Memorandum in re Corpus juris cases a principle and formulate it, and that formula is stamped with authority, either by long usage or judicial sanction, so that the Courts do not go behind it to the cases from which it was deduced, there you have to this extent codification. . . . "What is needed is the constructive genius and practical wisdom that can take these truly rich, invaluable, native but scattered materials,
-—using with a wise and generous electicism foreign materials only when the native do not exist or the foreign are manifestly superior,
The same
motive
65 impelled
David
Dudley Field to undertake his vast labors under the name of codification. No one has summed up more tersely and clearly
than did be when he said:— “To reduce the bulk, clear out the refuse,
condense and arrange the residuum, so that the people and the lawyer, and the judge as well may know what they have to practise and obey-this is codification, nothing more and nothing less."
—and out of all these build an edifice of law,
primarily designed and adapted to daily use, which shall be at once symmetrical, harmo nious——simple and commodious."
From the days of Justinian and Tri bonian, Sir Francis Bacon and the Code Napoleon, we have been continually reminded of the necessity of such a statement of our law, yet James Wilson was the only one to attempt it, and his untimely death prevented its completion. The quotations from Dane, Carter, Dillon
For the purposes of this memorandum, it is assumed that at the present time, those who have made a careful study of
the subject are substantially unanimous that “tacit codification "—that is “ ex pository codification " as distinguished from "legislative codification,” is the right solution of our present difficulties,
provided of course the work be done in the most thorough manner. Whether or not in the fullness of time complete legislative codification will result is a
and others during the last century of our
question which only the far distant
existence have only served more strongly
future can determine. Much will de pend upon how well the work proposed
to emphasize the need.
The situation
has been as clearly summed up by James Parsons as by anyone, in these words :
by Carter and others is executed.
The
main vice of legislative codification,
particularly hurried and ill-advised cod “The general principles and broad basis on which our common law reposes and which tacitly guide the decisions of our Courts, should be brought to the surface, grouped together, subordinated in their several relations and contrasted in their differences. If such a result could be obtained, the vast area covered by the law would present a district set out in order in place of a tangled thicket. The true bearing of each abstract proposition would stand out plainly, because side by side with others of a similar nature. The decisions,
ification, seems to be that the moment
the code or statement of the law is
enacted into form as the law, that instant it becomes a basis for new interpretation by the Courts; instead of being an aid to the profession, a legislative code becomes a. new bone of contention. This thought was forcibly brought out by
James C. Carter at the same time he declared that " a statement of the whole
which have radiated from some central case,
body of the law in scientific language, and should be classed together and their common principles with the qualifications and limi tations extracted. When the various de partments of the law have been regulated, grouped and subordinated the elaborate train of decisions constituting the bulk of our law which has been worked out with consummate ability by the masters of the law, will remain essentially intact." L3
in a concise and systematic form, at once full, precise and correct, would be
of priceless value," —- for of such a com plete thoroughly balanced logical state ment, he said, as heretofore quoted :— "It would not, indeed, be suitable to be
enacted into law, for even it would wholly
