ciple is capable of development or restriction upon the lines of right reason; the former principle is capable of no development or expansion, except upon the lines of reasoning as to the grammatical meaning of the words used to express it. AMOS' STATEMENT OF THIS ARGUMENT Professor Amos in his book on An English Code, p. 67, thus refers to this branch of the argument: "It is said that there is a gap that cannot be bridged over between a system of law which rests for its perfection upon an adequate use of language, and one which rests for its perfection on the possibility of firmly grasping its central principles. Even in England at the present day the notion of a perfect code presents to most people's mind, as it seems to have done to Bentham's, a vast number of states of fact, with an equally large number of precisely Written Rules carefully adjusted to them. If a Code meant this, there might indeed be good ground for apprehending the substitution of a socalled law of Language' for a Law of Principles.' But this meaning of a Code is neither a necessary nor a true one."1 It is difficult to follow the reasoning of the last sentence. If the detail Code mentioned consisted of a digest or abstract of the Reported Law contained in the cases so as to include the special facts of each case, the rule declared and the general outlines of the reasons and arguments for the decision, it might be possible to interpret such a code by the same rule of scientific construction now used in deducing law from reported cases. (This is proved. See Chapter VII, Title II, and Chapter X.) If the detail Code omitted the reasons and arguments in connection with the facts to that extent a grammatical construction would be rendered necessary. 1 Amos' An English Code, p. 68. A detail code which merely gave the facts and the rule on the facts would be peculiarly liable to the objection that the disputes as to the law would then be a war of words. But a detail code stating the facts, and the rule, and in an abstracted form the arguments and reasons for the rule on the facts, would approach the common law reports in extent, and in so far as it approached the reports in excellence of detail, would lend itself to the application of the same system of scientific construction -a rule of construction which is of the greatest excellence, but which cannot be used except with reference to the detailed facts of special cases. And when so used, it is simply in each individual instance the application of right reason to the solution of a problem untrammelled by words or forms of words - the way it should be. In this last quotation we have a sample of the elusive nature of the Code dispute. Professor Amos here implies that he has answered this argument against Codification by admitting that it is an argument valid as against a detail Digest Code, but invalid as against a Code of Principles. We, therefore, merely recommend the reader to compare this statement of Professor Amos as to the inapplicability of this argument to a Code of Principles with the concrete examples set forth in Chapters V and VI in discussing the Case and Code Law; and we will allow him the privilege of choosing any Code he pleases as the one he will defend against this attack. GENERAL DISCUSSION And so we might take up in detail the like arguments of other advocates of Codification and make such answer, based on the same lines, as the occasion required. But we have already trespassed too much on the patience of the reader. For all these arguments pro and con might have been summarized on one side or the other, and so a certain amount of reiteration avoided. In so doing, however, some clearness of conception would have been lost in the condensation. Again, the interest of the personal method, the seeing in juxtaposition the argument and its answer, not in the language only of the advocate on one side, but in the very words of each contestant, affords the reader the power of judging between them for himself, under the full conviction that he has both sides presented to him, and not merely the garbled version too often made of an adversary's argument. It would not profit much, however, to continue this method, because we have taken as examples for discussion the views and arguments of all the leading Advocates of Codification; and the arguments of others are laid on the same lines. In concluding this chapter, we would add that a study of the authorities for and against Codification compels the conclusion that the discussion has been too much confined to generalities. For this the advocates of Codification have been chiefly to blame. Whenever defects in any particular Code have been pointed out, the answer has always been, well, that is not the right kind of code; or, as in the case of the Field Civil Code, -all things are human; or, as in the case of the Indian Contract Act, that it is not possible to produce perfect laws, but only "good working laws." 2 1 - The only way to arrive at conclusions, when discussing abstract general principles, is to test them by their concrete examples. The conflict between advocates of different theories, confining themselves to assertions and denials of generalities, is about as useful as the celebrated combat of Don Quixote with the windmills. Had the physicists, since Newton's time, taking different sides in the conflict over the corpuscular and wave theories of light, confined their activities to assertions and denials of 1 Austin on the French and Prussian Codes, Province of Jurisprudence. §§ 953-962. 2 Pollock's Essays on Jurisprudence and Ethics, 93. the generalizations involved, no progress would have been made; and the scientific world would have been in doubt down to this day. Fresnel's experiment, conclusively proving the wave theory to be a true and the corpuscular theory to be a false explanation of the phenomena, was simply the testing of each generality by one more concrete example in nature. And so, in the discussion of the Code question, nothing is to be gained by further assertion or denial of generalizations. We must test our principles by our facts. We have attempted to carry out this idea in this essay. The results are presented. But there must always be some feeling of uncertainty; until, not merely one branch of the law, but all branches, have been submitted to a like analysis, under the operation of both systems. At the same time the character of the problem makes it almost certain, that what is found to be true of the laws of the expression of legal principles embracing one province of the law, will be found to be true of the laws of the expression of legal principles embracing all provinces of the law. It remains only to add to these considerations the practical argument, and the final theoretical argument, against Codification. These are set out in the next two chapters. CHAPTER IX THE PRACTICAL ARGUMENT THE DIFFICULTY IN CODIFYING ARISING OUT OF THE INEVITABLE THE DIFFICULTY ARISING OUT OF THe DifferenCES IN THE CHARAC- PAGE 334 341 I THE DIFFICULTY IN CODIFYING ARISING OUT OF THE INEVITABLE GROWTH OF THE LAW Assuming, for the purposes of the discussion, that Codification is correct in theory, there yet lies before us a great, and as men are now constituted an insuperable, practical difficulty. This difficulty is that the passage of a Code does not stop the growth of the law. So long as a society progresses in industry, arts, science and ethics, so long must the rules of law change and grow to keep pace with the moving equilibrium. As Mr. Leonard A. Jones, the author of several excellent text-books on law, says: "If it were possible to make such a complete Code, it would not retain its completeness beyond the day of its enactment. The Courts must necessarily interpret it, and their interpretation must be upon common law principles, and thus the complete Code becomes incomplete, and common law once more a part of the law of the land."1 Mr. Jones here assumes that a system of Case Law is to be added to the Code system. The theoretical Codifiers deny the necessity of this. Experience with all existing Codes, experience hereafter referred to, appears contrary to this denial. Omitting this branch of the issue at present, we 1 Article on "Uniformity of Laws." 28 Am. Law Review, 547, 559. |