questions. This inquiry is experimental. They cannot say whether or not the replies will be published in the tranactions of the Association, as was done last year. They will, however, be classified for the information of the committee, and will be presented to the Association as an appendix to the committee's report. As the labor of copying and classifying these replies for the use of the committee will necessarily be great, you are requested to make them as brief as is consistent with a proper expression of your conclusions and reasons therefor. Replies should be addressed to the undersigned, secretary of the committee, as soon as practicable.

SEYMOUR D. THOMPSON, 2104 Lafayette Avenue,

St. Louis, Mo.

ANSWERS.

TO QUESTION I.

II. B. Brown, Detroit, Mich. :

Yes.

Rufus King, Cincinnati, O.:

I believe that it is not possible to reduce the whole body of the law to the form of a statute. The question should be: "How far is it possible to codify the law?

John L. Bridgers, Tarboro, N. C.:

As that portion of the common law which is not inconsistent with the statute law is in force under most of our state constitutions, it should be put in such form that all may know what the common law is in every state. In the decisions many principles are declared, but they lack stability and certainty. The decisions would furnish the substance of the statute, to which could be added such general laws of custom as the framers might think necessary. To prevent judicial legislation is one of the principal objects of codification, such legislation being contrary to the constitutions of the states, which prohibit two legislative tribunals for the same government. Manuel Eyre, San Francisco, Cal.:

It is. I think the bar universally in California, even those who formerly opposed the adoption of the civil code, are of this opinion.

Henry Wade Rogers, Ann Arbor, Mich. :
Yes.

Alex. Graves, Lexington, Mo:

Nothing is more to be regretted than any attempt looking to reducing the law to the form of a statute.

Frank Goodwin, Boston, Mass.:

No.

Austen G. Fox, New York,

No. Defining of new terms more uncertain than applying the common law.

Egbert Whittaker, Saugerties, N. Y. :

Yes.

Geo. W. Biddle, Philadelphia, Pa.:

I think it is undesirable (as well as impracticable) to attempt to reduce to the form of a statute, or, in a word, to codify the general body of the law.

N. C. Moak, Albany, N. Y. :
Decidedly, no.

Morris M. Cohn, Little Rock, Ark.:

Yes. In the long run, codification does not increase the amount of material to be learned, but greatly lessens it. It makes the law far more accessible to those who have to obey it. In most European countries codification has passed out of the region of debate. Any branch of the law upon which a text book can be written can be codified. Different legal authors have shown that certain branches of the law can be codified. U. M. Rose, Little Rock, Ark.:

Yes; gradually. Not all at once.

1

Moses M. Granger, Zanesville, O.;

Do lawyers of average ability and education differ as to any of the great majority of legal principles? Are not the vast majority of the contests in our courts about the application of undisputed legal principles? Putting a legal principle in a statutory form will not aid in settling a dispute as to its application to any given state of facts. The fact that the common law is not in the form of a statute protects many common law rules from legislative alteration, of which statutes are much more frequently the subject than the unwritten law.

Daniel H. Chamberlain, New York, N. Y. :

No. If practicable, it would be idle, adding nothing to the force or value of such law and making stiff and unyielding what is now flexible and elastic without being uncertain. The attempt will compel us to litigate for years and years over the meaning of the new statute. A digest is all that is needed. Jno. Doniphan, St. Joseph, Mo.:

I doubt if it is practicable, and deem it unwise to attempt it at present.

M. F. Force, Cincinnati, O.:

It would be desirable to reduce to the form of a statute the entire body of general rules, etc., if practicable. I doubt if it is practicable to do this at once. The Roman Corpus Juris, the masterpiece and exemplar of codification, was the growth of many centuries. The prætorian edict, gradually developed by yearly accretions for several centuries, became a veritable code of one division of the law in the time of Hadrian. But it was nearly four centuries later, and after tentative efforts in intervening reigns, that the codification of the entire body of law was achieved under Justinian.

Furthermore, the law grows as the people grow. Its development keeps pace with their development. It is, indeed, simply a formulated expression of their conception of enforceable rights and duties. Even a code must be subject to continual amendment until society has ceased to develop or change.

Hence, I think (1) a codification of the whole body of the law is too vast an undertaking to begin with; and (2) some portions of the law are now in too rapid transition to make it worth while to attempt to cast them into the comparatively permanent form of a code.

The method which appears to promise best results, is to select the riper portions of the law and express in orderly arrangement what has been settled in them. These, after some years of experience and revision, may be combined, and by like means, enlarged. What is not settled may be left to be evolved and shaped by the multitudinous discussions of counsel and courts.

The law of contracts in general and of some particular contracts, as agency, bailment, insurance and negotiable instruments, might be usefully reduced to the form of a statute. So, too, perhaps, might equity jurisprudence.

Hence, I favor the adoption of the resolution pending before the American Bar Association, with my understanding of the limitation "as far as possible.'

E. T. Merrick, New Orleans, La.:

The civil code of Louisiana, adopted in 1808 and modeled on the code Napoleon, although it directs the courts not to disregard its clear and unambiguous precept under the pretense of pursuing its spirit, has been the subject of much interpretation. The code of practice, adopted in 1824, has also given

rise to an immense amount of litigation to know what it means and still gives rise to perplexing questions. In spite of the repeal of all of the civil law in force prior to the promulgation of the civil code, the Corpus Juris Civilis and the French commentators on the code Napoleon are constantly quoted by the

courts.

Ita lex scripta est is a broad shield for indolent or unlearned men. In this age in which new discoveries are made, new industries developed almost daily, and immensely numerous and valuable objects are brought within the domain of jurisprudence for adjudication, it is much better to leave it to wise judges to select from the great storehouse of principles such as are fitting the new subjects brought for their determinations. But the important reason why the great body of our common law should not be reduced to codes is that it would produce a greater divergence in the jurisprudence of the different states than now exists. The judges of the states are building up one homogeneous system, the opinions of the courts of one state exerting an influence on those of the others.

Against the crystallization of principles of law into rigid rules of law there has been in all ages a protest sooner or later. Chancery is a protest against the rigid rules of the common law.

Every new code ought to have a special enactment contained in it, requiring the judges to recede from the words of the law whenever they lead to injustice or great inconvenience. Herman A. Haeussler, St. Louis, Mo.:

Yes.

Jos. B. Cumming, President Georgia Bar Association, Augusta, Ga.:

Desirable and perhaps practicable.

Thos. H. Bacon, Hannibal, Mo. :

Yes. But the first step should be to establish minute legal terminology. We should have a national law academy, composed of learned lawyers, maintained by the general government, and charged with the duty of building up a standard law dictionary, voluminous and exhaustive.

Everett W. Pattison, St. Louis, Mo. :

I cannot see any room for doubt that the codification of such part of the law of rights and remedies, as has been settled by judicial authority, would be both practicable and desirable.