CODIFICATION. 



175 



" present circumstances " demand. One thing 

 is certain, that there is great perspicacity in 

 their comprehension of the- topics of which 

 they treat. Whether they are as felicitous in 

 the language in which they clothe their pro- 

 posed enactments is another thing, and that is 

 of no small moment, for verba ligant homines is 

 very often true in the law. 



There are several considerations which affect 

 the question whether it is probable that the 

 code as proposed will be adopted ? 



One is, the small amount of time and atten- 

 tion that the commissioners have been able to 

 devote to the task. Aiming to codify the 

 whole body of the law, it required an intimate 

 knowledge of the whole law, an examination 

 . of all the adjudications upon it for several cen- 

 turies, and a deep and careful consideration of 

 all the changes which the change of circum- 

 stances in those centuries had made or rendered 

 necessary. Less than that might render the 

 proposed plan valuable as a suggestion of im- 

 provements, but hardly sufficient as a complete 

 system of itself. 



The code Napoleon, with all its aids from 

 preexisting codes, was ten years under the con- 

 sideration of the courts of France, and the ablest 

 men in the kingdom. The penal code alone of 

 Prussia was twenty-five years in preparation. 

 The code Justinian, with like aid from previous 

 codifications, was confided to seventeen per- 

 sons, who completed their work in three years. 



Another question is, whether it has not been 

 too minute in its details, and not confined itself 

 to what is deemed the proper office of a code, 

 namely, the annunciation of general principles. 

 If it has this fault, it is a serious one, for one 

 of the great merits of the common law, 

 and which has ever been one of the greatest 

 objections to its codification, has been its elas- 

 ticity, whereby its general principles could be 

 and have been adapted to any change of cir- 

 cumstances which time wrought out ; such as 

 the discovery of the mariner's compass, the art 

 of printing, the use of steam as a motive power, 

 the magnetic telegraph, the advancing freedom 

 of the masses, etc., etc. All experience has 

 shown that any modification of the law which 

 deprives its administrators of the power of 

 adapting it to the ever-varying changes of hu- 

 man affairs and compels a resort to the Legis- 

 lature is injurious precisely as it is dilatory, ex- 

 pensive, and uncertain. 



"While certainty in the law is the mother of 

 repose, so human laws must ever keep pace 

 with human progress. To achieve both these 

 objects at the same time to frame a code of 

 laws that shall unite stability with elasticity 

 that shall insure the certainty which gives re- 

 pose, and the expansiveness that shall embrace 

 the ever-varying demands of human progress, 

 is a task which has never yet been achieved, 

 and to which perhaps no human genius is equal. 

 Though that end may not be fully attainable, 

 it may yet be approached, and that work will 

 come the nearest to that end which deals 



most in general principles, and the most 

 successfully avoids details ; that which draws 

 the most largely upon the wisdom of the past 

 for its rules of conduct, of duty, and of right, 

 and which leaves the most to the future in the 

 application of them to the affairs of life. It is 

 evident that the commissioners have realized 

 these ideas, and the great question yet to be 

 solved is, how well they have performed the 

 mighty work of carrying them out. Hie labor, 

 hoe opus est. 



Another question of interest is, How much of 

 the law does this work profess to codify ? All of 

 it or only a part, and if so what part ? " No body 

 of law depends," or it would seem can depend, 

 " merely upon the enactments of the legislative 

 power. A great number of its maxims and 

 principles originate and are formed, in all na- 

 tions and at all times, by the opinions and man- 

 ners of the people, by the decisions of the 

 judges, and by scientific exertions for the elab- 

 oration -and development of the law which 

 already exists as well as that which lives in the 

 minds of the people." " A legal maxim of this 

 kind introduced and established by public opin- 

 ion, habit and custom, by the practice of the 

 courts or by the jurists, has equal force with an 

 explicit law " (Kaufman's Makelday). The 

 reports of the commissioners would seem to im- 

 ply that this branch of the law is embraced 

 within the scope of their work. It is not easy 

 to perceive how this part of the task can be 

 performed at all, and still more how it could be 

 performed with the limited means within their 

 command. Yery much of the value of the 

 work, if this topic is included, must depend on 

 the manner in which it is accomplished. The 

 work certainly shows great labor by the com- 

 missioners ; but still the question is, how far 

 any labor within the time employed could pos- 

 sibly accomplish this whole task ? 



Another question is, how far the proposed 

 code has a tendency to produce uncertainty by 

 changing words or phraseology. It sometimes 

 takes many years and many adjudications to 

 settle the meaning of a word or phrase in the 

 law. A change from the well-settled phrase- 

 ology often leads to serious difficulties. Any 

 indulgence of the code in this practice will 

 create a formidable obstacle in its way. Take, 

 for instance, a specimen of its attempt to enact 

 a legal maxim ; " where one of two innocent 

 persons must suffer by the act of a third, he by 

 whose negligence it happened must be the suf- 

 ferer." The word " negligence " has obtained 

 a definite meaning in the law. The true rule 

 is, that in the assumed case the loss must fall 

 on him who by his act has enabled the offend- 

 ing party to perpetrate the wrong, and it is not 

 at all necessary that the act shall be one of 

 "negligence," for the act, to have the effect, 

 may either be by design or after all reasonable 

 precautions. Does the proposed enactment 

 mean to alter the law, by limiting it to negli- 

 gence, or does it mean to require a new defini- 

 tion of that word? 





