"First.—The classification of statutes of force sys tematically arranged, according to subject-matter, without amendment, alteration, or interpolation of new law, the only change being In the correction of errors of expression, repetitions, superfluities, and contradictions, compressed into as small a apace as possible, which, when done, will leave the laws in letter and in spirit just as they were.
"Second.—The same as the first in form, but going further and making such amendments as are deem ed necessary to harmonize and perfect the existing system.
"Third.—To take a' yet greater latitude, and, with out changing the existing system of laws, to add new laws, and to repeal old laws, both in harmony with it, so that the code will meet present exigen cies, and so far as possible provide for the future ; and this is real codification." To these statements the writer adds a fourth, "wholly impracticable and even visionary," which is "to disregard at will misting laws, and make a system substantially new," such as the author deems best and wisest. Paper of Judge Clark, Rep't Ga. St. Bar Ass'n, 1899. There is unquestionably a strong tendency to wards codification in a general sense, which mani fests itself in the tendency to general revisions of federal and state statutes, the adoption of codes of procedure by name in several of them, and in fact though not in name in many others, the codes of India, and not the least in the growing interest in an active discussion of the subject. If this interest leads to action wisely tempered with a due regard for the proper functions of written and unwritten law, and freedom from extreme views and the effort to accomplish the impossible task of reducing all law to the unyielding forms of statutory enactment, it will undoubtedly be fruitful of good results. When it is considered how rapidly statutes accu mulate as time passes, It is obvious that great convenience will be found in having the statute law In a systematic body, arranged according to sub ject-matter, instead of leaving it unorganized, scat tered through the volumes in which it was from year to year promulgated. Revision to this extant is very frequent, and is what is usually accomplish ed in the Revised Statutes of many states which are inartificially termed codes. Of this general charac ter were the Revised Statutes of the United States; infra. When the transposition of the statutes from a chronological to a scientific order is undertaken, more radical changes' immediately propose them selves. These are of two classes: first, amendments for the purpose of harmonizing the inconsistencies which such an arrangement to notice, and supplying defects; second, the introduction into the eyetem of all other rules which are recognized as the unwritten or common law of the state. The object of the latter class of changes is to embody in one systematic enactment all that is thenceforth to be regarded as the law of the land. It is this at tempt which is usually intended by the distinctive term codification.
The first two of the questions thus indicated may be deemed as settled, by general concurrence, in favor of the expediency of such changes; and the process of the collection of the statute law in one general code, or in a number of partial codes or systematic statutes, accompanied by the amend mente which such a revision invites, is a process which for some years has been renovating the laws of England and the United States. Although at
the same time something has been done, especially in this country, towards embodying in these statutes principles which before rested in the common or report law, yet the feasibility of doing this com pletely, or even to any great extent, must be deemed an open question. It has been discussed with great ability by Bentham, Savigny, Thibaut, and others. It is undeniable that, however successfully a cods might be supposed to embody all existing and de clared law, so as to supersede previous sources, it cannot be expected to provide prospectively for all the innumerable cases which the diversity of affairs rapidly engenders, and there must soon come a time when it must be studied in the light of numerous explanatory decisions.
Real codification involves the most intimate and exhaustive knowledge not only of the statute law to be included, but also of the judicial interpreta tion and construction of ft, and from the moment of the adoption of a code it begins to be the subject of a new series of decisions which are required to interpret, modify, and explain it and adapt it to modern conditions and the facts of cases of new im pression, as is and always has been the case with respect to the adaptation of the rules of the common law to modern conditions. In doing this the necessity for and opportunity of judicial legislation are infinite, and with the multiplicity of courts and jurisdictions the difficulties of preserv ing a system founded on reason are far greater than they were even a very few years ago. And this consideration is strongly urged in favor of the code system. On the other hand, that the law of master and servant, which was founded on such relations as the coachman and the blacksmith's striker, should have been applied with so little friction to the railroad' and the factory, is hardly less wonder ful than the development of the common carrier of the post road and van to the telephone company, and these rapid transformations may serve as the basis of an argument that no civil code can bs framed with sufficient wisdom to provide for the constantly changing conditions of life and business. In addition to the considerations herein mentioned as bearing upon the subject, Lord Chief Justice Russell, in his address before the American Bar Association (Report 1896), in disapproving of the proposal to codify international law, mentions and illustrates a very fundamental objection to the codification of branches of the law not yet definitely reduced to fixed rules. His observations approach very nearly the suggestion of a striking and effec tive limitation of the extent to which codification should go beyond the scientific revision of statute law, and in the direction of including law settled by decision and not by statute. Some branches of the law are admirably adapted to complete codification, some others are not yet, and others again by their nature never can or will be.