THE DOCTRINE OF STARE DECISIS 651 



sumptions as that the legislators did not mean to change the prior 

 law, and that they did not intend to violate public policy (that is, 

 the political views of the court acting gwasi-legislatively), and that 

 the letter is to be subordinate to the spirit (as the spirit may appear 

 to the judges). When by the aid of these presumptions the courts 

 have - - as they often have - - thwarted the purpose and contradicted 

 the real intent of the legislators, the latter have sometimes sub- 

 mitted, and sometimes adopted additional legislation to make their 

 purpose and intent unmistakably clear and unavoidably enforceable. 

 Here, however, they are hampered by the custom of remedying all 

 judicial errors by affirmative legislation, instead of by a declaratory 

 statute annulling the obnoxious decision. If the courts introduce 

 a series of unintended exceptions, each of these exceptions is thus 

 made the subject of a special statute; for the custom of our statute- 

 makers, except in periods of codification, is to deal only with the 

 particular evils that have already been experienced, making each 

 specific case the subject of a specific statutory remedy. Thus a code 

 originally drawn with science and art, in the form of a series of 

 general propositions, loses its symmetry and becomes a wilderness 

 of special instances. Then comes a recodification, intrusted to the 

 hands of some incompetent recipient of legislative or executive 

 favor. The codification in such hands introduces new ambiguities, 

 the process of judicial construction and legislative amendment goes 

 on with increasing velocity, and the condition of things becomes 

 worse in general public opinion than it was in the now forgotten 

 days before the process of codification first commenced. 



These, however, are avoidable evils. Whatever is known is cap- 

 able of being expressed in clear and unambiguous language. It 

 is perfectly possible, and to some persons it is quite easy, to draw 

 a statute clear enough to settle every question arising within its 

 purview except questions so unusual, or so near the border-line, or 

 so unforeseen, that under any system of law they would naturally 

 . result in litigation. Of course so many exceptions and errors and 

 anomalies have crept into our law at present that a codification 

 which amended nothing would read a little like the chapter on ir- 

 regular verbs in a grammar. But- it could be done so that the present 

 law would be far more easily discoverable than it is now, and, when 

 discovered, just as clear; and the errors and anomalies, together 

 with the great mass of the exceptions, ought to be corrected in a 

 proper codification. 



The main difficulty in codification is to secure the right man to do 

 the work. " The codification must be done by the right man (which 

 involves the proposition that until the right, man is found the codi- 

 fication had better be let alone) .... He must have had a long and 

 varied practice at the bar. He must be a theorist. He must have 



