\ f.'it '. •"" \'i' '"A" ■"'*"- ■ . 'V-j ./■• ■.. r .'. '. ;7" llTi-.'tif Ti»->Nr ' ■.JF.j CORNELL LAW LIBRARY K 286 C59°'"*" ""'"'""y '-"»™fy ^"^ llimilimMi^"'' '^"""aking, being i 3 1924 017 152 608 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017152608 THE SCIENCE OF LAW AND LAWMAKING ;The?y^o THE SCIENCE OF LAW LAWMAKING AN INTRODUCTION TO LAW, A GENERAL VIEW OF ITS FORMS AND SUBSTANCE, AND A DISCUSSION OF THE QUESTION OF CODIFICATION R.'%LOYD CLARKE, A.B., LL.B. or THE NEW TOBK BAB *' Jus summum stzpe summa est malitia " (7%e strictest law is often the greatest injustice) Tsumcx, HsAUTON-TiMOBomaHos, IT. 5. 4S NetDg0tfe THE MACMILLAN COMPANY LONDON: MACMILLAN & CO., Ltd. 1898 All rigMa reserved COPTKIGHT, 1898, Bi THE MACMILLAN COMPANY. J. S. Gushing & Co. — Berwick b Smith Norwood Mass. U.S.A. PREFACE This book is an attempt to make clear to the average reader some of the truths of Law and Jurisprudence. The object is to introduce Lajrmen to a true conception of the system of law under which they live, a system whose rules constitute bonds restraining their activities, less palpable, yet no less effective, than the iron bars of the captive's cage. It is a curious fact that no work exists in which the general outlines of legal systems are explained in popular terms so as to be intelligible to the ordinary mind not versed in the technicalities of the subject. And it is especially strange that no work exists which explains to such readers, and to the law student just beginning his course, the fundamental truths contained in the two forms of expression in which it is possible to embody a system of law. Yet a complete knowledge of these fundamental truths lies at the base of the correct decision of a question of great importance now agitating the legal world. And this question — the question of Codification — is one whose decision wUl rest more in the hands of laymen than in the hands of lawyers. These facts suggested to the writer the idea of a book which, in the first instance, should be an introduction to the study of the law; and, in the second instance, should use this introduction as a groundwork on which to build up an argument on codifi- cation intelligible to the lay mind. And it was considered VI PKBFACB that labor bestowed on a full and complete examination of the familiar truths of the subject matter, would not be thrown away, even in so far as the professional audience might be concerned. For, it is deemed that the reiterar tion of fundamental truths, half forgotten because assumed without clear statement and demarcation, and the con- templation of concrete instances and examples of the working out of the contradictory principles involved, will refresh the recollection of the professional reader, and aid to a clearer conception by him of the generalizations involved in the further arguments herein contained. To what extent success has been attained in making this essay intelligible, instructive, and convincing to the two classes of readers for whom it has been written, only the future can determine. This much, however, may be said. The attempt has been,— First: To write an introduction to law which shall en- lighten the intelligent lay reader as to the beauty and interest of its problems; Second: To remove the discussion of the Code Question from the generalities in which it has always been obscured to the contemplation of the practical working of the two systems in concrete instances (see Chapters V and VI); Third: To elaborate the idea of the fundamental and intrinsic difference between the two forms of writings, statute and case law (see Chapters X and XI) ; and Fourth: To draw the proper conclusions and apply these principles to actual legislation, judicial or legisla- tive, and to determine by a practical test the provinces of each and the best way to conserve them (see Chapter XI). PREFACE Vll In this age when the common people, populists or otherwise, look up to the legislature as the deus ex macMna, capable by its action of ameliorating their social, political and financial condition; and when men of mark and influence are urging the adoption of favorite schemes for social or individual advancement; and when the keen few, realizing the practical supremacy of legislation, no longer seek rights or redress in the courts, but create them by gaining in their behalf the fiat of the legislature — it is fitting that an attempt should be made to delimit the proper provinces of legislative and judicial action. If the writer has succeeded in this, he has added his mite to the true solution of the complex problems ever presenting themselves for solution. R. FLOYD CLARKE. Nkw Yobk, Augost 20, 189T. CONTENTS CHAPTER I THE LAW AND THE LAYALA.N PAOB The Layman's Idea op Law 1 The Natubb of Law — Its Practical Interest ... 4 The Debs Case 5 A 'WiiL Case . . 8 With Slight Preparation a Latman mat grasp the Code Question 9 Short Definition of a Code 10 The Two Wats in which the Law can be declared . . 11 The Code Wat — §938 of the Field Civil, Code ... 11 The Case Wat — Armort vs. Dblamirie 12 The Differences between the Two Ways .... 13 The Books in which Law is written 16 CHAPTER II THE FORMS OF LAW The Two Great Systems of Law 17 Their Origin in a Common Form 18 The Source op Law an Oral Tradition . . . . 20 Its Development into Two Types 21 The Distinction is between Code and Case Law — not Code AND Common Law 22 The Interaction between the Form and the Substance op Law 22 This Proposition disputed by the Codipibrs .... 23 The Argument for the Proposition 23 The Selection of Case or Statute Law a Question of Mixed Form and Substance 25 ix X CONTENTS PAOI The Conflict is between Code and Case Law ... 26 The Cry of the Codifieks 26 The Answer of the Practitioners 28 The Importance and Practicai. Nature of the Question . 31 CHAPTER III THE CODE QUESTION The Conflict in New York 33 The Broad Question — To Codify or not to Codify . . 34 The Limitations of the Question 35 The True Debatable Ground 36 The Argument that Codification enables the Common Man TO know the Law 36 The Answer to this Argument 37 The Comparative Intelligibility op the Code and Case Sys- tems 39 The Necessity of Meeting the Question before the Popu- lar Forum 42 Not Difficult for the Man of Education to Master the Problem and Draw his own Conclusions .... 43 CHAPTER IV AN INTRODUCTION TO THE STUDY OF LAW What is Law 44 Civil Law "... 49 Common Law 50 Ecclesiastical oe Canon Law 51 Admiralty Law 52 The Common Law and Equity 54 The Four Divisions 71 The Distinctions between the Homan and the English Law 72 The Municipal Law op England 76 Sources op the Law 76 A Lawsuit — with Side Notes 78 The Sources from which the Judge obtains his Law . . 88 CONTENTS XI PAQE The Law chakoes as the Times CHANeo 90 The Field op Study not so Extensive as it appears . . 92 The Books op Statutes and the Books op Rbpoeted Cases . 94 The Lawyer's Other Tools op Trade 96 The Distinction and Likeness between a Code and a Statute 97 The Present Relations op Statutes and Cases ... 97 How THE Code Question arises 98 Explanation op the Two Succeeding Chapters ... 98 General Remarks on the Question presented . . . 100 CHAPTER V THE ENGLISH LAW AS IT IS IMstinc- TITLE I. — Concrete Examples op Statutes . Exhibit A. — The Statute of Frauds Note to Exhibit A. — The Statute of Frauds, tions between Statutes and Oases . Exhibit B. — The Statute of Limitations Note to Exhibit B. — The Statute Of Limitations TITLE II. — Concrete Examples op Reported Cases Exhibit C. — Mitchell us. Reynolds Note to Exhibit C. — Mitchell vs. Meynolds Exhibit D. — The Diamond Match Co., Respondent, vs. Will- iam Roeber, Appellant Note to Exhibit D. — The Diamond Match Company Case TITLE HI. — Concrete Example op a Text-book . Exhibit E. — Extract from Pollock on Contracts Note to Exhibit E. — Pollock on Contracts TITLE IV. — Concrete Examples op Digests . Exhibit F. — Sample of an Old Digest, including Digest of Mitchell vs. Reynolds Note to Exhibit F. — An Old Digest Exhibit G. — Sample of a New York Digest, Including Digest of Diamond Match Co. vs. Roeber Note to Exhibit O.— A New York Digest 103 103 104 116 117 122 122 126 133 139 141 141 148 149 149 149 150 164 XU CONTENTS PAGE Exhibit H. — Sample of an Annual Digest — The General Di- gest of 1895 154 Note to Exhibit H. — An Annual Digest . ■ ■ .157 Exhibit I. — Definitions 157 TITLE V. — StTMMAET Statement of the Peinciples op the Common Law of Conteacts in Resteaint of Trade 159 TITLE VI. — The Eelative Provinces of Statute and Case Law as thet exist in the Common Law . 163 Exhibit K. — The Statute law. Table of Contents of the New York Revised Statutes 165 Exhibit L. — The Case Law. Table of Contents of Kent's Commentaries and of Bispham's Equity .... 170 CHAPTER VI THE ENGLISH LAW AS IT WOULD BE IF CODIFIED Exhibit M The French Civil Code 178 The Provisions of the French Civil Code as to Illegal Contracts, including Conteacts in Restraint of Trade 179 Note to Exhibit M. — The French Oivil Code . . . 180 Exhibit N. — The Proposed Civil Code of New York .186 The Provisions of the Field Civil Code as to Unlawful Contracts, including Contracts in Restraint of Trade . 188 Note to Exhibit N. — The Field Civil Code . . .189 General Discussion of the Provisions of the Field Civil Code as to Unlawful Contracts 189 Particular Discussion of the Provisions of the Field Civil Code as to Unlawful Contracts .... 192 Paeticulae Discussion of the Provisions of the Field Civil Code as to Conteacts in Resteaint of Trade . 198 The Anglo-Indian Codes 211 ExhibitO. — The Indian Contract Act 211 The Provisions of the Indian Contract Act in regard TO Conteacts in Restraint op Trade .... 212 Note to Exhibit 0. — TTie Indian Code . . 