to foot all the bills. And rarely the vacant ground is covered all at once. Generally a series of decisions, barely touching the main question, nibbles all around it, consuming it more and more, until finally some fine morning there is an unexpected collapse, disclosing much to the wonderment of all the participants, a sum total of the individual operations, designed by none, and of which they and the rest of the world would gladly rid themselves, if they only could. The same process of slow destruction may often be observed when a rule, however well settled, becomes antiquated or inconvenient, or what amounts to the same thing, when the judicial law-maker conceives it to be against public policy. Distinctions and exceptions will soon multiply, until the rule is actually frittered away.

The fact is, all report law is constitutionally infected with the same infirmity, which like a contagious disease, it imparts to all its surroundings. You may have brought your suit on the strength of a decision covering the whole length and breadth of your case, and conclusive in your favor; but you will find your prop shattered by such overwhelming criticism as Mr. Binney brought to bear in Vidal v. Girard's Executor, 2 How. 127. Your report may be spurious; another report of the same case may be the orthodox one; perchance a preceding adjudication was lost sight of; mayhap there was a dissent by that member of the court who ranks highest in the esteem of the legal profession; perhaps the case was afterward doubted, modifled, aye, overruled; possibly it stands recorded that the universal opinion of the bar condemned it. At any rate, your goose is cooked. And if your client happened to listen to the discussion, what will that important individual say? And more, may he not justly think it a hard lot, to be first drawn into trouble by the defects of the law, and then to be made to pay for mending it?

What has been said merely brings to our minds the difficulties with which lawyers and judges are daily struggling. If we had a body of written law in compact shape and scientific order, we should save the incalculable time which is lost in tracking a doubtful proposition through the endless waste of the reports, and the business of our courts would be much expedited. And as lawyers, educated for their calling and experienced in its practice, have such great trouble in determining the state of the law, in what perplexing condition must a layman find himself, however intelligent, when trying to ascertain his rights, even in affairs which look as if they ought to be simple. Would we deny him a knowledge of his rights and duties under a form of government which makes all classes take part in the affairs of State? Does it need demonstration that in this free country everybody should know the laws which affect his property and govern his conduct? If a written constitution is desirable, so and for the same reason, are written laws. A knowl. edge of his rights is to the freeman an additional guaranty of their sanctity; his knowledge of his duties an additional assurance to others that their rights will be held sacred by him. Hence it seems incredible that the desirability of a code can admit of debate, for the discussion, to borrow the words of Mr. David Dudley Field, is limited to the consideration whether the law shall be written in a code where the people can find it, or left in thousands upon thousands of reports where only lawyers can find it.

And do the people know the law under the present system? There is no civilized country under the suu where they know so little of the laws under which they live as in England and North America. How many laymen in Kentucky do you think had any idea that railroad shares were real estate? That the frailest bubbles of speculation, wafted to and fro by the ephe

meral currents of the stock exchange, descended as land and were subject to dower? Although this doctrine was settled as the declared law of Kentucky since the decision in Price v. Price's Heirs, 6 Dana, 107, in the year 1838, it was so little known or suspected, that when it was affirmed in the year of 1870, by the case of Copeland v. Copeland, 7 Bush, 350, it amazed the whole State and was incontinently abolished by the act of March 22, 1871. But even the law of the commonest transactions and relations is a sealed book to the laity. Not one in a hundred marries or buys a tract of land with any accurate perception of the consequences which the law fastens upon that act. Tenants rent houses in the firm belief that the landlords must make all repairs which may become necessary; they have no suspicion that if they agree to repair and the house is consumed by fire the law compels them to rebuild, unless a statute like ours comes to their relief. Debtors settle with their creditors at a discount and believe the bargain to be binding if the creditor agrees to receive the part payment in full satisfaction. And yet for hundreds of years the law has set its face steadily against any unbending of its iron rule to conform to the plain intentions of the parties. Again the courts constantly assume that the words of a written instrument convey to the understanding of the parties the meaning and effect which their judicial decision has imputed to such language, even though the parties are the most illiterate of men and the instrument a fire insurance policy with its cloud of perplexing clauses. And why? We are sternly answered: Ignorance of the law does not excuse. (After showing the inefficiency of text-books, digests, and [statutory amendments.)

