undisputed. How will this evil be abated by putting these undisputed rules into a code? Where the conflict of authorities is serious, it doubtless indicates that there is something wrong about the rule- that it is ill formulated. What will it profit us, if that is the case, to have the ill formulated rule made statutory? We shall be worse off than before, by as much as it is harder to get an act of legislature than a decision of the highest court. I exclude the hypothesis that the codifier is to find that happier formulation which the courts have been vainly striving to discover, because, in the first place, the advocates of codification themselves insist that a code shall simply enact the existing rules, not change them; and because, secondly, it is not to be assumed that we shall be able to get our codes made by men possessed of more than the average wisdom of the wise men of their own day.

That the uncertainty of the law lies almost entirely in the application of its rules is a truth that would soon come home to us if our law were wholly statutory. In the case law which has grown up about the codes of France and Germany, there are quite as serious contradictions and uncertainties as in the case law of any state in our Union. He who would satisfy himself that this is true of French law need not struggle through the voluminous Jurisprudence Générale of Dalloz; any standard handbook of French civil law will answer the purpose. In fact, we need not go so far afield for our evidence. We have been living under a constitutional code for a century. It was drafted by able men, wise in statecraft and learned in the law. They sensibly used, as far as possible, words and phrases whose meaning had been settled by centuries of constitutional conflict and judicial interpretation. Has there been no uncertainty in the construction of our Federal constitution? Is there no uncertainty to-day?

Unfortunately we have here again to deal with a delusion that seems indestructible. Neither reason nor experience seems to shake it. It is as old as the XII Tables and as new as the proposed civil code of New York.

The points thus far made may be summarized as follows:

Codification of the common law is perfectly feasible if too much is not attempted. It is not possible to make a code that will settle everything, that will wholly free the courts from the duty and deprive them of the power of interpreting and applying the law; but it is quite practicable to make a code that shall contain the positive rules which now rest upon decisions. The immediate results of such codification will not be very great. The law will be made somewhat more accessible; but it will not be made any more intelligible, nor much more certain; nor will the practice of citing cases be abandoned. But the ultimate results may be quite serious. As soon as the rules that now rest upon decisions become statutory, they are withdrawn from the control of the courts. The judges retain a certain power of construction, but have no longer the power of change. Judicial legislation comes to an end, and the development of the law passes wholly into the hands of the legislatures. Is this a thing to be desired? The question, as was said at the outset, must be divided: (1) Is such a change in the interest of the people primarily affected, the people of the codifying state? (2) Will it be better for the whole people, the people of the United States, that the law now made by the judges be henceforth made by the legislatures of the different states?

Neither of these questions can be intelligently discussed until we know what part of the law the change will affect - what part of the law, if any, has generally escaped enactment and still rests upon cases. And the second question cannot be satisfactorily answered until we know how far the state legislatures are modifying and adding to the general or common law, and how far their innovations are producing divergences and conflicts of law. Until these preliminary questions of fact are answered, the discussion has no solid footing; it is in the air. But no one can answer these questions who has not made minute study and careful comparison of the statute law of all our states. It is fortunate for my present purpose that I have been able to obtain an answer which rests upon and derives authority from such a study of our state laws.

MUNROE SMITH.

II.1

It is obvious that there are four possible ways of dealing by statute with existing law. It may be expressed and formulated, i.e., enacted or codified; it may be added to; it may be altered; and it may be repealed. Let us briefly describe these processes as enactment, addition, change, and repeal. Including the national Congress and the territorial legislatures, there are forty-seven legislative bodies in the United States, with powers more or less sovereign; and these have been at work an average of some fifty years apiece. There is now a distinct tendency to reduce the length and number of sessions; but although there remain but five states with regular sessions so often as once a year, and many western states have shown a desire to limit the session to sixty or ninety days, there are still held, in fact, some thirty sessions of legislative bodies each year within the limits of the national territory, having, in effect, full power to alter or repeal the law. And as few of these bodies have any reverence for the common law as such, it must be a wonderful vitality that has kept it so little impaired as it is.

