istrative Nihilism," has said that "the higher the state of civilization, the more completely do the actions of one member of the social body influence all the rest, and the less possible is it for any one man to do a wrong thing without interfering more or less with the freedom of all his fellowcitizens." This has been the cause and the justification of much of what the last two centuries have brought into American law.

A growing tendency toward the codification of law has also tended to broaden its field. A code is nothing unless symmetrical. Gaps in previous legislation or judicial decision must be filled. The whole work must be rounded out and set in order.

New York made the first serious advances in scientific codification by her Revised Statutes, adopted in 1827. For nearly two centuries the American colonies and the States which succeeded them had had something in the nature of codes. Lord Bacon's proposition in the House of Commons to codify the laws of England had been made in 1592. In the time of the Commonwealth the task was actually begun, and under the leadership of so great a lawyer as Sir Matthew Hale. The colonists were therefore not unfamiliar with the thought of a complete and orderly arrangement of the law to which they might be subject. Their early codes, however, were partial and fragmentary. The arrangement was often alphabetical. The first code of Connecticut, that of 1650, one of the best passed by any of the colonies, and drawn by a skilled barrister, Roger Ludlow, was of this description, the first titles (after a general declaration of rights, taken from the body of liberties of Massachusetts, enacted there in 1641) being "Abillity, Actions, Age, Arrests, Attachements, Ballast, Barratry, Bills, Bounds of Townes and Particular Lands, Burglary and Theft." As time went on, and statutes made for particular occasions multiplied, the American codes became mere compilations. Occasionally a thorough revision was attempted; but it seldom went farther than to

1 Colonial Records of Connecticut, I. 511.

condense, to improve phraseology, and to supply a few of the most obvious and dangerous defects. That of 1827 in New York, on the other hand, revolutionized the laws of that State as to the tenure of real property, and was a long step forward in the direction of full codification.

This, also, was first achieved by the same State. Her code of pleading in civil actions1 was adopted in 1848, and the leading spirit among those from whom it came, David Dudley Field, turned next to the preparation of a general civil code, which was presented to the legislature some twenty years later. Georgia, at this point, passed New York. She had set several of her ablest men, headed by Howell Cobb, at a similar work, and was the first American State to adopt a civil code. This was in 1860, and her example has since been followed by several of the others, most of them in the Far West.

This movement has been strongly opposed, and nowhere with more vigor than in the State where it originated.2 Perhaps the opposition is not altogether unaffected by what causes most differences among men, a misunderstanding on one side of the position which is, in fact, taken on the other. Few friends of codification contend that every particular rule of law applicable to the thousand intricacies of human relations that daily perplex the courts can be fully stated in an official exposition of any system of jurisprudence. Few of its opponents can deny that most of these rules can be so stated. Behind every code there must be, originally, or there must soon grow up, a large body of unwritten, customary law, which the courts can never fail to recognize. A code is a product of evolution. It is also a stage in evolution.

This volume is an attempt to sketch the progress of American law, public and private, in the two hundred years

1 See Chapter XI.

2 See James C. Carter's Address before the Virginia State Bar Association on the Provinces of the Written and the Unwritten Law.

from 1701 to 1901, during which Yale College has been growing into Yale University. It is but an outline sketch. It deals only with the few main heads of a great subject. It is not intended to be technical in its treatment of any of them. If it serves to give the general reader any clearer impression of what the American people have accomplished through these two centuries, in the field of jurisprudence, it will have accomplished all for which its authors hope.

It is the contribution of the Law Department of Yale to the series of volumes published in connection with the Bicentennial anniversary of the foundation of the University or of the collegiate school out of which it has been evolved. Those by whose collaboration the volume has been prepared are all engaged in the work of instruction in the Law School, and each writes on topics which are or have been included in the courses of study under his special charge.

Frequent references have been made to judicial decisions contained in the law reports. It is by the aid of such decisions that the growth of American law has been mainly attained, and its successive advances definitely marked. No one can understand it who does not rate at their proper worth these contributions to the development of whatever is peculiar to our national life.

That this was early felt by the American people is shown by the fact that nearly a hundred years ago they began to provide for the proper record and publication, at the public charge, of all opinions of our courts of last resort. England, since the time of Henry VIII., had left it to private enterprise. It was not the interest of the crown to increase the audience to which the Judges spoke. But here it was the interest of the people to know precisely what the law was, as fast as it took shape. They were quite as ready, also, to trust their courts as their legislatures to keep the needs of society and the laws of society in harmony with each other. Statutes have no roots. Judicial decisions are seldom without them. Statutes spring often from some temporary emergency. They are hastily and inconsiderately adopted and,

serving well or ill their immediate purpose, may fall into desuetude. Judgments are the slow fruit of long-fought controversies between opposing interests. They rest on principles of right, and if they advance new rules it is only as deductions from these principles, as new modes of expressing established truths.

This presence in the United States, throughout the last century, of a great and steadily accumulating store of public records, stating the law from day to day as it was actually existing and actually enforced, gives the student of American political institutions, or of American history at large, an immense advantage over those engaged in similar researches in other lands. It is accessible to all. It is, so far as it deals with the larger questions of social organization and individual right, intelligible to all. For these reasons free use of it has been made to explain or fortify the positions taken in the pages which follow.

The authors of this volume are not insensible of the difficulties which must always attend attempts of those who make law their profession to explain it in any of its aspects to those whose pursuits have led them in other directions and perhaps into broader fields. They hope, however, that they have brought together materials which, if the judg ments or generalizations which they have founded upon them should seem unsound, will serve to correct them, and to aid others in coming to more just conclusions. One who was both a lawyer, a statesman, and a man of affairs has said that lawyers, in treating of jurisprudence, come bound by the fetters of local use and practice, and that it is a science which may be, as a whole, best known by the general student of civil government.

"Qui de legibus scripserunt, omnes, vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa, dictu pulchra, sed ab usu remota. Jurisconsulti autem, suae quisque patriae legum, vel etiam Romanarum, aut Pontificiarum, placitis obnoxii et addicti,

judicio sincero non utuntur, sed tanquam e vinculis sermocinantur. Certe cognitio ista ad viros civiles proprie spectat; qui optime norunt, quid ferat societas humana, quid salus populi, quid aequitas naturalis, quid gentium mores, quid rerumpublicarum formae diversae: ideoque possint de legibus, ex principiis et praeceptis, tam aequitatis naturalis, quam politices, decernere."1

Whatever may be true of philosophers, lawyers must frankly accept these criticisms for themselves. They are apt to be technical without knowing it. Their horizon is too often bounded by what is to be seen from their courthouse dome. But this volume, as it is limited to a local and national study, is, at least, less open to the main objections taken by Lord Bacon to professionalism in authorship than if its scope were wider. It is simply a statement by American lawyers of the development thus far of American law.

1 Bacon's Works, ed. of 1803, VII. 438; De Augmentis Scientiarum, VIII. 3, ad fin.