It being then clear that a general code is the only medium of stating the law consonant with the genius of our free institutions; in view of the fact that all the established law has already been written down in the statutes and the reports, it should not be doubted that it is possible to make a complete analysis from these records. We have the proof in the digests to which we daily resort. The more extended the text-book or abridgment is in scope, and the more accurate it is in its analysis, the closer it approximates a code. Sugden on Powers, Adams on Ejectment, Benjamin on Sales, Fearne on Remainders, succeeded in exhausting their topics. If then a single person, by making use of his hours of leisure in the midst of his ordinary business engagements, can carry the compilation of a large subject of the law by his unaided efforts to such a perfection that succeeding ages have nothing to add, how much greater must be the certainty of obtaining as favorable results by a Code Commission, devoting all their time and talents to the task, and assisting and counseling with each other in carrying it out? Of course the problem of recasting the authorities in a legislative form is difficult, but experience has shown that it is not insolvable.

can.

No one will claim that it is possible to anticipate specifically every concrete case. To do so would require an infinite ingenuity in foresight and a language of superhuman exactness in expression. But no candid mind will esteem this an objection. It would be a poor reason, because we cannot imagine all possible cases, to abstain from providing for as many as we Allowing the law of cases yet unknown to remain in abeyance, we carry out nevertheless a rational object in rendering the existing law as accessible and as clear and compact as we can by arranging it according to the subject-matter. A lawyer in getting down to the roots of a question, begins to see that the law is simpler than it looked; that the innumerable cases are really no more than illustrations of a comparatively small number of principles. And thus the objection vanishes which Mr. Justice Byles urged against codi

fication in his "Discourse on the Present State of the Law of England," published in the year 1830, that hardly any case can be decided by principles, and that every emergent case is one of detail, and requires a law of detail; for the distinction attempted to be drawn does not exist. The most minute regulations may be clearly stated in terms so comprehensive as to embrace a whole genus of cases. A law of detail not only can be a law of principle, but must be. If it were not it would cease to be law. It is clearly possible to do away with the interminable labor incident to the application of case-law by extracting from the decisions its ratio decidendi, and to state it in the abstract, not limited to the accidental features of the case; else judiciary law would wholly depend upon the arbitrium of the judge, and therefore be utterly inapplicable to the determination of future cases. But the statement of the abstract decision of any given case is codification pro tanto, and what is done in a single instance may be extended to take in all the report law.

It is no objection to say that no language can be used which will not be susceptible of different interpretations, for if this be true, the language does not become more uncertain when written in a code than by remaining in the reports. And surely a rule can be stated with greater precision in a few short sentences, carefully framed for the purpose of defining the rule which is to govern a class of cases, than in a more or less diffuse opinion, written with a flowing pen and with an eye only to the needs of the individual case before the court.

Another expression for the same objection has been that the common law is expansive, and that a code will not unbend to follow this tendency. But as a code does not manufacture new law, but merely arranges and states the existing law, it is no more nor less expansive than the law itself. As to new, unforeseen cases, unprovided for by the code, the judges will dispose of them, as under the common law, according to the analogies and their intrinsic merits, and the existence of a code cannot interfere. But when the new rule has become settled, it is easy to embody it into the code. Some will object that if we once have one, we shall soon want another. But this notion is a mistake; the rules thus established will be more enduring, for their excellence and their philosophic necessity as a part of a great system will be more conspicuous, and thus opposition will be disarmed. (After a short historical sketch of foreign codes.)

The history of the American codes is equally persuasive. The Louisiana Civil Code dates back to the year 1808, and since the revision in 1825, it has hardly been touched by the hand of innovation, except in those parts which were affected by the abolition of slavery. The Georgia code has stood the test of actual trial since 1860, with signal success, and not only the lawyers, but also the business men of that State know it and apply it constantly. California since the year 1872, and Dakota since 1877, have had their codes, and their usefulness is said to be very marked.

