The sun., 1894-03-04
7 v.

The subject OF codiacatIon 10 one OF peculiar
interest 10 the lawyers OF New York. where the
enactment OF Q civil code has been strenu-
ously advocated by Mr.. David Dudley Field and
resisted with equal vigor. aud thus far with
success. by Mr. James c. Carter. The nearest
approach to a sanction OF the project made by
the American Bar Association was the resolu-
tion adopted in 1886. by small majority. to
the effect that the law itself should be re-
duced. so far as It's substantive principles are
settled, to the form OF q statute" The conclu-
sions which experience and reflection have led
Judge Dillon to form are indicated on pages
256- -26O Of the book before us He begins
by insisting on q definition OF terms. " The word
code" he says. =" is one to which such various
meanings are attached that IL seems to me to
be essential either to drop It from the discus
sion or. first OF all. to nx what is meant by II.
II 1t means n general abrogation OF existing
laws and rules. and the substitution OF an en-
tirely new system. and. to that end. the rele-
cation OF the law reports to oblivion. 1t will
have but very few advocates. and / am not
among them. Such however. is not its neces-
sary meaning" The author goes on to ex-
plain that. according to his conception. q" q
code differs from q mere revision. consolida-
tion. or digest Of existing statutes. since
1t is essential to any practical or de-
1t be general or confined to a par
ticular branch. that 1t shall derive the ele-
ments OF its chiefvalue from the existing body
OF case law. as well rs statute law. removing
therefrom what is obsolete. needlessly tech
meal inconsistent or superfuous. settling OBJ
scura and doubtful points. expressing we'll
settled principles OF general interest or uti-
ity. and with a cautious hand nlling up the
interstices which the irregular development
OF law. as q result OF the exigencies OF litiga-
tion. has left. and then arranging the whole In
q definite and systematic form" Judge
Dillon believes that codifcation within these
restrictions and conservative limits is expedi-
ent whenever 1t can be well and thoroughly
done. and not before Neither would he de-
mand in those charged with the work qualih-
cations 80 high that they are unattainabls. On
the other hand. tho author does not share
the views OF those who insist on a con-
dition precedent to undertaking any part
OF tho work. that the whole body OF the law
ought thus to be subjected to the operation at
one and the same time. To him 1t seems that
the labor required is SO vast. and the difilcul-
ties to be overcome are so great, that unless
the work is done In divisions or branches OF
the law 1t will probably never be undertaken
at all AS regards the practicability OF codia-
cation by sections the fact 10 noted that some
modern English statutes are so comprehen-
siyo as very nearly to attain the purpose OF .
code touching the subjects dealt with. For
example. in 1882 an act was passed to codlfy
the law relating to bills OF exchange. checks.
and promissory notes. and the author OF the
act has stated that he examined thousands OF
cases as we'll as many statutes. in order to
frame the desired law. Why It Is asked, might
We not have contract act. or a partnership
act, without waiting for a codihcation OF the
whole corpus Of our substantive law?
Judge Dillon concurs with Mr.. James c.
Carter In eautioLinG the profession against
forming unreasonable expectations OF the
benefits to be derived from codihcation. no
matter how we'll It may be performed. II is
not possible, and, therefore. not desirable
to make any enactment so eomprshsn-
siye as to embrace all cases or combinA.
tons oi fact which will arise nor is II possible
10 make statutes so clear aud precise as to
avoid the necessity Of judicial Interpretation
and construction. The doctrine OF judicial
precedent although. In the authors opinion
It might. with advantage. be subjected
TO certain limitations. has. he notes
eventually affected every system OF Iuris-
prudence. even where a determined at
tempt has been made to exclude Il.
The French code prohibits Judicial leg
islation. and under it, judicial decisions do
not constitute an authoritative rule for other
JUICES III thS aehso OI our doctrine OF
judicial precedent. The same thing is true.
at least in theory, OF other Contiuen ntaI codes.
The Prussian and Austrian coles. for instance.
went so far, at first. as TO forbid a Judge from
referring to the opinion OF law writer. or 10
previous judicial decisions. and the Prusslan
code expressly directed him TO base his iudc-
ments upon the statutes aud the general prin-
ciPles Of the LandrschL But this rule has
since been notified in both countries. SO
that az this time. the decisions Of the
supreme Court are regularly publish
ed and they may consequently be as,
sumsd 70 exercise q powerful, IL not de-
eisiYs inilusnee upon inferior Judges although
thsy are not absolutely biudinz prsesdsnts.
The gist Of the authors discussion Of this sub
jeet 10 embodied In the sentence that "thslaw
ttssll should be reduced 40 lar A prastisabls