by the same process of growth which has built up the present system?

Lawyers will understand the issue as so put; it needs amplification to be clear to less technical readers. In the first place, the foregoing statement of the question implies the elimination from this discussion, except incidentally, of the merits or demerits of the Field, or any other Code, as a Code. The question to be discussed is the broad question to codify or not to codify - whether it were better, to avoid the myriad mass of precedents with all their conflict and uncertainty arising from differences in judicial mental power and discretion, by expressing in authoritative legislative enactment rules to govern all the complex relations of social life, present and future; or to rely in the future, as in the past, upon the principles of equity and right reason as sufficient guides, when occasion arises, both to the advising counsel and to the judge.

No one

THE LIMITATIONS OF THE QUESTION In the second place, a limitation is needed. disputes the existence of a great number of questions arising in every-day life, as to which codification of the rules applicable is not only proper, but advisable. The question of whether a note payable on sight should have grace or not, is one so dependent upon convention that a statute declaring the rule is proper. And so of all simple collocations of facts or of relations in society, as to which a decision one way or the other is of no ethical significance. In such cases a real advantage is gained by the authoritative and unmistakable establishment of the rule which shall govern. The certainty of the rule is its chief merit. Again, the organization of the State, and the component parts of the government, their powers and duties, the boundaries of Counties, the manner and times of election, the Charters of municipalities, the constitution and jurisdiction of Courts, and generally the essential facts and rules of Political and Civil Government, are by common

consent, at least in America, prescribed by the Statute law. Here the questions are political. Certainty is of more importance than all else. And even where ethics would render a judgment, the rule of the majority must govern as to what is ethics.

THE TRUE DEBATABLE GROUND

The true debatable grounds, over which codifiers and non-codifiers dispute, are those broad fields of social activity wherein the disputed questions arising in the particular cases presented, necessitate the application of ethical principles, as guides to the attainment of an equitable result.

What, then, is the real difference between uncodified law and codified law? The examination of this question presupposes an intimate acquaintance with the subject-matter involved and the terms employed. Unfortunately, the requisite technical knowledge is generally only possessed by men trained to the profession of the law. It would be interesting to such a one to learn what conceptions, and to what extent vague or definite, are roused in the lay mind by the use of the terms "Common Law," "Civil Law," "Code," "Statute," "Report," "Digest," "Textbook," "Decision," "Judgment," "Opinion," "Dicta," "Ruling," "Holding." And yet a very definite conception of each of these terms, and a practical acquaintance with the things themselves, is required before any one can fully understand an argument relating to them.

THE ARGUMENT THAT CODIFICATION ENABLES THE COMMON MAN TO KNOW THE LAW

Some champions of Codification insist that a Code should be adopted because then the common people can find and know the law; and every man can be his own lawyer. Thus Mr. Fowler says: "When the Codifier

1 Our English cousins appear to thrive under an unwritten constitution. Their political organization is dependent on custom and precedent.

has found these laws he lodges them between single covers that common people, and not logicians and experts alone, may better apply them to the myriad shifting phases of human affairs." 1 "1 "But this may safely be claimed for Codification. It will tend to certainty in legal administration; it will enable us to remove the enormities of the case law; it will render the framework of the law more accessible to the unlearned, and mainly it will afford more exact bases for forensic discussion." 2

Mr. Field says: "The only real question, if question there be, is whether there shall be any codification of the Common Law at all, that is to say, whether the law shall be written in a Code where the people can find it, or left in thousands upon thousands of Reports where only lawyers can find it."3

THE ANSWER TO THIS ARGUMENT

Happily for the reputation of Codifiers as a class, not all of them use this ad hominem argument. Thus Austin, referring to this argument, says: "I am far from thinking that the law ever can be so condensed and simplified, that any considerable portion of the community may know the whole, or much of it."4

