vorable to progress than the common law, is, that in all those particulars in which the common law does take hold of the business and usages of society, and make use of them in its jurisprudence, it does so not so much by way of incorporating those usages into the law, or indeed making any change in the substance of the law itself, as by way of interpreting the acts and intentions of parties, and applying fixed principles to the ever-changing concerns of human life; in all which respects, a code may and should be more liberal than the common law. Thus it is that by the present Code, not only are the particular anomalies rectified, which have just been mentioned, but by sections 801, 802, 809, 811, and 1,829, the details of the law of contracts are made subordinate to the intentions of the parties, ascertained not by inexorable rules of legal construction, but by all the light which can be thrown upon them by law, usage, and surrounding circumstances, except in those few cases where, for reasons of public policy, an absolute rule has been established.

Section 1,829, it will be seen, is in these words:

"Except where it is otherwise declared, the provisions of the foregoing fifteen Titles of this Part, in respect to the rights and obligations of parties to contracts, are subordinate to the intention of the parties, where ascertained in the manner prescribed by the chapter on the INTERPRETATION OF CONTRACTS, and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy."

The usages of society vary with its wants and its pursuits. The law refers to those usages because the parties contract with reference to them, and they must be taken into account when it considers what these parties ought to do and what they ought not to do. In this way, and in this alone, has the common law adapted itself to the exigencies of society, and in this respect the present Code goes not only as far as but farther than the common law.

Having thus considered the principal objections to the codification of the law, it should next be considered whether there are advantages in it. Assuming that it is possible to have a body of written law in a convenient form, and in scientific order, containing the materials and framed in the manner

already described, what benefits will it confer? In the first place, it will enable the lawyer to dispense with a great number of the books which now incumber the shelves of his library. In the next place, it will thus save a vast amount of labor, now forced upon lawyers and judges, in searching through the reports, examining and collecting cases, and drawing inferences from the decisions, and so far facilitate the dispatch of business in the Courts. In the third place, it will afford an opportunity for settling, by legislative enactment, many disputed questions, which the Courts have never been able to settle. In the fourth place, it will enable the Legislature to effect reforms in different branches of the law, which can only be effected by simultaneous and comprehensive legislation. Thus, for example, the closer assimilation of the law of real and personal property, and the changes in the relation of husband and wife, as to property, can not be effected by any other means so wisely and safely, as by a general code. The making of a code involves a general revision of the law. It is, indeed, in this way alone that such a revision seems practicable. The occasion is thereby afforded to look at the law of the land as a whole, to lop off its excrescences, reconcile its contradictions, and make it uniform and harmonious. In the fifth place, the publication of a code will diffuse among the people a more general and accurate knowledge of their rights and duties than can be obtained in any other manner. This is an object of great importance in all countries, but more especially in ours. If every person can have before him, in an authentic form, the laws which are to affect his property and govern his conduct, he can have an additional guarantee of his rights, and a better acquaintance with his duties. Here, more than anywhere else, all classes of citizens interfere in all the affairs of the State. They elect, directly, nearly all the officers who make, administer, or execute the laws. If in Holland, or in Germany, or France, a civil code has been found beneficial, much more is it likely to be beneficial to us.

So far as the choice lies between law to be made by the Legislature and law to be made by the judiciary, there can not be a doubt that, whatever may be the determination elsewhere, the people of this State prefer that theirs shall be made by

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those whom they elect as legislators, rather than by those whose function it is, according to the theory of the Constitution, to Vadminister the laws as they find them. Hence, the idea of a code has taken such hold of our people that they have made provision for it by their organic law.

LEGAL SYSTEM OF NEW YORK.

Address to the Law Department of the British Social Science Association, November 12, 1866.

THE Executive Committee of the Association having invited me to deliver the inaugural address of the session, for the Jurisprudence Department, and having signified a wish that I should take for my subject the codification of the laws of New York, the duty devolving upon me is simply narration. I am to give the history of our codification, its aims and its results. If, in doing so, I speak of myself, you will pardon me, I know, since I shall do it only in two instances where it seems impossible to avoid it; and in all other cases I shall speak only of the commissions of which I formed a part.

