFINITENESS-COMPARATIVE CERTAINTY PAGE THE USUAL ARGUMENTS FOR AND AGAINST CODIFICATION . 306 306 308 308 314 315 319 320 327 MENT. 328 330 331 THE CHIEF ARGUMENT FOR CODIFICATION THE NEW YORK CODE COMMISSIONERS' STATEMENT of the Argu AMOS' STATEMENT OF THIS ARGUMENT GENERAL DISCUSSION And now having studied the question at first hand, let us resort to the literature on the subject. Let us sit at the feet of the High Priests and weigh their words. Even as far back as the time of Bacon,1 and again in that of Hale, there was felt the want of a systematic, logical arrangement in the body of the law. THE AGITATION FOR AND AGAINST CODIFICATION But the first writer of prominence to urge the necessity of codification, was Jeremy Bentham.2 He was followed by the justly celebrated John Austin, and later by the still living Professor Holland and Professor Amos, Sir James Fitzjames Stephen and Sir Frederick Pollock. Until this century few lawyers engaged in the actual practice of the law were in favor of Codification. Now, among many others, may be named, in England, F. Vaughn Hawkins,3 Sir James Fitzjames Stephen ; and, in 1 Dillon's Lectures on Jurisprudence, p. 273. 2 The Proposed Codification of the Common Law, James C. Carter (pamphlet), p. 70. Juridical Society Papers, 110. 46 Irish Law Times, 572. this country, Chancellor Walworth, David Dudley Field, and Ex-Judge John F. Dillon. Opposed to the theory of codification stand the majority of the English and American Bars. Among those who have best expressed the arguments against codification may be named W. M. Best, and Sir J. P. Wilde 2 in England, United States Attorney General Legaré, and Mr. James C. Carter in this country.3 THE TWO DISTINCT QUESTIONS INVOLVED The question of codification is said to resolve itself into two distinct propositions.* First. Is the theory of codification sound? Is a good code a better form in which to express the law than a case system? Second. Is the particular code under discussion a good one? Is it fit to replace the case law? The latter question is complicated by others. Where, by the accident of conquest, several systems of law are found existing side by side, as was the case in France and Germany, Austria, Italy and India - Codification, however unsound scientifically, may be expedient. Under such circumstances the existing conditions must be destroyed and the resulting uniformity arrived at by calling in the aid of the Supreme Power of the State, namely, the legislating power. Courts, in theory at least, exist to declare, and to apply the law; not to make it. Hence, the reconciling of coequal and coexisting but divergent customs, is beyond their powers. It is probable that even in such a case of competing systems of law, the necessity of a Code has been erroneously assumed. Assuming that any one of the conflict 11 Juridical Society Papers, 209. 2 38 Law Times, 518. He favors, however, a Code Digest. See the two able papers of Mr. Carter, The Proposed Codification of the Common Law and The Provinces of the Written and Unwritten Law. 4 Austin's Province of Jurisprudence, § 948. |