general plan; and, therefore, I would take the work as a whole, after it had been prepared with sufficient care by persons in whom I trusted. I do not think our Revised Statutes were made better by the minute criticism to which they were subjected in the legisla- | ture at an extra session; on the contrary, I think they were injured by it. If they had been accepted as they came from the hands of the revisers, it would have been better for us all. It should be remembered that the drafts of the codes prepared by the code commission were first distributed among lawyers and judges for examination and suggestion, prior to a final revision; that, after they had been thus widely circulated, they were subjected to most careful re-examination, and that no pains were spared to make them as perfect as possible. I think it safe to say that a greater amount of examination by lawyers or by the public at large could hardly be obtained previous to enactment, and I do not believe that a more painstaking commission could ever be organized. The codes of civil and criminal procedure have already passed the ordeal of special committees of the assembly, and have been recommended for passage, the Code of Civil Procedure in 1853, and its counterpart, the Code of Criminal Procedure, in 1855. I must think, therefore, that the objection of want of time to attend to the subject has little weight. Another reason, perhaps, why all the codes have not been adopted, is the opposition which the Code of Civil Procedure, or that part of it which passed into law, encountered from the beginning. And yet this opposition was but natural. The new system was a complete overthrow of the old. Nothing of the kind had ever before been attempted. It shocked the theories and prejudices of the profession, hardened by the incrustation of centuries. No wonder that it was received with amazement at the audacity of proposing it, with scorn for the reasoning with which it was supported, and with hate for its destruction of the learning of so many life-times. No wonder that lawyers scoffed at it, and judges rebuked it. We had then we have now a little improved, perhaps one of the worst judicial systems which an enlightened community ever established; thirty-two judges of the supreme court elected in eight districts, each judge chosen by one constituency to serve for seven others, which had no part in electing him, and all with co-ordinate powers reaching through the State. Given these conditions, and adding this other, that three-fourths of the judges were amazed, indignant and disgusted at this sudden, daring and, as they thought, visionary innovation; and it must needs follow that, what with dislike, misconception, unwillingness to assist and willingness to embarrass, a series of discordant decisions in the different districts would crowd the reports, great and small, to the annoyance equally of the lawyer and the suitor. Then add to the other sources of trouble, that so much of the code as was enacted was a part, confessedly a part only, of a larger work which was promised at the time the first was received, and which was necessary to make a harmonious whole, and you have a condition of things which would have created embarrassment at first even with the most favorably disposed bench and bar, but which, when both were, as a body, hostile, made an easy working of the system impossible. It is not, therefore, matter of surprise, though it be of reproach, that in one State at least which has adopted the New York Code, the New York interpretation of it has been rejected, and the citation of New York decisions forbidden. Thus it has happened that the enactment of the remaining portions of the Code of Civil Procedure — threefourths of the whole, for the portion enacted was but about one-fourth has been resisted and defeated from 1850 to the present day; and we are now working the new but imperfect machinery in connection with the old. Yet with all these disadvantages, and although the code was received with such a preponderance of negatives at its introduction, I appeal to you to bear me out in the opinion which I express, that there are not now half a score of lawyers in the State who would, if they could, return to the old system. A third motive for omitting hitherto to consider the reported codes may, as I suppose, be distrust of their value and consequent doubt of the expediency of touching them. To this doubt, I shall not think of opposing my own opinion. Of course, I set a value upon these works, for they have cost too much anxiety and labor to be lightly esteemed by me; but I will ask you to take nothing upon my estimate. I will refer you to the estimate of others. The best test of the value of laws is experience, and I will give you not merely the opinion, but the experience of others who, having opposed these codes, have adopted them and found them useful. The Code of Civil Procedure, in whole or part, has been adopted into the laws of twenty-three States and Territories of this Union: New York, Ohio, Indiana, Kentucky, Missouri, Wisconsin, Iowa, Minnesota, Kansas, Nebraska, Nevada, California, Oregon, North Carolina, South Carolina, Florida, Alabama, Washington, Montana, Idaho, Dakotah, Wyoming and Arizona. It has also been adopted for the consular courts of the United States in Japan. The Code of Criminal Procedure has been adopted in ten or more States and Territories. All the five codes have been adopted in California, and the civil and penal Codes in Dakota. Besides these results in our own country, I should mention the very sensible influence these Codes have had upon legislation in India, and upon law reform in England. With all these recommendations and proofs before you, I think