Page:Harvard Law Review Volume 5.djvu/213

197 JUDICIAL LEGISLATION. 197 made law on the other, and his example has often been followed. The assumption is constantly made that the question of this essay is only another statement of the question of codification. In truth, that assumption is highly misleading, and has caused much confu- sion. The growth which we have seen in the application of statute law would necessarily appear in a code, so long as our present methods and judicial machinery continue : and the limited field of operations to which it is confined in dealing with a single statute would be considerably extended by the effort to give statutory expression to the whole law. There would, in the first place, be the entirely new cases, which, as Lord Abinger said, must in any system be left to the good sense of the judges. But these would be a comparatively slight matter. Much more important would be the past which lay behind the code. It has been shown, in an interesting article on Statutory Revision, 1 how futile is the attempt in the statute law to wipe off the slate and start afresh — how the history of a statute has so important a bearing on its construction that, once passed, it " is as ineradicable as a sin." Much more would this be true of a codification of the whole common law. Just as phrases of the legislature which seem the plainest are daily receiving from courts a construction of which no one unacquainted with the history of the common law would have dreamed, 2 so no code, however skilfully drawn, 3 could prevent a constant recourse to the sources from which it was constructed. That branch of our law which is always codified, the law of the Constitution, shows plainly enough what a code leaves to the hand of its expounders. The fact that judicial legislation cannot be cut off by a code, however its form and scope may be affected, is expressly admitted by some of the most learned advocates of codification at the present time, 4 one of whom, in an interesting scheme for constructing a code, suggests a method for the periodi- cal absorption of the judge-made law. 5 A clear understanding of this fact, that codification and judicial legislation depend on differ- 1 Mr. Chaplin in 3 Harv. L. Rev. 73. 2 As when in Soltau v. Gerdau, 119 N. Y. 380, a technical doctrine of the law of larceny was brought in to modify the word " intrusted " in a factor's act. 8 The difficulty of the task is pointed out by a distinguished advocate of codification when he says that " the technical part of legislation is incomparably more difficult than what may be styled the ethical.'" (2 Austin's Jurisprudence, 4th ed., 683.) 4 Maine, Village Communities, 367; T. E. Holland in i26Edin. Rev. 347. 6 126 Edin. Rev. 347.