The law of New York is in substance the law of England, with such modifications as custom or statute may have introduced. The substratum is your common law. Our Constitution explains it thus: "Such parts of the common law, and of the acts of the legislation of the colony of New York, as together did form the law of the said colony on the 19th day of April, 1775, and the resolutions of the Congress of the said colony, and of the Convention of the State of New York, in force on the 20th day of April, 1777, which have not since expired, or been repealed or altered, and such acts of the Legislature of the State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same."

We had, also, previous to the last revision of the Constitution, a judicial system fashioned upon the model of yours,

with a Chancellor, Vice-Chancellors, and common-law Judges, and a final appeal to the Upper House of the Legislature, the Senate; the Chancellor sitting with the Senate to review the judgments of the common-law courts, and the Judges in their turn sitting in like manner to review the decrees of the Chancellor.

At the time of the last revision, which was in 1846, public opinion had been so developed by previous discussions respecting the defects of our legal system, that the Court of Chancery was abolished, a Supreme Court was established having general jurisdiction in law and equity, and two provisions of this character were made: the first, that the Legislature should appoint three Commissioners "to reduce into a written and systematic code the whole body of the law of this State, or so much and such parts thereof as to the said Commissioners shall seem practicable and expedient," specifying "such alterations and amendments therein as they shall deem proper"; and, the second, that a like number of Commissioners should be appointed to revise the practice of the Courts of Record, and "report thereon to the Legislature, subject to their adoption and modification from time to time."

Under these provisions two commissions were constituted, which may be distinguished as the Practice Commission and the Code Commission, by which five codes have been prepared, intended to embrace the whole law of the State, common as well as statute, and styled respectively the Political Code, the Civil Code, the Penal Code, the Code of Civil Procedure, and the Code of Criminal Procedure. Each of these forms a separate volume, and, together with a sixth, the Book of Forms, profess to exhibit in one body our whole system of general laws.

The portion of the law first taken hold of was the Civil Practice. When the bill constituting the Practice Commission was pending, it happened that I drew a sentence, to be inserted in the bill, and prepared a short memorial, which, being signed by some fifty members of the Bar, was presented to the Legislature, asking, in substance, for its adoption. The sentence which I had drawn was thereupon inserted and passed in these words:

"And it shall be the duty of the said Commissioners to provide for the abolition of the forms of action in cases at common law, and for a uniform course of proceeding in all cases, whether of legal or equitable cognizance."

The arguments for this change were as follows: Passing by the forms of action, as being too clearly mischievous to admit of serious debate, and as falling, of course, if the distinction between law and equity as separate systems were to cease, let us suppose the question to be whether this distinction shall be kept up. What is meant by the distinction? Law and equity ought to mean precisely the same thing, and there should therefore be no occasion for a fusion between them. But, unfortunately, that which is called law is only a part of the legal system of America and England; equity is the complement of it; so, that which is called law is only a portion of law, and that which is called equity is only a portion of equity. How this happens all lawyers know. It grows out of legal procedure; it does not spring from distinct, inseparable rights; it does not inhere in the nature of things. Our legal nomenclature has, it is true, legal estates and equitable estates, legal rights and equitable rights; but, strictly speaking, these mean only that a certain class of one's rights are cognizable in a court of law, and another class in a court of equity. Reason for keeping up the distinction there was none, except that it had been so used from time immemorial; which was no more a reason for that than it was for adhering to the post-coach after the railway was established. It could not be said that the same judicial mind was incapable of grasping the two systems, since in the court of last resort the appeals from the Judges had always been heard by the Chancellor, and the appeals from the Chancellor had been heard by the Judges, and since, moreover, the same Judges were now vested with origi nal jurisdiction in both law and equity. It was hard enough to have one judicial officer, called a chancellor, sitting to nullify or to supplement another, called a chief-justice; but, where the same person was both chancellor and chief-justice, it was not to be endured that he should spend one day in rendering a judgment which he was to spend the next day in nullifying. It could not be said that the separation of law and equity was