accompanied by illustrative examples. Whatever advantage there may be in this method, these references, it is supposed, will afford the best kind of illustration.

A still further objection to the expediency of a Code is its supposed inflexibility. Expressed in formal propositions, and couched in positive terms, it is not as flexible, say the objectors, as the common law. This is the objection most insisted upon by those who oppose a Code, and it should, therefore, receive the most careful consideration. It may be first observed, that flexibility, in its ordinary sense, is one of the worst qualities which a law can have, or rather that it is inconsistent with the idea of law. As the law is a rule of property and of conduct, it should be fixed. If it be meant that a rule, made for a certain state of facts, may not be applicable to a different state of facts, that will not be disputed; if it be meant that such a rule ought not to be applied to the same state of facts under all circumstances, the objection amounts only to this, that the rule is too broadly stated; if it be meant that a rule ought to be subject to the discretion of the Judges, the proposition is unsound, for the Judges should not have dispensing power.

Another way of stating the objection, is to say that while the common law is expansive, a Code does not expand or adapt itself to the expanding exigencies of society. A different phrase for the same idea is, that the common law is elastic and accommodating, and that a Code will be the opposite. Now, to say that a law is expansive, elastic or accommodating, is as much as to say that it is no law at all. The real significance of the objection, if it has any signifi

cance, is, that it is better to let the Judges make the law as they go along, than to have the lawgiver make it beforehand. For, if the Judges are to decide according to known rules, those rules can be written by the lawgiver as easily as they can be spoken from the Bench, or taken down by the Reporters. And even though, in particular cases, the Judges should fail to find such rules, and should have to make rules as the cases occur, that, too, can be done as easily when the known rules are placed in a Code, as when they repose in the breasts of Judges, or in the leaves of Reports. So long as a Code is confined to the rules of law as they now exist, it is neither more nor less expansive than the common law. When the inquiry concerns new cases, it is divisible into two parts, one relating to those cases which are foreseen, and the other to those which are not foreseen Those which are foreseen, the lawgiver can provide for, and it is his duty to provide for them. Those which are not foreseen, cannot be provided for, except by directing the courts to decide according to the analogy of existing rules, when there is such an analogy, and when there is none, then to decide according to the dictates of natural justice. In this last respect, the Judges will be in the same predicament under a Code as under the common law; so that really, the only point of difference respects those new cases which can be foreseen or reasonably anticipated, and if there be persons who think that for such cases, it is better that the Judges should make the law, after the cases arise, than for the Legislature to make it as a guide beforehand, then they think that government ought not to be divided, according to the funda

mental American maxim, into three separate legislative, executive and judicial departments.

If we look, for example, at any of the leading cases reported, we see the facts given, the conclusion of the Judges and the reasoning by which the conclusion was reached. Whatever legal proposition is necessarily involved in this conclusion is to be deemed an established rule of law. This rule may be written in a Code, or it may be left in the Reports. Is it any more flexible in the one form than in the other? Certainly not, unless the Judges feel themselves at liberty to depart from it, so long as it remains in the Reports alone. But that would be to declare that the decision is not law.

It is possible that the idea of flexibility in one form, and inflexibility in the other, has arisen from not sufficiently attending to the distinction between general and partial rules. It may be perfectly safe to lay down a certain general rule, but not at all safe to undertake the enumeration of all the particulars to which the rule may be applied. A code which should attempt to do the latter would fail, not because it would be inflexible, but because it would be defective. Take, for example, the rule that implies a promise to pay over money which the party ought not to retain, as announced by Lord MANSFIELD in Moses v. McFarlane (2 Burr., 1005), in this language: "In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." This, as a general rule, could be introduced into a code with perfect safety, while it would be certain and inflexible. But if

there should be an effort to go into details, and to enumerate all the particular cases to which the rule has been or could be applied, the enumeration would be defective, inasmuch as it would be impossible for human foresight to discern all the occurrences to which it might be applicable. It might be possible to collect and enumerate all the instances in which the rule has been applied, and to state the circumstances; it might also be possible to mention many cases likely to arise in the future to which it would also be applicable; but it would never be safe to pronounce absolutely that it should only be applied to the cases enumerated, for the obvious reason that others may occur, just as urgent, which human foresight has failed to discover. The objection to a code which should attempt this would be, not that the rules given were inflexible, or that the code itself was inflexible, in any other sense than that it attempted too much, and was fashioned upon a false principle.

Even in the case supposed, a code and the common law would stand upon the same footing, unless something was put into the former which was not in the latter; for neither in one form or the other are either the general or the particular rules flexible; the general rule is comprehensive, the particular rules are not comprehensive; the latter would be of little value except as pointing to the former, and if that is once given it covers as many cases when inserted in a code as when left in the common law at large.

There is, for instance, a rule of the common law, that a contract is void which is against public policy. What is or is not against it is left for the courts to decide, since the policy changes from generation to generation, and almost

from

year to

to year.

The judges are not thereby invested with power to change the law, but to apply established law to the circumstances of each case as it arises, and is then compared with the policy of the State for the time. being, or with the general policy of nations. The power to decide the question of compatibility in such a case, between the act and the policy, is not a legislative but a judicial power, as much as to decide whether a by-law of a corporation is or is not reasonable, or whether, in considering the effect of an act performed, the time of performance was reasonable or unreasonable. It may indeed be affirmed, that certain acts are against public policy, and so far the present Code has attempted to go, but it has not attempted, and could not safely attempt, to define all the acts by which men might hereafter seek to countervail that policy, or to foresee what the policy itself should be in ages to come.

If by flexibility be meant susceptibility of progression, then it may be affirmed with confidence, that a code, upon the theory on which this is framed, not only adapts itself to the present wants of society better than the existing common law, but that it contains within itself, in a greater degree, the elements of future progress; not because its rules are any more or less flexible than those of the common law, but for the reasons which will now be stated.

The first of these reasons is, that while the judicial department has been unable, or if able, unwilling, to make necessary amendments of the law, the legislative department, to which the power of amendment of right belongs, has been embarrassed, first, by the disjointed and

D