213 Note to all the Codes 220 CONTENTS xm CHAPTER VII ALL THE LAW IS WRITTEN — THE LIKENESS AND UNLIKENESS PAGE TITLE I. — The True Distinction lies in a Diffeeenob be- tween THE Rules of Constbuction applied to Statutes AND Repobts 222 Rules of Statutokt Intebpketation and Constbuction . 230 Rules of Intebpketation 230 Rules of Statutory Constbuction 231 Some Cueious Cases 232 TITLE n. — The Diffebenoe is Intrinsic, not Accidental . 248 Summabt 258 CHAPTEE, VIII THE IDEAS AND ARGUMENTS OP THE CODIEIERS The Agitation por ^nd against Codification .... 263 The Two Distinct Questions involved 264 No Code tet written suits the Scientific Codifiers . . 266 Pield's California Civil Code 267 Criticisms of Codifiers on Field's Civil Code . . . 267 Field's New York Code of Civil Procedure .... 269 The New York Code op Civil Peocbdubb Reforms mobe Spectaculab than Real 271 FiBST. The Alleged Union of Law and Equity . . . 272 Second. The Alleged Simplification op the Pleadings . 275 The Same Reforms better effected by Rules of Court . 278 The Failure of the Field Code op Civil Pbocbdube . . 279 One op Mb. Field's Arguments in Favor of a Code . . 280 The Burden on the Codifier 281 The Divergent Views of Codifiers as to what a Code should be 281 Bentham's View 281 Hawkins' View 282 A Code op Principles 284 XIV CONTENTS PASH Amos ov the Field Ciyii. Cods 284 Holland's View 285 Acstih's View . 285 Conflicting Analogies 286 Austin's View (continued) 289 Austin on the Fbenoh and Pkussian Codes .... 292 Schuster on the French and Pkussian Codes .... 294 Fowler's View 296 The Question or Illustrative Cases 296 The Question op the Reasons fob the Bule .... 297 The Question of Definitions 297 The Question of Maxims and General Rules .... 297 The Question of Further Growth 298 The Disagreements of the Codipiers 299 The Common Law a Fixed Quantity — Easilt criticised . 299 The Code Panacea 303 The Code an Unknown Quantity — A Shifting Conception . 304 The Usual Arguments for and against Codification . . 306 The Arguments against Codification as stated et Professor Amos 306 The Arguments in Favor op Codification as stated by Pro- fessor Amos 308 Accessibility 308 Compendious Brevity 308 Formal Organization 309 Definiteness — Comparative Certainty 310 Some Plausible Minor Arguments 310 The Chief Argument for Codification 314 Austin's Statement op the Argument 315 Hawkins' Statement of the Argument 319 Holland's Statement op the Argument 320 Field's Statement of the Argument 327 The New York Code Commissioners' Statement op the Argu- ment 328 Amos' Statement op this Argument 330 General Discussion 331 CONTENTS XT CHAPTER IX THE FBACTICAL ARGUMENT PAQB The Diitiodi,tt in Codipting abisinq out op the Inevitable Gbowth op the Law 334 The Difpicultt abisinq out op the Difpebences in the Chabac- TEB, Ability and Spbings op Action op the Authobs op Code and Case Law 341 CHAPTER X THE FINAL ARGUMENT Ebcapitdlation 346 The Aboitment continued 348 The Final Genebalization — A Sifpebence in Method. . 351 The Objection that Some Rules op Law abe pbopeely bx- pbessed in Statutes 352 All Laws involve a Rule op Conduct 353 The Distinction between Laws belating to Ethical and to Indippebent Conduct 356 A Fubtheb Objection 360 The Distinction between the Civil and the Cbuiinal Law AS TO Codification 360 The Analogy between Law and Otheb Sciences . . . 365 The Religious Code . , 366 QuASi-SciENTipic Codes 374 The Analogy between Law and Medicine .... 379 The Analogy between Law and Electbicity ... 380 The Laws of Man and Laws op Natube — Theib Likeness AND Unlikeness 381 The Distinction between Laws op Man and Laws op Natuee 382 The Likeness between Laws op Man and Laws op Nature . 384 The Ambiguity in the Expression "Laws op Nature" . 388 The True Analogy between Laws of Man and Laws op Nature 391 The Objection pounded on the Freedom op the Will . . 398 The Inexorable Uniformity of Nature 403 XVI CONTENTS PAGB The Scopb op Legislative Freedom of 'Wii/I, .... 407 The Scientific Waebant for the Existence op Statute and Case Law — Statute Law for Indifferent Conduct, Case Law fob Ethical Conduct 412 The Practical Test 413 This Test as applied to the English Law .... 415 An Objection to a Seeming Inconsistency in the Argument answered 416 The Difference between the Necessity of codifying Kules op Indifferent Conduct in Law and in Other Sciences 417 The Quasi-Codification of Kules applying to Indifferent Conduct in Other Sciences 421 The Necessity of codifying Indifferent Conduct arises from THE Clash of Wills 422 The Same Necessity does not apply to codifying Good or Bad Conduct because of the Importance op a Coerect Decision 426 The Difference between the Conduct op the Individual and op the Social Unit 428 Summary 430 CHAPTER XI THE PRACTICAL RESULTS — A SUGGESTION The Practical Results 433 Two Practical Difficulties — How met 437 A Suggestion 440 An Objection answered . .' 441 The Lesson of Experience 444 The Lesson of Analogy 446 Conclusions 447 BIBLIOGRAPHY 453 TABLE OF CASES 457 INDEX 461 THE SCIENCE OF LAW AND LAWMAKING CHAPTER I THE LAW AND THE LAYMAN PAOE The Layman's Idea of Law 1 The Natdke of Law — Its Peactical Intbeest ... 4 The Dees Case 5 A Will Case / 8 "With Slight Peepaeation a Layman may geasp the Code Question 9 Shoet Definition of a Code 10 The Two Ways in which the Law can be declaeed . . 11 The Code Way — §938 op the Field Civil Code ... 11 The Case Way — Aemoey vs. Delamieie 12 The Diffekences between the Two Ways .... 13 The Books in which Law is weitten 16 THE LAYMAN'S IDEA OF LAW To laymen,^ and to some of those who attempt the study of law, it seems a crabbed, difficult and dry pursuit ; in a word, a study no less uninviting than the dusty tomes in( which it is so often found imbedded. The ideas of the! aYerage citizen about it are well outlined by one of our great novelists in the inimitable interview between Mr. Pickwick and his leading counsel. Sergeant Snubbin : — " With this hint that he had been interrupted quite long enough, Mr. Sergeant Snubbin, who had been gradually 1 Among lawyers persons not "learned in the law" are called "lay- men" to distinguish them from the "professional men," the lawyers. In some of the old books it is said that exceptions were allowed in certain cases to general legal rules " on account of the ignorance of the laity." B 1 2 THE LAW AND THE LAYMAN growing more and more abstracted, applied his glass to his eyes for an instant, bowed slightly round, and was once more deeply immersed in the case before him; which arose out of an interminable lawsuit, originating in the act of an individual deceased a century or so ago, who had stopped up a pathway leading from some place which nobody ever came from, to some other place which nobody ever went , to." And the poet voiced the feelings of all of us when ^ he sang of ' " Mastering the lawless science of our law, That Codeless myriad of precedent, That wilderness of single instances." i While it is true that the detail doctrines and the appli- cations thereof of any system of law have, to the general student, these forbidding qualities ; yet there is wheat tou be gleaned from all this chaff, gold to be extracted from all this ore. The differences in size, proportions and arrange- ment of certain fossil bones of extinct animals appear of no special interest to the ordinary man; yet, when from delvings into the earth's crust, there emerges the special instances of the five types of American horse, ranging from the four-toed Orohippus of the Eocene period, through the three-toed Mesohippus of the Miocene period, to the single-toed Equus of our own times, these dusty bones, of no apparent value or interest, have furnished de- monstrative evidence of the great doctrine of Evolution. And evidence of a kind which men not versed in the sciences involved can grasp and appreciate, and evidence whose immense value to the cause of progress it would be hard to overestimate.^ And so while the decision of special law cases, petty or otherwise, that arise in daily life, may embrace complicated deductions to be made from technical rules, and end in results of interest only to the professional man, and which to the unlearned mind appear to have no reason for their 1 Tennyson, Aylmer's Field. ^ Huxley's American Addresses, p. 88. THE layman's idea OF LAW 3 existence; yet other special cases may require in their decision the assertion and application of most important general principles ; principles of interest to every one, and whose assertion either way reacts upon the future well-being of all. In every case where these latter con- ditions occur, the special decision made is itself an instance, and a proof, of the broad general rule, and valuable and interesting as such to the intelligent mind, lay or pro- fessional. The consequence is that in so far as the discussion of law becomes abstracted from the discussion of the proper way to decide any one or more of its " myriads of single instances," to the discussion of the underlying principles i governing its creation and expression, the truths of law ! approach in their matter and in their mode of expression, the truths of other sciences. Law is thus recognized as one of the family of sciences, subject like the rest to cer- tain fundamental principles. Thus it becomes interesting to the general student. Hence it is that jurisprudence is fully capable of being made clear, instructive and inter- esting to those having only a slight acquaintance with the details of actual law study and practice. Between the jurist and the practitioner exists the old difference between the specialist and the generalizer, the observer and the philosopher — as it occurs in science. In science the philosopher cannot generalize correctly unless he has thoroughly imbibed and apprehended the facts furnished him by the special observers of nature. So also in law, and to an even greater extent, the jurist cannot generalize correctly as to the truths of jurisprudence unless he is well acquainted with at least the typical instances of the legal facts on which he bases his conclusions. And while you or I, the laity so to speak when Pro- fessor Huxley unfolds to us some truth of Zoology or Palaeontology, can grasp the idea because the guide to the solution of the problems of the science is reason, and reason alone ; the same does not hold true as to the laity 4 THE LAW AND THE LAYMAN grasping the truths of law in an equally ready manner. For it has not always been reason, but sometimes its op- posite, which has dictated the decision of the problems of law. Thus have been developed anomalies and inconsist- encies ; an absence of scientific classification ; and result- ing absurdities. The result is, that some instruction in the technicalities of the law, and in its peculiarities as an art, is absolutely necessary, before the average man of liberal education can apprehend its contents, and become interested in its problems. Yet the amount of this neces- sary preliminary study is entirely overestimated. Professors Huxley,^ Tyndall,^ Clifford ^ and others have idone noble work in expounding scientific truths to un- scientific minds. No practical lawyer has yet attempted to explain the principles of law and jurisprudence to lay- men.