CODIFICATION 
 
 THE STATE OF NEW YORK, 
 
 ROBT. LUDLOW FOWLER. 
 
 SECOND EDITION, WITH ADDENDA. 
 
 NEW YOIIK : 
 
 MARTIN B. BROWN, PRINTER AND STATIONER, 
 Nos. 49 AND 51 PARK PLACE. 
 
 1884.
 
 UC.S.B LIBRARY 
 
 INTRODUCTION TO SECOND EDITION. 
 
 At the request of several friends of Mr. Field's Code I have 
 consented to a reprint of my answers to Mr. Carter's general 
 objections to codification. The opportunity has enabled me to 
 amend the text of the original in several particulars which further 
 reflection dictated, and to add important authorities. The alter- 
 ations are not extensive ; in the reprint, as in the original, no 
 more has been attempted than to present the answers usually 
 made to such objections to codification as those so forcibly 
 re-stated by Mr. Carter in " The Proposed Codification of the 
 Common Law.'' In the only two .instances where Mr. Carter 
 has seen fit to make specific objections to the "Civil Code," 
 reported by Mr. Field, there I have endeavored to outline the 
 argument on the other side of the question, but there my under- 
 taking ended ; more than this would have been unwarranted in a 
 publication which professed to be only an answer, not a treatise. 
 
 K. L. F. 
 
 XKW YORK, November 1,1884.
 
 PR^E-SCRIPT TO FORMER EDITIONr 
 
 In a letter of the date of January 29th last, Mr. Field requested me to 
 undertake the preparation of an answer to Mr. James C. Carter's paper against 
 codification, but the time allotted was much too brief for my opportunities. 
 Since then Mr. Field has published his " Short Response," which has rendered 
 any further answer unnecessary. Notwithstanding this, when Mr. Field learned 
 that I had made some progress in the direction indicated, he politely urged me 
 to complete and publish what I had begun. I have accordingly done so, 
 although fully realizing that he will be disappointed with the little I have been 
 able to add to the discussion concerning a greatly needed reform. 
 
 R. L. F. 
 
 NEW YORK, May 1, 1884.
 
 CODIFICATION 
 
 IN THE 
 
 STATE OF NEW YORK. 
 
 The Philosophic historians regard civilization as the product 
 of certain forces, chief among which is an unceasing struggle 
 after truth. For truth, men contend to an almost inconceivable 
 extent, and, in the main, conscientiously ; thus it is that they 
 become unwitting factors in an accumulating civilization. The 
 recognition of this fact will serve to disembarrass the controversy 
 concerning the Civil Code of New York from that atmosphere of 
 refined denigration of men and measures into which it has unfor- 
 tunately fallen : 
 
 91 'ifactlis cuiris rigidi censura cachinm." 
 
 In any fair discussion of a great public question it is neces- 
 sary to assume, in the absence of proof, that the disputants 
 upon either side are animated only by the most elevated mo- 
 tives, or else truth will, in the side issue, inevitably elude pur- 
 suit. In Xew York this first canon of parliamentary debate has 
 not always been borne in mind, and the result has not been favor- 
 able to the merits of the discussion concerning the Code a dis- 
 cussion which in reality relates to one of the greatest problems of 
 the time : Shall the form of the law be more simple ? 
 
 Codification is not rightly understood without some reference 
 to the larger subject. Jurisprudence. Jurisprudence, towering as 
 it does, over the cognate social sciences, political economy and 
 ethics, or deontology, has always attracted to itself a good share of
 
 8 
 
 the higher mental effort. The result of repeated investigations in 
 the direction of the elements of jurisprudence has been the dis- 
 covery of certain truths which are universally conceded, and in 
 the place of which no person familiar with the jural sciences now 
 feels at liberty to substitute conflicting hypotheses. So true is 
 this, that any speculation, however captivating, which disregards 
 the accumulated knowledge of the modern scientific jurists, 
 stands as little chance of taking a permanent place in the opin- 
 ions of men as would a treatise on the solar system.which ignores 
 the discoveries of a Kepler or a Laplace. Another result of the 
 labors of the scientific jurists has been -a highly developed termi- 
 nology with its verbal signs for complex ideas : without recourse 
 to this received terminology, the most accurate reasoner on juris- 
 prudence must become, at times, inexact, even if by a miracle 
 he escapes positive error.* It is unnecessary to say that accu- 
 racy upon a technical subject is to be preferred to eloquence : 
 
 " * * torreng dicendi copia midtis 
 Et sva mortifera est facundia." 
 
 With this apology for persistent reference to a dry and tech- 
 nical verbiage, let us glance for an instant at the authority of 
 the received terminology, for it is sometimes said that the 
 common law does not pretend to any scientific place in general 
 jurisprudence ; that it is content to be insular rather than cath- 
 olic, rugged rather than refined, and sensible rather than sci- 
 entific. But this is to forget that the common law is but a 
 single phase of jurisprudence. In its points of resemblance, the 
 common law T responds to the analysis of the elements of juris- 
 prudence ; in its points of difference only is it self-regulating. 
 For more than a hundred years these points of difference and 
 of resemblance have occupied the attention of the English 
 jurisprudents. The speculations of the English, however, 
 have stopped short of the transcendentalism of the Germans, 
 and to-day the , English school of jurisprudence is both prac- 
 tical and philosophic, and its teachings of vast importance 
 
 * As philosophers affirm " that each body of doctrines has its root in some ancestral body of 
 doctrines" (I Fiske's Cosmic Philos., 166) so, with equal truth lawyers may affirm that each 
 institute of their science has its historical antecedent. Without reference to this history of 
 the philosophy of law, any author, no matter how brilliant his attainment, will fall into sad 
 error while speculating on the genesis of law.
 
 9 
 
 to the reign of law in this country. It is to such men as 
 Hobbes, Beiitham, Austin, Maine, Holland, Pollock, Lindley, 
 Markby, Stephen, Digby and Harrison,* that all common lawyers 
 owe a debt of gratitude, for they have placed the common law 
 upon a more highly scientific plane; they have introduced it 
 again to philosophy, from which it has been long separated by 
 archaisms and local accidents ; they have fitted it out with defini- 
 tions and with a terminology which is equal to its most advanced 
 conceptions; they have studied the law of its growth and have 
 extracted the prime factors for general every-day use. It be- 
 hooves Americans, therefore, unless we desire to stand as the 
 Asiatics toward the attainment of modern legal science, to take 
 note of the labors of this school. In the direction of practical 
 codification, the labors in question are of the utmost importance, 
 for without them we should but imperfectly conceive the subject- 
 matter of codification. 
 
 The late eloquent argument by Mr. Carter and the liberty of 
 using Mr. Carter's name should be pardoned, for he is the spokes- 
 man of the opposition does not conform to the teachings of the 
 scientific jurists. According to this gentleman, codification is 
 concerned with "rules." He states at the outset, "Whoever 
 glances over the varying systems of laws exhibited by civilized 
 States will perceive that in some, as in England and with us, the 
 great body of the rules which determine the rights of men in 
 respect to their persons and their property, have never been 
 directly enacted in a statutory form." This statement, while true, 
 is inexact. The matter with which the jurisprudence of the com- 
 mon law is concerned is law, and law in position, not rules in 
 posse. A rule is a very distinct conception from a law, which is 
 a rule plus a sanction, or penalty imposed for its infraction by the 
 supreme political authority. The distinction pointed out may 
 seem hypercritical, but in point of fact it is fundamental, and 
 many of our most erroneous notions regarding codification are 
 directly attributable to its confusion. The faction who regard 
 mere rules, or the nebulous theories of text-writers, as the equiva- 
 lents of laws set or imposed in one of the authentic legislative 
 
 * I have included in this enumeration of n few names both the analytical and synthetical, or 
 historical, jurists, for they are closely allied. No science can exist by analysis alone, for 
 analysis is but preparatory to a synthesis of truths.
 
 10 
 
 modes, never can be brought to concede the feasibility of codifi- 
 cation. Their conceptions of the subject-matter of codes are too 
 far removed from the plane on which all codification must be 
 based. It is the merit of the dominant English school of juris- 
 prudence that they have caused the distinction noticed to become 
 so apparent that it is now rarely overlooked by modern law- 
 writers. The scientific English jurists thus well exhibit the prac- 
 tical bent of their nation, for recognizing that the limitations of 
 the jurists' law are with man in political societies, their concern 
 with the abstractions concerning law, ends when they cease to be 
 applicable to man in political societies. They define with super- 
 lative precision the difference between a rale and a law, and 
 in this respect their analysis has been of service to the cause of 
 codification. 
 
 At yet another point does Mr. Carter's opening statement 
 upon which, by the way^ the validity of his entire argument rests 
 conflict with the discoveries of those whose best energies have 
 been devoted to the analyses of the elements of jurisprudence. 
 He states, in substance, that the systems of la\v in England and 
 America " rest upon an original but ever-growing body of 
 custom," constantly expounded and amplified by a trained body 
 of experts. But is this statement true ? An unqualified affirma- 
 tive comes from no school of jurisprudence. The statement is 
 much too broad to receive the assent of the most radical supporter 
 of customary law. The adherents of the potency of customary 
 law may be regarded as of two classes: those who claim that 
 custom, independently of any action of the courts or legislature, 
 has the force of law, and those who assert that the imprimatur of 
 the courts must be added to the custom before it attains the force 
 of law, and then that it acts retrospectively. Opposed to these 
 several conceptions are those who deride the very idea of custom- 
 ary law. The adherents of the first class are mainly to be found 
 in Germany. Professor Holland is the best exponent of the 
 second class, as Austin is of the opposition. 
 
 'No authoritative juridical writer has gone to the extent of 
 asserting with Mr. Carter, that the great body of the private 
 law in England and in America now rests upon custom. This 
 would be far too exclusive a claim for custom. Xo doubt in cer-
 
 11 
 
 tain primitive stages of a nation's growth, as Sir H. Maine's 
 rich and varied experience has enabled him to detect, custom 
 may in itself have the force of law, but in the more 
 advanced stages of a nation, the importance of custom declines 
 until at last there comes a period when all law is written 
 law. It is either written case-law or written statute-law, 
 and when written in a particular way, written code-law. * 
 In this State the development is such that it may well be 
 doubted whether custom is even a source of law except in 
 the single case of the lex mercatoria where it is potent 
 only, because, by contract, it is magnified on the mercantile 
 exchanges into prominence. Even if Mr. Carter intended to 
 refer to custom as a source of law, his reference entirely 
 overlooks the fact that custom has never, in this State, been 
 in any way a fertile source of law. For example, the entire body 
 of law promulgated in the courts of equity has in no sense 
 a customary basis. Nor has that residuum of the common law of 
 this State, which is referable to the common law of England, an 
 existence here because of custom ; it is part of the organic law 
 by express constitutional provision. 
 
 Having thus roughly pointed out the distinction between 
 custom and law, and between custom as a source of law and as 
 law in itself, the nature of the laws which it is proposed to codify 
 in this State may be briefly summarized : The jurists law is the 
 law evolved either by the supreme legislature or by its ministe- 
 rial subordinates. The analytical jurists have demonstrated that 
 under any advanced type of government laws are made by the 
 legislature proper and by the various subordinate persons possess- 
 ing law-making powers. Among the latter persons are the judges 
 who sometimes act in the direct legislative mode, as when they 
 issue what is known as rules of court, and sometimes in the indi- 
 rect legislative mode, when they state certain principles, inde- 
 pendent of the facts sub judice. The scope of codification is 
 concerned only with laws evolved by the persons and in the modes 
 indicated, not with custom nor with any of the vague concep- 
 tions of those who regard codification of the private law as 
 practically unattainable. 
 
 * Maine's Ancient Law, p. 15.
 
 12 
 
 Passing from the consideration of the general to the particu- 
 lar, Mr. Carter's main objections to any codification of the private 
 law of New York may be divided into two classes : first, those 
 which are derived from his reading of history ; second, those 
 which he infers from a personal examination of the inherent and 
 the political phases of the common law. Among the first class 
 is the purely negative argument drawn from the failure of 
 England and the various United States to codify their respective 
 private laws, and the consequent presumption against the utility 
 of such codification. Among the second class are the arguments 
 which refer the temporal and the political prosperity of this country 
 and England to the present uncodified condition of the common 
 law. The friends of a better arrangement of the law than that 
 existent do not admit the validity of any of these arguments. 
 Inverting the order of their consideration, we may briefly exam- 
 ine the reasons why this .validity is disputed. 
 
 If the greatness of the material prosperity of England and this 
 country were in any degree attributable to non-codification of the 
 ius privatwm, some legitimate argument might be made from the 
 failure referred to. But there is no relation whatever between 
 the facts ; when a horse was made consul, Rome enjoyed a system 
 of private law uuequaled for wisdom and equity.* Political 
 results depend on the condition of the public law, not on the 
 condition of the private law. It is the nature of its laws and 
 not their codification which either promotes or retards the 
 material prosperity of a State. 
 
 Nor can the friends of law reform admit the validity of Mr. 
 Carter's second proposition that codification and absolutism, and 
 non-codification and freedom have any relation whatever. His 
 theory, that non-codification in free States is attributable to 
 the fact that in those States law is evolved from the cus- 
 toms of the people, whereas in monarchical States it is evolved 
 by the crown, is predicated of a misconception of the modes 
 in which laws are made in all States, and in disregard of all 
 that has been written 011 " sovereignty." As has been already 
 indicated, Germany is the State where the greatest possible 
 
 * Piiillimore's Disert, on Principles, etc., of juvisp. intd., 1.
 
 13 
 
 force is attributed by jurists to custom, and yet its govern 
 nient can hardly be regarded, according to American notions, 
 as popular. The fact is that the sovereign, be it the people 
 themselves, or be it the most flagrant absolutist, make laws in the 
 same legislative moulds. The legislative power may be distributed 
 differently, but under all types of government, that which pleases 
 the sovereign alone has the force of law. As Mr. Carter repeats : 
 " Quod principi placuit leyis kabet vigorem." But principi in 
 the technical sense means the political sovereign which may be 
 demos* If we substitute for principi the word populo, what 
 terror is there in the ennobled maxim ? In this State, where 
 the people make the laws, the people alone codify them, and they 
 are not likely to be frightened by shadows into remaining buried 
 under a mountain of laws, statute and non-statute a very Pelion 
 on Ossa because once under other circum stances and conditions 
 a people with a despot had a code. 
 
 If it were even true that codification and despotism and non- 
 codification and freedom, are so invariably associated as to 
 convey the idea of cause and effect, a free nation on the eve 
 of codification might well hesitate. But it is not true. Switzer- 
 land and France are republics, and well-ordered examples of 
 enlightened and prosperous States, and there codification flourishes. 
 It is unnecessary to call attention to the invalidity of arguments 
 which fail to be true, when applied to like facts. Another form 
 of this illegitimate argument would permit the allies of codifica- 
 tion to attribute to codification the present blessings of popular 
 government in France. But we know, as Mr. Webster almost 
 prophetically pointed out, in the year 1820, that the present type 
 of government in France is, in all probability, the result of the 
 abolition of primogeniture and of a liberal land tenure, t Mr. 
 Carter's appeal to the patriotic bias thus contains a covert and 
 unjust implication, that in popular States the condition of the law 
 is preferable to that in even the best type of monarchical States ; 
 yet in Sweden and in Belgium, for instance, private law is 
 
 * Inst Just., 1, 2, 6. " Sed et quod principi placuit, legis habet yigorem : cum lege regia, 
 quae de hnperio eius lata est, populus ei et in eum omne suum imperiiim et potestatem 
 concessit." 
 
 t See note p. 59, vol. 1, Bowen's edit., de Tocqueville's Democ. in America.
 
 14 
 
 administered with fully as much cheapness, dignity and justice as 
 it is here. 
 
 The opponents of codification would fain believe that codifi- 
 cation is an auxiliary, at least, of despotism, but even this is not 
 inherently true. It is the nature of the laws codified and not 
 codification which is the auxiliary. To amplify Mr. Carter's own 
 similitude, had Mahomet's Koran contained the peaceful tenets of 
 the Divine Nazarene, it could not have aided a dream of human 
 empire. Codification of the trans-Atlantic common law will not 
 debase it. It contains germs which no codification can destroy ; 
 excrescences which codification may remove with benefit to the 
 body politic. A code of the private division of the common 
 law will have no effect on the public law, and it is to the 
 public law that we look for our liberties and political rights- 
 Codification of the private law will not affect the constitutions of 
 government, the bicameral legislature, the veto, or the power over 
 the veto, the jury system, the judiciary-establishment working in 
 the inherited common-law mode, the habeas corpus, the bill of 
 rights, the inviolability of contracts, the right of compensation for 
 private property arbitrarily taken, or successions ab intestato, 
 including the abolition of primogeniture, and unless these things 
 are affected, by what authority is it intimated that liberties will be 
 endangered by a more compact form of the private, as contradis- 
 tinguished from the public, law ? Mr. Carter's argument upon 
 this point may not have been serious, it having been intimated, 
 by a clever reviewer, that in this particular the danger feared 
 from codification, had some reference to the votes of the bucolic 
 constituencies. Notwithstanding this intimation it has been 
 assumed that the danger in question is honestly apprehended by 
 Mr. Carter, and issue has been taken accordingly with some degree 
 of seriousness. 
 