I cannot be wrong in urging you to disregard the objections which I have mentioned - ob jections made to the enactment or consideration of the particular codes now before you. There is another class of objections, however, which I ought to discuss, and they are objections to codes in general or to any codification at all. It has been said, and often said, and I suppose continues to be said, though with voices feebler and still feebler with each year, that an unwritten is, after all, preferable to a written law. You, of course, understand very well what is meant by these expressions "written and unwritten" law. In point of fact there is no such thing in this country at the present day as law known only through usage or tradition, and never committed to writing; or, if there be, it is that small and insignificant portion which is designated as "the course of the court," and relates to the merest forms. All law, deserving of the name, is written, and the distinction lies between that which is scattered up and down in enormous piles of cases, reports, treatises and digests, without having had the sanction of the legislator, and that which has been enacted by the law-making department of the government. In other words, our law is all to be found in a written record of some sort, and the choice lies between a disjointed and a jointed record, between hundreds of thousands of little records scattered through thousands of books, without arrangement or plan, where each is difficult to find, and when found is quite likely to be confronted with another on the same subject disagreeing with it altogether; between these, I say, and one comprehensive record sifted of incongruous and redundant matter arranged in scientific order without contradictions and without repetitions. The objectors whom I am now answering reject the latter and prefer the former. The reasons advanced by them, or the principal reasons, are three - the impossibility of foreseeing and providing for all future cases, the supposed uncertainty and the supposed inflexibility of a code. That all future cases cannot be foreseen is certain; and, therefore, that the code cannot provide for them specifically and expressly is equally certain, but no more can an unwritten law provide for them; if there be any difference in this respect, it is in favor of the code, because that is framed with an endeavor to provide for the future so far as it is possible to do so; whereas the unwritten law has no such aim and makes no such endeavor. It is the product of particular cases as they arise, is made for them, and limited to them. In a certain sense, and to a certain extent the future can be provided for, but only by prevision and set purpose, not by deciding a particular question upon a particular state of facts, and having no authority as precedent beyond just such a state of facts. An edict of the law-giver reaches further, and takes in more cases than a decree of the judge. Here let me correct a misapprehension into which some are apt to fall. The province of a code is not to give all the rules of law, general and particular, but only such as are general and fundamental. Some one has estimated the whole number of rules laid down in the reports at 2,000,000. No man would dream of collecting and arranging all these in a code. Most of them are mere deductions from other rules more general; the latter are those only which it would be useful or possible to bring together in a convenient form. For example, the constitution of the United States is a code of the most comprehensive kind. When it declares that no State shall pass a law impairing the obligation of contracts it gives a general rule which it is the province of jurisprudence to apply to particular transactions as they arise. The rule, nevertheless, provides for all future cases. So it is with that rule of the common law, that a contract against public policy is void. This is a rule of general application to all cases. But public policy changes from time to time, and a contract which is valid today may not be valid half a century hence. A covenant to bring slaves from Africa, for example, might have been considered in accordance with public policy two hundred years ago. It certainly is against public policy now. The rule, as stated, provides for every future case, but its application to the transaction in hand belongs, like the application of the constitutional provision which I have mentioned, to the domain of jurisprudence. When, therefore, I speak of the feasibility or expedicncy of a code, I refer to a collection of general rules. Of these I assert that they will provide for future cases, and for more of them than any number of judgments which the courts may render, and the reporters throw upon the profession. And here I may mention an advantage of written over unwritten law; of statute law over case law; of legislator-made law over judge-made law, namely: that the latter is always made at the expense and risk of the suitor. Two citizens differ about the validity or performance of a contract, and go into court. If the law is already established, it should have been written and made known to the citizen before the law-suit began; if it is not established, then the defeated party, an innocent person, innocent so far as knowledge of the law goes, must suffer the loss of property, the expense of litigation, in order that it may be established; a great hardship, as it seems to me, and one which society should have relieved him from, if it were possible to do so, by making and promulgating a rule before hand. These considerations, I must think, answer the objection so often made to a code, that it does not provide for every future case. Next comes