* The fact may be due to this necessity of some /preliminary technical study. Yet law in its broad sense, as including not the details of " little treatises on servi- tudes," but the fundamental rules of jurisprudence, is a science of surpassing interest. And as such, it well repays the effort required to master the few of its technicalities needed to be understood before its hidden charms can be revealed. THE NATURE OF LAW — ITS PRACTICAL INTEREST Law is the science of right living as expressed, enforced and applied by the State ;^ it is so much of applied or rela- tive ethics as society sees fit to enforce. It is a branch of .the Science of Sociology. Its rules are derived from and (founded on the ethical, political and economic ideas enter- [tained by the society in which it exists as law. Hence, in determining what should be the decision of some con- 1 Essays and Reviews. ^ Fragments of Science. ' Clifford's Lectures. * Perhaps we should note the exception of Mr. Pollock's First Book of Jurisprudence (1896), yet even this is written more for the law student than for the man of liberal education. 6 Meaning by the "State" the political unit prescribing the law; namely, England, Prance, New York, etc. THE DEBS CASE 5 troversy, — for instance, whether or not Judge Woods, in 1894, had the power to restrain the members of the American Railway Union led by Debs from burning cars and stopping traffic on the railways of Illinois, and having the power whether he should exercise it by injunction, — we often find ourselves face to face with governmental and / social problems, still unsettled, of transcendent importance and interest. , THE DEBS CASE This Debs Case was a remarkable one. To rightly understand it, the reader must know something about our peculiar form of government. The question presented was a question of Federal power. Are we a Nation ? or a Confederation? States Rights and Centralization again joined battle. The facts are shortly these. Our form of government is a dual whole made up of a sovereignty called the United States of America, which was formed by the compact and consent of the original thirteen States of the American Confederation and the distinct sovereignties, the States, which have been since added to the Union. The Consti- tution of the United States of America is a written docu- ment whereby the President, the United States Courts and the Congress are granted certain specific powers of Government, Executive, Judicial and Legislative. These powers are granted in express terms, and there is a solemn article that all powers of government not expressly granted to the United States are reserved to the respec- tive States.^ The final jurisdiction to settle all questions under the Constitution is vested in the United States Su- preme Court. Hence that Court construes these grants of sovereign power. It early construed them as includ- ing all powers necessarily or properly implied in those expressed.^ There is a special provision in the Constitu- 1 U. S. Constitution, Tenth Amendment. » McCuUoch vs. State of Maryland, i Wheaton, 316. b THE LAW AND THE LAYMAN tion giving the' President power on requisition from the legislature or the governor of any State to call out the United States troops and employ them in maintaining order in such State.^ Except for the unsettling prece- dents of the Civil War, and of the reconstruction period, it had been the received doctrine of the strict construc- tionists ; that, in case of internal dissensions in a State, the United States Government had no right to interfere save on this requisition from the State authorities.^ There are also express powers given by the Constitution to the United States Government to regulate commerce between the States, to establish post roads and to main- tain a postal service.* It happened in 1894 that a labor organization known as the American Railway Union, of which Mr. Eugene V. Debs was president, declared a strike on the Illinois Central Railroad. The strike lasted for some time. The men, finding the railroad company was succeeding in filling their places, at length grew desperate. Under the instigation of their leaders they resorted to violence and riots. They stopped the trains, maltreated the "scabs" (workmen who had taken their places), and, in some instances, burned the cars. The condition of affairs became serious. For a time, as the American Law Review says, "the people of the United States were under two rulers, President Cleveland and 'President Debs'; and railway trains were in the hands of trespassers carrying the flag of 'A. R. U.' instead of the Star-Spangled Banner."* Meantime the United States mails on these trains were delayed or destroyed. The Attorney General of the United States applied to the United States Circuit Court for an injunction restraining Debs and his associates from interfering with interstate commerce and the United States mails. The injunction was obtained and disobeyed. An application was then made to punish the rioters for contempt of Court. Ques- 1 TT. S. Constitution, Art. IV, § 4. " 28 Am. Law Eev. 592. ' U. S. Constitution, Art. I, § 8. « 28 Am. Law Eev. 591, 592. THE DEBS CASE 7 tion then arose as to the power of the Court to punish for this disobedience ; and so related back to whether the Court had the power, in the first instance, to grant the injunction. The first question presented was whether a Court of Equity had any power to restrain by injunction continued and organized rioting of this description — acts within the jurisdiction of the criminal law and there only punishable after trial by jury. The Court decided that it had such jurisdiction, basing its power upon the old law as to nuisances and purprestures (i.e. unlawful en- croachments upon highways).^ The next question was whether a United States Court could enjoin such rioting in a State, or whether such jurisdiction was vested in the State Courts alone. It was decided that a United States Court had this power in this instance. The decision was based on the express grant to the United States of the right to regulate interstate commerce and to carry on the mail service, and hence on the implied right to protect them against interference.^ While the dispute was going on in the Courts the trains were held up, the cars were burning and for a while pandemonium reigned. Mr. John P. Altgeld was governor of Illinois at that time. He was inimical to capital and corporations, and a friend of organized labor. The railroad company, assuming that it would be useless to apply to him for protection, or to ask him to requisition the President for aid, applied, in the first instance, to the President of the United States. They represented that interstate commerce and the mail service were obstructed, and requested his interference to put a stop to the lawless acts prevailing. The President, by proclamation, commanded the rioters to desist ; and sent to Illinois a force of United States soldiers, who promptly restored order. ^ 1 See an able article contending strongly against this doctrine as an imwarranted usurpation of power by a Court of Equity, entitled, " Gov- ernment by Injunction," by William H. Dunbar, 13 Law Quar. Eeview (October, 1897), 347. ^ jjnited States vs. Debs, 64 Fed. Rep. 724. ' 9 Political Science Quar. 769, 770. 8 THE LAW AND THE LAYMAN These acts of the Federal judge and of the President were looked upon by a large portion of our people as a dangerous stretch of the Constitutional Powers of the President, and of the Courts of the United States. The decision of Judge Woods in this case punishing Debs for contempt of Court was upheld later by the Supreme Court of the United States.^ In spite of this fact many sound, constitutional lawyers deem the decision an unwarranted usurpation of Federal and equity powers and a precedent fraught with danger to the liberty of the citizen and to republican institutions. One point taken is that equity usurped the jurisdiction of the criminal law, and so denied to the alleged offender the right of trial by a jury of his peers which all Constitutions since Magna Charta have guaranteed.