574
The Green Bag
It must occur to any one reading this report that it is not only desirable that the arrangement of what we still
process: the process of eliminating. the process of condensation, and the process of classifi
cation. This performance would make a code, call it whatever name you will.“
call our unwritten law and the written law should be the same, and that in every part it is necessary to focus the written and the unwritten law, for the rule is the result of both." The writer of this article has always stood opposed to the idea of legislative codification of the written law under
present conditions, but this is very far from being opposed to the codification of the written and the unwritten law as blended parts of one system, or of the written law after the common law
has been reduced to such certainty and order as would enable the legislatures to have some judgment as to what common law was implicated in their expression of the written law, and the
courts could have some clue as to the ideas held by the legislature, for statute law means the words of the statute construed through the lens of the com mon law." How closely Mr. Field had in view the same spirit and principles which actuated Mr. Butler and his associates
will be seen by his expression of what he considered a code to be :— What is required, and what must at some time or other be undertaken, is a triple the experience of the profession in this state afforded the profession and legislators in England. “We thus long enjoyed the best, simplest and most effective system of statutory law which the country had up to that time known. The con stitution of 1846 modernized the polity of the state, terminated the propogation of special charters. and introduced the rule that there should be general laws for organizing corporations; abolished the court of chancery. and reorganized the judicial system of the state; and these changes necessarily marred with marks of repeal large parts of our Revised Statutes. It also contained provisions contemplating a re-statement of our statutory law. llFrom that time we have gone on in confusion." —University Law Review, vol. 1, p. 329. "This is Wilson's position. See supra, note 590. 03 "Every act of Parliament assumes the existence of the unwritten law." Stephen's Dig. of Ev. Introduction.
IMPORTANCE OF CLASSIFICATION O. W. Holmes, Jr.," writing in the American Law Review in 1870, said:— We are inclined to believe that the most considerable advantage which might be
reaped from a code is this: That being exe cuted at the expense of government and not at the risk of the writer, and the whole work
being under the control of one head, it will make a philosophically arranged corpus juris possible. If such a code were achieved, its component parts would not have to be loaded
with matter belonging elsewhere, as is neoes~ sar'ily the case with text-books written to sell. Take a book on Sales, or one on Bills and Notes, or a more general treatise on Contmcts, or one on the Domestic Relations, or one on Real Property, and in each you find chapters devoted to the general discussion of the incapacities of infants and married women. A code would treat the subject once and in the right place. Even this argument does not go much further than to Show the advantage of a connected publication of the whole body of the law. But the task, if executed in extenso, is perhaps beyond the power of one man and if more than one were employed upon it. the prbper sub ordination would be more likely to be secured in a government work. We are speaking now of more serious labors than the little rudimentary text-books in short sentence: which their authors by a happy artifice have called codes instead of manuals. Indeed we are not aware that any of the existing attempts are remarkable for arrangement. The im portance of it, if it could be obtained, cannot be overrated. In the first place it points out at once the leading analogy between groups. Of course cross-divisions will be possible on other principles than the one adopted.“
THE SIMPLICITY OF THE TASK The difficulties and magnitude of the task of arranging our law and con
densing it into definite, precise rules are 0‘ American Bar Association Report, 1889. “ Now Mr. Justice Holmes. 00 5 Am. Law Rev. 1 (1870).
