650 PRIVATE LAW 



such plan will be somewhere tried in the future in connection with 

 a codification of the unwritten law. 



Codification is the one and only remedy that has ever been sug- 

 gested which amounts to more than the mildest palliative, and which 

 has received substantial support from any influential section of the 

 profession and the public. Fifty years ago it seemed in fair way of 

 accomplishment, and as late as 1886 the American Bar Association, 

 after a long debate, adopted by a small majority a resolution that 

 the law itself should be reduced, so far as its substantive principles 

 are settled, to the form of a statute. The committee reporting in sup- 

 port of this resolution said that whatever has heretofore been settled 

 by the decisions of the courts should be evidenced by codification, 

 leaving to the courts to continue the natural development of the law. 

 A majority of the influential American lawyers, however, have con- 

 tinued to oppose a codification of the law, and have succeeded in 

 preventing even its serious consideration. At about the time of the 

 favorable action of the American Bar Association, the New York 

 City Bar Association defeated by a large majority even so conserva- 

 tive a proposition as that the present English system of codifying the 

 unwritten law upon special subjects, one at a time, be taken up. 



The main real obstacle to codification in America is undoubtedly 

 the experience which we have had of codification in particular, and 

 of statutory law in general, in the past. The inartisticality, clumsi- 

 ness, obscurity, and verbiage of the ancient English statute is pro- 

 verbial. The old-fashioned lawyer held all statutes in contempt. The 

 ancient form w r as inherited by America; and while from early days 

 noted examples of clear and skillful drafting were incorporated in our 

 statute-books, nevertheless the art was one little cultivated, and there 

 remained much ground for the common saying that, however obscure 

 the unwritten law might be, the written law would always be worse 

 still ; that "the flexibility - - a somewhat doubtful matter - - of the 

 judge-made law would be lost, and nothing of value would come by 

 way of compensation. 



Owing to the clumsiness of the old English statute, and the con- 

 sequent necessity of arbitrary judicial intervention in order to secure 

 for it anything like a reasonable operation, the courts adopted certain 

 rules of construction which make it very difficult to draft a statute 

 in simple terms which shall, nevertheless, fulfill in all respects the 

 wishes of the statute-maker. If the courts had always construed 

 every statute according to its plain language, probably legislators 

 would soon have taken more care, adopted the custom of employing 

 able counsel, and attained a degree of literary skill which would 

 have justified a continuance of that system of construction. The 

 experiment, however, was never tried. When a statute comes 

 before the court its plain letter is subject to be violated by such pre- 



