The sun., 1884-02-10

Inc culliCallOu Ol our CoInilou luW ltliy
be thought to have beon sanctioned in principle
by the Now York State Constitution OF 1916
which provided for the creation Of a Commis-
sion charged with the duty of preparing draft
code and submitting 1t to tho approval OF the
Legislature. In fulflment of this provision
tho draft of code was drawn up about
nineteen years ago. and this draft after en-
counterng many rebuffs and much criticism.
aud undergoing. we believe. some alterations
and improvements. is now likely to bo laid be-
fore the present Legislature and the present
Governor. Should it be adopted Is the prin-
cple of codiicRtion. ostensby accepted by the
State Constitution. sound or. waving that fun
damental question. do competent mon con-
slider the proposed embodiment Of that princi-
pie fit to be clothed with the authority OF law y?
Both inquiries are answered in the negative by
Mr.. j. G. Carter in paper prepared at the re-
quest OF the Bar Association Of the city OF New
York.
1t is contended by the advocates OF the pro-
posed code that tho eXpediency Of some form
OF codiilcation. having been affirmed by the
State Constitution. is res ddh,dicatd. and that.
accordingly. nine-tenths Of Mr. Carter's paper
is irrelevant to the single question presented to
the Legislature. whether. namely. the particu-
lar experiment OF which Mr.. David Dudley
Field Is the principal author can be
OF the Constitution. SO inr as this may
be gathered from the language OF
the instrument and from the declarations
made In the Convention that framed II. do not
warrant US In thus narrowing the scope OF crit
icism. Tho intention being to ascertain whcth-
or such a coditcation Of the law could bo effect
ed as would confer public benefit 1t is plain
that the investigation would be materially SIM
plihed and promoted by arguments which,
passing over for the moment imperfections
in a given draft should fix the mind
upon the broad inquiry whether from
the nature OF the case any nttcnp.
to apply the principle OF codiflcation to
the English common law would not be fraught
with public injury. A discussion which might
result in demonstrating tho ineXpediency OF
any code at ALL and thus relieve the Legisla-
ture from the onerous and delicate task OF
graduating the merits OF this or that abstract
of the law IL palpably and preainnenuy per-
tlnent to the aim which the authors of the
clause In tho State Constitution must DO pre-
sumed to have contemplated.
So much for the relevancy OF the fundamental
duory to whose examination much the larger
part Of Mr.. Carter's monograph is dovotbd. As
to the candor. thoroughness. and acutencss
with which the examination Is conducted there
can be- we imagine. but ono opinion. It would
indeed have been discreditabio to the New York
bar II a project 80 nome ntous the adoption
oil a clvu code had not drawn forth at l8Rst ono
treatise on the abstract propriety OF subjecting
the coIamon law 10 codicaton whch should
be worthy TO rank with tho most luminous
and useful productions OF modern jurscon-
suits. 1t will DO universally acknowledged
that tho duty OF exhaustive study and delib-
crate judgment imposed upon tho legal pro-
fcsslsn by the proposal to codify oase law In q
fv{x .js,l.
beeh unrecOgnizsd or slghted has mt last been
adequately and h0norably discharged. Whether
| the reader is or Ia not disposed N concur with
| Mr Carter in denying the wisdom OF any at
tempt at applying the codifying principle to
English and American case law whethor the
| possible attainment OF greater certainty with
regard TO what the law Ia In cases hitherto
| adjudged would outweigh tho danger OF mis-.
| carriuge Of iustlce In cases unforeseen Is a
| question upon which individual minds will no
doubt continue to diiror-he will gladly own his
| deep Indebtedness to the penetration. tho
| breadth Of research. and tho uAwaverng fair
ness with which the subjsot tn discussed. the
precision with which the terms of tho problem
| offered for solution are defined. the vigilance
| with which supposed proc0dents sorutin-
| iHsd. tho care taken 10 discriminate between
legitimate. permissible. and questionable ap-
IAications OF one and the same principle.
Mr.. Carter concades that statute law IL an
appropriate province OF codacaiion because In
tho subject matter OF statutes 1t Is OF para
mount importance that tho rules shall be cor
tain. II Is alse. he admits. conceivable that a
really good system OF procedure might be
devised aud enacted into written law" al-
though the attempt made In the State
OF New York to give the regulations fol
proceedings In tho courts OF Justice Il
notoriously q failure. But his contention Ii
that codiGcntlon Is inapplIcable to that depart
mont OF Jurisprudence which he prefers Il
designate ~ unwritten law. but which 10 per
haps moro eommonly described rs case Oh
Judge made" law. Whyf Because In thu
subjects falling under this branch Of the Law
(Which is concerned with tho conduct OF men II
their ordinary pursuits and interrelations
II 10 OF greater importance that th
rule enforced In any given instano
should be lust. than that 1t should b
vigorously certain and unmlstaknbly know
beforehand. But why may not the rules b
: both certain and Iust. Us. on tho whole. Il
I statute law they seem to bar Because the pro
I portion Of unforeseen emergencies and unoal