New-York daily tribune., 1865-11-25

Invesed with power to 0hange the law. bat to
apply established law to the circumstances OF each case
as arises and ia then compared with the policy Of the
state for the time being or with tho general policy OF
nations The power 10 Gecide the question Of conpat
biiry in snch case between the act and the policy, Is
not legislative but judicial power. much Us TO
decide wheihtr by.law Of corporation is Is not
reasonable whether In considering the effect Of an
act performed the time OF performance reasonable
or unrea onable II may indeed be affirmed that Ger
tain acts are against public policy. and far the pres
cnt Code has Attempted to 90. but 1t has not attempted
and could not safely attempt to define all the acts by
which might hereafter seek To cOuntervail that
policy or to olesee what the policy itself should be IN
ages to come
II by fcxibity be meant susceptibility OF progress
sion. then it may be affirmed with confidence, that
Code upon the beory on which this II framed not OILY
adaps itself TO the present wants OF society better han
the existing common law but that 1t contains within
ITSELF in greater degree the elements OF future pro-
gress not bee lis rules any or lees exiDe
than those OF the common law. but for the reasons
which will now be stated.
The frst Of these reasons is that while the judicial
department has been unable or II able unwilling W
make necessary amendments OF he Law. tho legislative
del artmeht which the power Of amendment of right
belongs has been embarrassed first by tho dlslnted
and comparatively inaccessible form IN which the great
BODY Of The has lain and secondly by that maxim
of the comOon law by which the judges wero taught
that every statute in deogsion Of il was 10 be strictly
construed. The frtt cause OF embarrnssmeht Is re-
moved soon the Legislature and the people haye
before them tie whole body Of the aws In an ccessoe
pars each other and 10 the whole can be better seep
q defect in any part sooner Uncovered and the par
icuar amendment indicated which ought to be maze.
he second In removed by the DECLARATION that
the maxim Of strict construction has no application 10
a general code
Nothing is more conspicuous In the history Of luri'
prudence than the tenacity with which ths Judges oi
America and England. unlike those Of continental
Europe have adhce ed To ptecedens, even thongh the
for them has ceased. aud their mischies nave
become palpable.
Take for example the practice OF the courts as 1t eI
s,ed before tue Code of Civil Procedure. II any part
of the common law should have been flexible, tnat
should have been. for It was made almo.t enuieU W
the Judges And vet both here and In England NnHe
they expressed their regret at the state of things they
compelled TO declare that the evils OF TIC system
we're too deeply rooted 10 be removed by any power
short Of the l,rgi-nture Whenever the Legislature
did nterpose the courts refused to beyond he strict
leiterof the statute No act Of early English hiSor,
certain than that the existence VI equity
arate system. was owing to the riga haherenoc % @
con mon hw Judges 10 form. in other words, 70 the
iron inleNibty OF the common law. Elniy itstii soon
fell into the iredicament. 1t would not ht an,
time have been Thought proper or shie iof ,o
disre ,rt an established precedent at law OF IN eqS
upon the idea that the circumstances ot tho community
had so changed TO make the precedent oppresshr'
Decisions ave been frequently oyeToleo, u ~ 'ur.
but upon some such that they were mHus Nv
divided court feior one or Win reference 70
particular circumstances or without sufieieh consider
alton
been made IN the laws IL has come frum the Legislt
iure Had society been LEFT TO tho discipline ot inc
common law whether IL DO called hrxibe or inhrAipr
the most cruel nd blnOdy cf criminal systems Wruu
,t, have shnmed u.s. feuda tenufes with all their Dur
densolne incidrnt- would have remained ltnd "on1
have been inaien6ble without livery oi senlb' ara
wives would baye had only tho rights which Dafonr
ovs agc conceded them.
