476 JURISPRUDENCE 



France has over 15 volumes a year of reports of decisions on points 

 of law, 4 of them containing over 2500 cases each; England has 

 about 10 volumes a year of reports of decisions on points of law con- 

 taining about 900 cases. California has from 3 to 4 volumes of re- 

 ports of decisions on points of law each year, 100 since the adoption 

 of the Code in 1871; Massachusetts has 2 to 3 volumes of reports 

 of decisions on points of law, 76 in all during the same period. As 

 bearing on the avoidance of judge-made law, which, by a curious 

 ignorance one is perhaps not quite justified in calling insane, Ben- 

 tham regarded as inferior to legislature-made law, the result of the 

 codes in one or two points will be instructive. The French code 

 provided that all actions ex delicto should be decided by the court 

 as questions of fact, without appeal for error of law. Notwithstand- 

 ing this provision, recourse has been had to the Court of Cassation 

 and a system of law has been built up on judicial decisions similar 

 in character and comparable in amount to that built up in England 

 in the same way during the same period. There is, for instance, 

 a French law of libel which must be learned, not from the code, but 

 from the pages of Dalloz and the Pandectes Frangaises, just as our 

 law of libel must be studied in the law reports and the digests. 

 Even if a point is apparently covered by an express provision of the 

 code, judicial decisions may affix a meaning to the provision which 

 can only be known to a student of law. Thus the French code 

 appears to lay down the proposition that capacity to contract is 

 governed by the law of the party's nation, yet the French courts 

 refuse to apply this principle and instead of it apply the French law 

 of capacity in each case where the other party to the agreement is 

 a Frenchman who acted bona fide or where the party to be bound 

 was commorant and doing business in France. These are two ex- 

 amples only out of many that might be cited of the failure of the 

 code to fulfill the hopes of its individual sponsors. If we leave the 

 French code and come to those in our own country, we shall find 

 the same process going on. The law of California has been devel- 

 oped in much the same way since the adoption of the code as before, 

 and the common-law decisions of other states are as freely cited by 

 her courts as authority as if their own law had never been codified. 

 The uncertainty and confusion caused by the adoption of the New 

 York Code of Civil Procedure is a well-known scandal. 



It is true that Bentham objected to the French code as imper- 

 fect and made upon the wrong principle, and that Field objected to 

 the New York Code of Civil Procedure as finally adopted. These 

 objections were most characteristic. Every codifier desires not 

 merely a code, but his own code, and will not be satisfied with any 

 other. Hence, it follows that no complete code can be adopted 

 which would be satisfactory to many experts in law. Furthermore, 



