126 The Evolution of Law. 



sands of decisions. It is said that there are, in English 

 and American reports, 40,000 cases of interpretation of 

 the Statute of Frauds. 



Finally, it is objected that history shows that codifica- 

 tion is suited only to a moribund state of the law, when 

 it has lost its spontaneity and capacity for improvement ; 

 that codes have appeared at a period of national decline, as in 

 the case of the Justinian Codes, or at a period of political con- 

 fusion, as in the case of the Code Napolean. One writer (Best) 

 says that codification has always been indicative of a 

 contemporaneous state of absolutism on one side, of civic 

 pusillanimity on the other. The great German jurist 

 Savigny regards the French, Prussian and Austrian Codes 

 as symbolical of the peculiar vices incident both to revolu- 

 tion and tyranny. 



The conflict of opinion finds expression, on one side, in 

 the language of Sir Henry Maine: "English law will 

 continue to bear the marks of the injury that results 

 "from the absence of creative judisprudence, until legisla- 

 "tive rearrangement and restatement fully disclose the 

 " stores of common sense which are at present concealed 

 " by its defects of language and form." On the other 

 hand, an American law-writer wails after this fashion: 

 "If England adopts codification, it requires no gift of 

 " prophecy to foresee that her encompassing seas will weep 

 "upon the dripping rocks around that island a more 

 " mournful requiem than was ever before sung over fallen 

 " greatness and glory." 



The several methods of development of law Custom, 

 Fiction, Equity and Legislation, and, if you please, Codifi- 

 cation; the necessary results of the continuous interaction 

 of State and society; different methods of adjustment of 

 rights and duties, and all operating, wlien in normal action, 

 to produce for each individual least restraint and the 

 greatest liberty are best illustrated in the two great 

 historical systems of law, the Roman and the P^nglish. 

 There is space for only a passing notice. Their lines 

 of development are in some respects so diverse that 

 they have sometimes been regarded as repugnant sys- 

 tems. This is true rather in respect to forms and proced- 

 ure than in substance. The most obvious differences are 

 that the distinction between real and personal ])roperty, 

 Avhich is of such importance in English law and one of the 