^ And the platform of one of our great parties — the Democratic party — in the Presidential election of 1896 contained the following distinct planks repudiating the action so taken by the Federal Executive and Judiciary : " We denounce arbitrary interference by Federal authori- ties in local affairs as a violation of the Constitution of the United States, and a crime against free institutions ; and we especially object to government by injunction as a new and dangerous oppression by which Federal judges, in contempt of the laws of the States and rights of citizens, become at once legislators, judges and executioners." A WILL CASE Even where mere property rights are involved the con- flict between the equity of the individual case, and the safeguard of formalism necessary to cover all cases, may produce strange, and interesting, and important results. Witness the following case. A man having made his will giving all of his property to his friend B. afterwards 347, 1 In re Debs, 158 U. S. 564. 2 See able article above cited in 13 Law Quar. Review (October, 1897), A WILL CASE 9 changed Ms mind ; and, intending to destroy the will, threw it into the fire. The legatee, being present, rescued it from the fire ; she afterwards told the testator that she had burned the will. The man died without making a new will. The legatee thereupon produced the will, and claimed the property under it. The heirs objected that the will had been revoked. The statute governing the case prescribed as a rule of law, that if a testator desired to revoke his will he must do it in one of two ways. He must make a new will revoking the old, and make this new will before witnesses with the formalities the statute required ; or, he must actually destroy the old will. The rule of the statute is founded on the public policy of pre- cluding the upsetting of valid wills by perjured oral testi- mony. The judges held, that in spite of the fraud of the legatee whereby the testator's wishes were frustrated, the will stood, and the legatee was entitled to the property. The equity of the special case had to yield to the public policy covering the multitude of cases. One judge said : " It is argued that if the testator throws his will on the fire, with intention to destroy it, and some one, without his knowledge, takes it away, it is a fraud which ought not to defeat his act. But so it might be said that, if the testator sent a person to throw it on the fire, and he did not, the revocation was still good. Where could such constructions end? The effect of them would be to defeat the object of the statute, which was to prevent the proof of a cancellation from depending upon parol ^ evidence." ^ WITH SLIGHT PREPARATION A LAYMAN MAY GRASP THE CODE QUESTION And so we may observe that this dry subject is not so dry as it is represented to be; — that under its unprom- 1 Parol — oral evidence, or the testimony of witnesses as distinguished from a signed writing. ' Doe, ex dem Meed vs. Harris, 6 Adolphus & Ellis, 209 ; S. P. Cling- ham TS. Mitchelltree, 31 Fa. St. 25. 10 THE LAW AND THE LAYMAN ising exterior lie practical, living questions, fit for all of us to discuss and understand, and worthy of our careful attention and study. As is shown by example in suc- ceeding chapters, a little explanation of its leading terms, some insight into its history, sources and practical work- ings, and a few concrete examples of its modes of expres- sion, are all that is absolutely necessary to enable an average layman to understand, and perhaps be inter- ested in, the most important and profound and practical question now agitating the professional mind — shall the law of England ^ be codified ? And here, at the outset, we are met by one of those difficulties that must beset a writer introducing a techni- cal subject to untechnical minds. We say : " Shall the law of England be codified?" The reader answers: " What do you mean by ' codified ' ? What is a Code ? " To fully explain the meaning of the word to the lay mind requires an explanation of what law is, and in what forms of expression it exists, — requires, in fact, several chapters of this essay. And if we pursue the other course of giving the usual definition of a code, we will have defined an unknown thing in terms themselves requiring definition. And so the writer must either stop here to explain in learned terminology what a code is, — in which case each of the terms he uses would probably need a footnote for its full understanding, — or he must give a totally inadequate definition, begging the reader to accept it for the present, and fill out the concept as he reads further on in the subject. SHORT DEFINITION" OF A CODE In short phrase, then, a code is a statute of a certain kind. It means a statute which covers the whole law, or the whole of some branch or province of the law. A 1 We say the "law of England," thereby meaning the common law of England and that of each of the States of the American Union derived from it. TWO WAYS IN WHICH THE LAW CAN BE DECLAEED 11 statute is a law enacted, i.e. passed by a legislative body, Parliament, Congress, or a State legislature, as distin- guished from law declared by a Court in deciding a case, or case law. THE TWO WATS IN WHICH THE LAW CAN BE DECLARED In the nature of things, a rule of law can only be declared in one of two ways. Either some one must write it down in general phrase as a general rule to cover future cases, in which instance it is Statutory, or Legisla- tive law; or, assuming that no such actual prior pre- scription of the law has been made, some dispute between members of the society must needs be settled by the tri- bunal to which the litigants appeal. In deciding the case in hand, the judge declares the reason of his decision, basing it upon some alleged principle which he says applies. Thus a rule of law is declared as existing in that case and others like it, in which instance it is Case Law, or Judge-made Law. In order that the reader may clearly apprehend the difference in form and sub- stance between the two modes of enactment, we set out an instance in full. It is a rule of the Common Law that the finder of an article, if he takes possession of it, is the owner of the property against all the world except the true owner, and with the rights and duties of a gratuitous bailee. A bailee is one who holds property for another, in this instance for the real owner ; and a gratuitous bailee, as distinguished from a bailee for hire, is one who so holds property without the right to any reward for his keep- ing it. THE CODE WAT — §938 OF THE FIELD CIVIL CODE The general principle as to the rights of the finder is expressed in statutory form by Mr. Field in his pro- posed New York Civil Code as follows : " 938. One who 12 THE LAW AND THE LAYMAN finds a thing lost is not bound to take charge of it, but if he does so, he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire." (N. Y. Civil Code. Commissioners' Report, 1865, p. 291.) A depositary for hire is held to greater care than a gratuitous bailee, and in this respect this code section changes the former law. THE CASE WAY — ARMORY vs. DELAMIRIE The rule of the Common Law as to the rights of a finder, in property found, was practically fiirst established and declared about a hundred years ago (1795) under the following circumstances. A case arose in the Courts wherein Armory sued Delamirie for the value of a jewel. It is reported in the Book of Reports known as 1 Strange, 504. This means that a Mr. Strange reported cases arising in the Courts, and published a volume of such cases, which the Courts afterwards referred to as prece- dents to be followed. The facts are set out in the report, and were substantially these. Armory, a boy chimney sweep, found a valuable jewel. He took it to Delamirie, a jeweller, to ascertain its value. The jeweller told him it was of no special value, and offered him three half-pence for it. The boy declined the offer, and demanded back his jewel. The jeweller refused to give it up. The boy then sued for the value of the jewel. The jeweller defended, probably on the ground that the boy was not the owner ; and he, the jeweller, in the absence of the owner, was as much entitled to the stone as any one. The Court, in passing upon this dispute, decided in favor of the finder on the ground " That the finder of a jewel though he does not by such finding acquire an absolute property or ownership, yet he has such property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover" (i.e. maintain an action for its value against one who took it from him). Armory vs. Delamirie, 1 Stra. THE DIFPEEENCES BETWEEN THE TWO WAYS 13 505. Mr. Shirley, in his Leading Cases Simplified, states the ruling in this case as follows : " You have fairly found this jewel, and nobody except the real owner has a better title to it than yourself ; till he shall appear, you may keep it against all the world, and maintain trover for it." Armory vs. Delamirie, 1 Stra. 604 ; 1 Sm. Ld. Cas. 471 ; Shirley Lead. Cas. in the Case Law, 329. THE DIFFERENCES BETWEEN THE TWO WAYS These examples indicate the difference in origin, author- ship and expression between Statute and Case Law. Thus in the statute above given, the rule of law, that the finder is entitled to the thing found against all the world, is em- bodied in the statutory declaration that : " One who finds a thing lost . . . isadepositaryfor the owner," i.e. can hold it as such a depositary does against all the world except the owner. In the case of Armory vs. Delamirie, on the contrary, this rule was not prescribed by anybody in the first instance. The rule is inferred from the decision made by a Court of the special case before it, and from the reason given for the decision. Thus a dispute arising between the chimney sweep who found the jewel, and the jeweller to whom he delivered it in order to ascertain its value, as to which of the two was entitled to this " treasure-trove," the Court had to decide it. In deciding the issue the Court gave a reason; and, in giving the reason, declared : that on principles of natural justice, in the absence of the owner, the one who found and took possession was entitled as against everybody except the true owner. Note here a distinction between the form in which enacted or Statutory Law is written, and the form in which