The State of New York gave to the world in the year 1848, the Codes of Practice, which have since encircled the habitable globe, overturning the old systems of legal procedure, both in America and England. The compilation of the body of the law in the civil code was begun in the year 1857, by a commission of which Mr. David Dudley Field was the head. The result of their labors has been before the world since the year 1865, and they have made a stir. Every line of the 2,034 sections of their code has been scanned by the enemies of codification with microscopic gaze. But no complaint has been heard of the plan of the work, or its comprehensiveness, or its general correctness in stating the law, and all censure, warrantable or not, is

confined to not exceeding fifty sections, and of such a concession, wrung from hostile lips, the venerable champion of a more rational system of the law may well be proud. His work, the life work of a great jurist and of a profound thinker, prodigious alike for its extent, its scientific perfection and its literary polish, was adopted by the Legislature of the year 1879, but the bill having been vetoed by Gov. Robinson, in deference to the fierce resistance of its adversaries, it has not yet taken effect as a law. But no one knows better than the great protagonist of codification that the future belongs to him. No country which has had a partial or a complete code will ever think of returning to the old state of things, and the march of events is steadily an advance. As Mr. David Dudley Field himself has said: "Au effort of any association, large or small, to change this resolve of the people would be about as futile as if a lunatic were to stand at the bottom of Niagara and breathe up stream, thinkto turn back the waters." For to use the classic paraphrase of Mr. Irving Browne: "Governors may come, and Governors may go, but the Code goes on forever."

What has been said cannot be better or more clearly epitomized than in the language of Judge Seymour D. Thompson, who gives voice to the confession of faith of every friend of codification:

We are in favor of a Code, because we prefer a certainty to that which is uncertain; because we desire to see that law, which it is claimed is founded upon the immutable principles of justice reduced to positive enactment; because there is much in the common law which is unsuited to our present civilization, and which we shall never get rid of, except by codification; because from the 'elasticity' of the common law flow an innumerable train of evils; and finally because codification means a decrease in litigation, a saving of labor for the judge and the practitioner, and greater security to the rights of the individual.”

OBITUARY.

AMAZIAH B. JAMES.

In the death of Amaziah B. James, northern New York loses one of its most distinguished residents, and the State an eminent citizen and long-time faithful public servant. For twenty-three years Judge James occupied a seat on the bench of the Supreme Court of New York. In that position he won distinction for courtesy, fairness, learning, and integrity. He resigned the judgeship in 1876 to accept an election to Congress, succeeding in the house of representatives Vice-Presi dent William A. Wheeler. So long used to the quiet and dignity of the bench he could not acquire a liking for the active work of politics and legislation, and at the end of his second term he voluntarily retired to private life. Mr. James was born in Rensselaer county in 1812. He received an academic education, and was admitted to the bar in 1838. Previous to his elevation to the bench ne practiced law fifteen years in Ogdensburgh. Throughout his life he had the respect of his associates, in private and public affairs.-Troy Times.

NEW BOOKS AND NEW EDITIONS.

XIII UNITED STATES DIGEST.

The current volume of this important series makes its appearance quite promptly. Under the editorial charge of Mr. Geo. Fred. Williams, the work is executed in a manner well nigh faultless, and the pub lisher's part is admirably performed. Boston, Little, Brown and Company.

The Albany Law Journal.

WE

ALBANY, JULY 21, 1883.

CURRENT TOPICS.

E are spending our "vacation" in the State Library. This is a cool place, the air is pure, it costs us nothing, and we meet the most distinguished lawyers of past times. We must confess that we do not sleep well there, but that is the fault of the engrossing character of the company. One is bound to keep awake when Lord Mansfield is kind enough to address a remark to him, or when Mr. Bishop takes him into one of his prefatory and selfdepreciatory confidences. Here we can find out what the law probably is, and imagine what it ought to be. Here we have sat and read, as student, practitioner, or editor, for more than twenty-five years, and until the habit and the place have grown to be a second nature to us. In the midst of our summer recreation, we receive a rude shock in being told that we must get out; that the old building is to be torn down about our ears, to make room for the pretentious steps of the new Capitol. We are assured of much more sumptuous quarters in the new Capitol a year and a half hence, but in the mean time we are to be tucked away in one of the corridors of the new building. Doubtless many lawyers will share the regret we feel upon being deprived of this favorite haunt, with all its pleasant associations and memories. There is probably no help for it. The all-engrossing maw of the great marble mausoleum must swallow up the old library, but it seems to us little less sacrilegious than digging up an old graveyard.