 It is likewise urged against a codification of the private 
 division of the common law that it will have a tendency to 
 increase injustice by reason of an augmented judicial inclusion of 
 cases not within the purview of the codified law ; or else, that the 
 struggle of the judges to exempt from the operation of the Code 
 a case presenting distinctive features will be productive of an 
 increased uncertainty in legal administration. These alternative
 
 15 
 
 and inconsistent propositions are old phases of the argument 
 against the so-called rigidity of statute law. It will be observed 
 that they postulate a considerable inefficiency on the part of the 
 judiciary as well as in the qualities of statute law. If it is true 
 that in one or other of these propositions lies the whole philosophy 
 of codification, the question is a narrow one. Those who affirm 
 the superiority of an orderly arrangement of a jurisprudence deny 
 that a code increases the proportion of injustice in the given case, 
 if at all, to such an extent as to outweigh the benefits to be 
 derived from the added certainty and the compactness of expres- 
 sion found in a code. In stating this proposition it must not be 
 forgotten that it has no reference to criminal administration which 
 is embraced in the division, public law. In any system of private 
 law there can be no greater evil than uncertainty and in any 
 system of public law, no greater evil than injustice. The assump- 
 tion that the judges will increase the proportion of error by the 
 inclusion of exceptional cases within the common provisions of a 
 code is unwarranted. The administration of law is usually a 
 struggle to include the contested case within a certain law, 
 whether that law has emanated from the superior legislative body, 
 or from the inferior legislative body the judiciary. The 
 interpreting function of a court is always either restrictive or 
 extensive, and if it err in the performance of this function, the 
 proper checks still exist by means of appeals. Because of codi- 
 fication, the judicial operations do not change : with a fearless bar 
 and an intelligent judiciary, there will be in the future, as in the 
 past, the same effort to arrive at exact justice, the same effort to 
 distinguish the given case and possibly as great a proportion of 
 error, though it is thought not. Yet the question of codification 
 lies deeper than either of these arguments, being, whether the 
 sum of all the advantages to be derived from codification is not 
 greater than the sum of all the disadvantages in remaining with- 
 out a code i Mr. Carter nowhere alludes to the side of the 
 advantages which at a later stage will be outlined in this paper. 
 
 After brief allusion to those parts of the common law which 
 have been already codified, and the qualified admission that so far 
 codes answer very well, Mr. Carter arraigns any codification of 
 that arbitrary division, known as the private law, as unscientific
 
 16 
 
 in theory. This accusation is only perceived, in all its ful- 
 ness, by employing antithetical modes in stating it. It must 
 mean that the present arrangement of the private division of 
 the common law is superior to that proposed, or else that no 
 new and better arrangement is attainable. That the arrangement 
 in a code is the less scientific one, is then sought to be demonstrated 
 by the proposition, that the private department of the common 
 law is now embodied in the reports of adjudications, which are so 
 provisional in their nature as not to be disembarrassed from the 
 particular groupings of fact on which their elements depend. 
 The answer to this half-truth necessitates a reference to the mode 
 in which the judicial branch of government works. A judge 
 in the decision of a case decides, it is true, only the special case 
 before him, but it is the practice among the common-law judges 
 to formulate the reasons for this adjudication. Those reasons 
 which turn upon the isolated facts of a given case rarely have any 
 future value, for the facts of any two cases are seldom the same. 
 But in the reasons which are independent of the particular 
 facts, jurisprudents detect a law, technically termed the ratio 
 decidendi*. Ratio decidendi must not be confused with dicta. 
 which are unauthoritative special references to facts, nor with 
 ratio legis, which is another thing. These general state- 
 ments of principles independent of the particular groupings 
 of fact, are operative as laws, but as laws standing out of true 
 position in some old or new chronicle of judicial work, termed 
 reports. Piled up in all manner of volumes, thousands upon 
 thousands, are these isolated, illogical and fragmentary laws. 
 Xow the adherents of codification simply insist that these 
 dispersed expressions of substantive law are susceptible of 
 being selected by skilful and logical persons, and when se- 
 lected of being classified, their inconsistencies and redundan- 
 cies being tirst expunged. Certainly in common practice the 
 lawyer examines the reports with the view of ascertaining the 
 law of his case ; he rejects the dissimilarities of fact and he 
 extracts the law which is always true. If the lawyer after his 
 examination of the reports were to give a provisional opinion as 
 
 * 2 Austin's Jurisp., 330: Holland's Jurisp. ; Pollock's essay "Science of Case Law" 
 oaf sim.
 
 17 
 
 to the law, his client would certainly be justified in promising a 
 provisional fee. What the lawyer does in his daily practice, the 
 codifier does on a larger scale ; both seek for the law in the 
 reports, but in the reports unfortunately burdened with the 
 scholia of the text-writers and with the wearisome utterance of 
 many a common-place or undiscriminating official. When the 
 codifier 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. 
 
 One thoughtless answer to this account of the task of the 
 codifier is that every good lawyer knows these general principles, 
 these larger expressions of substantive law, and that it is super- 
 fluous to codify such vague generalities. But this assumption is 
 contrary to the fact ; no human mind is capable of systematically 
 producing off-hand the several thousand basic principles usually 
 stated in a code of private law. Yet if it is otherwise, their codi- 
 fication is a duty which the State owes to the less gifted portion 
 of its citizens ; to those who cannot remember even a hundred 
 principles, as well as to those who are not conversant with law 
 at all. 
 
 Another answer denies with eager confidence the teachings of 
 the scientific jurists, that judiciary-made-law is in reality legisla- 
 tion, and that judicial bodies are to be classified with legislatures. 
 Mr. Carter pronounces it " a shallow view," because the freedom 
 of action is, he thinks, the final test of the legislative power and 
 the judges are non-free. But if freedom of action were the final 
 test of legislative power, the legislatures of constitutional States 
 would lack this supreme qualification. In England and in America, 
 legislatures are not free ; they are fettered by fundamental 
 restrictions, by common-law rules of parliamentary procedure, 
 analogous to the rules of practice of judiciary bodies as well as 
 by the inherent forces of the common law in all its entirety ; their 
 freedom of action is but negative, consisting in the power not to 
 act, or not to act in a particular way ; they cannot substitute 
 caprice for duty or the positively wrong for the positively right. 
 Freedom of action, then, is not the finality of legislative power. 
 There have been times, indeed, when the assertion by the 
 2
 
 18 
 
 judiciary of freedom of action almost transcends any like 
 assertion of the legislature proper ; for example, the conduct of 
 the court of chancery after the passage of the Statute of Uses.* 
 The test of the legislative power is not freedom of action in the 
 law maker, but the power to pronounce what shall be law, and 
 the power to impose a sanction for the future infraction of 
 this law. 
 
 There is another error which is made by the opponents of 
 codification, as it seems to those who view codes favorably ; 
 namely, the assumption that a complete code must embrace a 
 statutory statement of the thousands of decisions predicated of 
 peculiar groupings of fact. A true system of codification is con- 
 cerned only with those larger principles indicated ; those which 
 have the force of law universally, or independently of the peculiar 
 groups of facts to which they have, or have not, been applied. 
 When we reflect that already many of these decisions have been 
 transmuted into statutes and that the rest are embodied in leading 
 cases, the final arbitraments of the courts of last resort, we recog- 
 nize the limitations of the codifier's work, and that it is within an 
 attainable compass. 
 
 Yet granting this last fact, the iteration of the cherished idea 
 of the opponents of codes, that codification will destroy the 
 elasticity of the common law, deters some persons from favoring 
 codification. By elasticity in law is probably meant the facile ap- 
 plicability of laws to new groups of fact. In this idea the scientific 
 jurists detect a fallacy, a confusion between the " terminus a quo 
 and the terminus ad quern of codification. Because codification 
 defines the general principles from which all legal arguments start 
 the terminus a quo it is not necessarily true that it defines the ter- 
 minus ad quern, the ex tent of the application of which these princi- 
 ples are susceptible." f In simpler language, the error in ques- 
 tion consists in assuming that the Code provides for all cases and 
 that new difficulties, clearly beyond the equity of the statute, will 
 be dealt with improperly. If codification were to put an end to 
 the proper solution of new difficulties, or to circumscribe the 
 common law judicial powers, we might well pause before entering 
 
 * Taltarum's case (Year Book, 12 Ed., iv., 19) may also be cited. 
 t Holland's Form of the Law, p. 57.
 
 19 
 
 upon a systematic codification. There is, however, no such 
 danger to be apprehended. The judicial process of evolving 
 new law by cross-application of old laws has been going on in all 
 States ever since the primitive times when their judicial branches 
 of government were separated from the executive. The archaeol- 
 ogists, who have as intimate an acquaintance with dead nations 
 as those nations ever had with themselves, show that the Assyrian 
 judges were diligent searchers of the Akkadian law reports of 
 hundreds of years before, and therefore, that the process of 
 extracting new law by cross-application, and by the ratio decidendi 
 is as old as anything we know of judicial proceedings.* It is 
 fair to presume that in the future, as in the past, this purely 
 logical process will not cease unless we concede a boundary to 
 mental activities. 
 
 There is no insurmountable difficulty in codifying private 
 law, and by private law is meant that which Mr. Carter himself 
 would seem to consider private law in a division of any body of law 
 into public and private. It must be borne in mind that this division 
 of law into, public and private, is purely scholastic or fanciful ; 
 the Germans include in private law, the law of crimes, and to them 
 public law means Staatsrecht, or constitutional law. Mr. Carter's 
 ingenuous statement, that he is not aware that the distinction 
 between public and private law has hitherto been dwelt upon in 
 the discussion concerning codification, contains a singular admis- 
 sion. The one distinction never lost sight of in any systematic 
 view, or arrangement, of a body of law is this very division into 
 public and private law. It is the basis of Holland's great con- 
 tribution to jurisprudence which though not entitled a work on 
 codification is generally recognized as the ablest presentation of 
 that view which would make rights, and not duties, the basis of 
 a scientific codification. f If we run the division line of law into 
 public and private where Mr. Carter would place it, there is no 
 more difficulty in codifying the law on the one side of the division 
 than there would be in codifying the law on the other side of
 
 20 
 
 this arbitrary line. The difficulty supposed is referable entirely 
 to indistinct conceptions of the scope of codification and of its 
 true limitations. It has never been claimed for any modern code, 
 much less for the Civil Code of New York, that it was to be the 
 exclusive repository of all private law, past, present and future. 
 No code can ever accomplish so great a task, and any attempt to 
 accomplish it will prove a disastrous failure. What has been 
 claimed for the Civil Code of New York may be referred to 
 when Mr. Carter's special pleas against all codification have been 
 first noticed. 
 
 The great force of the example of those nations which have 
 already resorted to codification is always sought to be broken by 
 the enemies of codes. While the form of their arguments differ, 
 they almost invariably concede something to the historical par- 
 allels, for such the example of those nations may be regarded. 
 Mr. Carter, insisting that the example of Rome in particular 
 is, in no degree, illustrative of present exigencies in the State 
 of New York, is, however, unwilling to concede the usual 
 modicum. 
 
 Any attempt at a philosophical consideration of the Roman 
 law is no light matter. It is usually regarded as an adytum 
 which those who are not votaries do not disturb. But the rule 
 in this respect having been ruthlessly broken by the infer- 
 ence indicated, it may with some propriety be diffidently sub- 
 mitted that the highest modern authorities do not coincide 
 with Mr. Carter's deductions from the example of Rome. 
 Even Gibbon, whose masterly analysis of the purely external 
 phases of Roman law is familiar to most educated people, 
 affords slender basis for the extreme deductions of Mr. Carter,, 
 and since Gibbon's famous chapter, 1 a careful and minute 
 modem scholarship 2 has elucidated the jurisprudence of Rome, 
 in a manner Gibbon but faintly conceived. 3 A nation's law is so- 
 entirely the expression and result of its peculiar civilization, 
 that to be studied with success it must be studied historically. 
 This is especially true of Roman law, for the Corpus iuris civilis 
 
 1 Written circiler, A. D. 1784. 
 
 2 The institutes of Gains were discovered by Niebuhr in 1816. Even Gibbon's famous- 
 arrangement of the eras of Roman law, followed by Hugo, is now altered. 
 
 3 Tomkins and Jencken'g Modern Rom. Law, Pref. xi.
 
 21 
 
 is an historical document ; J Mr. Carter Has recognized this fact 
 and has outlined rapidly the place which he conceives the Jus- 
 tinian compilations 2 occupy in the history of Rome. For this 
 purpose he begins with the Code of the Decemvirs, and intimates 
 that this early specimen of the codification of private law was 
 found so inelastic that it was subtly evaded by the fictions of 
 the praetors and by the operations of the professional jurists. 
 Whence he deduces, that all codification of private law must 
 prove a failure. He likewise intimates that the Justinian com- 
 pilations, when analyzed, furnish no adequate data in support of 
 the proposed codification of the private law of New York. The 
 various positions of his argument are, however, too familiar to 
 need a preliminary repetition. 
 
 In order to ascertain whether the Decemviral Code was, as 
 Mr. Carter's argument plainly infers, an error in the policy of 
 Roman legal development we must recall the facts which com- 
 pose its environment. The literary world was first enabled to 
 penetrate that historical nox arcana, the kingly period of Roman 
 history, by the genius of Barthold Niebuhr, but since his day a 
 flood of light has been thrown upon the early history of Italy, 
 and now its monuments stand forth with clearness and in some 
 sort of perspective. Yet the clearness is still comparative, 
 clouded, as it were, with enigma, or with that dim obscurity which 
 must to some extent envelop a pre-historic age. Not only the 
 origin of the Decemviral Code is uncertain, but even its contents, 
 two-thirds of it only having been restored from scattered frag- 
 ments by the labors of the exegetical and the historical jurists. 
 Whatever its dubious origin may have been, this primitive code 
 contains little or no argument either for or against modern codi- 
 fication, although it is a most potent witness to the advantages of 
 fixity and certainty in the basis of a nation's jurisprudence. 
 The Decim viral Code contained the germs of the private, as well 
 
 1 Intd. Cumin's Civ. Law. 
 
 2 In deference to Professor Amos' criticism (repeated by Mr. Carter) of Mr. Field's introduc- 
 tion to the Civil Code, I have refrained from using the " Code Justinian " as a convenient 
 
 collfctint/i> of the entire <',,,- </.- ,///;*. Institutes. Digest, Code and Novells, he has the sanction 
 of Austin, Story and other writers who certainly knew what every lawyer knows that the 
 Corpus itiris does not consist of the code alone.
 
 22 
 
 as of the public, law of Rome. Fons omnispubticiprivatique iuris, l 
 Livy called it, and Professor Moyle has lately said of it, " that 
 English lawyers in particular will fully appreciate the advantage 
 which was secured by this expression of the law in a more 
 scientific and therefore convenient form than that in which it had 
 hitherto been clothed." 2 Mommnsen speaks of it as "an invalu- 
 able basis," 3 and certainly no further testimony to the wisdom 
 of its inception can be necessary. The tenacity with which the 
 Romans clung to this basis of their national law is one of the 
 most extraordinary facts in the history of jurisprudence, and it is 
 surely incorrect to refer its gradual subsidence to the mal-adapta- 
 tion to human needs of written law. 
 
 For the purpose of indicating the error contained in the 
 assumption that the Decemviral Code was ultimately swept 
 away, because written law was too inelastic to be readily suited to 
 the practical work of administering justice, let us briefly review 
 the leading facts connected with it : In the one thousand years 
 which elapsed between the Decemviral Code and the compila- 
 tions of Justinian, an insignificant community had become, step 
 by step, first the Italian hegemony and finally the monarch of the 
 world, but with Theoclosius the supremacy of Rome began to 
 decline although its power and influence were destined to survive 
 through its laws. It is instructive that through all this vast 
 cycle of rise, conquest and decline, the Decemviral Code 
 remained the basis of Roman jurisprudence. It is not surpris- 
 ing that a code well adapted to Latium should, ultimately, in the 
 course of centuries, fail to respond to the needs of a vast empire ; 
 nor, is it strange that laws well suited to a primitive tribe should 
 fall short of meeting all the multitudinous requirements of a 
 growing and progressive nation. Yet so persistently were the 
 Romans in favor of the stability of law that they preserved the 
 letter of their first code after edictal legislation had swept its 
 substance away. At the time of the promulgation of the code of 
 the first decemvirate (B. c. 451), the territorial dominion of that 
 we now call Rome, in obedience to later dictates, was insignifi- 
 
 1 Livy III, 34. 
 
 2 Imperatorifl lustiniani Institutionef, Moyle, Intd. 14 
 s 1 Mommsen's Rome, 5!7.
 
 23 
 
 cant ; the last Yeientine war had not even been fought. But 
 in Cicero's day (B. c. 100) the entire Mediterranean was within 
 Roman territory ; the legionaries had triumphed throughout 
 Macedonia and Greece, in Asia and in Africa and in Hispania 
 to the Pillars of Hercules, the gate of the ancient unknown. 
 The crowds of foreigners who had meanwhile swarmed to the 
 Roman hive, necessitated changes in the early law, for the ius 
 civile had no reference to strangers. Consequently the praetor 
 peregrinus. a kind of magistrate having jurisdiction over 
 foreigners, was established (B. c. 247). This prsetorship as well 
 as the older one, the urban praetorsliip, the aediles, the pro-con- 
 suls and the pro-praetors each possessed the power of legislation, 
 ius edicendi 1 , a subdivision of -the kingly function. The prsetor 
 did not sit as judge at a Roman trial ; he acted as the president 
 of the court, but had no voice in the sentence ; he had the 
 imperium but not the jurisdictio. By these authorities it was that 
 the primitive law was enabled to be subjected to those impulses 
 which ultimately greatly changed its constituency, if not its form. 
 