Case or Judge-made Law is written ; for it is one which will be insisted upon at length hereafter. The distinction is this. A rule of law declared by a statute is expressed in the words of the writing in which it is embodied ; it is, as it were, express written law. A rule 14 THE LAW AND THE LAYMAN of law declared by a case is not formally embodied in tbe words of the opinion given by the Court, the writing in which it is partially contained, but is also modified by the facts of the special case stated and the inferences and deductions that can be drawn between them and the rule ; it is, as it were, implied written law. The only absolutely fixed element about written law, as expressed in the form of a reported case, is that a certain decision was made on certain facts : i.e. judgment for plaintiff or defendant on the facts existing. The rule of law established by the decision, the reason lying back of the result, is not limited to a grammatical construction of the words used by the judges in giving their reasons for deciding as they do. On the contrary, the true ruling of the case is implied from the combination of the facts of the case, the decision on the facts, and the reasons given for such decision. Thus the rule of law established by this case of Armory vs. Delamirie might, by the use of different words and phrases in different order and combination, be expressed in many different forms. At least three forms of its expression are contained in the foregoing statement of the case. Yet, although changed in the form of words iu which it is expressed, it is still the " rule of Armory vs. Delamirie." Also, in deciding other cases in obedience to the rule established by this case as a guiding precedent, no inconvenience results because of this interchangeable- ness of different modes of expressing the rule. This is so because the facts of the special case are always there to be read in connection with any formal statement in written language of the ruling made, and so to check the possi- bilities of misconstruction arising from the necessary ambiguity of general statements. If, however, you were to change a single word in the code section above quoted, or were to write a different version of the rule in its place, changing the words or their order, most important changes would be effected in the rule, and in its meaning, when consulted as a guide to the solution of other cases that THE BOOKS IN WHICH LAW IS WKITTEN 15 miglit arise. But all this is more fully explained in sub- sequent chapters. (See Chapters V and VII.) THE BOOKS IN WHICH LAW IS WRITTEN The books that contain the law as declared by the leg- islature in statutes are called the Statutes.^ When a statute covers, or attempts to cover, the whole law, or a province of the law ; and expressly or impliedly assumes to furnish guidance throughout the entire subject, exclud- ing all reference by the Courts to any other source of law than the language of the statute, then a statute becomes a Code.2 This idea is implied in the continental conception of a Code. It is not, however, an essential part of the conception. Codes can and do exist in conjunction with a Case Law, construing and applying them. The result is, that this Case Law becomes more important than the Code itself.^ In most States whose laws are codified (France, Germany, etc.). Case Law does not exist except clandestinely, or by sufferance. In other words, the decisions made by Courts of special cases arising under the Code are not reported; or, if reported, they are not binding as precedents upon the judge in deciding like cases afterwards arising. But even in those systems of law where penalties have been fulminated against those who would create or follow precedents, the natural ten- dency of the human mind to rely upon and follow past experience has proven too strong to be wholly fettered by legislative fiat. The books that contain the law as declared in the cases are called the Reports. These books consist of written reports of certain disputes that have arisen between liti- gants regarding their rights ; and embody an account of who the parties were, and what they quarrelled about, and 1 See Exhibits A and B, Chap. V, for concrete examples of statutes. 2 See Exhibits M, N, and O, Chap. VI, for concrete examples of codes. ' See Chaps. VIII and IX for a full discussion of this. 16 THE LAW AND THE LAYMAN how the judges decided the quarrel, and the grounds the judges gave for deciding as they did. In theory, and generally in practice, the statute law is supreme. When a case arises which the Court must decide, the source at which the Court seeks the law is, first, the statute book. If nothing is found covering the case, the Court then seeks the rule in these reported cases, and in the princi- ples involved in, and established by, them. The law of England, then, consists of these two kinds of law. Statutes and Cases. The law of the different States of the European Continent consists of Codes. It is, in theory at least, all composed of Statutory Law. A ques- tion of transcendent importance to the English-speaking people of to-day is, whether they, likewise, shall reduce all of their law to Statutory form. THE TWO GEEAT SYSTEMS OF LAW 17 CHAPTER II THE FORMS OP LAW PAGE The Two Great Systems of Law 17 Their Origin in a Common Form 18 The Source of Law an Oral Tradition 20 Its Development into Two Types 21 The Distinction is between Code and Case Law — not Code AND Common Law 22 The Interaction between the Form and the Substance of Law 22 This Proposition disputed by the Codifiers .... 23 The Argument for the Proposition 23 The Selection of Case or Statute Law a Question of Mixed Form and Substance . . 25 The Conflict is between Code and Case Law ... 26 The Cry op the Codifiers 26 The Answer of the Practitioners 28 The Importance and Practical Nature op the Question . 31 In the last chapter we ascertained that there could be but two forms of law: either a rule laid down in express language to cover future cases, — Statutory or Code Law; or, a rule asserted or implied in the decision of a tribunal deciding a special case and so applicable to the decision of other like disputes, — Case or Judge-made Law. The history of legal systems bears out the statement. THE TWO GREAT SYSTEMS OF LAW Two great systems of law exist to-day in our Western civilizations. On the one hand the Code system. On the other hand the Common law. On the one hand the Code systems of Germany, France, Austria, Switzerland, Italy and Spain derived from the Roman law; on the other hand the Case law system of England, America, South Africa^ and Australia derived from the Common law of England. 1 Except as modified by the Roman Dutch Law prevailing at Cape Colony. See 19 Law Magazine and Review, 94. c 18 THE POKMS OF LAW " The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code," ^ says Sir Henry Maine. He refers to the Roman law, its beginning in the Twelve Tables, and its ending in the Codes of Jus- tinian. Out of this prototype have been built up the systems of law prevalent in Continental Europe. How- ever striking the epigram, Maine himself calls attention to its incompleteness. He proves that Case Law, the decisions by judge or king of special cases, constitutes a beginning of law earlier than any Code of Greece or Rome. The celebrated system of jurisprudence known to the world as the Common law of England emerges from an unknown antiquity as a whole composed of two distinct parts, the Case and the Statute law; and so, through many centuries down to our own times, continues the same. Sir Matthew Hale spoke of attempts to fathom the dark origin of the English Common law, the unwritten laws of the Britons, Romans, Picts, Saxons, Danes and Normans as "an unsearchable inquiry." ^ Yet recent investigations have done much to shed light into this dark corner of our legal history.^ So far as we have gone we have still found Case and Statute Law. On the other hand, as Maine has shown, the Roman and Grecian Law can be traced back to an era before the Codes when the decisions — the Cases — the Themistes, were the only law known.* THEIR ORIGIN IN A COMMON FORM Is it possible, then, that these two systems were differen- tiated from the first ? The trained lawyers have given us the result of their researches. It remains for the Man of Science to answer the question by a broader generalization. 1 Maine's Ancient Law, Chap. I, p. 1. 2 Hale's History of the Common Law, 60. 8 Pollock and Maitland's History of English Law before Edw. L * Maine's Ancient Law, Chap. I, p. 5. THEIE ORIGIN IN A COMMON FORM 19 On first principles it might be argued that if the Roman law, which has developed into a Code or complete body of Statute law, began as a series of particular decisions ; then it is more than likely that the English Common Law, which still remains a discrete whole made up in part of statutes, and in part of particular decisions, should have begun as a series of particular decisions. Curiously enough, the common lawyers of one and two hundred years ago held the view that the original fountain head of all the law was the legislature, and that so much of the common law as they could not find in the Rolls of Parliament were but ancient statutes worn down by time.^ Thus Lord Chief Justice Wilmot in Collin vs. Blantern, WiLS. Part 2, pp. 348, 351, said, " The common law and the statute law flow originally from the same fountain, the legislature, the statute law being the will of the legislature, remaining on record in writing ; the common law, nothing else but statutes anciently written, but which have been worn out by time. All our law began by consent of the legislature and whether it be now law by custom, by usage or by writing it is the same thing." This was written in 1767. The last sentence breathes the spirit of the exploded "Social Contract" theory of Society. While historical research fails to lift the veil of an- tiquity, a comparative study of like civilizations leads to true conclusions. There was a time when legislatures did not exist, and hence there could not have been Codes or Statutes. To arrive at just conclusions as to how laws arose in the societies formed by our immediate ancestors, we may best study savage societies of this date now pass- ing through like stages of civilization. From these we learn that first and last " law is mainly an embodiment of ancestral injunctions."