New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1898-07-26
CODIFICATION.
OBJECTIONS TO RI BASED ON THE MOD
ERN THEORY OF EVOLUTION.

THE SCIENCE OF Law AND LA .NIS.aI ING
the Question Of cedhesilCns, BY y R. F hSr
G s.aSc a. h Ia IA Fl The MACMILLAN sSs COMPANY
LAW AND POLITICS IN THE MIDDLE Lea. AGES SS
With synoptic Table Of Sources octave PIP
A HISTORY OF THE ENGLISH POOR Law;
In Connection with the State of the country ana
he Condition q The be- ffope by sar and
Secretary TO the Poor Law Board New edition;
re Teys9Hs W WTdS by ss Sradd
Poor Law Union. Two volumes Octave up
ixxviii Ssi; viii. 400 G. p Putnams Sons
Mr.. Clarke has seized the idea of evolution In
law with a grasp not easily loosed. The same is
true from a somewhat different vantage point
OF Professor jerks and in the work OF Or
George Nichols. almost a half century oid'
though II deals exclusively with single Vo!
OF statute law the human nature behind 'he
law with its changing needs and dangers IL
what makes the treatise study OF progress
Probably everybody who is interested In the
purposes OF the last-named book knows as
much about the work he can be told So II
may well be taken in the present case to point
a moral under the head OF TO codify or not 10
codify which is the whole theme Of Mr.. Clarkes
general study of lawmaklng This question, as
well as many others, wear an entirely olHereh'
ASPECT now from that in which they appeared
before the theory of evolution took strong
hold on the popular Imagination In tue ua!s
satirized by Peacock, when the proper lau was
tho Diffusion of knowledge with a big, big d,
and the thought fondiy but vaguely cner-
ished that IL single generation OF men couid
be wholly and duly educated the world wouid
60 right thenceforth. the proper thing was coal
fication If that idea could have been carried
out to its anticipated result every man Dy ths
time would have been his own chemist. doctor.
lawyer and priest. The men who breathed that
atmosphere were in favor Of codes naturally,
and were eager to cast out the Judge-made law
of England as an abomination. Bentham warned
Americans TO keep the common law out OF the
United States as vigilantly they would the
nest Curiousy enough. about the same time.
speaking generally. Kent was making law as
fast as he could write and read his decisions
weaving into bis fabric suggestions from the
civil law and from French law. Kent began
this process before he became Chancellor. and
he tells himself how, when he was In the Su-
prem Court he made much use OF the CoSpus
Jurs Civilis. The other judges were repub-
leans and very kindly disposed to everything
that was French and this enabled me-" says
Kent. without exciting any alarm OF Jealousy
10 make free use Of such authorities" The in
sources not as French judge would do, but as
an English Judge. looking everywhere for the
preccdents that were so scarce In America.
Still law presented itself to Kent's mind as an
edince to be built, not an organism which
lived and grew.
The evolutionary theory has forced the bio
logical analogy into every science. In partcu-
lar. it gave q reason for the existence OF tSe
common law OF England which was as vel
come TO the votares Of that law as II was
conclusive It has put the whole study OF leu
tonic law on new foundation. Roman la"
was confessedly artificial and borrowed at the
outset. Even If the ancients were wrong In
their history Of the Twelve Tables, still their
conception Of these, as only In part or natiVe
origin. shows feeling toward law totally DIFF
ferent from the unconsciousness Of other races
Codificaton was a necessary process in law as
tne Romans conceived II, though they soon
found something immeasurable In the customs
~ sub,ect r,c.s. When the Gefmanic tribes
came in contact with an observant CIVILIZATION
they had no idea that they possessed any laws
Like other rude nations. they had inviolapie
customs; but they did not know how these mad
been acquired. Nor would 1t occur to them that
these were in their nature the same as the
commands and prohibitions OF the written, that
IA the Roman, law. The years that were re-
Brehon laws in Ireland and the ancient legal
systems of India show what the task Of Roman
officials must have been in seeking the Law
of Nations. while at the same time emphasizing
the difficulty that the conquered nations must
have had to understand what the conquerors
were after The vital thing which the barba-
rians learned In this process was that each body
of people had its own laws. The process OF
legislation became universally one OF nndng
and declaring law that was already supposed 10
exist, not Of making law. Undoubtedly great
deal Of law was made under pretence OF dis
covery, but the theory that law inhered IN the
nature Of things transcended all these human
accidents Of DEGREES aid ordinances and stat
utes and capituaries With most European
societies this theory did not last. But in Eng
land It became permanent. The Norman kings
as Judges and a little later the judges whom
they appointed. were supposed to decide ac-
cording to law that already existed. England
was really conquered country but 1t was ad-
ministered as a heritage. the heritage OF one
man to whom every other man high or low owed
life and service The heritage was fiction, but
the conditions that II produced were real. There
was no room for nero neighborhood law in
England and the judges while they looked
for the ancient local customs. took excellent
care that the law they uttered should be the law
of the King. In these democratic times NOBODY
will say that this judge-made Kings law was
good. But 1t bad one good quality. 1t descended
on noble and peasant with the same rigor. and
nobody ever became strong enough TO defy 1t
successfully. There was plenty OF law In the
Middle Ages" says Professor jerks: but 1t
was for the most part ill-declared and badly
enforced. The great problem which lay before
the statesmen Of the Middle Ages was TO de-
wise a machine which should declare and en-
force law uniformly and steadily The supreme
triumph Of English craftsmanship Is tnat
It solved this problem some five hundred years
before the rest of the Teutonic world. BY bring
ing together into one body representatives OF