The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-12-13

between The 81 ana he policy Is MOI legislative baVS
judicial power As much " 70 decide whether oyw Of
siderng the effect OF an acs pcrosmse, the
tina. a performance was rsssSnabls o. unsss-
tain acts are against public policy, and 90 far
the present code has attempted 70 co. bus has not
acts by which men might hereafter seek 70 countevai
policy or 70 forssee what the policy itself should b
in ages 70 come
GENERAL ooDR SUSCEPTIBILITY 0y PROGRESSION.
II by fexibty be meant susceptibility OF progression,
then Il may be affirmed with confidence, that code,
upon the theory which this u framed not cay sdapts
sting common law, but that contains within ITSELF in
greater degree the elements Of future progress not DO
Its rules any more or less flexible than those %
the law. but Tor the reasons which will now b
stated
partment has been unable able, unwilling TO make
necessary amendments the law the legislative depart
mcnt TO which the power OF amendment or right be.
longs has been embarrassed FIRST BY the DISCOUNTED and
comparatively inaccessible form in which the great body
Of the law has ain and secondly by that maxim Of tho
common law by which the judges were taught that every
The first cause Of embarrassment 70 removed 80 soon -
the Legislature and the people have before them the
FORM by which the relation OF the several parts 70 each
other and to the whole be beter seen, defect IN
ment In indcsted which ought 70 be- made The second
cause is removed by tho declaration hst the maxim Of
strict construction has application to general CODE
TOO GREAT ADHEREvcs TO .PREcEBEsTs.
dence than the tenacty with which the judges Of Amor
ca and England unlike those Of continental Europe,
have adhered 10 precedens even though the reason for
them has ceased and their mischefs have become pal
pable.
listed before the Code OF Civil Procedure II any part Of
the common law should have been flexible, that should
have BEEN for it made almost entirely by the Judges
And vet both here England while they expressed
their regret at the state OF things they were compelled
to declare that the evils Of the system too deeply
rooted to be removed by any short Of the 1cgsa.
turc Whenever the Legislature did nterp0se the courts
refused TO 20 beyond the strict letter oil the STATUTE
No fact Of early English history IS more certain
than that the existence Of equity, as sepa-
rate system was owing TO the rigid adherence OF
the common law judges form, in other words 70 the
iron inflexibty of the law Equity Itself soon
fell into the same predcamcnt II would not ut any
time have been thought proper or safe Tor the courts 10
disregard an established precedent AZ law OF IN equ!y
had SO changed to make the precedent oppressive
Decisions have been frequently overruied Il s true but
upon some such excuse that they were made 0y
divided court or an inferior one with reference 70
particular circumstances or without sufficient con-
sideration.
IMPROVEMENTS IN THE LAWS THE WORK OF THE
LEGISLATURE.
In almost every instance where an Improvement has
been made in the laws IL has from the Legislature
common com 'I law, whether i be called flexible or
infcxble, the most cruel and bloody OF crmi-
nal systems would stu, nave snaua u nc,ds sra
would have remained land would have been inaenablo
without livery of seizin and wives would have had only
Even in the matter Of contracts that portion or the
common law where the attribute Of fexibty would have
been ever desirable what 40 We sun see' wne
hire in the belief that landlords must repair .hem
If necessary that tenants who agree 70 repair nave
no suspicion that If the house Is burnt they are
bound TO rebuild; that when creditor accepts
part payment in full satisfaction, tho bargain IS
supposed be binding; that an in.,Teme9. s4seT
declaring that he Signs for bis principal is considered
by both parties to be obligatory upon the principal
vet upon each OF these points the common law holds
otherwise and has obsnaeIy refused for hundreds Of
years accommodate itself the undoubted intentions
Of the parties whose rights II determines.
Either the common law had within itself the flexible
elastic and accommodating elements which would have
enabled the courts adapt II in these respects to the
expanding exigences Of society or IL has been greatly
misunderstood or msrepresente0 Dy the OPponcntS VI
code.
AsENERAL CODE LUCID AND LIBERAL.
Tho second of the for considering code moro
favorable 10 progress than the law s that in sn
those IL which the commSp nT dSs af s 30" Of
ib 5 in M jurisprudence il does much bv way
OF Grating those usages into the law or indeed
making any change the substance OF the law ITSELF as
by way Contemplating the acts and intentions OF parties,
and applying hxed principles 10 the ever changing con-
Germs OF human life; in all which respects code may
ana should be more liberal than the common law Thus
that by the present code not only are tho particular
anomalies rectned which have Just been mentoncd but
bv sections SOL sO2 500 81 and S9 the details OF the
law of contracts made subordinate TO the Intentions
Of the parties ascertancd not by incxoabe rules OF
legal construction, but by all the light which can DO
thrown upon them by law usage and surrounding cir
cums,ances except in those few where Tor
Of public policy, an absolute rule has been es'ao
lishcd.
Section !, s29 II win be seen is in these words.
Except where IL is otherwise declared the provisions
OF the foregoing fifteen titles Of this part in respect TO
the rights and Obligations Of parties to contracts sub
ordinate to the intention Of the parties where ascertaned
In the prescribed by the chapter the Intepre
taon OF Contracts and the benefit thereof may be waived
by any party entitled thereto, unless such waiver would
BE- against public policy.
The usages of society vary with Its wants and its pur
suits The law refers those because the parties
contract with reference thcm and they must be taken
into account when considers what these parties ought
10 do and what they ought TO do In this way and
in this alone has the law adapted itself to the
exgenccs OF society," and in this respect the present
Code goes only far but farther than the common
ITS GREAT ADVANTAGES.
Having thus considered the principal objections to tho
codi0caon Of tho law IL should next be considered
whether there advantages in IT, Assuming that II IS
possible TO have body Of written law in convenient
form and In scientific order, containing the materials
and framed In the already described what bene-
fits will confers In tho first place, will enable the
lawyer 10 dispense with great number books which
now ncumber tho shelves Of his library In the next
place, IL will thus save vast amount OF labor, now
forced upon lawyers and judges IN searching through
differences from the decisions, and far facilitate the
despatch Of business IN the courts In the third
Ting, BY legislative enactment, many disputed
questions which the courts have never been able
TO settle 10 me ourn place VIII eIao'o me he s
which only be effected By Simultaneous and compre-
hensive legislation Thus for example, the closer assm-
ation Of law OF real and personal property and the
changes the relation Of husband and wife ~ 70 pro-
perry cannot be effected by any other means 20 wisely
and safely by general code. The making OF code
involves general revision Of the law Il Is indeed IN
this way alone that such revision seems practicabe
The 10 hereby afforded 70 look u the law OF the
land NJ . whole, 70 lop Oh lie excressences,
reconcile It's contradictions, and make u uniform
and harmonious In the nfih place, the publ
cation Of . code will difnse among the people
more general and accurate knowledge Of their
rights and duties than can be Obtained In any other
manner This Is an object Of great importance In all
countries but especially In ours II every person
have before him, In an authentic form, the laws
which 70 Affect his property and govern his conduc
he can have additional guaranty OF his rights ana
better acquaintance with his dutea Here, more than
anywhere else all classes OF citizens interfere In all the
asrs Of the State They elect directly. nearly al the
officers who make, administer execute the laws II "a
Holland or In Germany Franco . civil code has been
found beneficial much more 10 likely 70 b beneficial
70 rs