^ And that "while in the course of civilization written law tends to replace traditional 1 Hale's History of the Common Law, Chap. IV. See also p. 3, note E. 2 Spencer's Principles of Sociology — Political Institutions, § 535^ p. 635. 20 THE POEMS OF LAW usage the replacement never becomes complete."^ And the beginnings of law in special judgments on special cases is clearly traced in barbaric customs of existing tribes, and in ancient history .^ The decisions of special cases antedate the institution of the courts or regular tribunals themselves.^ In the law of England we can trace the development of the King's Courts, and with them the Court of Chancery, out of the King's Prerogative ; and we can see how the judi- cial power, at first merged in tho political power which decided all special cases, gradually differentiated from it with the evolution of the Society.^ And so both the Roman and the English systems may be safely said to have arisen from the same sources, — the judgment of the particular case, and the custom. Here we use the word "custom" in the sense of rule of law, as when we say, — The common law of England is based on the "customs of the realm. "^ And whether, as Sir Henry Maine insists, the cases, the themistes or judgments, pre- ceded the custom and were evidence of it ; or the custom preceded the themistes, and enforced a decision in accord with it, is unimportant. Thus Markby says : " The idea of law cannot arise until after a number of special decisions."* The probability is that in the beginning, as now, the two grew together, reacting upon each other, the judg- ment on the one hand evidencing the custom, and the custom compelling the judgment to be made according to some fixed rule. THE SOURCE OF LAW AN ORAL TRADITION The point to be noted is that this rule was an oral, an unwritten tradition.^ The truth of this is manifest when 1 Spencer's Principles of Sociology — Political Institutions, § 529, p. 514. * Spencer's Political Institutions, Ciiaps. XIII and XIV. ' See Spencer's Political Institutions, Cliap. XIV. * Markby's Elements of Law (4th ed.), Sec. 95. 6 Spencer's Political Institutions, Sec. 467, p. 529. ITS DEVELOPMENT INTO TWO TYPES 21 ■we reflect that writing is a modern invention ; and that existing savages, ignorant of the art, are ruled by ances- tral customs ; and that among these, special judgments are rendered through the medium of Chief, Medicine Man or Tribal assembly. As Sir John Lubbock remarks : "No savage is free. All over the world his daily life is regu- lated by a complicated and apparently most inconvenient set of customs (as forcible as laws) of quaint prohibitions and privileges." ^ Not all customs as the word is used in the above citation have developed into laws. We may say roughly that customs involving the relations of the society to the individual, and of the individuals as between themselves, so far as concerns questions of life, liberty and property, are the domain of law. ITS DEVELOPMENT INTO TWO TYPES And, in the course of development of the two types of Anglo-Saxon and Roman Civilization, these legal customs or rules have received different forms of expression. On the one hand, in the Roman Civilization, they have been reduced to writing in the form of a Code. On the other hand, in the English Civilization, they have been reduced to writing in two forms — a comparatively small portion in the form of Statutes, the remaining portion in the form of Reports of Cases. For samples of Reports and for a further explanation of their nature, see Exhibits C and D, and the notes to those exhibits in Chapter VI. In short phrase the Reports are histories of the special disputes, the cases which have been decided by the Courts. These histories include in their statement the detail facts of each case, the issues presented, the decision made in the case and the reasons given by the Court for such decision. The grand distinction, then, between the Roman law and the Common law lies in the fact that, while the rules 1 Lubbock's Origin of Civilization, 303. 22 THE FOEMS OF LAW of both are in writing, the form in which they are written is different. Sir Henry Maine implies that a rule of Case Law is no different from a rule of Statute Law. Referring to the abstracting of a rule of English Law from written prec- edents,^ he says : " But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case law, and only different from Code law because it is written in a different way."^ In the course of this essay we hope to prove the fundamental misconception implied in this statement that there are no characteristic differences between rules of law as ex- pressed in Cases and as expressed in Statutes. THE DISTINCTION IS BETWEEN CODE AND CASE LAW — NOT CODE AND COMMON LAW Since a portion of the Common Law is expressed in Statutory form, there is no distinction between that portion and Code Law. The distinction between the forms of writing only exists between that portion of the Common Law now known as the Case Law, and that portion of a Code which would deal with the same subject-matter. The distinction then is this. The Code system expresses aU rules of law in Statutory form. The Common Law system expresses some rules in the form of Statutes, and some in the form of Reported Cases. The first inquiry therefore is : whether this difference in form is in any way implicated with difference of subject-matter. THE INTERACTION BETWEEN THE FORM AND THE SUBSTANCE OF LAW As will be more fully shown in succeeding chapters, difference in the subject-matter involved is the scientific 1 A precedent is a former case reported In the books of the reports. It thus becomes a guide for use in future like cases as to the existence of the rule of law stated to apply, and as an instance of the application made °* i'- " Maine's Ancient Law, p. 13. THE AEGtTMBNT FOE THE PEOPOSITION 23 basis of the distinct uses made by the Common Law of these two forms of writing. The Code system, in attempt- ing to obscure this difference by the adoption of one cast- iron mode of statement for all subjects, is scientifically unsound. THIS PROPOSITION DISPUTED BY THE CODIFIERS Many jurists, however, claim that the question between Code and Common Law is merely a question of form.^ It is said that whether a rule of law is in substance to one effect or another, is of no consequence, so far as concerns the question of whether it shall be expressed in the form of a statute, or in the form of a code.^- The advocates of a code system have treated this proposition as a seK-evi- dent truth. Yet the error involved in the statement can be proved with little difficulty. THE ARGUMENT FOR THE PROPOSITION The statement may be examined from two points of view, — as applying to law when once enacted or written down and thereafter referred to as a guide for subsequent cases arising, or as applying to law before it is made. Let us look at the statement from the first point of view. While a rule of law expressed in a Statute or an opinion* may, because they are both in writing, appear to embody the same substance, this appearance evaporates when we consult these dissimilar classes of writings to obtain light from them for the solution of subsequent problems. As is shown in detail hereafter, the substance of the rule ex- pressed in formal language and contained in a Statute, whose meaning is arrived at by the rules of grammatical construction, is quite a different substance from the same rule expressed in the same identical language but contained 1 Holland Forms of Law, 26 ; Enoyclopssdia Britannica, 6th vol., p. 104 (9tli ed.> '^ Austin's Province of Jurisprudence, § 950. 8 The writing in which the court states its reasons for deciding a case as it does. 24 THE rOKMS OF LAW in an opinion, whose meaning is arrived at by a scientific interpretation. This latter kind of interpretation checks the construction of the language used by reference to the facts of the special case, the environment out of which it arose and by which it is modified. The fact is we apply, to these two forms of writing, different rules of construction to ascertain what is the substance of the rules of law therein expressed. And a rule of law, which when implicated with the facts of the special cases from which it is created by induction means one thing, is quite another thing when expressed in formal language, apart from these instances of its application. As to this, however, we must beg the indulgent credence of the lay reader. We can only state our view here in the form of a generalization intelligible to the lawyer. The proof in detail of this statement will be presented in subsequent chapters.