the objection of supposed uncertainty. A code is said to be uncertain because of its condensation; that is to say, wherever there are few words they must stand without those qualifying expressions which fix the meaning, which is equivalent to saying that many words tend to perspicuity, and few to obscurity. Now, the precise opposite of this I take to be the fact. We all remember the anecdote of an English judge who, finding it extremely difficult to decide upon the interpretation of a very long document, at length discovered a few words in the margin which opened up the whole meaning. The language of a code should, of course, be chosen with care; but, if a reasonable degree of skill and attention is employed, greater precision and certainty may be assured than could ever be found in a series of accumulated reports. The last objection to a code, which I am here to consider, is its supposed inflexibility. If by this is meant that a statute once enacted will stand without the risk of repeal by the courts so long as the legislature leaves it alone, while, on the contrary, a decision, though pronounced and pronounced again, may be overruled the next day or the next year, then I must insist that the former condition is preferable to the latter. In this sense, flexibility is uncertainty, and, of course, inflexibility is certainty, which, so far from being a fault, is, to my thinking, a merit of the highest value. If, however, by flexibility, as applied to the common law, it be meant that this law accommodates itself to the ever-changing circumstances and necessities of men, while a code could not thus adapt itself, I answer that, not only is the statement untrue in fact, but it would never have found believers except through a confusion of ideas. The common law, as I have said, is recorded somewhere, and wherever that may be its rules can be extracted and inserted in a code. The same words are as flexible in the one place as in the other. Therefore, the objection means, if it means any thing, that it is better to have no record and no law than to have a code; better to have judges to make the rule at the same time that they apply it than to have the legislature make it before hand. The proposition thus stated will commend itself to no one in this country of popular institutions where it is a fundamental idea that the functions of government should be devolved upon distinct departments, where the legislature cannot encroach upon the executive, and the judiciary cannot encroach upon either. The truth is, that the common law, or rather its administration, is, by turns, moved by two opposite impulses, and acts upon two irreconcilable theories; one, that the courts make the law, as they go along, to suit the occasion; the other, that they cannot make it to suit any occasion. It is common to hear the judge say: "Here is a great hardship; the rule should be otherwise, but only the legislature can change it." Language certainly inconsistent with the theory that they can make the law accommodate itself to the ever-changing circumstances and necessities of men. rule of law, flexible or inflexible, can be recorded in a code as easily as it can be recorded in the reports; another that whenever a rule of the common law is expansive, it is because the language of the rule is general and is applied to new questions as they arise under new circumstances, a condition just as applicable to a code as to a judgment rendered, and still another, that in respect to facility of amendment, the advantages are all on the side of a code, since here, so soon as a fault is discovered it can be amended easily and with precision. In what I have said I have made no distinction between the different codes before you, but have regarded them all as equally defensible against the objections which I have considered, and yet, I think, the most vehement objector would hardly deny that the whole law of crimes and punishments should be written and published in the most accessible form possible, that he who runs may read. Nothing can be more abhorrent to our notions of justice than that the citizen should be exposed to danger of common law crimes, of which perhaps he never knew, and of which few lawyers indeed could inform him. Some persons who object strenuously to a code are yet willing to sanction a digest. The difference between them consists in this, that a digest is a collection of all the cases and all the statutes under a particular head of the law, while a code is an authoritative statement, scientifically arranged, of those general rules which flow from all these cases and statutes. For example, in a digest all the cases of which a negotiable instrument was the subject would be brought together under that title, while the code would contain, under the same title, only those general rules which are peculiar to that particular class of contracts. Any treatise on negotiable instruments will illustrate the difference, for it will consist, in a considerable degree, of discussions respecting contracts in general. In a code every thing relating to contracts in general would be relegated to contracts, and those only which relate to negotiable instruments retained for that title. In this way, a digest consisting of a dozen volumes might, in a code, be reduced to a single one. But the objections to a code which I have been considering apply equally to a digest, and the answers I have given to that apply here as well. Having thus answered, as I hope satisfactorily, the principal objections advanced against a code, I proceed to consider some of its advantages. Here, my task is comparatively easy, for if I have answered the objections, I have at the same time shown some at least of the