One of the punishments of the poor editor who cannot take a vacation in the hot weather is to read such cases as Morse v. Minneapolis, etc., Ry. Co., Minnesota Supreme Court, June 14, 1883. This was an action of damages for the negligent killing of an employee in coupling engines. The deceased was required to couple the engines, tender to tender, to be used in "bucking" snow. A recovery was denied because the practice was shown to be common and well known to the deceased. With the thermometer at 96 in the shade we cannot cool ourselves by perusing such cases, any more than by "thinking on the frosty Caucasus." Scalding cases would be more appropriate to this weather.

A case appropriate to the present weather is Briffitt v. State, Wisconsin Supreme Court, which holds that the court will take judicial notice that beer is intoxicating. The court said: "When the general or primary meaning of a word is once estab lished by such common usage and general acceptation, we do not require evidence of its meaning by the testimony of witnesses, but look for its definition in the dictionary. Whisky, according to Webster, is 'a spirit distilled from grain;' and beer according to the same authority, is 'a fermented liquor made VOL. 28-No. 3.

from any malted grain, with hops and other bitter flavoring matter.' It is true that, to a limited extent, there are other kinds of beer, or of liquor called beer, such as small beer, spruce beer, ginger beer, etc.; but such definitions are placed as remote and special, and not primary or general. So it may be said of other substances having a common name and meaning, such as milk or tea. Milk according to Webster, is a white fluid secreted by female mammals for the nourishment of their young.' There are other kinds of milk however such as 'the white juice of plants,' which is the remote definition; or milk in the cocoanut, or that in the milky-way. Tea is defined to be 'leaves of a shrub or small tree of the genus Thea or Camellia. The shrub is a native of China and Japan.' There are other kinds of tea, such as sage tea and camomile tea, etc. The latter are the restricted uses of the word. When asked to take a drink of milk, or a cup of tea, it would not be necessary to prove what it meant. Why is it more necessary to prove what is meant by a glass or drink of beer? When beer is called for at the bar, in a saloon or hotel, the bar-tender would know at once, from the common use of the word, that strong beer a spirituous or intoxicating beer-was wanted; and if any other kind was wanted, the word would be qualified, and the particular kind would be named, as root beer or small beer, etc. When therefore the word 'beer' is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant. When the witnesses in this case testified that the defendant sold to them beer, the prosecution had sufficiently proved that he had sold to them a malt and intoxicating liquor, for both qualities are implied in the word 'beer.' This, as a logical conclusion and principle of law, would seem to be well established by common reason, and we think it would be difficult to find a single good reason against it." This case should be noted up (or down) in Mr. Rogers' "Drinks, Drinkers and Drinking."

--

In speaking of a complimentary dinner to Mr. Benjamin on his retirement, the London Law Times says: "As the bar becomes poorer and as a body it is becoming poorer-the impression grows that complimentary dinners to successful men on retiring and on promotion should not be given by the bar, but that if events of this kind are to be celebrated, this should be done by those who have made their fortunes and value the congratulations of their friends." Upon which the Chicago Legal News remarks: "We think there is much in the suggestion of our Engligh contemporary, and that the lawyer who has had a successful professional life and amassed a fortune and is about to retire from the bar, may with great propriety give a dinner to his professional friends and receive their congratulations. Let the dinner come from the man who has made his wealth at the profession and not from the poor

Our English cousins are threatened with a great legal misfortune, namely, a new trial in the libel case of Belt v. Lawes. The Lord Chief Justice has notified counsel that a majority of the court are of opinion that there should be a new trial, but not on the same grounds nor to the same extent. His Lordship hinted that in these circumstances counsel might find it possible to "approach one another.' Which means, we suppose, that they should endeavor to effect a settlement. Considering the enormous expense and the tedious length of the trial, and the undue obstruction of other and more important business, we hope counsel will advise their clients to call it a draw, and to regard the advertising they have got as an equivalent for all they have suffered in their feelings.

