REVUE CRITIQUE

DE

Legislation et de Jurisprudence.

THE HISTORY AND SUCCESS OF LAW REFORM THROUGH THE AGENCY OF LEGISLATION IN THE UNITED STATES.

BY ISAAC F. REDFIELD.

The following is the substance of a letter addressed to one of the most eminent jurists and among the highest judicial officers in England. It was prepared with care, and we believe the statements of fact to be reliable. It will not be necessary to advertise the reader that our early admiration of law reform, and of that especial form of it known by the name of codification, has long since given place to the most unquestionable conviction that, practically, it has no existence in fact; and that, speculatively, it is of no use, further than it affords a nucleus for good purposes to cluster around in early life, and finally, when experience has begun to show the folly of our youthful hopes and aspirations, it may afford some consolation to those who have adventured in the work in assuring themselues of having at least attempted something good. It is, unquestionably, an amiable hope; an innocent dream; a somewhat pleasurable delusion, but, at the same time, none the less a dream and a delusion. It is not like the philosopher's stone, the universal solvent, or the quadrature of the circle, a mere idle and useless speculation, impossible of attainment, and equally impossible of being turned to any practical end if attained. The perfection of the jurisprudence of any country may always be regarded as of the highest value and importance; an end to justify the most intense striving, the most persistent and invincible efforts; but unfortunately one VOL. I.

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which is no more possible of attainment by any short-hand process, than is strength or wisdom or power in the individual man. All things come and go, or abide in one stay, only by the appointment of the omnipotent power and wisdom of Him, who ruleth in the armies of heaven and among the inhabitants of the earth as seemeth Him good; with whom a thousand years are as one day, and one day as a thousand years. But with man everything lies in mere experiment; is merely tentative, except as it is confirmed by the procession of events, and can only be fully established by the advancing ages of the world, we might almost say, of eternity itself.

It may be proper to say that the letter was written at the request of the person to whom it was addressed, in June, 1870.

I have ventured to give a brief outline of the history and success of Legal Reform in the United States.

The earliest attempt at codification in the United States was made by the legislature of the State of Louisiana, in the year 1822, by the appointment of Edward Livingston and two others, to prepare a civil code for the State, to embrace all laws then in force, including the law merchant and a code of practice. Their report, under the title of "The Civil Code of the State of Louisiana," was adopted and promulgated by the legislature in the year 1824. The legislature resolved that thereupon all former laws should cease to have operation "in every case for which it has been specially provided in this code." It would therefore seem that the old law was still in force in all cases not specially provided for by the new code. This code is drawn largely from Toullier's "Le Droit Civil Français" and the Code Napoleon, as these were from the Code of Justinian and the commentaries upon the Roman Civil Law.

This is the only attempt at the codification of the entire civil law of a State, which has met with such acceptance as to be adopted by the legislature. And I believe the adoption of this code by the State of Louisiana is largely attributable to the fact, that the State was chiefly settled by Spanish and French emigrants, who had always been accustomed to that mode of legislation, and to the further fact that a species of code already existed in the State.

The legislature of this State in 1822 also appointed Mr. Livingston to prepare a code of criminal law, embracing procedure and evidence. This latter code was prepared by the dis

tinguished commissioner; and presented to the legislature in 1822 but its adoption being delayed, it was destroyed by fire in 1824. Mr. Livingston was afterwards employed to reproduce it, but it seems never to have been adopted as the law of the State, although it was published by Congress and extensively circulated, and is said to have formed the basis of the criminal codes of some of the Mexican and Central American States, whose people were of Latin origin. This is probably the most complete and perfect code which has ever been produced in America; but for some reason the people of the State of Louisiana have never felt prepared to take the bold step of an entire change of its criminal law, by its adoption.

The earliest attempt at codification in any of the American States where the common law of England prevails, was made by the State of New York in 1830, by appointing three of their most eminent men, John C. Spencer among the number, as commissioners to revise the statutes of the State. This was soon after accomplished, and the code adopted. But these revised statutes do not embrace entire anything more than the statute laws of the State. They naturally embrace some changes, both by way of addition and alteration, and commonly include most of the authoritative judicial constructions of former statutes. The same plan has been adopted in most of the other States, and is found a very great convenience in bringing all the statute laws of the State into one body, so as to be readily accessible.