 To attribute the almost imperceptible repeal or subsidence of 
 the Decem viral Code to judicial action is to misapprehend a 
 curious phase of Roman legal development. It has not always 
 been the case that the legislative powers have been separated 
 from the other powers of government. In primitive and archaic 
 types (>f government very strange distributions of governmental 
 power have taken place. Modern conceptions, it must not be 
 forgotten, rarely apply to ancient institutions : To those familiar 
 with the brief and recent constitutional history of the Province 
 of New York, this fact will be readily apparent, for prior to the 
 war-for-independence, the crown-governor possessed and asserted 
 legislative, as well as judicial and executive, powers. 2 
 
 The fact that a species of legislation and not judicial impulse 
 was the great power which gradually changed the early Roman 
 law, as first expressed in its primitive code, is not inconsistent 
 with that other fact which Sir H. Maine has made so familiar 
 to us all, that tiction is one of the great elements of change in 
 
 1 Ius edicsre was to declare the law in a general manner ; ius dicere was to organize the 
 formula. 
 
 2 The present jurisdiction of the Supreme Court of New York, is largely derived from an 
 edict of governor, Lord Bellomont, promulgated in 1699.
 
 24 
 
 the rigidity of any particular body of law. By fiction, however, 
 this great writer means something quite different from that which 
 an English-shaking lawyer ordinarily means. He means any 
 false assumption of fact made by a magistrate. 1 Whether the 
 magistrates in the case of Eome acted judicially or as legislators 
 when they resorted to particular fictions, Professor Maine does 
 not always stop to particularize, though he would himself sharply 
 discriminate between the several functions. It is unquestionably 
 true that the praetors and the other Koman magistrates frequently 
 resorted to fictions as the ratio legis embodied in their edicta, 
 and that even Gaius does not always recognize these edicts as 
 types of legislative acts. 2 But in the days of Gaius, jurispru- 
 dence had not attained to that philosophic analysis of its elements 
 which is the distinguishing feature of the higher jurisprudence 
 of this day. 3 
 
 It is hardly possible in any rapid survey of the development 
 of Koman private law during so long a period as one thousand 
 years, to summarize, as Mr. Carter has done, conditions by gen- 
 eral statements of fact. What is true of to-day fails to be 
 true of to-morrow. Mr. Carter has given prominence to what 
 he regards as an historical fact, that the greatest development 
 of Roman private law was due to an unofficial lawyer-class, and 
 not to the usual law-making or legislative powers of government. 
 He regards the Koman magistrates as ephemeral politicians, dom- 
 inated by the lawyers of the day, and in these respects he recognizes 
 a likeness to the unsystematic development of the private division 
 of the jurisprudence of English-speaking peoples. If this hy- 
 pothesis is true, any systematic improvement in the law of Kome 
 was due not to the State but to the chance interference of the juris- 
 consults, an unofficial class of law-makers as Mr. Carter would 
 have us believe. This mere re-statement of the moral Mr. Carter's 
 argument tends to convey, shows that it appears to be based, nay, 
 is based, upon a misconception of the modes in which the devel- 
 opment of the private law of Kome actually occurred. No doubt 
 
 1 Ancient Law, p. 24. 
 
 2 Poste's Gai'is, 36. 
 
 s " In the systematic exhibition of tlje law, the Romans were, comparatively speaking, very 
 feeble. In this respect they are greatly excelled by the moderns." Tompkins' Inst. of Rom. 
 Law, Part I. p. 105.
 
 23 
 
 the jurisconsults were a powerful element in this development, 
 but they were an element which the State ultimately converted 
 into a legislative element, nurturing and directing it so as to adapt 
 it to public purposes. Nor, is it more true that the regular law- 
 making power of the Koman State was in any considerable degree 
 in the hands of evanescent or incompetent politicians who were 
 dominated wholly by lawyers. Sir H. Maine, an authority who 
 may be trusted, says the praetor himself was generally a jurist. 
 Certainly Papinian held high public office under Marcus Aurelius 
 and both Ulpian and Paulus were among other things praetorian 
 prefects when that office was largely civil in character, while 
 Quintus Mucius Scaevola, the founder of scientific jurispru- 
 dence, was consul 1 in the year B. c. 95. Undoubtedly at every 
 stage of Roman history there were jurists who were praetors, just 
 as there were praetors who were both politicians and jurists. In 
 this respect the development of Koman law was not, according to 
 American standards, abnormal. There is one phase, then, in the 
 development of Roman private law which Mr. Carter's paper 
 does not emphasize, although it is important in view of the rela- 
 tion it bears to the Justinian compilations. I refer to the extra- 
 ordinary legislative power transferred by the Roman State to the 
 jurisconsults. 3 
 
 The craft of Augustus, who found it impossible to destroy the 
 influence of the jurisconsults, suggested a way in which this pow- 
 erful order might be allied to the new imperial system. 3 Prior to 
 this time, the responsa or opinions of the jurisconsults had great 
 authority but no binding force as law. 4 Unless we understand 
 the change Augustus instituted by this remarkable delegation of 
 the legislative power to certain learned men, we shall unhappily 
 miss one of the great features in the development of the jurispru- 
 dence of Rome. Mommsen, generalizing in this connection, says : 
 " Apart from the more general political conditions on which 
 jurisprudence also, and indeed jurisprudence especially depends, 
 the causes of the excellence of the Roman civil law lie mainly in 
 two features : first, that the plaintiff and defendant were specially 
 
 i The functions of consuls differed greatly at different epochs. 
 2 Dig. 1, 2, 4r. 
 
 3 Imperatoris lustiniani Inst.; Moylc's Intd., 50. 
 JMackeMev's Rom. Law. -,'1.
 
 26 
 
 obliged to explain and embody in due and binding form, the 
 grounds of the demand and of the objections to comply with it ; 
 and secondly, that the Romans appointed a permanent machinery 
 for the edictal development of their law, and associated it imme- 
 diately with practice * * * * by the latter they prevented 
 incapable law-making so far as such things can be prevented at 
 all." 1 
 
 Notwithstanding Mommsen's eulogium of Roman methods of 
 legislation, and there can be none higher, it may, at this point, well 
 be doubted whether the lawyer-class of a State make the safest 
 body of legislators, and whether they are even through the regular 
 channels of their avocation, the best means of developing a grand 
 system of jurisprudence. The functions of the scientific legislator 
 are not seldom confused with those which pertain to the lawyer 
 as such, and yet they are most distinct. It is a common opinion 
 among people who are not lawyers and they argue that for 
 every lawyer there are a million other men that the notions 
 of most lawyers are by professional habit too circum- 
 scribed to enable them to take wide or beneficent views of 
 matters not immediately within the narrow range of their 
 little personal activities. 2 But it is unfair to thus generalize, 
 for the exceptions to this questionable rule have been so fre- 
 quent; although, on the other hand, it is manifestly most fair that 
 the beautiful picture, which Mr. Carter has drawn for us, of the 
 development of law by a trained lawyer-class only, should be so 
 stated that all sides of a public question may be properly 
 considered. 
 
 Continuing the discussion concerning the iuris consulti and 
 the nature of their influence on Roman law, it will be recalled 
 that even before the time of Augustus their then unauthentic 
 responsa had become so diffuse that Julius Caesar, as well as 
 Cicero, had perceived the necessity of some sort of redaction by 
 eliminating the parts of the smallest value. After Augustus a 
 like difficulty arose with the responsa signata, the now quasi- 
 legislative acts of the authorized jurists. The contrariety and 
 opposition of so many individual law-givers began to be confusing 
 
 i 1 Mommsen's Rome, 555. 
 4 2 Herbert Spencer's Sociology, "Clas Bias," 341.
 
 27 
 
 to legal administration. Hadrian added to the confusion by 
 giving the force of law to the writings of the systematic writeis. 
 Several attempts were made to remedy the confusion incidental 
 to this type of laws, and in A. D. 426 the law which Hugo called 
 the " citation law," was issued by the Emperors Theodosius II. 
 and Yalentinian III., declaring that the majority of the opinions 
 of the authorized jurists should thereafter determine the law, and 
 that when they were equal, Papinianus should prevail : " Ubi 
 autem diversce senticeproferi(ntur,potior numerus vincat auctorem, 
 vel si numerus aequalis sit, ejus partis prcecedat auctoritas in qua 
 excellent isingenii vir Papinianus emineat, etc" There is some 
 dispute among the critical as to whether in fact this "law of 
 Citations " did, as Gibbon states, and Mr. Carter after him, have 
 the effect of reducing the number of the iuris auctores to five, 
 Gaius, Papinian, Ulpian, Paulus and Modestinus. There is a 
 posteriori authority for inferring that such could not have been 
 the intention of the " law of Citations," for Justinian's Constitu- 
 tion, in reference to the compilation of the Digest, instructs the 
 compilers to make excerpts from the authorized jurists only, 
 and acting under this commission the compilers actually selected 
 thirty -nine. 1 
 
 Without venturing further into the precincts of those compe- 
 tent to express opinions upon such delicate questions as that just 
 noticed, enough may now have been stated to show that the 
 private law of Rome was most influenced by written law, but by 
 written law of a peculiar type, and that its development was not 
 abandoned by the State wholly to chance or to the whim of those 
 who chose to play, dilettante-fashion, with the development of 
 private law. From the time of the last rescript, the " law of 
 Citations," to the reign of Justinian, in the Eastern Empire, was 
 little over a hundred years, and during this period matters went 
 from bad to worse : it was the reign of diabolical confusion by 
 reason of the great wealth of authority which the parties-litigant 
 might cite upon any shade of legal discussion. This confusion 
 was augmented by the continued irregular extensions of the 
 Constitutions to those departments of law which had been 
 
 1 Impsratoris luetiniani Insr., Movie's Intd.. 59.
 
 28 
 
 formed by the response, prudentium and the sensentice of the 
 systematic writers, the iuris auctores. One law-making power 
 thus clashed with another. Constantino had put an end to the 
 pnetorian function of harmonizing the principles of law and 
 equity ; the medium of making law by the responsa of the juris- 
 prudents, had died with Maximian (circ. A. D. 305), so that 
 imperial legislation at last became the only medium by which 
 changes could be effected in the positive law. 1 The mass of the 
 Constitutions, as the laws emanating directly from the Emperor 
 himself were called, soon became very great. Various attempts 
 between the time of Constantine and that of Justinian had been 
 made to systematically compile these Constitutions, notably the 
 Codex Gregorianus (circ. A. D. 295), the Codex Hermogenianus 
 (circ. A. D. 365, 398) and the Codex Theodosianns (circ. A. D. 
 439). Still these statutes multiplied. Justinian's reform was 
 intended to remedy the confusion in both branches of the 
 itis swipturti and to harmonize the Constitutions with that 
 system of pseudo-statutes which had been promulgated through 
 the medium of the responsa and sentential of the jurists. 2 
 This task was accomplished to some extent in the Pandects. 
 It is not necessary to repeat weL known details concerning the 
 precise nature of the material composing Justinian's compilations. 
 The result has been applauded from the revival of learning until 
 the present day, and it would be a curious idiosyncrasy to attempt 
 to take a new view of so meritorious a performance, comparatively 
 speaking, as the Corpus iuris civilis. Enough has, perhaps, been 
 stated to base a conclusion quite at variance with that which the 
 reader must arrive at after a perusal of Mr. Carter's survey of the 
 same work, and no more has been attempted. 
 
 To attribute to Justinian any imperialistic scheme in the law 
 reform which he completed is to be at variance with opposite de- 
 ductions which may be made from the same state of facts. Theo- 
 dosius and others had designed to undertake this very reform in a 
 spirit which cannot be questioned ; so that we must always postulate 
 the necessity of reform even when we imagine the motive of Jus- 
 
 i Moyle's Inst. Intd. 57, et ptisnim. 
 
 - There is an abundance of authority for regarding the dogma of the jurists as translated 
 into statutes at certain epochs of Roman history. See Poste's Gaius, pp. 37, 144, for ready refer- 
 ence, though, indeed, not the most apposite.
 
 29 
 
 tinian in executing it to have been sinister. But all the argu- 
 ments which those hi favor of codification draw from the Justinian 
 compilations are quite opposed to those Mr. Carter would wish to 
 draw. The Pandects did embrace the private law of the Eastern 
 empire in an authoritative legislative version and to this extent it 
 is illustrative of the present purpose in New York. That the 
 Pandects do not respond to modern notions of statutes is hardly 
 argumentative when we consider that the responsa and sententice 
 of which the Pandects were composed, \vere not themselves in the 
 form of statutes, though they became operative as statutes ; ' legls 
 vicem obtinent.' This is but another instance of the necessity of 
 considering that laws in all ages are not expressed in the same 
 modes and that formerly they were not habitually expressed in 
 imperative terms. Nor, is it strange that Justinian's collabora- 
 teurs, in arranging the Pandects, adhered to the ancient form of 
 the sententice and responsa, preferring to leave them what they 
 always had been, after the State had officially ratified them, stat- 
 utes in effect but not in form or expression. It is not necessary 
 to point out to any one familiar with the discussion that this plan 
 was adopted only after mature consideration. 
 
 In reality there is no connection between the fall of Rome and 
 the redaction and consolidation of the Roman law under Jus- 
 tinian. The universal imperium of Rome had departed long 
 before Justinian, the empire having been divided in A. D. 395, 
 more than a hundred years before that barbarian Sclav had 
 ascended the throne. Justinian's subjects, whatever they were, 
 were not Roman. To any true lover of Gibbon's masterpiece its 
 very title conveys the fact that Rome had fallen before the Jus- 
 tinian era began. Another great English historian has beautifully 
 pointed out the extreme difficulty in determining when Roman 
 history ends, it glided so imperceptibly into the Middle Ages, but 
 the vulgar and therefore the more conspicuous boundary, is placed 
 in A. D. 476, some fifty years before Justinian's great reform. 
 
 A word upon the duration of Justinian's redaction of the 
 ancient private law of Rome, and this branch of the subject, 
 already unjustifiably long, may be abandoned to those whose 
 tastes and acquirements are adapted to its discussion. The 
 authorities are not at one upon the statement, early made by its
 
 30 
 
 enemies, that the Corpus iuris civilis was soon either ignored or 
 superseded by its contemporaries and their successors. Ever since 
 its promulgation there has been an anti-Justinian party, opposed 
 to the work which Justinian wrought. By them it was first 
 asserted that, in some respects, Justinian himself superimposed 
 amendments upon the Corpus iuris civilis from motives of mer- 
 cenary traffic in justice. But other persons, fortunately for 
 human nature, deny this to be the fact. That the Corpus iuris 
 civilis was soon ignored or superseded, is also at issue, and it is 
 doubtful whether Professor Hadley's interesting lectures, deliv- 
 ered before the undergraduates of Yale and full of striking 
 antitheses calculated to arrest .their attention, are entitled to 
 be regarded by Mr. Carter as the controlling authority upon 
 this point. Professor Hadley himself never published his lec- 
 tures and was not regarded as a high authority upon Koman 
 law. But if he is adequate authority, he is not confirmed in 
 this statement by Savigny, Mackeldey, Ortolan, deFerriere, 
 Cumins, or Tomkins, still higher authorities upon this branch of 
 the history of Koman law. By these last-named writers it is as- 
 serted that the Corpus iuris of Justinian maintained its legal 
 effect with very little variation for at least six hundred years 
 after its promulgation. The manner in which it finally became 
 the basis of the modern law of Europe, Savigny has fully re- 
 vealed to students of jurisprudence and many lay-writers to the 
 world at large. 
 