benefits. But these are not all. A code will lessen the labor of judges and lawyers in the investigation of legal questions. Instead of searching, as now, through large libraries filled with the judicial records, not only of all the American States, but of England, Scotland and Ireland, it will These propositions must be true, one that every be sufficient to examine the articles of the Code re lating to the subject. Should illustrations be desired, the cases referred to in the notes will furnish all that may be needful. Not only will there be a saving of labor but a saving of capital. The outlay required for the furnishing of law libraries will be greatly reduced. We forget how great is this outlay at present. Supposing the number of lawyers in the State of New York to be, as computed, 10,000, and the average expense of their libraries to be $300, too low, I think, the whole capital invested in lawyers' libraries will reach in this State alone $3,000,000. This makes no account of the public libraries. I believe it is safe to estimate the whole capital invested in law libraries in this State to be not less than four millions. Threefourths of this, at least, may be saved, and a burden, grievous to be borne, taken from the shoulders of young men starting in professional life. Besides the saving of labor and capital, there will ensue this additional advantage from a code, which is, that an opportunity will thus be afforded for settling vexed questions of law. We lawyers know that these vexed questions are many. We know better than all others into what a chaos our law has fallen. I have had the curiosity to examine, or rather have had examined, the forty-seventh volume of New York Reports, to see how many and what cases are cited in the arguments and opinions, and I am informed that there are 3,281 in all, of which 186 are from the courts of the United States; from those of England, 531; New York, 2,190; Massachusetts, 120; Pennsylvania, 60; Connecticut, 30; New Hampshire, 21; Maryland, 27; Maine, 15; Vermont, 18; Michigan, 12; Wisconsin, 7; Minnesota, 5; Illinois, 3; New Jersey, 9; Irish, 10; Virginia, 5; North Carolina, 10; South Carolina, 12; Rhode Island, 9; Alabama, 6; Georgia, 3; California, 3; Tennessee, 4; Ohio, 4; miscellaneous, 318. A comprehensive code, aiming to reconcile contradictions and differences, will eliminate from the law the greater number, if not all, of the vexed questions to which I have referred. And not only may doubtful questions be freed from doubt, but needed reforms may be effected through a code with greater facility than is possible without it. Who would have ever thought of assimilating legal and equitable procedure but through the medium of a code. How, with the greatest ease and certainty, can the law of real and personal property be assimilated? In what way can these modifications, in the relations of husband and wife which modern society demands, be wrought with safety so readily as in the form of a general code | of all the law? And when a code is once formed those necessary changes, which time and experience may show to be desirable, can be made without the confusion and uncertainty which are inseparable concomitants of our present annual legislation. We know how, in its zeal to make the punishment of abortion more severe, the legislature virtually repealed existing laws, and so pardoned previous offenses. And we know, also, that a conviction and sentence were lately obtained under a federal statute which had been repealed before the trial. These untoward events could not have happened if the State and the nation had had a Penal Code, for then, if an amendment or change were made, it would be referred at once to the proper article and be readily known. And last, but not least, of all the benefits of a code, is the diffusion among the people of a knowledge of the laws under which they live, and to which they must conform their conduct. Here, more than anywhere else in the world, is it needful that the people should know the law. They are supposed to make it. They, at least, are responsible for it. They, by their agents, administer it and execute it. If in France, and other parts of continental Europe, where codes prevail, the people are found better acquainted with their laws than our people with ours, it is because they have them in a form accessible to all. It may interest you to know the working of codification in India, and I will give you the following extracts from the opening address at the session of 1872, of the English Law Amendment Society, delivered by Mr. Fitzjames Stephen, lately legal adviser of council in India, and successor of Macauley in that office: "You will naturally ask how this process of codification has succeeded? To this question I can answer that it has succeeded to a degree which no one could have anticipated, and the proofs of this fact are to my mind quite conclusive. One is the avidity with which the whole subject is studied, both by the English and by the native students in the universities. "The knowledge which every civilian you meet in India has of the Penal Code, and the two Procedure Codes is perfectly surprising to an English lawyer. People who in England would have a slight indefinite rule-of-thumb knowledge of criminal law, a knowledge which would guide them to the right book in a library, know the Penal Code by heart, and talk about the minutest details of its provisions with keen interest. I have been repeatedly informed that law is the subject which native students delight in at the universities, and that the influence, as a mere instrument of education of the codifying acts, can hardly be exaggerated. I have read in native newspapers detailed criticisms on the