Of repeal, there has been very little; of change, not very much; of enactment, a great deal; and of addition, still more. And, if we may speak at once of tendencies and of the future, this statement needs but to be emphasized to continue true; there is almost no repeal and change, but an enormous amount of enactment and addition now in progress. This tendency is most exaggerated in those communities which, like California and Dakota, have had the shortest experience of government; but beyond this it is difficult to make a general statement. The tendency to codification, which is, of course, almost complete enactment, and is generally accompanied with much addition and even considerable change, is a sporadic and disturbing one, and has shown itself in states as wide apart as Georgia, Iowa, New York, and California, while the neighboring states of Mississippi,

1 This part of the article is furnished by Mr. Frederic J. Stimson, the compiler of "American Statute Law." It was undertaken by him at the special request of the Editors.

Nebraska, New Jersey, and Oregon still have the common law almost intact. It seems impossible to keep the civil, or continental, law out of a code. And let us note here that in saying code, codification, etc., we should look at things, not names, meaning by these terms always a more or less complete enactment of the common law, and not a mere re-arrangement of previously existing statutes. Many so-called codes are mere revisions; many revisions, "General" or "Public Statutes" are in effect codes. Codes of practice and criminal codes are much more common than general common law codes; but as the latter are much less radical and the former are less important, we need not consider them here.

Keeping these statements in mind, it may be interesting to roughly cast the result of an elaborate investigation of the laws of all our states and territories. As the code states, properly speaking, may be classed Ohio, Georgia, Iowa, Texas, California, Dakota, Montana, Utah, and Wyoming; though in several other states the statutes are termed codes. New York, Illinois, Indiana, Michigan, Wisconsin, Minnesota, and Alabama go very far in what we have termed enactment, and in addition also; Massachusetts, Maine, Kansas, Nebraska, North Carolina, Tennessee, Missouri, and Arkansas are generally inclined rather to add to, and occasionally alter, the common law than to express it in their statutes. New Hampshire, Delaware, New Jersey, Pennsylvania, Virginia, Kentucky, and South Carolina are the most conservative, and retain the common law most nearly intact. Louisiana, New Mexico, and Arizona, for obvious historical reasons, present a curious mixture of the common law with law of French or Spanish origin; and there is a trace of this same mixture, but from other causes, in the laws of Iowa, Texas, and California.

Many states in terms enact the common law; that is, they adopt it and declare it to be in force "so far as applicable," "suited to the wants of the people," and not inconsistent with the United States constitution and positive enactments of the state. Two go so far in the opposite direction as to declare that "there is no common law in any case where the law is declared

by the statutes." And the legal maxim requiring statutes in derogation of the common law to be strictly construed has almost generally been refused recognition, either by express enactment or by judicial decision.

The branches of law in which this divergence of statutes from the common law may be chiefly noted are scattered through all the four books of Blackstone, and it is hard to detect any distinct tendency in one direction rather than another. Of the matters treated by his fourth book, criminal law, there has been much enactment, but probably less real change, except as to punishments, than in others; and there has not been, comparatively speaking, a great deal of change in Blackstone's second book, "of the rights of things"; and the law of torts remains almost untouched by statute, except that in Illinois and a few other states the common law liability of the husband for his wife's torts is largely done away with, and her property is made separately answerable. It is quite impossible in the limits of this brief statement to treat this subject in detail; but it is perhaps worth while merely to summarize the results which such an investigation would probably obtain. Codes, of course, enact, or pretend to enact, everything; but leaving out the few complete codes, it may be stated that such of the common law as has ordinarily been enacted without much alteration includes principally the law of estates in land (except estates tail and joint tenancy and dower), powers, uses, trusts, the contract of marriage, the law of notes, bills, and negotiable paper, and of wills. Additional legislation, not necessarily altering the common law, but expressing it with new provisions and with far greater particularity, is chiefly noticeable in the law of the execution and record of conveyances, the law of mortgages and mechanics' liens, of fencing and draining, of limited partnership, and, above all, of marriage, both the contract and the relation. Positive changes of the common law have been made to the greatest extent in the tenure of land and the forms of conveyancing, in mortgage foreclosures, the law of landlord and tenant, of descent and distribution of intestate estates, of estates tail and dower, and of the property rights of husbands and wives