My own experience of the practical working of attempts at todification has been restricted to these Revised Statutes. That process was resorted to in the State of Vermont, while I was connected with the Supreme Court of that State. The result did not impress me favourably in regard to any actual improvement in the statutes, by reducing them to a formal code, either in regard to certainty or completeness. The Commissioners for presenting the draught of the revision consulted the statutes of other States, and incorporated many new provisions into their report, and altered some of the existing ones, and changed the phraseology in many instances, either for greater certainty or symmetry, but in almost every instance produced many times more uncertainty than they cured, and in some instances resorted to such refinements of language, as might seem more suitable to other writings than to the statutes of a State. The highest judicial tribunal of the State was, more or less, occupied for many years in removing the

uncertainties created by these "improvements in language." I am thoroughly convinced that after a statute has received repeated judicial constructions, if it is intended to be substantially preserved, it is not wise to change its phraseology, however much it may seem to increase its clearness or beauty. I think, therefore, that while revisions or concentrations of the statutes of a State after they become considerably numerous, is of the last importance, for the convenience of those who desire to consult them; it should, nevertheless, so far as practicable, always be done with the strictest adherence to existing phraseology. And I think the American States are now, very generally, arranging their existing statutes, upon the same topics in successive chapters or subdivisions, so as to bring the entire body of the statute law, from time to time, into one homogeneous form, which are now called compilations, or General Statutes, and sometimes Codes; but under whatever name are in fact nothing more than reducing the scattered statutes into one compact and systematic body. It has always seemed to me the greatest cause of surprise of anything in regard to Law Reform in England, that in the multiplicity of projects upon the subject, some one should not only have attempted but accomplished a compilation of existing statutes, arranged according to topics, with the repealed and obsolete ones excluded. No book, it seems to me, would be easier of accomplishment, or of greater utility to the profession there.

It may be proper to mention that the law of the American States upon some subjects has been of a statutory character from the first; as in regard to the conveyance of the title of lands and the registry of such titles. This resulted almost of necessity from the fact that all our land titles are strictly of an allodial character, there never having existed in this country any of the accompaniments of feudal tenure. These statutory provisions upon this and upon some other subjects, have assumed in the course of years very much the form of codes, but nevertheless more or less supplemented by reference to the English common law. Thus, for instance, the codes upon conveyancing in the American States, for the most part, I believe, define the nature and form of the instruments to be executed by the grantor, or the grantee, or both, for the purpose of transferring the title. But the precise force and effect of such instruments, and the particular title conveyed, is not uncommonly referred to the doctrines and definitions of the English common law. For instance, the estate conveyed

by the use of particular words, whether a fee simple or in tail; whether an estate for life in the first grantee, and a remainder in fee to his heirs, or an absolute fee simple in the first grantee; whether an estate in joint tenancy, or a tenancy in common; and many other questions of like character have to be referred to the definitions of the common law. We hear almost as much of the rule in Shelley's case here as you do in Westminster Hall.

And the whole law of pleading and procedure in all respects, has in the American States been held more or less under the control of the legislature, from the first. And while pleading has been made more special, by legislation, in England, it has constantly been made less so in America. So that here, for many years, it was competent, in all forms of civil action, even trespass, to give all special defences in evidence under the general issue, by filing with the plea of the general issue, a notice of the special matter proposed to be given in evidence under it, which notice. must contain the substance of a plea in bar, but without its formal averments.

There are many other subjects, where the American law has become essentially modified by our peculiar circumstances and condition, and where it is essentially statutory. But in all these cases the common law of England or the rules of equity jurisprudence, as the case may be, may be brought in to supply any defects existing in regard to the provisions of the statutes. So that upon all subjects, and in all forms of statutory enactment, they are merely supplementary and reformatory; much like the acts of the British parliament for many generations past. And to this extent all must agree that legislative reforms are indispensable in all free States. And it seems to me that this admitted necessity of statutory amendments of the common law, within certain limits, has led many enthusiasts, and many perhaps who are not altogether of that character, to entertain the belief or the hope that, by careful study and revision, a more complete and perfect system of laws might be created, than any now existing. I shall not stop to discuss a proposition so abstract, and so incapable of being reduced to any decisive test, through the agency of mere logic. It may be so. It would seem that it might be. Many very wise and prudent men believe it is so. But for some reason there seems to be an aversion to try the experiment, with almost all communities of the Anglo-Saxon race. There is among them an attachment to the system of unwritten law, or customary