of

some simple, readily forseeable question of law should be obliged to consult hundreds of volumes, and thousands of precedents, perhaps only at the end to find that there is a hopeless division of authority, and that he knew just as much about it in the beginning as at the end, is certainly a situation so serious as to demand some remedy, if any be possible. Certainly one is possible. The old doctrine of precedent is, as I have stated, and as is well know, an English doctrine. Decided cases have no weight, or very little, in all that vast body of law depending upon the Roman. The French code goes so far as to specifically inhibit the judges from laying down rules for the future. Probably it is too much to expect that English and American lawyers, with their education, and their inherited opinions as to force of precedent, will ever consent to the adandonment of precedent as a a source law. I believe myself that it might be advantageously done, but I am not sanguine of making converts. But what can be done, and what it seems to me must be done is to wipe the slate, at least to a certain extent, and have a new starting point. The negotiable instruments law, as generally adopted, has rendered obsolete a vast amount of precedents. It will itself no doubt give rise to new precedents, which in their turn accumulate, until some later generation enacts into legislation what it approves, and wipes the slate again. The criticisms that this law has met have been nothing more than verbal and insignificant. It has been a Godsend to the lawyer. That the same thing can be equally well done with reference to many other branches of the law admits of no doubt. In England the law of sales, of partnership, of companies, has been so codified, with

excellent results, and, so far as I know, no complaints. The law of bailments, the law of carriers, the law of contracts, and of agency, to mention only a few subjects, is equally capable of formulation and definite statement. The formulation should, like the law of negotiable instruments, be most carefully done, and considered, and only adopted after an amount of deliberation that would preclude all the mistakes and omissions that inhere in things hastily and impetuously done.

I do not enter upon the question, whether, as proposed by Mr. David Dudley Field, the whole body of civil law should be codified or not. It is unnecessary for me to go to that extent. I combat merely the contention that judge-made law is of such peculiar sanctity, peculiar harmony, consistency and logical and moral worth that it is sacrilegious to touch it in any respect. Something must be done to relieve the lawyer from the incubus of decisions that fall from our modern printing presses by the thousands of tons with each recurring year. Every little will help him, and it seems to me that it is the duty of the bar to encourage, guide, direct and control what is bound to be an irresistable impulse of self preservation.

LEGISLATION AFFECTING UNWRITTEN LAW.

BY CHARLES QUARLES.

Mr. President and Gentlemen of the Bar Association: I shall not attempt to go over the ground so completely covered by Mr. Greene, your late President, in the clear and able address presented by him at your last annual meeting. His address seemed to meet and refute the claims of the codifiers as to the superiority of enacted law over evolved law.

There is one proposition, however, which lies at the root of the matter which cannot be too often insisted upon.

Our system of common law and equity is based upon the principle, audi alteram partem. Under this system, it is fundamental, admitting of no exception, that no proposition of law can be declared until it has been fully discussed pro and con, and carefully deliberated upon after such discussion; that er parte conclusions are always unsafe; and that no principle can be established or adopted, until the reasons for and against, have been exhaustively investigated and presented by advocates, and then deliberately considered by a trained mind in the light so adduced.

The codifier proposes to substitute ex parte judgment; and instead of the judgment of a judicial officer, the conclusion of some doctrinaire, or more probably of some politician out of a job; such conclusion to be corrected and refined through that “sick man's dream," legislative deliberation.