A learned judge in a recent case observed: "That a court of law is often powerless to afford the relief which the inherent justice of a particular case seems to demand, is no new thing. It furnishes a reason for the existence of the court of chancery." There never was a more cogent argument for the abolition of the court of chancery, and the investing of one court with equitable as well as legal powers. The powerlessness of a court of law furnishes no reason for the existence of a separate court with greater powers, but it furnishes a reason for the establishment of a single court with all powers.

In old times the prejudiced British tourist used to travel through this country, and seeing occasionally a woman at work in the hay field or hoeing potatoes he would jot down in his notes: "Women habitually do agricultural work in America." This statement would be regarded by our countrymen with indignation. But now there comes a judicial decision that "pulling weeds " is one of the American woman's " ordinary occupations." "A woman engaged in her ordinary occupation is not bound to know at all times what is owing to her." Root v. Bradley, 49 Mich. 27. This was the case of a tender made to a woman on her mortgage while she was pulling, weeds in her front door-yard, and she thought it was not enough.

Judge McAdam writes us as follows: "Your article on the Marine Court, which appeared in your issue of the 14th inst., leaves the impression that the Daily Register was in error in stating that the author of 'Wheaton's International Law' was at one time a judge of that court. He did hold this position, but his given name was Henry,' not 'Noah' Wheaton. The word 'Noah' being a misprint." This information is new to us, as it probably will be to most of our readers.

A bill has been introduced in Parliament to enable people who have their likenesses taken to prevent

the sale or exhibition of them against their will. The Law Times says: "If the bill passes into law it will be more justifiable than at present for illnatured people to say that such exhibitions and sales are made by the wish, or at all events not contrary to the wish of the persons represented. After this bill becomes law, whenever any photographic likeness of any person is executed on commission it will be unlawful for the photographer, or for any other person, whether he owns copyright therein or not, without the consent in writing of the person for whom the work was executed, to sell or offer for sale, or exhibit in public in any shop window or otherwise, any copy of such likeness, under penalty of the liability to which offenders will be subject of being ordered in a summary proceeding to deliver up to the person for whom the work was executed all copies in their possession and the negative; and resort may also be had, in the case of its being 'reasonably suspected' that all copies and negatives have not been delivered up, to the extreme step of granting a search-warrant to search in the day-time the offender's house, shop or other place, and to deliver up the copies or negatives which may be found to the person for whom the work was executed. It may be rather doubtful whether this provision is all that could be desired. If it were perfectly certain that whenever an offense of this description was committed all copies and negatives would inevitably be found and forfeited, there would no doubt be very little temptation to commit the offense, but the cost of producing the copy is so slight when compared with the possible gain, that it seems as if some fine were required to make the prohibition effectual at all events, in case of repetition of the same offense in regard to the same photograph. On the other hand, the search-warrant provision is one of a character which, not unnaturally, always provokes a strong opposition, especially in a case where the offense which it is sought to punish is not one of the worst description. The bill also deals with the case of a portrait painted on commission, and forbids the painter or other owner of the copyright in such portrait, without the consent in writing of the owner for the time being of the painting, to repeat, copy or reproduce the likeness in any way. clear distinction between the proposed enactment in this case and that in the case of a photograph, in that in the latter case it is the person for whom the work was executed who is to have the right to forbid publication, while in the former case it is the owner for the time being of the painting. There does not seem to be any particular reason why a person whose portrait has been painted should be exposed to the risk of having copies or photographs of that portait exposed for sale in every shop window, with or without the consent of some one who may have purchased the picture, and it would be better for the consent of the person represented to be made necessary in the one case as in the other."

There is a