 Notwithstanding their debt to the Civil Law, the English- 
 speaking lawyers alone have been tardy in paying their reckoning 
 to the most scientific source of the common law ; and yet there 
 have always been exceptions to this rule. The merits of the 
 Corpus iuris and its important relations to the Anglican common 
 law were notably conceded by Dr. Duck in 1649, a a concession 
 subsequently assailed with great virulence. Sir William Jones, 
 whose fame as a scholar increases daily, termed it " the source of 
 all our English laws that were not of feudal origin." 2 Ample 
 amends are now being made in England for past neglect. The 
 late edition of Bracton's Commentaries published under the 
 
 1 Duck's fie, author itafe juris civilis. Lib. II. Cap. VIII. 
 
 5 Lord TeignmouthV Memoirs of Sir \Vm. Jones*, Vol. II., p. 168.
 
 31 
 
 direction of the Master of the Kolls and edited by Sir Travers 
 Twiss has enabled American lawyers to have easy access to a 
 fundamental treatise of the common law, but the common law 
 identical with the Roman law. Savigny is said to have derived 
 great assistance from Bracton in writing his " History of the 
 Koman law in the Middle Ages." 1 Through Professor Giiter- 
 bock's work on Bracton's relations to the Roman law, familiar to 
 most Americans in consequence of Mr. Brinton Coxe's excellent 
 Philadelphia edition, we had long known the resemblance Brac- 
 ton bore to Azo's Summa on the Code and Institutes of Justin- 
 ian, but in Sir Travers Twiss' edition of Bracton we have the 
 parallel text. It is too late to maintain that any mere arrange- 
 ment of a private law of a civilized nation contains more political 
 danger than another arrangement of the same law. Danger lies 
 below the surface. If any lesson whatever is to be drawn by us 
 in New York from the consolidation of the Roman law under 
 Justinian, it is, as Mr. Field has asserted, favorable to a codifica- 
 tion of the law of New York. That the compilations of Justin- 
 ian differ wholly from modern English conceptions of codification 
 cannot be denied. Their lack of scientific arrangement was so 
 great that Leibnitz proposed to re-arrange 3 the entire Corpus 
 iuris and Pothier earned the title of pandectamm restitutor feli- 
 cissimus by his re-arrangement of the Pandects. It would be 
 extremely curious if the codal legislation of another age and 
 nation could serve as a model for this country of to-day. Yet, as 
 will hereafter be pointed out, Mr. Field has not substituted novel 
 arrangements where several ages and nations have demonstrated 
 the utility of a particular model. In this respect he is at variance 
 with the radical notions of several amateur codifiers. 
 
 It is, no doubt, unnecessary to attempt to refute in detail the 
 too wide assertions, that the modern specimens of codification, 
 adopted by France and Germany, are practical failures, and that 
 the motive which led to their adoption was purely dynastic or 
 imperialistic but not reformatory ; for if these assertions had con- 
 formed wholly to the facts they would not be even argumenta- 
 tive of the result or motive which attends codification in this 
 
 1 Tomkins 1 Inst. Rom. Law, Intd. 2, note. 
 
 2 Leibnitz, Xova Methodus Difcend. et Docend. Inris. Pars II, c. So, 90.
 
 32 
 
 State. Yet as such assertions when uttered by a gifted and 
 respected lawyer of mature experience may be damaging to the 
 pending reform, it is proper to supply certain facts in this con- 
 nection which are not noticed in the course of Mr. Carter's paper, 
 premising the argument upon the historical parallels is by no means 
 a new one in code-discussion, having been repeatedly and exhaus- 
 tively made upon all sides. 
 
 Codification in France, while accomplished under the First 
 Napoleon, had been mooted at intervals from the reign of 
 Louis XI. At the time it was adopted the measure had long 
 had the sanction of French jurists and statesmen, owing to the 
 fact that in France prior to 1789 there was such an immense 
 number of separate systems of jurisprudence as to fairly justify 
 Voltaire's mot, 1 that a traveler in that country was compelled 
 to change laws as often as he changed horses. This fact, as 
 well as the careful and scientific mode in which Napoleon caused 
 the commission, appointed for the purpose, to investigate the 
 entire subject of codification, and the subsequent discussion 
 which ensued upon every sentence of the French codes, 2 pre- 
 clude the attribution of sinister motives only to Napoleon's pro- 
 tectorate of the French codes. The assertion that the French 
 codes were imperialistic in design, tendency and character was 
 long ago made and refuted in tlnV State. In 1814, Mr. Rodman, 
 then a prominent member of the metropolitan bar, stated in an 
 introduction to his edition of the Commercial Code of France, as 
 follows : " The notion entertained by many people in this country 
 that this system of laws " (the French) " is wholly founded upon 
 arbitrary power and consequently affords no security to the rights 
 of persons or the enjoyment of property is equally erroneous 
 and absurd * The excellence of laws as they respect 
 
 the mutual relations and the multifarious commerce of men in 
 society depends much more upon the enlightened views and the 
 wisdom of the lawyers than upon the nature of the government 
 or the freedom of the people." 
 
 It may be quite true that the French have not, as asserted by 
 some writers, hit upon the best plan of codification and that the 
 
 1 Encyc. Brit. Tit. "Codes." 
 
 2 Motifs et Discmtrs du Code Civil.
 
 33 
 
 separation of the laws relating to commerce is a deviation from 
 logical methods of codification, and yet there are reasons for con- 
 cluding that the supposed scientific tests do not all apply to 
 France by reason of local conditions not fully observed by the 
 scientific writers. One reason for the latter conclusion is that the 
 French codes have proved most satisfactory in the actual adminis- 
 tration of the French system of laws. Another reason, pointing 
 in the same direction, is that the French codes have taken deep 
 hold in most of the European countries adjacent to France. The 
 Italian government, to the conceded fairness of whose jurists this 
 country frequently appeals, has lately adopted, with some modifi- 
 cations, the French codes. In a consideration of the French 
 codes it is not safe to rely, as Mr. Carter does, upon isolated 
 English opinion. The American authorities upon the merits of 
 the French codes, such as Edward Everett, for some time minister 
 to France, and John Rodman, whose magnum opus was a transla- 
 tion of these very codes, are certainly quite equal in this respect 
 to either Austin or Amos, quoted by Mr. Carter. Mr. Rodman's 
 candid verdict, after a most minute examination of the entire 
 text, was embodied in these words " the code Napoleon is unques- 
 tionably a work of the highest merit, whether we consider the 
 pure morality, the sound legal principles and enlightened reason 
 which pervade every part of it, or the lucid order, precision and 
 method with which the matter is arranged and exhibited." 1 It is 
 impossible to concede, in view of the remark lately made by an 
 English barrister, Mr. Mosely, in the London Law Magazine and 
 Review, 3 that the state of the French law has received consider- 
 able attention in England, or even enough to enable a foreigner 
 to speak with authority upon its inherent forces and defects. Mr. 
 Mosely states : " It is a fact not to be ignored that in carrying on 
 the amendments of our law (in England) too little regard has 
 hitherto been paid to those systems which prevail amongst con- 
 tinental nations, and in this respect our legal reformers have justly 
 laid themselves open to comment." He proceeds to designate 
 the points in the French administration of law which are superior 
 to the English. 
 
 1 Rodman's Com. Code of France. Such also was Edward Everett's verdict, 20 N. A. 
 Review, 393. 
 
 2 November, 1883.
 
 34 
 
 Not only is it doubtful whether the motive of the French 
 codification is correctly surmised by Mr. Carter, but whether the 
 complaints, quoted by him, concerning the state of juristic 
 literature in France after the codes, are well founded. Both 
 Austin and Amos, who originally made the complaints in ques- 
 tion, seem to have overlooked the fact that whe^n any body of law 
 is systematized the inevitable tendency of juristic literature is to 
 take the form of a commentary on the code. The motive for 
 the great number of special treatises on various topics ceases, 
 and literary activity naturally addresses itself to the actual 
 state of the law. Such was the tendency largely among the 
 Romans after the edict had been consolidated and such has been 
 the case in France since the adoption of the codes. Writers in 
 favor of codification see in this literary tendency a very great 
 advantage and not the disadvantage prophesied by Mr. Carter, 
 the extinction of the " gladsome light of jurisprudence " as he 
 poetically phrases it. That codification would extinguish all 
 but the considerable institutional treatises of the common law is 
 possible, but it is feared not .probable ; existing works are too full 
 of concrete examples. But should all but a score of the legal 
 treatises, produced in the last century in the United States, dis- 
 appear forever, no irremediable harm would be done. Chancellor 
 Kent when asked what made him a great lawyer is said to have 
 epigrammatically replied " lack of law books." When his career 
 began books were comparatively few but these he knew well. 1 
 Another of New York's great lawyers is said never to have used any 
 but old editions of the treatise-writers, preferring to split hairs 
 for himself from general principles and not from the concrete 
 instances of application given by the editors. At present, as Mr. 
 Pollock has said, there are a number of treatises upon the common 
 law, good, bad and indifferent, overlapping each other, defying 
 all system, and entirely omitting many things we desire to know. 
 The advantage of a new departure will be that the time of the 
 writer " now devoted to a laborious and often barren collection of 
 authorities will be left free for rational explanation.'' Mr. Carter 
 is quite too sanguine if he has the slightest apprehension that 
 
 i Chancellor Kent's fancy for the text of the Corpus iuris civilis and his dislike of its 
 modern commentators were also freely avowed in a letter to Mr. Schmit.
 
 35 
 
 juristic literature, such as we have, will " wither." The only 
 change that may possibly come to it by the contemplated altera- 
 tions in the form of the law must be for the better, and in the 
 direction of that system and elegance which all persons, except 
 some "case-fettered" lawyers, concede to be the present charac- 
 teristic of most American and English law books. 1 
 
 A comparatively recent writer in the Scottish Journal of 
 Jurisprudence 2 enables the English reader to detect that the argu- 
 ment against the motive, character and result of codification 
 in Germany is also unsound. This writer deplores the lack of 
 German legal material in the English public libraries ; the 
 deficiency which was then true of England is still true here ; so 
 much so, that a gentleman familiar with the state of the law in 
 Germany was recently compelled to make the condition of a paper 
 on German legal bibliography a visit to the law libraries of Ger- 
 many. The late treatise by Messrs. Tompkins and Jencken on 
 Modern Roman Law has done something toward accurately famil- 
 iarizing English readers with the condition of law in Germany, 
 but its scope necessarily limits its usefulness as an authority on 
 the results of codification in Germany. Since Austin's day 3 great 
 progress has been made by the Germans, and his remarks, quoted 
 by Mr. Carter, hardly hold good at the present time. The litera- 
 ture of the Germans upon the subject of codification is very full. 
 The well-known dispute which arose between Savigny on the 
 one side and Thibaut, Gans, Puchta, Rudorf and Thaden on the 
 other, when it was proposed to codify the entire common law of 
 Germany, has afforded to English and American opponents some 
 of their best material ; much of it having filtrated its way into 
 English soil. Yet little accurate information can be afforded by 
 the consideration of the extreme views of either of these parties ; 
 both views are now conceded to contain elements of profound 
 truth and of profound error. Savigny 's party was greatly weak- 
 ened by the secession of Warnkcenig, his most considerable fol- 
 lower. Now, even the arguments against codification of Savigny 
 
 1 In this suggestion there is no disposition to speak lightly of the thousands of useful 
 books, repositories of much industry and reflection, which load the shelves of the law libraries ; 
 but rather to intimate that it may be that the days of their usefulness is over, when, as Emerson 
 said, "men must die in the first alcove." 
 
 2 For 1873. 
 
 3 He wrote about a half-century since.
 
 36 
 
 himself, are, by reason of his transcendental conception of law, 
 said to be better fitted to a system of planetary jurisprudence 
 than to that of this sphere. Violent as this witticism is, it must 
 be conceded that the very obscurity in which Savigny enveloped 
 his arguments has been a successful hindrance to complete codifi- 
 cation in Germany, although, at last, the spell of his mighty 
 name has, by the persistent refutations of his opponents, been 
 broken. 
 
 The extraordinary confusion of the law of Prussia in 
 Frederick the Great's day for until 1848 a single commercial 
 bill would sometimes fall under half-a-dozen rules of law within 
 a comparatively small circuit gave that philosophically in- 
 clined m6narch a sufficient motive for amending the form of the 
 law. It cannot be admitted by the friends of law reform that even 
 that sovereign's motive for codification was dynastic, although 
 what his motive was is inconsequential : But they cannot 
 believe that any dynast in his senses would tie down the judges 
 of his own creation to philosophic laws arranged in a code 
 and thus put it out of his power to dictate judicial decisions 
 in some concealed fashion. That Frederick the Great hap- 
 pened to give the first regular impulse to codification in Germany 
 must be admitted, just as it must be admitted that he met with 
 disheartening opposition from the unphilosophic lawyer-class 
 of the Prussia of that day. Under his successor, Frederick 
 William II., the " Landrecht" a complete codification of the 
 common law of the whole Kingdom, was promulgated, leaving 
 in force, however, the ius particulare of the various provinces. 
 In other German - speaking States codification has ensued: 
 Xotably, the Austrian Gezetsbuch in 1811 and the Saxon 
 Gezeisbuch in 1865. In Baden and the Rhine Provinces, the 
 Code Napoleon was, with scarcely any alteration, adopted. The 
 comparatively recent promulgation for the entire German 
 Empire of the three codes relating to bills and notes, commerce 
 and crimes, as well as the great reforms in the law relating to 
 landed property, induces the party of progress in Germany to 
 hope that the commission now sitting for that purpose will, at 
 no distant day, report a codification of the entire law, thus 
 completing a reform so full of difficulty by reason of the lack
 
 37 
 
 of a central influence during the formation of the ius particu- 
 lar e of the Provinces and States now composing the German 
 Empire. 1 
 
 Mr. Carter's strictures regarding the results of codification 
 of the private law of Louisiana and California, alone, of his 
 historical parallels, remain to be noticed. It would not be 
 strange if it had been the fact, that codification had failed 
 and failed utterly in Louisiana, a country subjected within less 
 than a hundred years to the political domination of three powers, 
 each possessing a different language and a different jurisprudence. 
 That it has not failed is perceived by, the persistent retention of 
 a code, largely foreign in composition and origin, by the now 
 dominant American element in Louisiana. Had this element not 
 perceived the advantage of a lucid and simple form of the law, 
 they would long since, in accordance with the law of nations, 
 have substituted the law of the dominant people ; and it is well 
 known that shortly after the annexation of Louisiana such a sub- 
 stitution was proposed. To any one familiar with the disposition 
 of the various races of people in Louisiana, and especially at 
 the metropolis, New Orleans, it will not appear strange that, 
 in the course of the trial of cases not precisely provided for 
 by the code, each element of the population, by its proper 
 agent, appeals \f> the more familiar or favorable analogies, 
 presented by any recognized system of jurisprudence. It may 
 be true, without affecting the merits of the question of codi- 
 fication at large, that the purely American element, fully 
 represented at the bar, now appeals most frequently to the 
 familiar analogies of the Anglican common law, as it is the 
 substratum of the lex mercatoria of Louisiana as well as the 
 ultimate standard of her supreme appellate tribunal. Certainly 
 neither the fact of the present reference, in many Louisiana cases, 
 to the common law of the prevailing Anglo-American type, nor 
 the criticism by a single Louisiana judge of the hardship of 
 the thirty-five definitions contained in the Louisiana code, make 
 out a strong case. The truth is that the people of Louisiana 
 are better satisfied with the law contained in their code 
 
 i " Law Reforms in Germany," XVIII., Am. L. Rev., 801, 811.
 
 38 
 
 than with the law which is not in accord with it. The 
 native element in Louisiana, and that is the best element, 
 is a code-respecting people. Many years ago, in the days 
 of Kent and Story who approved it, Gustavus Schmit, a 
 Louisiana lawyer of great erudition, prepared a short history 
 of the jurisprudence of Louisiana; in it is this praise of 
 the then recent French reform: "France, whatever may be 
 thought of the rank which it occupies as an agricultural, 
 commercial and manufacturing country, is unquestionably, so far 
 as it relates to the theory and practice of its civil jurisprudence, 
 in advance of the age, and can afford useful lessons to the rest of 
 the civilized world." It was this spirit, partly reflected from this 
 writer, which enabled the people of Louisiana to arrive at an 
 ultimate codification. Lately, and after a long and adeqliate 
 trial of its merits, the Code of Louisiana appears to have been 
 re-enacted. Not only has it been re-enacted, but there seems to 
 be no agitation upon the subject and no apparent disposition to 
 substitute that Anglican product which, with some modern- 
 improvements, we have the honor to enjoy in this and most other 
 States of the United States. 1 
 
 The recently published testimony of the Calif ornian judges to 
 the practical success of a code of private law in their State, is 
 not impugned by the assertion that the social and political condi- 
 tions of California are so much more simple than like conditions 
 in this State as to make the feasibility of codification there prove 
 nothing here. The same form of assertion has been made by 
 Professor Amos to the English people in regard to the results of 
 a codification in New York, with the effect of permitting one to 
 think that professional gentlemen who have lived within the 
 sound of " Bow Bells " are not widely different from professional 
 gentlemen who dwell within the sound of Trinity chimes ; both 
 have their idolafori. The fact undoubtedly is that social and po- 
 litical conditions in California are not widely different from those 
 with us in this State. If at all different, those in California are, 
 as the Federal Supreme Court Reports show, the more complex. 
 
 i Confirmation of tbe general view stated ma}' be seen in a late paper entitled, " Civil Law 
 in Louisiana," by Thomas J. Senimes, Esq. (5th Annual Report of :he American Bar Asso- 
 ciation, pp. 242. *51).
 
