The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-01-28
NEW MONTANA CODES
They Are Attracting Attention in
Parkway States.
SAID BY A NEW YORK LAWYER
He Says That the Work Gives Evil
dence of Much Labor, Learn
ing and Abillty-A Portion
of His Address.
SAID BY A NEW YORK LAWYER

The Montana codes have been the
subject of a great deal of comment and
criticism in Montana itself and are now
beginning to attract a good deal of at
tention in other parts of the country.
James c. Carter, an able lawyer OF New
York, in a recent address before the
American Bar association at Detroit,
Mich, of which he was president, made
an extended review of these codes. He
says that the work gives evidence of
much labor, learning and ability, the
arrangement is orderly and the lam
guage appears, in general, to be con-
else, well-chosen and perspicuous. The
review by Mr.. Carter is as follows:
Montana appears in a brand new
suit of codes. embracing a political
code, a civil code, code of civil pro-
cedure and a penal code. Inasmuch as
the leading idea is to have no unwrit-
ten law, or as little as possible, the
trainers of the system have very prop
erly sought to furnish an abundance
of the written variety. According to
the numbers of the sections, there
would appear to be upward of 10000 in
the four Codes which Is pretty we'll for
a young state; but some gaps are left
in the enumeration between the diff
parently. that experience will show the
necessity of many additions, and to
enable them to be made without dis
turbing the order of enumeration.
THE matter of these codes is in large
measure borrowed from the legislation
of California, New York and some 9TH
er states, although much, as am offici-
cially informed by a distinguished law
yer Of Montana, has been evolved from
her own inner consciousness The work
gives evidence of much labor, learning
and ability. The arrangement is order
ly, and the language appears, in gener-
al to be concise, well-chosen and per-
spicuous. If the previous condition of
the law of the state was as chaotic as
1 am informed It was, should suppose
that much benefit would be derived
from the new system. OF course, II
would be impossible in the limits to
which this address must be confined, or
with the time at my disposal, to review
this huge mass of legislation; nor
would 1t, for other reasons, be appro-
priae. Most of IL, as already observed,
has been heretofore enacted elsewhere.
Those who doubt the expediency Of
attempting to reduce the suggestions
of common sense, the rules of logic, the
dictates of reason, and teachings of
good morals into abstract statutory
form-in other words, to attempt to
state the law regulating private tran
Sactions apart from the fact, will find
much in the civil code which they
would say might well have been omit
ted as being more likely to raise new
questions than to settle these now ex-
listing. The unwritten common law was
the horror-the bette noir-of Bentham.
He would have absolutely extirpated
it, and solemnly advised the original
states of the union to adopt that policy.
Some of his followers have imbibed
this antipathy and made efforts to car
ny 1t into effect. The proposed civil
code, to establish which in New York
such earnest efforts were once made
contained a provision in these words
In this state there is no common law
in any case where the law is declared by
this code The trainers of the Mon
tana code have adopted the declara-
ton; but they have exhibited their
wisdom, If not their consistency, by
adding two provisions which not only
preserve and continue the whole body
of the common law, but nullify their
| own codification of it. They say (sec-
ton 1853 of civil code): The provis-
ions of this code, so far as they are
substantially the same as existing
statutes OF common law, must be con-
strued as combinations thereof and
not as new enactments.' Therefore all
| the Montana lawyer has to do, or will
| do, under the civil code is to ascertain
when he Is in doubt, what the common
| law is on any subject in the same way
| which lawyers have always followed.
He must, however. before his inquiry
| is finished, consult the code to learn
| whether ii may not have been design.
| eddy changed. Codification of this char
acter is simply digest-making AS legis-
lation ii is absolutely ineffective; for IL
| correctly done, it adds nothing to ex-
listing law, and. IL incorrectly done, ii is
| to be disregarded. What sort of legis-
lation is that which leaves to judicial
power the right to sit in judgment up
ON the legislature and inquire whether
he has properly performed his work
| Bentham clearly saw that codification
committed a plain felo de sc unless Il
| started with the assumption that there
was no other law save that created by
the written word; and with a courage
| corresponding to his conviction, he
| proposed to strip from the judicial
mind it's perogative of inquiring what
was right, and limit II to the mere
| office of declaring what was written.
The Montana codifiers have not thus
chosen to bid defiance to nature and
| her laws
Some attempts are made in this cod,
to introduce into the province of tbs
common law some doctrines which the
masters of that system have not hith,
| erto found occasion to employ. An un.
caught wild animal is made the prop.
erty OF the person upon whose land Il
may happen to be. IL he chooses to as
sert ii as such; but what property
amounts to which may pass from on,
| TO another a hundred times a day
| against the will of the owner is no
very clear. Moreover, its definition o.
property omits the requisite of utility
and thus makes ferocious wild animals
! such as caught rattlesnakes. the sub
I ject OF property. A title is devoted Z,
| the formulation of rules for the inter
probation OF contracts, and among then
is this: If the terms of a promise ar
| in any respect uncertain or ambiguous
/ IL must be interpreted in the sense IL
which the promisor believed at the tim,
of making IL that the promisee under
stood it Civil code. section 2. 214) o
course IL is implied that in such case