the eighth article of amendment to the constitution. Finally, the Judicature Act of 18732 in section seventy-five provides for a council of judges of the Supreme Court to be held at least once a year, with a duty to report to the government what amendments or alterations it would be expedient to make, for the better administration of justice. A similar provision might be useful in the United States.

While the influence of the judges is likely to be small in legislation affecting the common law, that of the legal profession has been and is likely to be very great. The influence of the bar may be exerted in many ways. In the first place, the bar has unlimited right to petition for legislation. Again, every legislature has a judiciary committee composed wholly or almost wholly of lawyers, and the report of a judiciary committee upon a legal subject is usually of great weight. Sometimes individual members of the legislature who are lawyers acquire leadership and influence of controlling importance. A remarkable instance of such influence is the case of Stephen J. Field, brother of David Dudley Field. In 1848 Stephen J. Field removed from New York to California. As a member of the judiciary committee of the first legislative assembly of that state, he exercised a controlling influence over its legislation, and thus secured for the Field codes the beginning of their career in the West.3 Finally, lawyers may appear as counsel before legislative committees and a powerful argument before a legislative committee may often be more momentous to the common law than an argument before a learned court.

The power of the bar over legislation affecting the common law is in reality the power of expert opinion. Very few important statutes originate in the legislature. As a rule, they are prepared by commissions specially appointed to investigate and report upon a subject. Sometimes they are prepared by an administrative board, sometimes by private petitioners, who have expert knowledge upon the subject of the petition. Legislation affecting the common law always requires technical knowledge, and the work of legislative committees in the case of any important statute upon that subject will consist principally in hearing arguments for or

1 Com. v. Hawkes, 123 Mass. 525 (1877).

236 & 37 Vict., c. 66.

8 Preface to Revised Codes of North Dakota, 1895, 18. Mr. Field was afterwards a justice of the Supreme Court of California, and later of the Supreme Court of the United States.

4 Reinsch, Am. Legislatures, 275.

against bills prepared outside the legislature, and in suggesting alterations and amendments. The responsibility of deciding for or against proposed legislation remains with legislative committees and the legislatures, but their tendency is to be guided on technical subjects by expert opinion. Except for the small but influential body of teachers of law, whose influence is just beginning to be felt practically upon legislation and other matters pertaining to the law, the only body of expert opinion available for the legislature upon legislation affecting uniformity of law is that of the bar. If the bar is united and active for or against a proposed measure of that character, its opinion in most cases will be controlling.

The powerful influence of the bar on legislation affecting the common law is a fact which tends to secure uniformity in such legislation. Another important fact in favor of uniformity is the legislative tendency to follow precedents, and to adopt or copy the statutes of other legislatures. It is true that the doctrine of precedents as applied in common law courts has no application in a legislative body. Each successive legislature in a state is free to act as it pleases except as restrained by the constitution. It is also true, however, that legislatures are much influenced by their own former action, and the action of their predecessors. Any lawyer who has had experience in a legislative body must have been struck by this phenomenon. It exists in the English Parliament, and in the continental law courts," though the very important doctrine that precedents are of binding quality remains a peculiarity of the common law.

More important than the tendency of legislatures to follow their own precedents is the ease and readiness with which they adopt and enact the work of other legislatures. A striking example is the Statute of Frauds, enacted in 1677 in England, and adopted in nearly all of the United States. Another example is the Employers' Liability Act, enacted in England in 1880, and adopted

1 In Massachusetts within the past twenty years the following important statutes were drafted outside the legislature, nearly all of them by commissions: Employers' Liability Act, 1887, c. 270; Metropolitan Sewerage Act, 1889, c. 439; Metropolitan Park Act, 1893, c. 407; Metropolitan Water Act, 1895, c. 488; Negotiable Instruments Act, 1898, c. 533; Land Registration Act, 1898, c. 562; Street Railway Act, 1898, c. 578; Act to Simplify Criminal Pleadings, 1899, c. 409; Act Relative to Business Corporations, 1903, c. 437; Insurance Act, 1907, c. 576; Warehouse Receipts Act, 1907, c. 582.

Dicey, Law and Opinion, 46 and 368, n. 1.