evidence act, for instance, which proved that the writer must have studied it as any other literary work of interest might be studied. tairs. They replied that they could suggest nothing better than the Penal Code and the Code of Criminal Procedure, with one or two slight modifications and additions. It is a new experience to an English lawyer to see how easy these matters are when they are stripped of mystery. "I once had occasion to consult a military officer upon certain matters connected with habitual criminals. He was a man whose life was passed in the saddle, and who hunted down Thugs and Dacoits, as if they were game. Upon some remark which I made, he pulled out of his pocket a little Code of Criminal Procedure, bound like a memorandum-book, turned up to the precise section which related to the matter in hand, and pointed out the way in which it worked with perfect precision. It is one of the many odd sights of Calcutta to see native policemen learning by heart the parts of the police act which concern them. The sergeant shouts it out phrase by phrase and his squad obediently repeat it after him till they know it by heart. The only thing which prevents English people from seeing that law is really one of the most interesting and instructive studies in the world, is that English lawyers have thrown it into a shape which can only be described as studiously repulsive." Let us Having thus set forth, so far as I am able, within the hour which I allotted to myself, the reasons for which I do so, I close by urging you again to carry on to completion that reform and codification of the whole law, common and statute, which the State of New York began. It would be affectation in me to conceal my personal interest, though it is not that which I would put forward but another and larger interest common to you and me, that of public benefit and State pride. We boast justly that we have inherited from our fathers that English law which proclaims and enforces the rights of men. give ourselves cause to boast also that we have enriched the great inheritance. It was, I am fain to think, a felicitous opportunity which enabled our State to lead the way. She struck the blow that broke in pieces the unnatural, cumbrous and oppressive procedure, which had hardened through ages. Behold, now, the influence of her name and example. The laws which she has caused to be written have already passed into the statutes of half the States, and form an inseparable part of their institutions. You will find them on the western praries, on the slopes of the Rocky Mountains, and on both shores of the southern sea. This is due, in great part, to the prestige of this populous and opulent commonwealth, whose commerce embraces the continent and stretches to the Indies. You can keep at the head of this movement, if you will; but if you falter, others will go on, and the codes which you caused to be prepared but have not as yet accepted, will come back to you on a refluent wave from the west, and you will then follow where you might and should have continued to lead. CURRENT TOPICS. The commutation of the death sentence of O'Brien, convicted of murder, to imprisonment for life has excited much comment both as to the expediency and the legality of it. Upon the latter point, it is suggested that, inasmuch as the constitution of the United States gives the president power "to grant reprieves and pardons for offenses against the United States," he has only the power to reprieve or pardon unconditionally and not to commute. There is, however, one precedent which sustains President Grant, viz.: The case of Wells, convicted of murder and sentenced to be hanged, whose sentence was commuted by President Fillmore to imprisonment for life. Wells was afterward taken before the United States circuit court on a writ of habeas corpus, and that tribunal having refused to discharge him, the case was appealed to the United States supreme court, where it was held by a divided court, three judges dissenting, that the pardoning power conferred by the constitution includes commutation and conditional pardons. This decision could hardly be reversed at the present time; and it accords well with the common-sense meaning of the term “pardon," as applied to judicial sentences, as well as with the usages of foreign governments at the time the constitution was framed. Church and State are likely to become mutually antagonistic instead of co-operative in Michigan if a bill which passed the Senate of that State recently becomes a law. It provides for the punishment by a heavy fine or imprisonment of any ecclesiastical authority who shall excommunicate or discipline any member of his church for the purpose of preventing such member from suing any church dignitary or any religious society for a debt or claim, or for the protection of his civil rights. The bill receives the most determined opposition from a great body of the Romanists, who contend that it is an effort to reduce the church to complete subjection to the State. A contemporary remarks that "the question involved has more than once come up in conflicts between the church authorities and the members of their communions, but it is the first time, we believe, that a movement has been made to establish a law providing punishment for exercising ecclesiastical discipline." Much confusion, perplexity and uncertainty will be obviated in the work of legislators in New York by the adoption of section 16 of article 3 of the amended Constitution, which provides that "no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall declare or enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act." The kind of legislation here prohibited has been too much in |