The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-12-13
prevent failure Of justice; ~ suOh has ever


prevent failure Of justice !" ~ no such case has eve
rHs OWL GODS ssosss AxILY INCOMPLETE. !.
c..e unpvovided fcr could not srs pndse The Cod
OF OWL Procedure much lees o0ah IL ane under thu
Code Of Criminal Procedure Il may therefore, b safely
anmed that there Is bus one Of ths ve codss-hai 4
justice may b mad. ~ OS.esiss sSss i cannes pro
vide for ell future casca This code undoubtedly, thu
most Important and dcult Of ALI and Of this !. y true
that sannot provide for all possible cases which the
future disclose II does mot profess 70 provide foI
them that . pvoteeses Is % give tho general rules
known and recognized, far they ought 70 bs re-
tained with such amendments a. seemed best 10 b
%h. me
BY the Code It b 70 b hoped that anaoges may never
theless BE- discovered which viii enable the courts to de-
nor any rule which has been overlooked and omitted
then the courts will have either TO decide a. at present.
he case undecided As was done By Lord lanssld in
King hay, W. b. 640trusting 10 future legislation
for future cases
PROVISIONS Y0R EXCEPTIONAL CASES.
The language OF the Code In this respect should seem
70 DO sufficiently guarded. thus
Sn i S o. n sns 81
SEQ The will Of the sovereign power s Expressed
BY the constitution, which is the organic act Of tho
q By statutes which are the acts Of the Legislature,
by the ordinances OF other and subordinate legislative
8 By the judgments OF the tribunals enforcing those
rules. which, though mot enacted, form what Is known
- customary or common law.
SEC. The common law Ia divided nt0:--
l. Public law, or the law Of nations.
q Domestic or municipal Law.
I 6DC 5. The evidence OF the common law is found in
the decisions Of the tribunals.
Eco g. In this state there is no common law, In any
SEC The rule that statutes in derogation Of the
law are to DO strictly construed has no appea-
SIG 2oss Ali statutes laws and rules heretofore in
force In this State inconsistent with the provisions Of
this CODE hereby repealed or abrogated but such
peal abr0gaOn does not revive any former law here
tofore repealed does affect any right already exist
ing or accrued or any proceeding already saken except
Therefore, il there be an existing rule Of law omitted
from this Code and not inconsistent with IT, that rule will
continue to exist the form in which exists
while II any rule, for the first time introduced
should not the good ends for which 1t is intended
which be known only from experience, 1t can be
which 81 %nS S e as Sy
will which have not been oreseen they may be decided
decided at all precisely they would now be decided
some rule omitted from tho Code and therefore still
isting, or BY the dictates of natural justice.
THE VALUE OF CoNCIsENEss.
another objection 70 inc expeaoncy OF UoaG is us
attempt to be systematic and concise you must Of noces
sty leave the language open TO different interpretations
meanings, and q change in the structure Of SEN
tence may suggest different ideas, 1t is diff
cult to frame section sna may not Se ,mcrs a
tached to It, But 1t is great mistake to consider this
true only Of the concise propositions OF code Duse
is not help TO cearness The longest judicial
opinions generally the least precise and the least
comprehended. As long document Is usually more
obscure than short one; statute Of many sections
Is Commonly less understood than one OF few many
words tend to confusion rather than enlighten.
ment SO single proposition carefully expressed and
made concise possible is more likely to be precise
and septibe Of meaning only, than II the same
idea put into different form and greater number
of words.
If DO urged that reported decisions have this advan-
tage point OF certainty that being made in each
With reference to given state of facts those facts are
illustrations OF the rule announced and tend to explain
t. the is that the facts Of reported serve
for limitation, well as illustration, and just in that
proportion the rule announced partial and not general
and if acted upon general tends mislcad 30 that
after ALL We are brought back to the point which
is that the ruc Of the decision whatever may be- par
stated in few short sentences than in the opinion
less diuse in which Is stated or from which, may
be evolved.
REPORTED CASES USED FOR ILLUSTRATION.
SO far reported for illustration the pre-
sent Code makes of them; for the references to
adjudged cases. which most instances follow
the sections, are intended much 10 answer
the purpose Of illustration as TO justify the
text II is favorite idea with many that for pro-
accompanied by illustrative examples Whatever advan-
tage there may be in this method these references It IL
supposed, will afford the best kind Of illustration.
INPLExIBrLITY OF CODE.
still further objection to the axnndian"y % eodS -
its supposed in1eIbiliy Expressed in formal PROPOSE
tions and couched in positive terms not a, exbe
ton most insisted upon by those who oppose CODE and
il should therefore, receive the most careful consdera
ton II may be first observed that nexibilty In It's
ordinary sense Is OF the worst qualities which
law have, or rather that II Is inconsistent with
he idea Of law As hs law Is rule Of property and
q rule, made for certain state OF facts, may not be
applicable different state Of facts, that will not be
disputed; II be meant that such rule ought not TO be
applied the state OF facts under all circumstances
the objection amounts only TO this that the rule is too
broadly stated; il be meant that rule ought to be
tha iudppS
unsound, for the judges should not have dispensing
power
Another way OF stating the objection, is to say that
while the common law Is expansive code does not ex
pand adapt itself TO tho expanding exigencies OF
society. A different phrase for the same idea is
that the common law is elastic and accommodating
and that a code will be the opposite. Now, TO
say that law Is expansive, elastic accommodating
Is rs much as to say that IL is no law at ALL The
real significance Of the objection, II has any signin-
cance is that II better to let the Judges make inc law
forehand For II the judges are - decide according to
rules those rules be written by the awgver
easily they be spoken from the bench or taken
down by the reporters And though, in particular
cases. the judges should fail TO lind such rules and should
have make rules tho cases occur that too can be
Gone easily when the known rules placed in code
when they repose In the breasts OF judges or in tho
leaves Of reports So long as code Is confined TO the
rules OF law as they now exist u Is neither more
nor less expansive than the common law When
the inquiry concerns new cases II Is Invisible
into parts, relating TO those cases which arc
and the other TO those which are not
Those which forcscen the lawgver provide for
and Il 10 his duty to provide for them Those which are
cannot be provided for except by directing
tho courts decide according 10 the analogy Of existing
rules when there such analogy, and when there 10
nome then decide according 10 the dictates Of natural
justice In this last respect the judges will b in the
same predicament under code rs under the common
law that really the only point Of difference respects
anticipated and n there DO persons who think that for
such IL Ia better that tho judges should mako the
law after the arise than for the Legislature 70
make IL guido beforehand then they think that gov
eminent ought not TO be divided according TO the funda
mental American MAXIM into three separate legislative,
executive and judicial dopartmenta