336 HISTORY OF COMMON LAW 



sustained progress can come only by the slow, lingering, hesitating 

 course of evolution. 



" Non turn denique incipit lex esse, quum scripta est, sed turn quum 

 orta est." These words of Cicero, 1 used with reference to what of 

 law is in its nature divine, are not less applicable to a national 

 common law. To codify it is not to create it. To codify it is not or 

 ought not to be to give up the aid to an understanding of its mean- 

 ing furnished by judicial decisions of former times. California 

 was the first American state to adopt a civil code, but her courts, in 

 working under it, have always resorted freely to the preceding law 

 out of which it grew. It was indeed urged by her foremost jurist, 

 a supporter of codification, that they should go farther and as- 

 sume as a kind of legal fiction that the preceding law covered every 

 case that could arise, and that the code was designed to make no 

 changes in it which were not manifest on the face of the new pro- 

 visions. 2 



The Romans based their philosophy of law on a false foundation. 

 They assumed a golden age in the far past when all nations were 

 governed by the same great rules. Their jus gentium was of all myths 

 the most misleading. 



To view the normal place of law as the common and identical 

 possession of every people, and hope for world-uniformity when a 

 golden age of pristine innocence shall return, is to misconceive the 

 essential nature of things. All progress is away from uniformity. If 

 history has taught us anything, it is, to use the terms of Spencer, 

 that there is "an ever increasing heterogeneity in the governmental 

 appliances of all nations"; 1 that all "organic progress consists in a 

 change from the homogeneous to the heterogeneous"; and that this 

 "is so, because each change is followed by many changes." 3 



Not only, the world has learned, "is all progress from the homo- 

 geneous to the heterogeneous; but at the same time it is from the 

 indefinite to the definite." 4 



So will theuncollected and unclassified wisdom of the people, which 

 we see gradually take on the shape of their common law, at another 

 stage of their history pass from the unwritten into the written, and 

 finally crystallize into formal codes. But they will be national codes 

 and nothing more. No two peoples can see things from the same 

 viewpoint. Nor can any two generations of the same people see 

 things from the same viewpoint. 



Constitutions, if drawn as constitutions should be, may be, in 

 theory at least, immutable. That of the United States, so difficult 

 has been made the process of amendment, and so happily brief is it in 



1 De Legibus, n, 4, 10. 



2 James C. Carter, The Provinces of the Written and the Unwritten Law, 24. 



3 Illustrations of Universal Progress, Appleton's ed., 3, 15, 57. 



4 Ibid. 396. 