Every man his own lawyer has a pleasing sound to the unlearned ear. The implied assumption, however, is contrary to the observed facts in the evolution of social life. The law of evolution is a growth from the simple to the complex; from the man who is the Jack of all Trades, with resulting defects, to the man who knows but one. Subdivision of Labor is the law of Industrial Progress; and so minute has become the division of labor in modern life that a man sometimes spends his life in repeating a simple operation; as in the case of the workman who does

1 Codification in the State of New York, Robert Ludlow Fowler (pamphlet), p. 17. 2 Ibid., p. 53.

8 Answer to Report of New York City Bar Association Committee against the Civil Code, David Dudley Field (pamphlet), p. 4.

Austin, Province of Jurisprudence, § 935.

nothing all day but put heads on pins. It would be strange, indeed, if when the comparatively simple industry of weaving has become so complex that no one workman can know and attend properly to all of its steps, a profession so intricate and intellectual as the study and practice of the law could be carried on by persons trained to other pursuits. When there were no tailors, shoemakers, etc., there were no lawyers. Long after other trades were established there existed no lawyers or legal class.1 Pollock and Maitland state that there were no lawyers or legal class in England until some time after the conquest.2 Lawyers came into existence, as all other trades have done, under the natural law of demand and supply. It matters little in what form the law of the land might be expressed, laymen could no more dispense with lawyers than they can dispense with doctors, electricians, engineers, architects, etc., etc. As well might a lawyer attempt to be his own hatter, tailor or doctor.

If to this it be answered that the true meaning of the argument is that common men will not become lawyers, but will be able to better know or learn the law because in one volume instead of many, the reply is as follows. This answer implies one or two things. 1st. The law as it is now expressed is so imperfectly expressed that common men cannot know any part of it. 2d. If the law were expressed in a code, common men could more easily and quickly know about it, or learn its rules, than they can do under the present conditions.

Of course no advocate of codification assumes the truth of the first contention. Men to-day know in a general way that a widow has dower, a husband curtesy, heirs inherit land, children personal property, damages result from a broken contract, promissory notes have days of

1 Sir Frederick Pollock in article on "The Nature and Meaning of Law." 10 Law Quarterly Review, pp. 228, 237, citing the Icelandic sagas. • Pollock and Maitland, History of English Law, Vol. I, p. 190, etc.

grace, an agent should sign for his principal; and a number of other ever-recurring rules. The Code advocates generally insist on the second assumption. The argument is sometimes conceded. And yet there is much reason to suspect that the concession is not necessary, nor strictly according to the fact.

THE COMPARATIVE INTELLIGIBILITY OF THE CODE AND CASE SYSTEMS

The code is a statute; and, as such, it is very plain as to some things, very obscure as to others. On examination of its working, in special cases, its clearness will be found to cover only those very general principles, and their application, the truth of which no one disputes. Such clearness can be even better observed in a well-written text-book, because the writer is untrammelled by the difficulties inherent in statutory expression. We confidently affirm that a common man can learn more of the accepted, established and undisputed rules of law from Kent's Commentaries annotated to date, supplemented by Bispham's Equity, or say from Dwight's Municipal Law alone, than he ever could gather from the Field Code, the Indian Code, or the Code Napoleon.2

Where the meaning of the statute is not plain, or the application is not clear, comes in the necessity of interpretation and construction. A code covers the entire body of the law. A few cases only can be clearly and explicitly provided for in it. The great majority of cases arising under it will require a construction of the statute before they can be decided. No one is competent to discover the

1 A Statute has changed this in New York since the above sentence was written.

2 As an example of this, let the reader compare the statement of the law of Contracts in Restraint of Trade contained in Pollock on Contracts (see Exhibit E of Chap. V), and in Title V of Chap. V with the statement of that law contained in the French Civil Code (Exhibit M, Chap. VI), the Field Civil Code (Exhibit N, Chap. VI) and the Indian Contract act (Exhibit O, Chap. VI).