 39 
 
 The time has gone by when the newer settlement is presumably 
 the more rude : Xew York started upon the seventeenth cen- 
 tury with the accumulated product of European civilization, just 
 as California started upon the nineteenth century with all Amer- 
 ican civilization behind her. Social conditions which the law 
 recognizes are not now materially simpler here than in England, 
 nor those in California, materially simpler than those here. The 
 modern basis of law is largely contractual everywhere, just as 
 modern society everywhere is now free from those feudal 
 restraints upon status that once complicated government by 
 means of the various imperia in imperio which the 'general 'gov- 
 ernment was forced to recognize in legal administration. In 
 other words, the mercantile and manufacturing worlds of England 
 and America are not now essentially different ; what is law for 
 one is very properly law for the other. That which in England 
 differs from America, relates to the privileged class of the former, 
 and is a remnant of feudalism. This difference is unquestionably 
 growing less, so that some advanced lawyers are already dream- 
 ing of a universal codification of the laws of immovable property. 
 It is not necessary to concede the feasibility of such a scheme in 
 order to maintain that there is nothing so complex in the laws of 
 property in New York and we have no law of a particular 
 status as to cause the Calif ornian code to be a solecism here. If 
 a code of private law works well in California, where everything 
 is commercial and contractual, it will, with some modifications, 
 work well here, where everything is also commercial and con- 
 tractual, and certainly not feudal, even the manorial tenures 
 which once prevailed in some of the river counties having been 
 wholly obliterated. 
 
 At this point a phenomenon, not unnoticed by students of 
 institutions, may be emphasized the tendency of Americans to 
 adhere to European legal institutions. There is scarcely a dilap- 
 idated English law which, when well worn out there, has not 
 found its way here, and sometimes a congenial abode. Sir 
 Edward Sugden (Lord St. Leonards) wondered that Americans 
 could deliberately take up with all the mysterious involutions of 
 the English law of powers, an entirely artificial system invented 
 to unloose the fetters upon the alienation of English real prop-
 
 40 
 
 erty. Let us only hope that a servile habit of imitation which 
 this betokens, will not restore to us that flagrant antinomy of 
 law and equity, or special pleading, or the miserable subterfuge 
 of the common law concerning consideration and seals, or lastly 
 that bewitching scholasticism, the scintilla juris. What Amer- 
 icans want is a rational system of jurisprudence, thought out by 
 themselves, possessing fixed bases, and having its controversial 
 tendency toward principles and ethic, and not to precedents 
 alone. The beginning of this improvement will relate to the 
 form of its bases, which is the real subject of this paper. 
 
 leaving now completed a hurried survey of the States which 
 have had recourse to codification as a means of bettering the 
 condition of their organic law, we may next glance at the theo- 
 ries of codification prevailing in England and America. The 
 nature of the dispute as to the merits or demerits of expressing 
 laws in formulae, is not new. Students of philosophy will 
 recognize a phase of this very discussion in the distinction which 
 they draw between Plato and Aristotle. Aristotle's aim was to 
 reduce philosophy to science. Plato thought truth too many 
 sided to be shackled by mere verbal expressions. The result is 
 well known ; it was by the inexorable logic of Aristotle that men 
 were first enabled to detect with accuracy the true from the false. 
 The party opposed to codification simply adhere to the old 
 position that truth is too many sided to be shackled ; the party 
 of codification to the old position, that certain fundamental prop- 
 ositions of law may be so formulated as to afford great aid to 
 the arrangement and discussion of the propositions not formu- 
 lated. J It is not strange that Mr. Field is unwilling to repeat in 
 detail the answers long ago conceded to meet the very objections 
 now put forward by the adherents of the historical school of law. 
 It must also be remembered, in this connection, that these 
 answers are already existent in the literature of codification which 
 is extremely complete. 
 
 In England the question of codification has for some reason 
 become confused with the discussion concerning the merits of 
 
 1 " Now it is the business of losjic to codify, upon abstract principles, 
 investigations." * * 1 Fifke's Cosmic Philosophy, p. 239. 
 
 -, the rules of scientific
 
 41 
 
 consolidation, revision or other substitntional escape from compli- 
 cations in which their wide-spread empire helps to involve them. 
 The scientific faction of the English bar would, in the main, 
 seem to adhere to a very highly scientific plan of codification. 
 Recognizing that positive laws are concerned either with rights or 
 with duties they are engaged in a discussion as to whether rights 
 or duties afford the best basis for a successful codification a 
 question about which the practical codifiers of the world have 
 wasted very little breath. Prof Holland of Oxford, in some 
 respects the most distinguished scientific jurist now living, has 
 but lately succeeded in squaring the circle of the jurisprudents 
 by a distribution of the entire subject-matter of jurisprudence on 
 the basis of rights, a problem Austin notably failed to solve. It 
 ought, at this juncture, to be noted that Professor Holland 
 has disclaimed that his system of jurisprudence was ever intended 
 as a basis of English codification. l Other persons, however, less 
 discriminating than Professor Holland, and imbued with the 
 classifications of Austin, Mill, or some other founder of a system, 
 would make these classifications the basis of English codification 
 without regard to the needs of those lawyers who must always 
 practice their profession as an art rather than as a science. The 
 supreme motive in codification to subject a body of law to a 
 form which best fits it to the concrete purposes of technical law 
 is thus lost sight of at the outset. 2 
 
 The practical work of codification has always been performed 
 by practical lawyers, those familiar with the needs of practical 
 lawyers. They have generally been men with a scientific bent, 
 but above all possessed of some knowledge of the science of legis- 
 lation upon which successful codification most depends. 3 By this 
 
 1 In a preface to his Treatise on Jurisp. intendei to answer Mr. Tilley's critique, in the 
 London Law Magazine and Review. 
 
 2 Mr. Mill says : " The proper arrangements, for example, of a code of laws depends on the 
 same scientific conditions as the classifications in natural history," and he also says that a 
 scientific code could scarcely have been constructed before the days of the naturalist. Linnaeus 
 (ifiirg System of Logic, sixth edition, vol. II., p. 283.) But what practical lawyer can assent to 
 such a theoretical view of codification as this '. 
 
 3 
 
 lateu 
 
 du leg 
 
 commun ; la science du magistral est de mettre ces principes en action, de les ramifler, de les 
 eteudre par line application sage et raisonee, aux hypotheses privees : d'etudier 1'esprit de la 
 loi quand la lettre tue : * * * 
 
 Motifs, Edit. Poncelet. Discours Preliminaire du premier projet de Code Civil. 
 
 History also teaches that in the Greek states, at a very early epoch, the functions of prepar- 
 ing laws were committed (o specially trained draughtsmen, rouo r Jrat. Ordinary train- 
 ing was not deemed adequate.
 
 42 
 
 assertion it is not intended to ignore the great contributions which 
 the scientific and speculative writers have rendered to the cause of 
 modification. It is for example easy to misconceive Bentham's 
 position in this connection and to describe him as an impracticable 
 theorist or enthusiast, for in some respects his convictions induced 
 him to overlook the elements of stability in human affairs. Ben- 
 tham was great, not as a constructor of codes, but as a scientific 
 legislator. He was the greatest master of the science of legislation 
 who has yet lived ; a fons philosophies from which all men 
 derive something : " Pillaged by all the world yet always rich," 
 Talleyrand is reported to have said of him. He was barely a 
 lawyer, except nominally or by profession, and yet nearly every 
 legislative reform which he projected has been adopted by the 
 State and its wisdom ultimately acquiesced in by all practical 
 lawyers. An enemy of feudalism and of formalism of all kinds, 
 Bentham is to-day justly regarded as one of the benefactors of the 
 human race. It is not strange that some common lawyers are 
 found to complain of Bentham for he did much to break up the 
 power of the sect which for some centuries claimed to be the 
 exclusive repository of the common law. 
 
 As it is easy to misconceive Bentham's relation to codifica- 
 tion, so it is easy to misconceive the position of Austin and other 
 legal writers. Austin is facile princeps of the English analyti- 
 cal jurists ; but his personal relations to codification are insignifi- 
 cant. Possessed of a keen logical faculty, Austin analyzed the 
 elements of jurisprudence with a thoroughness which positively 
 precludes the chance of the reader's misapprehending him. Since 
 his death his teachings have had a powerful influence upon legal 
 thought both in England and America, but his contributions to 
 codification proper are comparatively as nothing, consisting of a 
 few posthumous fragments of a tentative character. In regard 
 to Professor Amos, Mr. Carter's " free lance," it should only "be 
 said, as he is still living, either in Australia, Egypt, or England, 
 that he has seen fit to indulge in criticism of all foreign codifica- 
 tion, palliating it, in the case of New York, with the pleasing con- 
 descension that such a crudity as the Field Civil Code may be 
 well adapted to the crude condition of affairs in this State. This 
 criticism justifies the remark that there is nothing in Professor
 
 43 
 
 Amos' position, which entitles his censure to be regarded as final 
 by Americans ; a voluminous and highly respectable, though not 
 very original, 1 writer, he is but a faint reflection of the masters 
 of jurisprudence whose names have been mentioned. Professor 
 Amos has published, among other things, his own scheme for a 
 code which, though curious as a professorial emanation only 
 the professorial bent being usually didactic rather than construc- 
 tive is not remarkable. 2 In the region of practical codification 
 of the laws of England and her colonial offshoots, of all men past 
 or present, stand preeminent, two American gentlemen, Field and 
 Livingston, 3 and entitled to be mentioned after them are 
 Macaulay, who drafted the Indian Penal Code, Sir James Steph- 
 en, who drew the Indian Evidence Act, Sir John Romilly, Mr. 
 Justice AVilles, Sir Edward Ryan, and several others whose labors, 
 in some form, have taken practical direction. In the latter list, 
 no doubt, should be comprised Mr. Derbigny and Mr. Moreau 
 Lislet of Louisiana, as well as Duer, Spencer, Butler and "VVheaton, 
 the draughtsmen of the New York Revised Statutes, one of the 
 best and most influential pieces of legislation extant, whether we 
 have regard to the reforms it instituted in the common law of 
 real property, or to the general character of the revision. 
 
 By a brief examination of extant codes we may perceive not 
 only that the best pieces of modern codification have emanated 
 from practical lawyers, but also that they have not been framed 
 in strict accord with the notions of the speculative writers on codifi- 
 cation. The Civil Code of New York, like the Code Napoleon 
 and the Code Frederic, follows the order of Justinian's Institutes 
 and treats successively of the law of persons, of property and of 
 obligations. Now it is well known that the speculative writers 
 do not approve of the arrangement of any of these codes, for 
 they find in them a lack of logical principles of division, or clas- 
 sification. But the answer to this criticism is that the classes to 
 
 i The Athenaeum, an English periodical, gums it all up in an equivocal but discriminating 
 notice of Prof. Amos' work on the '-Science of Politics," as follo\ys : " Professor Amos has 
 collected a great many observations and offered a great manv opinions, some of which are 
 original, and some of which are valuable." . Fly leaf, Amos' Rom. Civ. Law. 
 
 -It must, however, be admitted that Professor Amos has the courage of his convictions 
 and that he is in many departments a most pleasing and instructive writer on jurisprudence. 
 It is fair to Professor Amos' qualification as a critic to add that he has lately, in answer to 
 an inquiry of one of Mr. Fieid's opponents, expressed himself as having entirely changed 
 his former opinion of Mr. Field's codes. 
 
 3 Livingston and his colleagues are enumerated because their labors included a considera- 
 tion of parts of the English common law.
 
 44 
 
 whom codification is most useful would not appreciate a purely 
 logical principle of dichotomy ; they require the rougher and the 
 more practical divisions with which they are, at a glance, familiar. 
 In respect of its arrangement, there has been no criticism of the 
 New York Civil Code, except from such theoretical writers as 
 Amos. At least the anti-code element in the bar societies of 
 New York has made none up to the present time. 
 
 The truth of Mr. Carter's most sweeping proposition, now 
 urged against the Civil Code of New York, that all codification 
 is unscientific in theory, depends much on what is meant by 
 scientific. Science is most commonly referable to a body of 
 knowledge arranged in an orderly manner. To be at all relevant 
 to the pending measure, then, this proposition can only mean that 
 in its present state the common law is better arranged than in 
 any code, or else, that any statutory arrangement is unphilosophic. 
 In order to discuss even so plain a proposition, it is necessary to 
 be rid of ambiguous terms and, therefore, to decide in which of 
 its conflicting meanings the term ' common law,' as it is of 
 extended significance, is intended to be used. It has been said 
 that the best way to define 'common law' is by the things to 
 which it is opposed : (1) as contrasted with statute law ; (2) with 
 equity ; (3) with the law founded on the civil law, with the 
 exclusively local, or military, law. As contrasted with all these 
 things, it is the residuum of a nation's law. There is still another 
 definition quite opposed to the former, or rather inclusive of 
 the very things contrasted in the first definition. 1 In this latter 
 or secondary meaning, the common law becomes the designation 
 of the entire jurisprudence of England, or of any one of its 
 colonial offshoots. Mr. Carter uses this term indifferently, and it 
 is therefore necessary to observe closely in which sense he means 
 it, for the common law of England, in the larger sense of the 
 term, is in a faint degree only identical with the common law of 
 New York. 
 
 In the original colonies of England, the common law con- 
 tains, independently of its mere arrangement, an element of great 
 uncertainty, which it is thought codification will entirely 
 
 1 See generally Kale's Hiet'y Com. Law, pp. 52-54.
 
 45 
 
 obliterate. The common law of New York, for example, owing 
 to the colonial conditions under which English law was intro- 
 duced here, is based upon an illogical hypothesis, most 
 damaging to its certainty and to legal administration. The 
 hypothesis in question is that the common law of New York is 
 fundamentally identical with the common law of England in the 
 last century, in so far only as this latter is suited to colonial con- 
 ditions. Xow, how far the English law of the eighteenth century 
 is 1 suited to colonial conditions is one of the most perplexing 
 problems with which the American judicatories have to deal. 2 It 
 is not strange that such should be the fact, if we consider the 
 embarrassment of introducing a body of law made exclusively for 
 one country into another, far distant and originally not 
 intended to be included within its operation. Every one knows 
 of the interest which originally attached to Buckle's attempt to 
 demonstrate that civilization was the product of climate and 
 locality, and realizes now that the failure of the demonstration 
 was inevitable from the vast scope of the proposition. Yet few 
 will deny that jurisprudence, a component of civilization, is to 
 some extent a local product, and that its introduction elsewhere, 
 than in the land of its origin, is full of embarrassment. In order 
 to make more apparent what is meant by the assertion, that the 
 common law of New York is founded upon an illogical hypothe- 
 sis, gome further digression must be condoned. About the time 
 that law of English original was being first introduced by the 
 English government in countries out of England, the English 
 institutional writers and, for that matter, many English judges, 
 frequently resorted to figurative explanations of legal phenomena. 
 The common law, like the Koman ins civile, was made for men 
 in a certain status only and the embarrassment of accounting for 
 the application of the common law in the English dependencies, 
 taxed greatly the English judges' ingenuity. With one accord 
 they finally agreed that the English common law was 
 in force in the crown possessions " extra 4 (quatuor) mare, " 
 as the possessions in question were quaintly described, 
 
 1 It is spoken of in the present tense, because by a curious juridical fiction the fact is being 
 determined now retrospectively. 
 
 2 Meyers v. Gemmel, 10 Barb. 541.
 
 46 
 
 because it was the "birth-right of English subjects everywhere." 
 Now it needs no examination to detect that this assertion is purely 
 figurative. Sometimes the institutional writers went farther into 
 detail when the English common law was described as introduced 
 into uninhabited countries, discovered and planted by English 
 subjects, upon the " birth-right " theory, but into countries con- 
 quered by Englishmen by express legislation only. 1 The fact is 
 this contrast is unsound; law of English original could be intro- 
 duced into any countries out of England only by express legisla- 
 tion of some sort, and the distinction denoted by Blackstone is 
 pure fiction. Until new countries are subjected to constituted 
 authority, the inhabitants are subject to the law of nature only, 
 and that was the doctrine of the earlier English cases. 2 After a 
 government is once established the constituted authority promul- 
 gates laws ; and in the case of the English colonies, laws of 
 English original. Sometimes the legislative machinery has been 
 and, doubtless, now is concealed in the crown-governor's com- 
 mission, or in his instructions, but it is always present somewhere. 
 The institutional writers in order to account for the unfamiliar 
 limitation usually contained in the colonial constitutions that the 
 law of English original should be in force in the new countries 
 only in so far as suited to the new conditions proceeded to 
 amplify their theory accordingly. They chose to regard the 
 common law as " carried " by the colonists, but only so much of 
 it as was needed. Yet no one will now pretend that any particu- 
 lar colonist carried any particular law, so that a little reflection 
 enables us to detect that the commonly received account of the 
 mode in which English laws were introduced here is figurative. 3 
 
 The result of this early theorizing upon the American colonial 
 law has not been conducive to certainty in later legal administra- 
 tion and in Xew York, where we have the largest body of sub- 
 stantive law, it has been most unfavorable. Justice Story, while 
 not stopping to question the received account of the mode in 
 
 1 1 Bla. Com.. 108. 
 
 2 Dutton v. Howell, Shower's Parl. Cas., p. 31, temp. Car., 11. 
 
 s In a series of a, no doubt, too desultory observations on New York jurisprudence published 
 in the Albany Law Journal (Vols. 19-20) the writer of this paper first directed critical attention 
 to the invalidity of the Blackstonian theory of extra territorial common law. He is pleased 
 to observe that since then Dr. Wharton has given greater emphasis to the discussion, though 
 from other and often opposite points of view. (See Wharton's Commentaries on American 
 Law. pp. 48, 102, 103).
 