^ Looking at this assertion of the identity in substance between these two forms of law from the point of view of applying it to law before law is made, we may remark the following. A rule of law must originate by an effort of the human mind. It is the product of such intelligence as the judge or legislator may have. The judge or legis- lator enacting it attempts to arrive at justice. When he promulgates a rule of law by means of a Statute, he pro- vides, in general terms, for future cases which may or may not be fully vnthin his ken, or within his powers of verbal expression. When he decides an individual case, and, in such decision, asserts the application of a rule of law, thereby implying the existence of such a rule, his mind is occupied mainly with the correct decision of the case before him. He searches out a true principle which will decide that case correctly. Where the decision of the case involves no particular equity, it is a matter of indif- ference how the decision may be made. Under such con- ditions a conventional rule, established to cover the case » Chaps. V, VI and VII. A QUESTION OP MIXED FOEM AND SUBSTANCE 25 violates no principle ; and is consonant with convenience. Where, however, questions of equity or inequity arise, dependent upon different combinations of fact, it is not always easy to lay down beforehand a rule which will produce a correct decision of all the possible cases that may arise. In other words, where questions of equity are involved, it is much easier to decide a given case cor- rectly by enunciating and applying a true general prin- ciple than it is to express a general principle so that it will include and embrace, and correctly decide, not only the case in hand, but other complicated cases not arisen, or in mind. It follows that in cases whose subject-matter involves considerations of equity, a system of decisions of special cases will produce more justice than a system of general rules expressed so as to govern all cases. The Case Law decides one case, the Statute Law attempts to solve many. In short, it is easier to decide one case cor- rectly and give a true reason therefor, than it is to decide all cases that may possibly arise correctly, and by one form of words express the general rule, and its exceptions. THE SELECTION OF CASE OR STATUTE LAW A QUES- TION OF MIXED FORM AND SUBSTANCE Thus, although whether a rule of law shall be expressed in the form of a statute, or in the form of a reported case, appears to be a question of form; yet thff limitations of our intellectual faculties and of our powers of expres- sion make it a question of mixed form and substance. It follows that if it is more important that the law should be just than that it should be expressed with logical order and consistency, the method of expression which produces the greatest average of just results is best fitted as the form in which it should be expressed. If rules of law evolved through the gradual inductions established from reported decisions of individual cases are, on account of their easy flexibility and power of accommodating themselves to the circumstances and 26 THE FOEMS OF LAW equities of eacli individual case, rules which result in a greater number of ethically right decisions than would be possible under a system wherein all combinations of fact are decided by a rigid rule expressed in formal lan- guage, then the case system approaches nearer than the Code system to that absolute excellence which a legal system should possess. We may conclude, therefore, that the form in which the law is expressed reacts upon the merit of the substance of the law. And we may no longer say that the question of the form in which the law shall be expressed is a question entirely apart from the substance that is expressed in it. But this antici- pates the question to be discussed. THE CONFLICT IS BETWEEN CODE AND CASE LAW The truth with which we are here concerned is this. The question of Code versus Common Law is, then, not a question whether all law shall be expressed in statutory form or in case form, but whether portions of it embrac- ing certain subject-matter shall be expressed in the form of a Statute, or in the form of a Reported Case. To restate the question it is more correct to say that the conflict is not between Code and Common Law, but be- tween Code and Case Law. THE CRY OF THE CODIFIERS And the time has now arrived when many jurists, viewing the English Law, the voluminous character of the reports of cases, the divergences between authorities, the difficulty of extracting a rule from the precedents and the immense mass of heterogeneous material, have sought for a way out of the wilderness, and for that purpose have advocated codification. Beginning with Bentham, they have longed for an orderly restatement of this mass of conflicting material. Thus Bentham ad- vised the new Colonies and States of America to " shut their ports against the common law as they would THE CEY OF THE CODIPIEES 27 against the plague." ^ Austin says : " Such are the evils of judicial legislation that the expediency of a Code or a complete or exclusive body of Statute law admits of no doubt ; provided that the chaos of judiciary law and of the Statute law stuck patchwise on the judiciary could be superseded by a good Code." ^ Professor Amos, admitting the arguments against codification to be unan- swerable, yet deems the " general gain is likely to outweigh the loss."^ Sir Frederick Pollock, in an essay on some defects of our Commercial Law, says : " The remedy lies straight before us, and has already been applied with success by the majority of civilized nations. It is the statement of the law by the Supreme Authority of the Legislature, and in an orderly and lucid form ; in one word, codification."* Ex- Judge John F. Dillon believes in a partial codification rather than in the detailed code of Bentham's idea.^ He says, " There comes a time when the law becomes so voluminous and vast" that a sys- tematic compilation and restatement is necessary.^ This is unquestionably true of Statute Law. It is not true of Case Law when Case Law is confined, as it should be, to its proper province. A gradual growth and ad- vance slowly modifies former doctrines along fixed lines of development, so that reason becomes as certain a guide to prediction as the nature of the problems admits. Even away back in the time of Bacon complaints were made of the inconsistencies and bulk of the Common Law, and he was probably the first to make proposals to simplify the law by digesting or otherwise.^ Mr. Clark, while admitting the advantages of Case Law,^ deems codifica- 1 Bentham's "Works, Edinbargli, 1843, Vol. Ill, p. 304. * Austin's Province of Jurisprudence, § 968. ' Amos' Science of Jurisprudence, 478. An English Code. * Pollock's Essays in Jurisprudence, p. 90. 5 Dillon's Lectures on Jurisprudence, p. 181. 6 Ibid., pp. 269, 347. ' Ibid., p. 273. 8 Clark's Practical Jurisprudence, p. 263. 28 THE FORMS OP LAW tion the only remedy.^ Ex-Judge Dillon draws atten- tion to the immense bulk of the Case Law, and cites the fact that down to 1881 the English reports numbered 2944 volumes, and down to December 31, 1885, the American reports numbered 3796 volumes, the bulk of these latter being reports of the last fifty years.^ These statistics, in support of the charge against the Case Law system of unwieldy mass, become less conclusive if we sift the evidence. This matter is further discussed in Chapter VIII. (See pp. 300-302.) And from far and wide, from professors, jurists and students, and from some practising lawyers, comes the demand that all this mass of undigested learning should be reduced in bulk, its incongruities and contradictions eliminated and its conclusions restated in an orderly and scientific form; in other words, the demand for codifica- tion. THE ANSWER OF THE PRACTITIONERS On the other hand, jurists and practising lawyers have again and again asserted that the English Case Law is "the perfection of human reason." Kent, speaking to those bold projectors who think of striking off a perfect code of law at a single effort, suggests to their considera- tion " the just language of Sir Matthew Hale," that " the Common Law of England 'is not the product of the wis- dom of some one man or society of men in any one age ; but of the wisdom, counsel, experience and observation of many wise and observing men.' "^ Benjamin R. Curtis, in a report made to the legislature of Massachusetts in 1851, said: "From the days when Mr. Locke created a constitution down to the production of the last Code which came out of the closet of the last professor, we believe one important lesson has been taught : that all law ^ Clark's Practical Jurisprudence, p. 380. 2 Dillon's Lectures on Jurisprudence, p. 380. ' 1 Kent's Commentaries (12th Am. ed.), 536 (1st ed. p. 471). THE ANSWEE OP THE PRACTITIONERS 29 should be derived, not created ; deduced by experience and careful observation from the existing usages, habits and wants of men, and not spun out of the brains even of the most learned." And in a later opinion he said : " The progress made by the Courts of Common Law, particularly in this country, in adapting its rules to the actual affairs of men, affords, in my opinion, the shortest argument in favor of our unwritten system of law ; and this progress has been made, not under a claim of right to alter the law, but by treating ancient rules, established under different circumstances, with the strictness which is appropriate to them, and by admitting exceptions which changes in the affairs of men have both assumed to exist and have rendered necessary." ^ United States Attorney General Legare, in his paper on Codification, thus states his final objection: 2 "Our objection depends upon the difference between written and unwritten law, and the danger aris- ing out of the essential character of the former. The difference, as we have endeavored to show, is between what depends upon general reasoning and what depends upon verbal criticism, A rule is laid down in a digest; if it be inaccurately enunciated you go to the ease which has settled it. Your remedy is in the report ; you detect the error and rectify it ; and the precision and uniformity of the law is maintained. But from the moment you enact all these rules, they are adopted and promulgated as positive law, and must be interpreted as such. You are to make a great bonfire of your libraries and take a new start. If there is the least change or obscurity in the language, verbal criticism begins, everything that has been settled is afloat once more, and the glorious uncer- tainty continues until as many more camel loads of reports take the place of the old ones. Even supposing a Code perfectly well done, we do not think the game worth the candle in the actual state of things; but if it be inartifi- 1 Quoted in Van Cott on Codification (pamphlet), p. 7. 