, 1879-02-02

ulhQE.
2. The second objection usually press,..,
rests upon the assumed de1ibi1itY Of Tho ons
mon law, and the unYielding character ~ ~
statute. Fortunately for the stability Of n,os ae
erty rights and the security Of personal lbertpp
the common law is not SO plant as is ciairast
When the Court may disregard or motifr 05@ed 1s;;
settled rules. the discretion Of the julie .s .nd
not the written law becomes the rule NFonsu.o uo
is roguish thing,'n says Seldom; "for l1,sy laW u.
have measure. Know what to trust to: et'n;ts r.
Chancellor, and that is large or narrow so y y
equity. It is all one as if they should mase ~ =
! standard for the measure ne call ~. ~
| q Chancellor's foor,-wbat m uncert"fn
measure would this be! One Chance.1n' ss.n
foot, third 40 Indifferent foot. It IL is4gls ths
same thing with the Chanccllors conscience sls n
This statement Of the equity Jurisprudence =.
not exaggerated in seldon's day. The rule, ~ ~
equity, however, have since become as we'll "a, ~
tied as those Of common law, and the one II ~
improperly disregarded Us the other. It fa ~
boast Of Tyler in his introduction to S,enhsnss s
on Pleadings "a paper devoted to proyinr thas
Anglo~Saxon liberty has its only foundation 'ns ~
the common courts and the general issue1 tbas ~
''under the common law former declsions 1is a.;
"is deemed by the common law indis.
| liked rule of decision II; that ans
principles Of Interpretation are fixed and cae' ~
| Laln, auu tilat tAose eaI!y auoqteQ have ntvar
been departed from.' Hence it is that ~
common law is never amended, except by Iee;s. sne
latirc action. It is true that an impercentihis
modification is being made in the application of
some Of its rules by judicial decision, but even
thls IS never peraiIteu until long after The
chanseo cono!t1on o. the people makes the rula
odious, and then the modification is eeuer,jiv
expressed in the form OF LEGAL frtjnn ~
| which, as Sir Henry Mime aptly expresses ~,
living principle is permitted to exist in the she'll
OF one that is 4eaa. oucn ne1ions should bare
no place 10 tne JURISPRUDENCE OF progressive
whch Is easny aulustea 10 changing cistliza-
sion. rue o1 e9st9Inaly law always outliyes
me conotions oi tne society or commerce
"nlcn calieo IL INTO existence The
venerable aDsutoHles OF me common Law
o. to-aay we're ne naturai outsro"th OF condi-
tey a.e lepea.eu ~ .uuat oe w !es1slation. and
Legislation may ameuo Tue statute as easily asis
eau uioony tuI eonsnton la". code may be
nloEe .4 9asny 1oap.eu sa ~ enangng s conditions
lnan 9ouy od sustoma1! "a ano mrltten Law, evt
uenteu ~ ~. nasa ~ tnuepenueat eaact-
1nEuts anu 3uoNtat 9ce!s1uns. IN 1act, every
soue snoaIu con.au "ltnlu ltse1l provision for
10 ssnela. lss.s.on s.s VI an1euonenI At stated
peIious-eas EfIty .eu yeats-an amendment Or
tegtsoh h1 Mc1 - tha ne ~ fhe ny incorporating
~ t4e oouy ~ tue eoue LUG hG" euactments Of
Inc Leelelature anu lue nc" rules announced By
the courts.
Ano1ner oo]ee1lon Is tnns stated: "Won1s
ana PHRASES nave acquired settled meaning in
tne common law, and N reducing that
law TO "rltten 1ofn new words
ano phrases would necessarily be
used, to settle the meaning Of which
would require muca litigation. II the sta:e-
ment OF rule, 10 the opinion OF q Court, as-
sumeo q certain formula, that formula may@
transcribed into the statute May not the Leg
islature use words In the sense in which they
are employed ov the Judges. IN anv eYentI
there be any real difficulty in this regard lis
easily avoided ~ chapter OF definitions, which
Should 1orm part OF every code-as 1t does Of
nearly az IL tnat haRe been adopted in modern
times. The omission OF this in the Code Nj
poleon Is noted BY Austin as one OF its principal
detects.
l. 1t IS also urged that the fixed forms and IN
flexible character OF the code would retard the
statement OF the proposition that judiciary Law
Is more flexible than Legislative enactment The -
answer 10 the oo1ectlon slated in that form
states the answer to this.
D. 1t IS sumeelmes stated that the modern
codes OF Europe have failed to realize the hopes
OF their projectors. It is also understood that
the defects in the code OF Justnan were neces-
sarily supplied BY the promulgation OF a new
Constitution. 1t is true that some European
codes are detective in not providing for per-
odical revision whereby new rules established by
legislation or developed BY judicial discussion
may be assigned to their proper places in the
general system, but 1t is not true that the codes
thus defective have not improved both the Law
and the literature OF the law. Not one OF the
nations In which codes have been adopted would
for moment entertain the proposition to re-
turn to the old condition. It is also true that
several OF the European codes are very defective
in classification, but many Of these defects have
been avoided in those prepared in New York,
and in the one which has been adopted In Cali
fornia, to which attention has already been
:alled.
Attention may now be properly called to
some Of the advantages which it is believed
would result from codifc1ton.
I. It would render the law more accessible to
both lawyers and laymen. The main body OF
he settled law is now unknowabe to the peo-
Die whose rights it secures and whose dutiesis
le6ues. Even lawyers are contented with
knowing where it may be found; no ona a.
# time, inaccuracy of digests, and iuaccessE
,ility tolibrares, render impossible the thorough
md complete preparation OF arguments npon
questions arising in any cases except those Of
utticient importance to demand an exhaustive
nvestieation without regard to the time con-
uned. Many rules, each Of which Is uoW
Eliminated from many adiudged cases, might b
tated On q single page OF the code which, upon
eing sanctioned by Legislative enactment, would
ava the force Of law without the support
# the adjudged cases. It is seldom that good
awyer enters upon the trial Of IN important
ase without apprehension that, ia the huTrTf
he hearing, he will be compellcd to confront