 47 
 
 which English law was established here, pronounces the theory 
 " most perplexing," because of the element of uncertainty, as to- 
 what part of the English common law was in fact in force here, 
 He adds," It is not easy to settle what parts of the English law 
 are or are not in force here until either by usage or judicial 
 determination they have been recognized as of absolute force." l 
 Thus it may be seen that upon any theory the very basis of the 
 common law of New York is, because of the particular qualifica- 
 tion with which its introduction was originally burdened, a much 
 more uncertain quantity than that of England. But as if New 
 York was intended to be devoted to the fury of the infernal gods 
 who preside over its legal institutions, still another hypothesis 
 comes in at the basis of its particular common law : The judica- 
 ture of New York has long proceeded to determine what part of 
 the English jurisprudence was in force here upon the theories, 
 contrasted by the early institutional writers, that in conquered 
 provinces the English law was imposed only by legislation, 
 whereas in newly discovered countries it was transported by the 
 colonists as their " birth-right." Now whether New York is, for 
 the purpose of practically applying this introduction theory, to be 
 regarded as having been acquired by the English by conquest, 
 or by discovery and iure occupationis, under the Romanized law 
 of nations, the New York judges have been somewhat puzzled to 
 determine, though giving the preference to the latter view, which, 
 by the way, is exactly opposed to the historical fact. 2 New York 
 was in reality conquered by the English from the Dutch, but by 
 reason of the extraordinary breach of the law of nations which 
 Charles II. committed when he permitted the Duke of York to make 
 war with the colony of a power with which England was at peace, 
 the English claimed New York retrospectively, or before they 
 had taken it, and as having belonged to them originally by dis- 
 covery and prior occupancy. Curiously enough this old historical 
 dispute now lurks at the bottom of our common law and two 
 centuries later 3 puts suitors to many an unnecessary bill of costs. 
 It is only necessary to point out further, that not only is the 
 
 gg ^ Ba^b. Ch. 123 ; 30 Barb. 14 ; 35 N. Y. 458 ; 46 id. 141 ; 10 Barb. 544; but see 
 contra 15 Johns. 93 ; 5 Wend. 436 ; 6 Hill, 177 ; 15 Johns. 115 ; 37 N. Y. 253 ; 24 Wend. 623-24. 
 Dunham v. Williams, 37 N. Y. 251, reversing 8. C., 36 Barb. 136.
 
 48 
 
 -cotmn'on law of New York subject to the two local hypotheses 
 outlined, but it is involved in an additional one, common to all 
 the original American colonies and provinces : Blackstone in 
 giving a concrete instance of the application of his theory of the 
 common-law introduction into crown dependencies, cited the 
 American colonies as examples of countries acquired by con- 
 quest, and added that there consequently the common law of 
 England was set in force by express legislation. 1 Later in the 
 history of American jurisprudence, when it became necessary 
 to account for a law of English original, which was wanted for 
 immediate application, but the chain of title to which was 
 obscure, the Supreme Court of the United States partially 
 rejected Blackstone's theory ; and Chief Justice Marshall most 
 solemnly decided that Blackstone was partly mistaken ; that 
 America was not conquered from the Indians, because the Indians 
 had no national existence to conquer ; and, consequently, that the 
 common law of England was to be regarded as in force here upon 
 the theory that the American colonies were discovered countries 
 and not conquered provinces. 2 
 
 Such, then, are only some of the mischiefs in the adminis- 
 tration of a law, the very existence of which is postulated of 
 fictions. Had public attention been directed to an analysis 
 of laws in general, such a monstrous system of judicial riddles 
 would perhaps never have been incorporated in the new State 
 Constitution which re-adopts the common law of the former 
 colony a commodity the colonists could never determine, and 
 consequently always complained of after the repeal of the " Duke's 
 Lawes," the first code of New York. 3 As a specific instance of 
 the mischiefs occasioned by the uncertainty as to what is, or is 
 not, the common law of New York, the case of Meyers v. 
 Gemmel 4 affords fair illustration. Now codification must ulti- 
 mately cure all such doubts and uncertainties as are peculiarly 
 referable to the theories just noticed and substitute therefor a 
 private law of American origin, not dependent for its existence 
 
 1 1 Bla. Com. 108. 
 
 2 8 Wheaton, 573 ; 16 Peters, 409. 
 
 s This code was a very complete body of private law, and had it not been for the Dutch 
 element in New York it would have been an entirely satisfactory babis for New York juris- 
 prudence. It was enacted in A. D. 1664, and re-promulgated in 1674. 
 
 10 Barb., 541.
 
 49 
 
 on some curious, mediaeval utterance, expounded and amplified 
 by the English institutional writers into a theory at variance 
 with fact. In any aspect of the matter it may well be doubted 
 whether a common law predicated of such a double uncertainty 
 can be said to be fundamentally scientific as Mr. Carter has seen 
 fit to suppose it is. 
 
 The present disposition of the common law of New York in 
 reports of adjudications, is not entitled to be regarded as more 
 scientific than it would be if arranged in a code. Doubtless, 
 when the number of reported cases is comparatively small no 
 arrangement in lucid order is necessary to the lawyer-class; 
 each trained person being able to supply the deficiency for 
 himself. It is only when the state of the law becomes so dif- 
 fuse and contradictory as to defy all private attempts at classi- 
 fication that compendiums and abridgments become necessary 
 to lawyers. Now the difference between compendiums and codes 
 is only one of degree. A digest is an arrangement of legal 
 propositions, in alphabetical order, without authority, while a 
 code is a logical, authoritative, statutory arrangement. Pro- 
 fessor Holland calls a digest, an "imperfectly developed code," 
 and states, " that as compared with unsystematic law they 
 stand very much in the same position." It is unnecessary to 
 insist upon this analogy further than to say, that it is scientific 
 support for a favorite assertion of Mr. Field's. The disposition 
 of the common law in digests is open to the objection that 
 although it lessens the labor of the investigator it leaves the 
 distribution of the law in the reports open to its peculiar ob- 
 jections. Strictly speaking the common law of New York begins 
 with the Year-books and it ends only with the Weekly Digest. 
 But a distribution of any body of law in thousands of volumes 
 is certainly open to grave objections. In the first place, the 
 reports are most often contradictory and confusing, and in the 
 next place they are frequently made to prove more or less accord- 
 ing to the inductive skill of the contender a process operating 
 verv harshly upon a client whose case is hi the hands of a defective, 
 or careless legal logician. Before a court of moderate capacity, a
 
 50 
 
 lawyer of superior intellect, or industry, will often so arrange the 
 numerous authorities as to entirely obscure for the time being all 
 kind of right disposition in the court ; thus, oftentimes, only after 
 an appeal does the meritorious suitor succeed in divesting his case 
 of the clever web of his adversary. Another great objection to 
 case-law is that the vast agglomeration of decisions tends to make 
 the law one of precedent and not one of principle ; judges and 
 lawyers are so overwhelmed and confounded by the array of 
 authority that in desperation they shield themselves behind some 
 ill-considered precedent without regard to substantial justice in 
 the given case. But the main defect, after all, in the present 
 disposition of the common law, is its repressive tendency ; it is 
 not conducive to liberal views concerning the entire scheme of 
 the law, and it fails to convey the relation which isolated groups 
 of laws bear to the entire body of laws. This is a great defect, 
 for just as few specialists are, from their too concentrated habit, 
 wholly safe advisers, so few accurate deductions may be made 
 from cases relating wholly to one set of principles. The reasons 
 in support of the proposition that a code is the more scientific 
 arrangement of any body of law, might be amplified indefinitely, 
 but if enough has been said to induce the so-disposed to examine 
 for themselves the better authorities on this question, this paper 
 will have accomplished its mission. 
 
 One of the more common charges against codification, repeated 
 by Mr. Carter, is, in substance, that it has a tendency to promote, 
 what the scientific writers term logomachy or a war about words, 
 and to the subversion of legal discussion about principles. If the 
 common law were now a simple, well-arranged and compendious 
 body of law, this comparison might contain an element of truth, 
 but in the present dispersed, confused and contradictory state of 
 the reports, augmented by the habitual citation of cases of foreign 
 original necessary by reason of the fiction that the common law 
 of one State is responsive to all cases it is unsound. The com- 
 mon law cannot, in its present condition, be assumed to be even 
 relatively a law of principles. Its most elementary principles are 
 BO impugned and confused by contradictory and illy-arranged 
 reports as to make all legal discussion a war about precedents, 
 with the result of entrapping the less diligent case-reader. But
 
 51 
 
 assuming for argument only, the truth of the assertion, that the 
 common law is a body of principles and not words, though it is 
 most difficult to conceive of principles disembarrassed of words, 
 for practical purposes a body of law should be more concrete. 
 The process of extracting principles, from adjudications, is a very 
 laborious one, requiring the highest order of mental effort. In 
 the hands of the unskilful this process is nearly always fallacious, 
 inflicting unnecessary penalties on the suitor and provoking much 
 unjust litigation. No doubt a few skilful men of logical habit, 
 whose tastes incline to polemics, are not displeased with the 
 weapons which afford them such great opportunities for forensic 
 triumph. They are able to possess themselves of a great number 
 of leading principles accurately deduced from the cases, and to 
 feel that they have a firm grasp of them, without reference to a 
 code. But the majority of the legal fraternity an exceedingly 
 necessary though perhaps less conspicuous element have no such 
 satisfaction, and it is to this last class that a code is a blessing in 
 the times of doubt and uncertainty. 
 
 Another form of the same accusation, which is the subject 
 of the preceding paragraph, is contained in Mr. Carter's asser- 
 tion that the common law of New York is at present a law of 
 principles, whereas the Civil Code will be a law of language, 
 with all the imperfections which relate to language. Long ago, 
 Mr. F. Yaughan Hawkins returned a complete answer to a pre- 
 cisely similar assertion then made by Mr. Best, the well-known 
 law-writer, and it would seem proper that their able discussion 
 .should have either closed this branch of the controversy or 
 have been recognized as the basis of a new departure. Mr. 
 Hawkins pointed out that this objection to codes failed to note 
 the difference between the earlier and later stages of case-law : 
 When case-law becomes elaborated to a high degree of detail, 
 the function of the judge becomes more and more circum- 
 scribed, until at last it ceases altogether to be so much the ap- 
 plication of principles as a law of precedents. The objections 
 to a law of precedents are their protean character, their present 
 bulky and dispersed disposition, and that they may be able to 
 prove more or less according to the skill of the advocate, with 
 but little chance of a court's immediately detecting elaborately
 
 52 
 
 constructed fallacies. Add to Mr. Hawkins' answer, that a law 
 of principles must become expressed in words in order to be prac- 
 tically applied, and the superiority of case-law vanishes before 
 the claims of a well-expressed code. 1 
 
 Enough has been said to enable . the unbiassed reader to 
 gather at least that those in favor of codification differ with 
 the conclusions of their opponents, that codification of the 
 common law will introduce into the law either great error, 
 uncertainty, or any other evil prophesied. !Nor will codifica- 
 tion arrest the spontaneous development of the common law. 
 All writers on codification agree that the development of new 
 law beyond and in addition to that expressed in a code is inev- 
 itable, and that to deal with the new case-law summarily some 
 permanent machinery is necessary. In 1829, the revisers of 
 the statutes of New York attempted to cope with this very 
 problem, in so far as it was related to their own revision, bwt 
 nobody has ever heeded their suggestions. What this perma- 
 nent machinery is to be, is one of the problems in England of to- 
 day, but it is one with which this State need have no concern y 
 for the future alone can deal with it. Any attempt to solve it, 
 must, it is thought, fail because of the inability of a legislature 
 to allow for unforeseen political and social variations of consid- 
 erable magnitude. Entirely new regions for legislation will be 
 discovered and give rise to new classifications which no code of 
 to-day can properly contemplate incorporating in any systematic 
 manner. The limits of codification are the present and the 
 known, not the future and the unknown. Mr. Field has always, 
 in this respect, rejected the notions of his scientific allies, thereby 
 giving other evidence of the eminently practical direction of his 
 labors. 2 If the opposition of Savigny and other writers who are 
 
 1 Mr. Carter approves of Mr. Justice Talfourd's criticism of statute law as exemplified by 
 the enormous ma-<s of liti.sa ion turning on the Statute of Frauds, without noticing the unfair- 
 ness of drawing into comparison a statute which almost to a greater degree than any known 
 statute, enter* into the common affairs of men. The wonder is that the Statute of Frauds is 
 so seldom drawn into controversy, as almost every contract, excepting the most petty, are 
 affected by it. This statute certainly has been a deterrent of litigation, and its provisions have 
 been only collaterally involved when its construction has been invoked, the cause of action 
 having arisen first. 
 
 2 Mr. Field has upon several occasions expressed his disapproval of another favorite theory 
 of some scientific legislators, that illustrations serve to vivify the text of a statute. There can 
 be no doubt that concrete instances by way of illustration often exclude cases which ration- 
 ally fall within the spirit of the statute. When a statute is enacted its working operation 
 should be left to the judicature and not controlled by the prevision of its draughtsman.
 
 53 
 
 opposed to codification lias accomplished little, it has at least ac- 
 complished this, the concession from practical legislators that they 
 cannot pretend to cope with the codification or the redaction of 
 laws not yet in being. 
 
 It may be pertinently asked, if codification neither destroys 
 the plethora of law nor remedies the process of evolving new 
 case-law, what can be claimed for it ? No doubt much is claimed 
 for it that will never be realized, for some evils are incidental to 
 human administrations of justice which is ideally a Divine insti- 
 tution. But this may safely be claimed for codification : It will 
 . tend to certainty in legal administration ; it will enable us to re- 
 move 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. It will also intro- 
 duce simpler methods of logic instead of the present dispersed 
 and ambiguous premises, covered with the scholia of the treatise- 
 writers and buried in the text of centuries, involving complex or 
 hypothetical syllogism in almost every closely contested case. 
 Another merit may be and is claimed for codification that it will 
 ultimately necessitate a higher type of legislative activity. When 
 each amendment or addition to law must have precise reference to a 
 skilfully drawn act disposing the entire body of law, the neces- 
 sity of a permanent corps of technically educated parliamentary 
 draughtsmen will be felt by a sound commercial community and 
 
 O ' 
 
 being felt will be forthcoming. 1 And, meanwhile, as property, 
 and not procedure, is affected by the Civil Code, debased legisla- 
 tion will be arrested, as in the case of the original Revised 
 Statutes, which was a code much more radical in character than 
 was ever authorized by the act naming its revisers. The articles 
 of the Revised Statutes relating to Powers and Uses and Trusts 
 have been singularly free from legislative interference, because of 
 the great danger to property which it was perceived lurked in 
 eacn amendment. To such an extent has this policy of non- 
 interference been the case that the courts have, in at least one 
 instance, been compelled to reform what some have thought the 
 
 i Public attention is already directed to this subject. (See an admirable paper by Simon 
 Sterne. Esq., Counsellor at Liw, before the American Bar As*o:-wtion, 30 Alb. Law Journ., 
 p. 223.)
 
 54 
 
 legislature alone should have reformed the article on Powers, 
 in so far as it was negatively concerned with limitations of per- 
 sonal property. 1 
 
 There is an indirect argument, often repeated against the 
 adoption of the Civil Code, to the effect that the reforms of pro- 
 cedure introduced by the Code upon that subject, have not sim- 
 plified procedure but have been provocative of much litigation 
 upon insignificant points of practice. The true and complete 
 answer to this negative argument would be a very long one, much 
 of it of an undesirable nature. But there is a ready answer 
 which may be briefly outlined : The details of the Code of Pro- 
 cedure were trivial compared with the several great reforms which 
 it instituted. The trouble has been with its working details 
 which were rendered unsymmetrical, to some degree, at the out- 
 set, by unfortunate local hostility to a very beautiful and com- 
 prehensive draft. The great merits of the first Practice Code 
 are that it destroyed the flagrant antinomy of law and equity and 
 that since its adoption there has been no instance of a suitor's 
 being turned out of a court unredressed, simply because his- 
 charges, if sound, were inartificially expressed, or his prayer for 
 relief, if he were entitled to any relief whatever, improperly 
 stated. A faithful examination of the politico-juridical questions- 
 connected with the original Practice Code will some day demon- 
 strate that the apparent faults which later invested it, are not 
 attributable to Mr. Field. As to the conceded reforms. which the 
 Practice Code instituted, they have now been adopted by nearly 
 all English-speaking States, and it is but common justice to Mr. 
 Field to admit that he has been most largely their author, and 
 that in consequence elsewhere, if not here, he is regarded as the 
 most influential living law-reformer. Praise which long ago was 
 conceded to him by foreigners, is not gracefully withheld from, 
 him by his own countrymen and profession. 
 
 The Code of Procedure, enacted in 1848, was, taking all 
 things into consideration, a very wonderful piece of legislation, 
 simple, concise and comprehensive. The revolutions it insti- 
 tuted, the extent of which it is difficult now to understand, were 
 
 i Cutting v. Cutting, 86 N. Y., 522.
 
