true meaning of legal language except a trained lawyer. So far as the statute is plain, as applied to certain classes of fact, the same certainty is to be found in any good textbook. So far as the statute needs interpretation and construction, in order to apply it to a particular case, the attempt of an untrained mind to fathom its meaning will lead him into error. He will think that clear which is obscure, and the chances are a hundred to one that he will mistake the meaning, or the application of the words. Knowledge of law is like all knowledge. There is no royal road to its attainment. The subject is uncertain, because the science is new and growing. Law is the science of applied relative ethics. It involves politics, political economy, and ethics, sciences still in their infancy. How, then, can we expect to know it all; or how can we expect to express it all, in the covers of one book? Uncertainty, therefore, will creep in, whether the law is written in one book, or in thousands. The uncertainty of the common law system is due to the imperfection of human reasoning powers, to the fact that human minds honestly weighing a question of logic or of equity will reach diverse conclusions. The uncertainty of a code system is due to a like diversity in the reasoning powers of the human mind, and to the imperfection of language as a vehicle to communicate commands. Thus each system has its region of uncertainty, and they are not coextensive. Principles, and their applications which are certain in a common law system, would not necessarily be so under a code system, this because of the difficulty of condensation. Whether they were so or not, would depend upon the skill of the man, or body of men, who drafted the code. The particular cases about which there would be uncertainty under both systems would be those in which the facts are new or complicated, and the equity doubtful, by reason of doubt as to the application of different and conflicting rules. In such cases, and these are the majority of cases in which laymen need to resort to the law, the layman is equally at sea whether he resorts to a code or to the system of statutes and reports. He needs a lawyer. The lawyer now takes up the question. We show hereafter in detail how he examines it (see Chapters IV, V and VI); and the substantial result. We may summarize the results as follows: If the matter comes up under a code system, he resorts to the code. Under the hypothesis of a Code consisting of one volume, the code he consults must necessarily be a Code of principles, and not a detail code. In such a code he finds general principles stated, but no definite information as to the rule governing the special collocation of facts involved in his case. (See French Code, Exhibit M, Chapter VI, and Field Civil Code, Exhibit N, Chapter VI.) Since the Code furnishes no explicit guidance, he must decide it as best he may. (See the examples given below of the workings of the code, and common law system, as applied to contracts in restraint of trade, Chapters V and VI.) If the matter comes up under a common law system, he first resorts to the statutes, and then to the reported cases. He usually finds some cases involving facts like his own; and from these, and the reasons given for their decision, he may work out the principle applying to and governing the case he has in hand. (See Chapter V, infra.) In fact, it stands to reason that a compilation of law consisting of many volumes must necessarily express the various rules to cover more special cases than can be done in the space of one volume, however transcendent the genius of the author. It follows that neither for the layman nor for the lawyer, can it be said that the law can be successfully limited to one book of a few hundred pages. The history of every Code that has ever been in operation-with its numerous volumes of commentaries, decisions of Courts as to its meaning, and revisions, repeals, and reënactments, gives the lie to the contention. THE NECESSITY OF MEETING THE QUESTION BEFORE THE POPULAR FORUM In spite of these facts, however, some advocates of a Code system (see Mr. Field and Mr. Fowler above) have thus courted the popular vote; and have demanded decision by the multitude of a scientific question. The system of universal suffrage exists. The popular vote can and will decide the issue. The people are the judges. No advocate, no matter what the merits of his cause, who based his case upon the argument that the decision of the merits of the dispute was beyond the intellectual capacity of his judges, ever yet won his case. Just as our intelligent voters cast their ballots for protection as against free trade and for free coinage of silver at the ratio of 16 to 1, and laugh down the wind the teachings of the High Priests of political economy, so will they accept jurisdiction and decide the contest of Code versus Case law. The advocate of the common law system must therefore meet the advocate of the Code system on his chosen ground. This is all the more imperative for another reason. In appealing for the popular verdict these Code advocates have charged that professional opposition to codification is due to the jealousy felt by priests of a cult, at having the mysteries by which they profit revealed. The issue must then be met in the popular forum. And this cannot be avoided, although the actual existence of these very mysteries renders real comprehension by the voting public of the merits of the dispute, and the relative weight of the arguments presented, almost an impossibility. As well might a body of doctors learnedly argue before a popular assembly, over the pathological effects and causes of such effects produced in an organ by some complicated drug; or dispute over the efficacy of Koch's consumption, or Pasteur's hydrophobia treatment. NOT DIFFICULT FOR THE MAN OF EDUCATION TO MASTER THE PROBLEM AND DRAW HIS OWN CONCLUSIONS Yet it is quite possible to unfold this subject to men of liberal education in such a way that they can understand it, and perceive the merits of the dispute. And since the discussion is to be carried on for the benefit of the public at large, let us at least make provision that, at least this portion of the public, may have definite, concrete ideas as to the subject-matter discussed. In speaking of Codified and Uncodified law, a lawyer is apt to forget that an ordinary business man has probably never seen a Code, or a volume of Reports; and that his conception of the term "law" must necessarily be exceedingly shadowy and uncertain. Indeed, it is safe to assume that not one in ten could give a satisfactory definition of the term “Municipal Law." Let us then clear up these conceptions by concrete statements and examples before proceeding further. THE FOUR DIVISIONS THE DISTINCTIONS BETWEEN THE ROMAN AND THE ENGLISH LAW A LAWSUIT-WITH SIDE NOTES 71 72 76 THE SOURCES FROM WHICH THE JUDGE OBTAINS HIS LAW 88 90 THE FIELD OF STUDY NOT SO EXTENSIVE AS IT APPEARS 92 94 96 97 97 98 98 100 THE DISTINCTION AND LIKENESS BETWEEN A CODE AND A STATUTE It is sometimes best to begin an explanation of what a thing is by a statement of what it is not. Law in the sense here intended is not law in the sense the word is used in the Physical Sciences. When we speak of the "Law of Wills" or the "Law of Corporations," we use the word in a sense different from its use in the phrase "Law of Gravitation." Law in the sense of a Law of Nature implies the inevitable sequence of cause and effect, and does not necessarily imply any personality as the author, or object, of its operation. Again, law in 1 The professional reader may skip this chapter without breaking the thread of the argument. |