Even in the matter Of contracts that portion OF the
common law where the sttribute Of beNbhiiy would
have been II ever desirable, what do We sun see
While IL oanno, be denied that IN ninc instances cut oi
ten tenants hIIe houses In she beef thIt landlords hus'
repair them II necessary that tenants no hGrc' 70 i'
pair have no suspicion that II tho house u burned 'hr!
are boand to pbuild that when creditor Hocepts lsU
pAymeut in fu sltslai0n. The bargain Is supposed 10
be binding; that On instrument under seal sghed ~ an
agent IN his own name. but eiifel aoeai'ps tna' nc
,igns for his prihcl al u considered ny both parties 70
be- obg gatory upon the principal yet upon each % b's"
points the common Law hods otherwise. ard bS ot-il
natey refused for hundreds Of ears "a aeo"nmodnt" IL
self to the undoubcd intentions Of the parties WHOSE
rights IL determines
Either the common iaw had within Itself the ne,ibc,
elastic aud accommodating elements. which would have
grabbed the ours to adapt IN te~e respects To the
expanding cneencies OF -ocirty or has been rrrHy
mtsfepfes.hted by the opponents Of
Code -
| The second OF the reason, for considering a Code
more favorable 10 progress than the Common h', -
that 10 sll those particulars IN which Tie common Ia"
does take hold Of the business and unres uI society
and make Of them ~ s Jurisprudence II does tot
much by way Of Incorporating those rrhgcs INTO he
law OF indeed making any charge IN The substance ~
the law iscf by way Vf ipTeting TIE acts hLd
intentions OF parties, and applying h1cd principles ~
the ever changing concern VI human ne IN nu men
respects. a Code NAV and should bc moro liberal than
the common law. Illus u d. Hat ~ tie rr-ctt Code
only ere the p,rtleulnr anomalies 'ihcd, "hch
have Just been ncnuonrd but by sections -ui -p2 -
Il snd ,2o the details of the law Of contracts ne
made subordinate 10 the infeutions of the putcs a.
cerained not by ineiorable roles of lcgi con,iruc
zion, but by all tie hghI which can DO thrown upon
them hy law. usage and surrounding ciTcuinstiHtr-
except In those few where for reasons Of pgbc
! policy an absolute ru has been esinblshed.
| Section 20 Il will be- seen Is IN these words.
a. nF las HHHIn cred
The fore going t~tn I'r. Of t faft n re~ci 10 tr fh
aud obgiols Of parss 70 con rso af' '"Dofdna" 70 tie
iutson Of hr qsftc where eftaucd tue manner PIE
cribed BY the chapi'T "a he Interpretation o. 'ou. 40
tho benefit Thereof may be- ssed by any iary entitled
thereto such waiver would bs ssainsi puodc policy
The usuages OF society wary with ns wants and Sos
pursuits The law Ttfts 70 those usngcs bccoa'e he
parties contract with reference Ia them and they must
/ be taken into account when u considers Wha tnc.e
parties ought to do and wht they ought not 10 DO In
this way and In this ilonr has the common law adapted
Itself 10 the exgencies Of society and IN this respect
the present Code goes not only az iar but iurlhcr Than
the common liw.
| Having thus considered tho principal objections 10
the codicaon Of the law. I should next be oonsid.
cred whether there are advantages IN IT, Assuming
that is possible have body OF written law IN "a
conY enient form and IN scientific order containing the
materials and framed IN TIE manner already described
what benefits viii u cOneri In the nrst pace u VII
enable the lawyer 10 dispense with great number oI
the books which lumber The shelves 81 lls u.
hrary In the next place IL viii hus Sast amount ~
labor forced upon lawyer, aud Judges in search.
ing through the reports oXamn ana collecting cases.
aud draviug uiernces from The declriOns GDd 81 far
ncitste tbs dispatch ~ business in the courts In tie
third place II will afford an Opportunity Tor settling, by
legislative enactment many 0ispgted questions which
tie courts have been ebc 20 settle In the fourth
pnce il will enable the Lglsl ture 10 effect reforms N
different brGrchrs ~ the lTw. which can only
DO effected by simultaneous and cnmprehen.
ave legislation. Thus for example, tho closer
a, Imitation Of The Law Of renl and prisousl property
and Tie cuanges IN the r,pton Oi husband tnd wife, us
TO property cannot be effected BY any other means 20
wisely aud safely as by General Code Tho making
of Code involves general revision Of the law 1t -
indeed 10 this way alone that such revision seems
Iraciicuble The occasion thereby afforded To look