 55 
 
 wholly, as every one knows, in the laws relative to pleading and 
 procedure. Had crafty, debased and unsystematic legislation 
 refrained from meddling with the primitive Practice Code, there 
 would never have been valid cause for dissatisfaction with those 
 reforms which Mr. Field originally contemplated. 1 Indeed, to- 
 day, if there were the slightest effort in the right direction, the 
 adjective law of New York, with all the light of experience, 
 might be readily made the best instead of almost the worst in 
 the world. But as argument is not made up of assertions, it can 
 only be stated that the limits of this paper do not permit that 
 precise array of historical facts which are necessary to prove these 
 particular assertions in detail, because, and because only, strictly 
 speaking, they are irrelevant to the arguments concerning the 
 Civil Code. It is but necessary to add, in this connection, that 
 the Court of Conciliation, which was originally a very important 
 part of Mr. Field's plan for the reform of procedure, would 
 have materially aided the systematic administration of law, 
 and have greatly cheapened its cost to the State by a diminution 
 of litigation, a result that must have re-acted on the regular pro- 
 cedure. This part of his plan, however, unfortunately failed of 
 execution. 
 
 Isolated English opinion of the New York Civil Code has 
 been imported into local discussion. This is going a long 
 way for specific authority concerning the merits of an Amer- 
 ican statute, but the journey having been taken, why is it 
 that the favorable comments have been left behind ? Professor 
 Holland, the acknowledged literary superior of Professor Amos, 
 has, in a very masterly review of all the codes of Christendom, 
 termed Mr. Field's Civil Code " one of the best codes of modern 
 times." But it is unnecessary to defer to any of the English 
 reviewers, as their opinions cannot be conclusive'; the very simi- 
 larities of their law and ours misleads them as to the extent of 
 the dissimilarities. While the writings of the new school of 
 English jurisprudence are of great value here, for philosophy has 
 no local habitat, their comments upon American political institu- 
 tions, and such the Code would be if adopted, are of doubtful 
 value and rarely entitled to be regarded as authority. 
 
 1 See, among other things, Judge Cady's editorial, 6 Alb. Law Journal, p. 297.
 
 56 
 
 Ever since Mr. Field wrote his now famous letter to the late 
 Mr. Gillian Yer Planck, mapping out, there and elsewhere, the 
 first practical and comprehensive scheme of reform in the admin- 
 istration of the common law, he has been justly regarded in 
 England by those who have paid most attention to codal legisla- 
 tion and its cognate topics, as one of the most potent, if not the 
 most potent, of all those who, since Bentham, have thrown their 
 shafts at the anachronisms and antiquities in the common law of 
 English-speaking peoples. To treat the first opinion of Amos as 
 the conclusive embodiment of English opinion is to ignore the 
 verdict which their better sentiment has rendered in favor of 
 Mr.* Field's work. But if all the critics in England were hostile 
 to Mr. Field, there can be little doubt that his countrymen would 
 ignore them, for no Englishman living has the claim to distinction 
 as a legislator which Mr. Field may assert if he would. It is diffi- 
 cult to conceive why we are asked to defer to a contrary opinion 
 simply because it bears the impression of a respectable English 
 name, unless it is, that because of our former colonial situa- 
 tion, we are always to regard the Temple as the Mecca at 
 which all things legal concentrate. If we are ever to become 
 legally as independent of England as we are politically, and to 
 rid ourselves of the bitter sneers of those who deride our bor- 
 rowed jurisprudence, it will not be because of any assistance 
 which Mr. Field's attempt will have received from that large and 
 influential part of our metropolitan bar, most attached to the his- 
 torical school. 
 
 Whatever may be the opinion of a few of Mr. Field's 
 opponents, conspicuous in the City of New York, its denun- 
 ciations of flie Civil Code are not shared by persons equally 
 conspicuous in the country at large. In an address lately deliv- 
 ered by Governor Hoadly before the President, Dean and gen- 
 tlemen of the Yale Law School, it was said : " The experiment of 
 " complete codification has been twelve years on trial in Cali- 
 " fornia. This code is also in force in Dakota. And this trial 
 " has been attended with the same consequences that have resulted 
 " from partial, or Procedure and Penal, codification elsewhere. 
 " If the testimony of Judge Sawyer of the Federal Circuit 
 " Court, Chief Justice Sanderson and other experts can be relied
 
 5V 
 
 " on, the experiment is a success. Twice has this great work, 
 " with which the honored name of David Dudley Field is indis- 
 " solubly associated, and which will preserve him in everlasting 
 " remembrance, if not as the Tribonian of this age, at least his 
 " precursor, been adopted by the General Assembly of New 
 " York. And when the veto power is no longer used to check 
 " its progress, and New York has given it a fair trial, not many 
 " years can elapse before its adoption in substantially the same 
 " form may be looked for in at least the majority of the States." 
 Referring to an earlier draft of the same work, the late Judge 
 Black, an excellent literary authority, styles it ' as comprehensive 
 as that of Napoleon, and as minute in its details as that of Living- 
 ston.' Many similar testimonials could be produced were 
 they necessary to strengthen the assertion of- this paragraph, that 
 the enemies of the Civil Code are mainly to be found amongst 
 a few gentlemen denizened in the City of New York and not 
 elsewhere. 
 
 Granting that the Civil Code is a meritorious draft, yet its pro- 
 fessional enemies assert also, that it may disturb rights of property, 
 and no doubt this suggestion is made in good faith : An inquiry 
 into its soundness requires us to first investigate the source of the 
 objection, and next its validity. Is .this objection a disinterested 
 plea in behalf of the property of clients, or is it a plea in behalf 
 of that property which lawyers possess (a small share of the 
 statistical total) outside of their avocation ? Assuming that it 
 may be in behalf of both, is the objection itself sound ? The 
 Code provides that its operation shall not be retroactive, while 
 the fundamental law provides that no statute shall affect vested 
 rights. Is not the assumption, then, that the Civil Code will 
 disturb vested rights a gratuitous one, calculated to work upon 
 the known timidity of capital ? Or, is the word " disturb " to be 
 taken in its untechnical meaning of to disarrange without neces- 
 sarily injuring ? 
 
 The plea that the Civil Code may disturb, but not injure capi- 
 tal, requires little consideration ; it is the purely personal argu- 
 ment ab inconvenienti. Assuming again, for discussion only, that 
 this plea may have some shadow of substance, what is it in 
 reality worth '( The friends of codification will unanimously
 
 58 
 
 reply, very little. The possession, of capital is not to be con- 
 founded with capital itself, nor the inconvenience of the tempo- 
 rary possessors of property with an inconvenience to property itself. 
 To make this distinction plainer recall, that the philosophy of the 
 classical writers terms that collection of rights and obligations 
 which inhere in a man ' universitas iuris. '* If we regard the man 
 apart from his bundle of rights and obligations this universitas 
 iuris we shall see some resemblance between universitas iuris 
 regarded objectively and a corporation or juristic person. The 
 fragile man himself dies, but his universitas iuris devolves 
 upon a successor or successors and endures indefinitely. If 
 again we consider apart those portions of rights and obligations 
 which attach to a particular piece of property we shall see more 
 sharply contrasted the truth of the distinction denoted. 'Now, 
 the laws which give rise to these particular rights and obliga- 
 tions, the supporters of codification say are sadly misshapen, 
 archaic and oftentimes irrational, let us rearrange these laws in a 
 more simple, modern, and national form. But the agents of 
 capital reply, while you may not injure property, you are 
 sure to annoy its possessor ; perhaps, expose him to incon- 
 venience. These, then, are the several assertions sharply con- 
 trasted, and the outcome of the whole of them is the plain ques- 
 tion are future generations to be laden with ancestral burdens 
 simply because the temporary possessors of capital augur some 
 inconvenience to their fleeting and ephemeral possessions in 
 any reform in the too diffuse conditions of a jurisprudence passed 
 over the seas to us ? The duty of the Legislature, in an amend- 
 ment of the law, is not to consider the baseless fears of plutoc- 
 racy, but the advantages to posterity in all time ; not the modern 
 Cro3sus, but the countless multitudes of men who will fill the 
 waste places of the world when the modern Croesus is no more 
 heard of and when, like his eponymous hero, and Midas and 
 
 1 This term is no more strained, than persona or ius from which we derive our technical 
 words, person, justice and jurisprudence. Persona means primarily a mask and thus served to 
 indicate the rights which masked the man and constituted bis juristic self, or individuality. 
 So, the word >i/ jus) indicates the bond which originally bonnj men together, thus pointing to 
 the purely artificial or social origin of all laws. These primitive meanings of greatly extended 
 terms show the importance in highly developed societies of well-chiseled or plainly written laws, 
 neatly arranged, so that all men can see for themselves their fundamental rights. When artifice, 
 technicalities, sophistries and over-refinements shall again, as they must, obscure the codes, 
 new redactions will be nec3*sary, but history shows these cycles are farther apart than is often 
 supposed to be the case.
 
 59 
 
 Crassus and all the host of the Claudii, he, too, shall have joined 
 the shades. Wise laws and institutions are made for peoples, not 
 for persons. 
 
 That a considerable body of lawyers should persistently 
 adhere to the traditional form of the law, or to the law as they 
 know it, is not strange when we have reference to the bias created 
 by educational methods and by force of habit. Every avenue to 
 legal preferment has so long been through the ancient methods 
 that any change in the venerable system by one in our midst 
 is in some quarters inclined to be resented as an affront ; it is 
 fairly regarded as an encroachment upon personal environ- 
 ment. No property is so personal as his law in the abstract is to 
 the lawyer and its would-be-invader is not regarded with favor by 
 those who, consciously or unconsciously, have this feeling to a 
 marked extent. It may be unfair to regard this as an element of 
 the late discussion and yet we must concede that if there is an 
 opposition without sound reason, it is occasioned by bias and by bias 
 only. Another mode of accounting for unreasonable opposition 
 to a change in the form of the law, relates to the state of our 
 juristic literature. This also is inextricably confused with the 
 traditional form of the law. When we reflect how entirely the 
 contributions of most American legal writers are posed upon the 
 antique models, it is not extraordinary that many of their readers* 
 preference should be for the older arrangement of the law. Yet 
 this feeling cannot be admitted to be universal : Americans 
 appreciate original contributions to literature. The Revised 
 Statutes of New York, though impugned by Chancellor Kent, 
 have been extensively followed ; the Field Codes, though 
 derided by a few, have been widely adopted 1 and loudly 
 
 i The following table of dates, cut from a New York newspaper some time since, shows the 
 extent to which Mr. Field's draft legislation has contributed to the legislation of the world : 
 
 " The first New York Code, the Code of Civil Procedure, went into effect on the first day of 
 July, 1*48. It was adopted in Missouri in 1849. In California in 1851. In Kentucky in 1851. 
 In Ohio in 1M3. In tbe four provinces of India between 1853 and 1856. In Iowa in 1855. In 
 Wisconsin in 1856. In Kansas in 1859. In Nevada in 1861. In Dakota in 1862. In Oregon 1862. 
 In Idaho in 1864. In Montana in 1864. In Minnesota in 1866. In Nebraska in 1866. In Arizona 
 in 1866. In Arkansas in 186S. In North Carolina in 1868. In Wyoming in 1869. In Washing- 
 ton Territory in 1869. In South Carolina in 1870. In Utah in 1870. In Connecticut in 1879. m 
 India 
 has 1 
 Shanghai, 
 
 cedure, the 
 
 at the same time with the Code of Civil Procedure. In Kentucky in 1854. In Iowa in 1858. In 
 Kansas in 1859. In Nevada in 1851. In Dakota in 1862. In Oregon in 1864. In Idaho in 1864. 
 In Montana in 1804. In Washington Territory in 18C9. In Wyoming in 1869. In Arkansas in
 
 60 
 
 praised for literary and legislative excellence. The discussion 
 which has succeeded to all these measures only demonstrates, 
 that there is a limitation to the soundness of the criticism of 
 those who have grown up under the purely traditional methods 
 of legal development. 1 
 
 If Mr. Field's Civil Code be regarded in its literary aspect 
 alone, it is surely entitled to respectful consideration from a 
 learned profession, for it is the most completely original work 
 ever produced by an American legal writer, while for accuracy 
 of technical expression it is unquestionably the equal of any stat- 
 ute yet drawn in the English tongue. Singularly enough, the 
 best chronicles of Mr. Field's literary labors are found in foreign 
 periodicals. "Whether this is due to oversight on the part of his 
 neighbors, or to the greater sagacity of the foreign critical writers, 
 those competent to judge will ultimately determine. That such 
 should be the case with the Civil Code is doubtless due to its 
 having received greater critical attention abroad than at home. 
 It has figured conspicuously in the legislation for India and in 
 that for many of the Western American States, while it may be 
 seen reflected in such tentative productions as Pollock's Specimen 
 Digest of the Law of Partnership. Nowhere can Mr. Field's 
 share in the extirpation of the former antinomy of law and equity 
 be denied. The evidence of the conceded facts then fairly 
 entitles Mr. Field to speak on codification with an authority 
 which attaches to no other living utterance. But whatever 
 difference of opinion there may be as to the expediency of adopt- 
 ing Mr. Field's draft Civil Code, there ought to be none concern- 
 ing the value of his contributions to American legal literature, 
 for it is very great ; greater, by far, than that of any other 
 practising lawyer. 
 
 It is sometimes thought by conservative men that the slow 
 progress of the English nation in the direction of codification is 
 
 1874. In Utah in 1876. In Arizona in 1877. In Wisconsin in 1878. In Nebraska 1881. In 
 Indiana in 1881. In Minnesota in 1883. The Penal Code, thoiigh not enacted in New York until 
 1882, was adopted in Dakota in 1865 and in California in 1872. Tbe Civil Code, not yet enacted 
 in New York, though twice passed by the Legislature, was adopted in Dakota 18C6 and in Cali- 
 fornia in 1872, and has been much used in the framing of substantive laws for India. The 
 Political Code, reported for New York but not yet considered, was adopted in California in 
 loT2. 
 
 i Mr. Field's Penal Code and Code of Criminal Procedure, adopted in New York in 1881, have 
 met with a most triumphant success, notwithstanding the extraordinary opposition which greeted 
 their inception.
 
 61 
 
 the true one, but without reflecting on the greater uncertainty of 
 the common law of this State, noticed in one particular at a pre- 
 ceding page. The mere fact that the English have not arrived 
 at a codification of the ius privatum division of their substantive 
 law is due to several causes, none of which apply here. Their 
 failure is by no means equivalent to their confession that such a 
 codification is either unattainable or undesirable. The order of 
 the changes in the adjective law of the two countries shows us 
 that the English are, in this single respect, our legal debtors, 
 and if we choose they may be our debtors in respect of a codifi- 
 cation of the substantive law. As long since as 1851 it was 
 publicly stated in England that the leading English lawyers were 
 then greatly in favor of radical change in the form of the law. 
 They still recognize the desirability of the long contemplated 
 change, but their plan has grown with delay, and is now far 
 more radical than any thing ever contemplated here, and conse- 
 quently more difficult of achievement. They are meditating a 
 reform so extensive in design and so complete in execution as to 
 entirely obliterate all laws not embraced in its provisions. Mean- 
 while they are devising means for so digesting and arranging the 
 entire body of law as to enable them to make their violent excis- 
 ions Without danger to the institutions 1 they do not wish to 
 utterly destroy. No doubt when this plan of codification is 
 executed, if it ever is, it will be comprehensive ; perhaps the 
 most so that the world has yet seen. But whether it will answer 
 practically is another question successful codes have not been 
 highly artificial. Institutions are of very slow growth, and eradi- 
 cation, such as that proposed in England, is often attended by un- 
 foreseen complications which are not incident to more moderate 
 reforms. But should the proposed plan respond to the hopes of 
 the English reformers, there is no proof that it would answer 
 here as well as the moderate measure drafted under Mr. Field's 
 auspices. 
 
 England is a power most important materially because of her 
 vast ' colonial dependencies, and her legal relations to the latter 
 are regarded by them as important. The Temple sends her 
 
 1 il Institutions"' is used here in the wide sense of the political writers as embracing single 
 laws of importance, v. Lieber's Civil Gov., p. 300.
 
 62 
 
 emissaries to the colonies, while appeals come up to London from 
 the four quarters of the globe and are decided often, if not 
 generally, by laws not of English origin. English writers have 
 affected to see in this reactionary influence of colonial and Indian 
 law on the common law of England a resemblance to the influence 
 of the ius naturale and the ins gentium on the Roman ius civile, 
 and have come to believe in a code constructed from the prin- 
 ciples of general jurisprudence common to all countries a result 
 which the teachings of their analytical jurists had prepared them, 
 and to which their composite state now strongly inclines them. 
 If the new ecumenical school of jurisprudence can accomplish 
 a code which will answer in India, at Good-Hope, in Australia 
 and in England there are signs indicating that it will not be un- 
 welcome, and meanwhile the Code for England languishes ; com- 
 mittees of law-lords and distinguished barristers fail to agree and 
 like Lord Eldon, after having doubted for twenty years on a case 
 before him, 1 they still doubt on the case before them and dis- 
 agree. It is poor counsel to Americans to await at this day the 
 result of pending British reforms, for the English have ceased to 
 afford us a parallel. It is an open question with English writers 
 as to whether the English law proper is not in its last, stage of 
 development whereas that of America must have just begun. 
 Narrow as the difference is thought to be and is in externals, the 
 real difference between the essentials of English and American 
 jurisprudence is immense, and it would be as wise for us to wait 
 for England before entering upon an era of practical codification 
 of our ius privatum as it would be to await the resuscitation of 
 the Indo-European cult which has been jocosely proposed by one 
 active partisan of Mr. Carter's committee. 
 