2 Ibid. 30 THE POKMS OF LAW cially executed, the labors of six centuries are utterly thrown away." Mr. Justice Coleridge, in the report of the judges of England on the pending bill to codify the Criminal Law of England, says: ^ "I cannot conceive that language can ever be used with such precision as to meet all complications and varieties of circumstances. If you are very definite in your law, you will very often find something in the case which distinguishes it. If you are very general, you run a risk of including many things which clearly were not intended. Now, at present, every judge and lawyer is aware that when you come to apply law to facts you have, ordinarily and practically, more difficulty if the law be found written in a statute than if it be a portion of the Common Law. In the former case your rule is inflexible; it may be the best, in the case of a Code, which one set of able and learned men can collect from the past and devise for the present, but if there be an omission you cannot supply it ; if the words mean clearly one thing, you cannot call in supposed intention, or strong probability, or clear reasonableness to make them say another ; if, in such cases, the judges strain the law, which, I conceive, would be clearly wrong, and their de- cisions prevail, a new unwritten law is gradually grafted on your Code ; if they do not, and you are driven to enact supplemental statutes, the very principle of your Code is departed from, and gradually its supposed advantages lost." And in the same report Mr. Justice Talfourd says : ^ " To reduce the statute law into a narrow compass is an object entirely free from objection, and which, if accom- plished with care, can produce nothing but good; but to reduce unwritten law to statute is to discard one of the greatest blessings we have for ages enjoyed in rules capable of flexible adaptation. 1 Quoted in Mr. James C. Carter's Proposed Codification of our Com- mon Law (pamphlet), p. 77. 2 Ibid., p. 77. See British Parliamentary Papers, 1854, Vol. LIII, 303. THE IMPORTANCE OP THE QUESTION 31 " I do not think any greater certainty can be obtained by a Code of the unwritten law to compensate for the loss ; but that, on the contrary, new questions of the construc- tion of the words of the same statutes wiU arise, unfore- seen difficulties in construction would be suggested, and new decisions, more unsatisfactory than those which ex- pound and apply principles, would become necessary. " How little the utmost learning and care which can be bestowed in framing a statute may avail to prevent a num- ber of questions from arising in its language, may be gath- ered from the example of the Statute of Frauds, which, framed by one of the greatest lawyers who ever lived, has been the subject of almost numberless decisions." And among others W. M. Best,i of the English bar, and Mr. James C. Carter,^ of the American bar, have expressed in forcible argument the inexpediency and unwisdom of codifying the case law.^ THE IMPORTANCE AND PRACTICAL NATURE OF THE QUESTION A disagreement so complete and so fundamental between the experts in the art renders necessary a careful recon- sideration of the entire subject. Although since the death of its indefatigable advocate, David Dudley Field, the Code question now lies dormant in America, it is a ques- tion which, from its very nature, will not down, and must be squarely met on its merits. It is to-day a practical question in England.* It may become such at any moment 1 See able article, "Codification." 1 Juridical Society Papers, 209. '^ See his able papers, The pi-oposed Codification of our Common Law, and The Province of the Unwritten and the Written Law. These are unfortunately in pamphlet form only. The first was printed by the New York Bar Association, and is out of print ; the second by Banks Brothers, New York, 1889. The merit of his contributions to the subject demands their preservation in permanent form. ' See also Mr. Bishop in his introduction to his book on Marriage and Divorce (2d ed.). * The proposed Imperial Code of Commercial Law. 8 Juridical Ee- Tiew, 329, 396. 32 THE FORMS OF LAW in the State of New York, and in the other States of the American Union. Four States have already codified their written and unwritten law; viz. Georgia, California and North and South Dakota. ^ The question is, therefore, not only of academic interest, but also of great practical moment. Its importance is in- creased by the fact that the step of substituting code law for case law is one which once taken cannot be easily retraced. All future development of the law must be on the lines of statutory amendment, and not on the lines of the gradual development of precedent. The Rubicon once passed, there can be no retreat. We must go forward in the path we have chosen. It therefore becomes of the greatest importance that we should consider well before we leap. This is especially true when the advocates of codification are unable to point to any greater merits which the systems of law of Continental Europe have, through the possession of a code system, over our Common Law system of mixed case and statute law. Even Austin, the great exponent of codification, deprecates any argu- ment for or against the codification of the English law drawn from the success or failure of the French or German Code.^ Amos likewise deprecates any argument for the same purpose drawn from the success or failure of the Indian Codes. ^ The question of Code versus Common Law, or rather Code versus Case Law, must therefore be fought out on principle. It is the object of this essay to search for and apply the fundamental principles involved in this question. 1 27 Am. Law Rev. 552. 2 Austin, Province of Jurisprudence, § 854. ' Amos, An English Code, pp. 36 et seq. THE CONFLICT IN NEW YOKK 33 CHAPTER III THE CODE QUESTION The Conflict in New York 83 The Broad Question — To Codify ob not to Codify . . 34 The Limitations of the Question 35 The Tkue Debatable Ground 36 The Argument that Codification enables the Common Man TO Know the Law 36 The Answer to this Argument 37 The Comparative Intelligibility op the Code and Case Sys- tems 39 The Necessity op Meeting the Question before the Popu- lar Forum 42 Not Difficult for the Man op Education to Master the Problem and Draw his own Conclusions .... 43 THE CONFLICT IN NEW YORK For many years a discussion went on between two fac- tions of New York lawyers. The point at issue concerned the proposed adoption by that State of a codification of its Common Law known as the Field Civil Code. Year after year, the venerable author of that Code presented it to the Legislature for passage. Year after year, with equal untiring energy, the champions of the Common Law system met him in public and private debate. The result has been that the Field Civil Code remains neither a text-book nor a Statute. Meanwhile that great body of New York's citizens known in technical parlance as " The Laity," pursued the even tenor of their way, oblivious of, and apparently unin- terested in, the contest. Yet, in the field of jurisprudence, the adoption of the code in place of the Common Law system, would prove a departure no less momentous in its consequences, than, in the field of politics, the adoption of the Constitution of the United States in place of the 34 THE CODE QUESTION Articles of* Confederation has proved in shaping and deter- mining the future political life of the original thirteen States. Columns of the newspapers were devoted to the fisticuffs of Mitchell, Kilrain and Sullivan, when a few lines told the story of the last vote at Albany on the Code. The public, however, are not altogether to blame for this. This is an age when such prominent men as Canon Kings- ley and the historian Froude are found denying the exist- ence of a science of Sociology. It is not strange, therefore, that the average man should take little interest in the question, whether the laws which govern him should be written out in one way, rather than in another. Again, the effects produced by a change in the manner of pre- scribing laws for a community are, owing to the number of the facts to be observed, the intricacy of the interaction of the forces involved and the intermixture of the effects, worked out so silently and slowly, that it is long before the complexity of the process is unravelled, and the remote and unexpected results identified as effects flowing from the unsuspected cause. Much less, therefore, is it to be expected, that the results themselves should be foreseen by those who make no special study of the phenomena. And it is certainly not to be expected that such persons should realize that results, of far-reaching importance to them in their daily transactions and to the society in which they live, will flow from such an apparently simple thing as the expression in writing of the whole body of the civil law in one form rather than in another. THE BROAD QUESTION — TO CODIFY OR NOT TO CODIFY And yet this is the Code Question in a nutshell ; or to put it more fully : Shall the whole body of our Common law be written out now as a complete and finished science in the shape and form of a Code ? or, shall it remain writ- ten out in the Reports, so far as it has been decided, leaving future principles and exceptions to be established, in the future as in the past, as the cases presenting them arise, THE LIMITATIONS OP THE QUESTION 35 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