 Several other propositions, uttered by the opponents of codi- 
 fication, require notice in any account of the discussion, notably 
 the mystical one for mysticism is most dangerous to codification 
 that law is best fostered or developed by leaving it wholly to a 
 class of experts who, in imperceptible modes, voice " the national 
 standard of justice." This idea of Mr. Carter's is not entirely new ; 
 it is not very far from the theory which underlies many of Sav- 
 
 i Earl of Radnor v. Shof to, 1 1 Vesey, p. 453.
 
 63 
 
 ignj's arguments and at first glance it must be confessed to be capti- 
 vating, but in reality it is a plea for the lawyers and that law be 
 relegated exclusively to them. It is distinctly opposed to any 
 legislative interference with law. Carried to its legitimate conse- 
 quence, this mode of legal development means a dominant legal 
 class, such as the jurisconsults of Rome, or the barrister-class in 
 England. In a country where there is practically free-trade at 
 the bar and where the safer tendency is toward that primi- 
 tive condition when almost any man might be constituted 
 court-agent to suitors, there can be no very consistent develop- 
 ment of law outside of the legislature. The theory of 
 democratic States is that an exclusive class of lawyers shap- 
 ing the destinies of the State by means of a ius prudentibus 
 composition, is not desirable. The opposite theory demands a 
 highly trained, exclusive class, divided into factions whose con- 
 troversy is the substitute for legislative debate and whose best 
 work demands the mystery and seclusion of counsel's chambers. 
 But we should not forget that the genius of this country, -not- 
 withstanding many debased exceptions, has exhibited itself in 
 legislation. Nearly every single distinctively American insti- 
 tution, either in the region of public 1 or of private law, is due 
 to legislation, not to the action of the judicature. Is not then 
 the true American policy to perfect that which is natural rather 
 than to return to the methods of either JRoman or Anglican legal 
 development ? the more especially as our native policy is con- 
 sistent with a more widely spread knowledge of the law r , the 
 foreign, with a narrow learning, inevitably tending to sophistries 
 and to over-refinements. 
 
 The Civil Code, reported as a legislative bill by Mr. Field, has 
 unfairly, as some persons venture to think, been the subject of 
 adverse criticism criticism, it must be confessed, occasionally 
 uttered by gentlemen eminent in the practice of the law. But 
 eminence in the practice of the law, it should not be forgotten, does 
 not alone entitle a criticism of codification to be regarded as final, or 
 even as oracular. Codification is a science, a science of the form of 
 the law, possessing a literature of its own, quite apart from ordinary 
 
 i The Constitutions in America are a species of legislation and are supposed to be subject 
 to the ordinary rules of statutes relating to repeal by implication.
 
 64 
 
 juristic literature. An eminent legislator, Sir James Stephen, 
 expressed surprise that a lawyer of undoubted ability as a prac- 
 titioner was able, in a considerable space of time, to even under- 
 stand the details of the Criminal Code, his attention never before 
 having been directed to the science of legislation. This surprise 
 indicates, at least, the value Sir James Stephen would place 
 upon the off-hand opinions of eminent practising lawyers. The 
 retort of the so-called practical men to any such suggestion as 
 this is, of course, that the exponents and disciples of codification 
 " undervalue the teachings of experience." This retort may be 
 true in some instances ; it is in no degree true of Mr. Field, and 
 is time sub modo in any instance. The theoretical codifiers under- 
 value the teachings of experience, no doubt, but to the same 
 extent only that the empirical practitioners undervalue the teach- 
 ings of science and philosophy. If the purely legal scientist is 
 too much engrossed with his abstractions to be a wise legislator 
 for the wants of law-men, certainly the purely practical lawyer 
 is to*o much engrossed with his docket, to apt to gaze at public 
 questions from his office window, to be a safe criterion of the 
 true legislative policy of a State. But the natural opposition 
 between these widely opposed schools of lawyers is not new. 
 We see it fully delineated in Cicero's De Legibus ; in his sneers 
 at the quibbling trifles of the practical lawyers ; in his patron- 
 izing query to Atticus, " Would you have me put forth little 
 treatises on Servitudes and Party Walls?" 1 In view of Cicero's 
 defined position, it is not strange that those who pride themselves 
 on being practical lawyers, are induced to join in the modern 
 censure of Cicero, and to forget that Cicero's weaknesses weak- 
 nesses never impairing the majesty of his splendid intellect 
 were external. When Mr. Carter takes his turn at Cicero's tech- 
 nical deficiencies, it only exemplifies how much human nature is 
 alike at different epochs, for if Mr. Carter thinks lightly of 
 Cicero's legal attainments, 2 it is equally true that Cicero thought 
 
 1 De Legibus ; " ut libellos conflciam de stillicidiorum ac de parietum iure ? " 
 
 2 Cicero was a pupil of Scsevola, the founder of scientific jurisprudence, and no doubt 
 mastered the entire ^amut of positive law. then in a comparatively narrow compass. This is 
 shown by what Atticus is supposed to *ay to Cicero, " Nam a priuio tempore aetatis iuri 
 etudere te memini, <ju inn ipse eliam ad Scsevolam ventitarem, neque umquam mihi vieus es ita 
 te nd dicendiim dedisse, ut ius civile contemneres" De Leg. I. cap. IV. There is abundant 
 evidence to show that Cicero despised the conventionalities which the technical anti-reform 
 lawyers of that day delighted in, and that his position was deliberate.
 
 65 
 
 lightly of the attainments of the practical men who, Mr. Carter 
 intimates, are not now consulted by the " apostles of codification." 
 This digression permits one to further empasize that the dispute 
 between the historical school of law and the philosophical school 
 of law is the creature of no age or clime. As German discussion 
 relative to codification shows, the true standard of legal progress 
 is midway between practice and theory ; a little of both, not too 
 much of either. The mental make-up of many of the practical 
 men who instinctively resist all change in the form of the law 
 and in legal evolution, would have induced them, had they lived 
 at an earlier day, to have resisted every change in the common 
 law which the past two centuries have effected ; they would have 
 delighted in the barbarous law-]ingle prevailing in England down 
 to the reign of George II., and in that bewitching conceit, that 
 the seizin to feed contingent uses by a scintilla juris was in mare, 
 in terra, in custodid legis, or anywhere a disordered fancy could 
 imagine it. They would, in short, have maintained the old court 
 of chancery, even though its curious proceedings often absorbed 
 the entire estate protected, 1 for the law to them is the one thing 
 which must not be subjected to change ; it is the one old thing 
 never to be improved. 2 History shows, in short, that in no coun- 
 try in the world has codification been greatly promoted by lawyers 
 as a class. There seems to be an indescribable charm in the modes 
 to which they are accustomed, and an abhorrence of change of 
 all kinds. While this conservatism, doubtless, has the merit of 
 adding an element of stability to American institutions, 3 it is 
 sometimes fatal to progress in the right direction. Without 
 intending to even intimate that Mr. Carter's personal objections 
 to codification are open to any such coarse criticism as that just 
 here made, the criticism itself is not without force when applied 
 abstractly to class-bias and tendencies. 
 
 1 Phillimore's Dissertation on Jurisp. Intd. 
 
 2 Goethe eays (Faust, Part I, f. 4): 
 
 "Your laws must be antique to pleaee, 
 Hereditary, like disease, 
 Slowly they pass from race to race 
 And drag themselves from place to place. 
 Obscure has grown what once was plain, 
 What was a benefit, a bane. 
 Alas, that rights we should have none 
 Save from our fathers, dead and gone! " 
 JDe Tocqueville, Democ. in America, passim.
 
 66 
 
 After open declarations against the utility of any codification 
 of the common law. political expedients have been resorted to in 
 order to defeat the passage of the New York Civil Code. Its ene- 
 mies have urged such half-measures as the propriety of appoint- 
 ing a committee of eminent specialists, to be competently paid 
 while they lend their additional qualifications to the developing 
 of a real code in fractions. If such a committee were appointed 
 it is most doubtful whether it could achieve a code at all equal to 
 the Field Civil Code, either in execution or in utility. Thibaut 
 and all other writers on the science of legislation agree that a good 
 code can be developed only under the auspices of one master- 
 mind. This would be d fortiori true of a code wrought by a com- 
 mittee of eminent specialists, each accustomed to magnify the 
 importance of his specialty, even if his concentrated habit had 
 not impaired his opportunities for the study of the larger or cog- 
 nate subdivisions of positive law. In a republic, the additional 
 difficulty in such a committee would be found in selecting the 
 Papinian 1 of the committee, for it would be a fatal admission to 
 declare, as the Romans did, any citizen excettentissimo ingenio vir 
 when in fact we know that in America all are equal in the law. 
 Neither the fact that Mr. Field has been the master-spirit in the 
 construction of the Civil Code of New York, nor the fact that its 
 cost has been trifling to the State, are worthy objections to the 
 codification in question. It is certainly not strange, in a country 
 where the dignity of the State is not supported by the outward 
 condition of its ministers, that the best public work has not been 
 performed by highly paid commissioners. The Revised Statutes 
 cost but a trifling sum, less, indeed, than a late ponderous revision 
 of the municipal ordinances of the City of New York. Certainly 
 its cheapness to the State should furnish no valid argument against 
 the Civil Code reported by Mr. Field. 
 
 It is beyond the province of this imperfect essay to attempt to 
 do more than to furnish the answers usually made, by a certain 
 school of thought, to such objections as those so eloquently 
 expressed in Mr. Carter's recent paper against codification. It is 
 not purposed to discuss at large the value of the specific criticism 
 made by several lawyers concerning the details of Mr. Field's 
 
 i Justinian mad Papinian controlling when the ittris auctvres disagreed, or were tied.
 
 67 
 
 Code, or further than to attempt to point out that several of the 
 best of these criticisms are not sound. To endeavor to do more 
 than this would be an encroachment on Mr. Field's own prerog- 
 ative, his able answers to the specific objections to the Civil Code 
 having afforded the best evidence of its intrinsic excellence. 
 
 That certain specific criticism of the Civil Code is not sound, 
 is made apparent by a consideration of the late comments by a 
 distinguished lawyer known to be attached to the historical 
 school upon the chapter relating to " Servitudes." l It is 
 objected, by this unquestionably learned man, that the whole sub- 
 ject of <: implied easements" has been omitted from the Civil 
 Code, although since Pyer v. Carter, 2 it has attracted great atten- 
 tion. At the very time that this objection was made, its 
 writer either overlooked, or more likely ignored, the fact that 
 Pyer v. Carter had been expressly overruled, 3 having first 
 occasioned considerable mischief in England and in this country. 
 The same error of reasoning which occasioned " Pyer v. Carter " 
 unquestionably led to Judge Selden's florid and even inaccurate 
 statement of the doctrine of implied easements in Lampman v. 
 Milks, 4 and to a good deal of unnecessary litigation. 5 No w r orse 
 nuisance could be imposed upon a law of real property than a 
 refined system of implied easements, as every owner of real 
 estate will bear witness. This particular objection is not only 
 evidence, then, of the tendency of even great lawyers to hyper- 
 criticise a very meritorious work, but of the danger which 
 attends a growth of law by judicial refinements after a nation has 
 once attained to a luxuriant crop of case-law. 
 
 Mr. Carter's own criticism of the article of the Civil Code 
 relative to " General Average," is astute rather than generous. 
 After the York and Antwerp rules had been sanctioned by the 
 Association for the Reform and Codification of the Law of 
 Nations, Mr. Field redrafted this article so as to make it conform 
 
 1 This objection serves to show that the training cf the technical lawyers induces them, in 
 every age, to attach importance to much the same sort of doctrines. Cicero had a horror of 
 the attenuated refinements with which the Roman lawyers delighted to surround " Servitudes." 
 So have all people who think as Cicero thought of fecnnical law. while the opposite school 
 attach great importance to "implied easements,'' and delight in the involutions of its doc- 
 trines. 
 
 2 1 II. & X.. 916. 
 
 s Suffleld v. Br3wn. 10 Jur. N. S., Ill ; Cros.?ley v. Lightowler, 13 Week. Rep., 801 ; Wheeldon 
 v. Burrows. 28 id.. 196. 
 
 4 21 N. Y.,p. 505. 
 
 5 Outerbridge v. Phelps, 13 Abb. N. C., 117.
 
 68 
 
 to the recommendation of the association of which he is so dis- 
 tinguished a member. 1 Fully versed with the latest and broadest 
 view of the publicists upon this subject, Mr. Field was enabled to 
 foresee that this branch of the law was of such universal opera- 
 tion and interest that petty local laws must soon disappear. His 
 prognosis has already been fully verified, the Chamber of Com- 
 merce of the State of New York having very lately taken action 
 through the Federal Secretary of State with the view of bringing 
 the law of this State into accord with the law of other com- 
 mercial nations. Should the determined action of the Chamber 
 result, as it eventually must, in success, Mr. Field's Code will 
 consequently need no additional amendment in respect of its 
 provisions relative to General Average. 2 No further comment 
 upon the specific objections to the Civil Code can be necessary in 
 order to induce the unprejudiced to think that there is another 
 side of the Civil Code besides that presented by its enemies. 
 
 But conceding that the Civil Code is not perfect, and it may 
 safely be assumed that no perfect code will ever be constructed, 
 yet a poor code is better than no code. Mr. Frederick Pollock 
 has well said " That the principal lesson to be learnt from the 
 French codes is that even a very defective code is far better than 
 none." Such has been Mr. Field's modest plea for his own 
 masterly hand -work. No doubt this will be a very inadequate 
 recommendation to many, but it is nevertheless the verdict of 
 that actual experience, which " is asserted to be so potent when 
 invoked on the other side of this code controversy. 
 
 The finality of Mr. Carter's admiration of the common law as 
 it is, even conceding to the judiciary establishment a greater 
 
 1 Mr. Field lately brought up a plan before the association for subjecting Asiatic States to 
 the Law of Nations. London Law Mag. and Rev. for 1883-4. 
 
 2 Mr. Carter prints a letter from a gentleman whom he terms "an tminent average 
 adjuster." The letter itself is calculated to disturb timid people to whom general average ie an 
 occult science. This letter asserts in substance, that ths Field Code will throw this highly 
 important branch of law into confusion. Now th" duties of pure average adjusters of marine 
 losses are largely clerical, and " Genera! Average " is by no means a structure on which our 
 jurisprudence depends. The English Lloyds, t ic greatest of underwriters, very recently 
 expressed themselves in open hostility to the whole system of " General average," recom- 
 mending its total overthrow and abolition. To this short-sighted policy i-tat.'emen and 
 jurists do not accede, though they recognize the necessity of a reform which takes its last 
 expression in the York and Antwerp nile". The great dissatisfaction with the extraordinary 
 claims of the average adjusters has also reached the courts, and in Atwood v. Sellar, Lords 
 Cockbuin, Bramwell, Baggallay and Thesiger, expressed a very decided opinion about the 
 anomalous authority of the " average adjusters,'' overturning one of their customs of eighty 
 years' duration. Is it not a fact that one mode of calculating averages rather than another, ie 
 not a matter which is going to disturb the foundations of society or evtn of jurisprudence ? 
 the whole body of average adjusters to the contrary notwithstanding.
 
 69 
 
 power of change than he would think consistent with its func- 
 tions, is that no statutory change whatever can be for the better. 
 The difficulty with the present state of the law and Mr. Carter 
 admits that there is a difficulty is, he thinks, only with the 
 judiciary, and with the decline in the character of legislation. 
 There may be room for improvement in both the directions thus 
 indicated, but far too much is laid at the door of the judiciary 
 which should be placed elsewhere. The judiciary of the State of 
 Xcw York very fairly represents the bar. Both bench and bar are 
 the result of traditional methods of legal education, if education 
 that may be called which has been picked up anywhere and 
 anyhow. It is said, for instance, by those competent to judge, 
 that there is not a single institutional treatise on the common 
 law which is adapted to the purposes of sound legal education. 
 Certain is it that the antique mode of legal training in vogue 
 with us, while it is not wholly unsuited to mere practical success 
 at the bar, is not unlikely to be at the root of that which Mr. 
 Carter would lay at the door of the judiciary and the legislature. 
 We should all take our just share of the blame which attaches to 
 the present condition of things. Few of us can deny that we 
 would not have profited by having approached jurisprudence in a 
 more scientific fashion. 
 
 The school to which Mr. Field belongs and certainly leads, in 
 this country, thinks that it perceives the remedy for the acknowl- 
 edged legal ills, in the reform of the form of the law, in simpler and 
 more direct legal methods, and in a higher, though still voluntary, 
 type of legal education. Is not the plan worth trying ? 
 
 This is an era of legislation, in Europe, in South America 
 and elsewhere. Not a civilized nation, England not excepted, 
 but addresses itself seriously to the work of codification, and to 
 the simplification of traditional legal methods. Here, as else- 
 where, codification of the substantive law must come. If it 
 does not come in the shape of Mr. Field's legislative draft, as 
 there is no adequate preparation for a better, it will come in a 
 less meritorious form, but it will come. When it does come, the 
 merits of Mr. Field's Civil Code will not be denied, for, legal 
 literature has its own Nemesis who both punishes the ungener- 
 ous critic and ignores unjust censure of honest effort.
 
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