* 19 Green Bag 460; Dicey, Law and Opinion, 485.

with little alteration in Massachusetts in 1887. The most striking exhibition of this tendency is the spread of the Field Code of Procedure. It was enacted in 1848 in New York. Within five years similar codes were enacted in Missouri, California, Iowa, Kentucky, Minnesota, Indiana, and Ohio. Within twenty-five years the Field Code had been enacted in substance and often in its very letter by sixteen other American commonwealths.1 In 1897 this procedure was in force in twenty-seven states and territories. The wide and rapid spread of the Code of Procedure indicates, no doubt, a deep dissatisfaction with the pleading and practice previously in force, but it also illustrates the boldness and readiness with which the legislature of one state will adopt an important statute which comes to it indorsed by the approval of the legislatures of other states. The Field Civil Code, on the other hand, which deals with substantive private law, has had no such success. It was adopted by Dakota in 1865, without revision by a commission, with such modifications only as were suggested by legislative committees.2 That code was adopted also in California in 1872. Georgia has a Civil Code adopted in 1860; but the movement for general codification of the substantive civil law has never made much progress in the United States.

On the other hand codification of different parts of the substantive commercial law is now going on with a rapidity which resembles that of the Field Code of Procedure. A uniform Negotiable Instruments Act has been enacted in thirty-five states and territories and the District of Columbia; a uniform Warehouse Receipt Act in nine states; a uniform Sales Act in one territory and three states; and bills are in preparation for uniform laws on Bills of Lading, Certificates of Stock, and Partnership.8

In addition to the natural demand for uniformity in commercial law two powerful agencies have assisted this movement in favor of partial codification of commercial law. One is the American Bar Association, organized in 1878, and having as one of its objects the promotion of uniformity of legislation throughout the Union. The other is the National Conference of Commissioners on Uniform State Laws, which meets annually at the same time and place

1 Hepburn, Hist. Development of Code Pleading, 87 et seq., 114.

2 Revised Codes of North Dakota, 1895, Preface, v.

In England three similar codifying measures have been enacted: the Partnership Act, 1890, drawn by Sir Frederick Pollock; the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1893, both drawn by Mr. M. D. Chalmers.

as the American Bar Association. The Conference is made up of commissioners appointed by different states, and thirty-nine states and territories and the District of Columbia now have such commissioners. The combined influence of these two bodies, with the influence of the Association of American Law Schools, which also meets annually at the same time and place, is a force of the first importance in securing uniformity of legislation in the states. In conclusion, as the result of this examination of the method in which legislative bodies do their work, and of the forces which govern their action, it is plain that uniformity of private law is more easily and surely attainable from the action of legislatures than from the action of the courts. The corrective action of the courts, when once a diversity in case law appears among the several states is slow and uncertain, while that of the legislatures is prompt and sure. The courts are obliged to wait until some case is presented for decision in the ordinary course of litigation before they can act. The action of the legislature may be invoked at any time. It does not follow, however, from these considerations, that the friends of uniformity of law should favor the enactment of statutes or codes which invade the province of case law. A comparison of the merits and defects of the two systems must first be made.

It is an historical fact that the legislature has for centuries left a large portion of the private law to be declared by the courts. A sound legislator, whenever legislation is demanded which amends or abolishes a rule of case law or which codifies case law and puts it in the form of a statute, will require the petitioner to show cause why he should vote in favor of such demand.

1. The courts in litigated cases, by the examination and crossexamination of witnesses under oath, have better means of discovering the facts than are available in a legislative hearing. The facts proved in court arise directly from the life and transactions of the people, and rules made by experienced judges with direct regard to those facts are more likely to be just and adapted to each case than general rules framed by statute upon such statements of fact as are usually made before legislative committees.

2. The courts have the benefit of the assistance of counsel in

1 See Proceedings of Seventeenth Annual Conference and Address of Pres. Amasa M. Eaton, Portland, 1907.

declaring the law, and the safeguard of criticism by an expert body of professional opinion. This was an efficient protection against arbitrary action on the part of the Roman praetor,1 and it is an efficient protection against arbitrary action by a common law court.2

3. The judges are required to state the reasons for their decisions under their own names. Responsibility for case law is fixed and definite, while in the case of legislation, under the committee system, there is a great want of definite responsibility.3

4. Case law is based upon principle, has historical continuity, and aims at logical symmetry and consistency in all its parts. Statutes also, in all legislation worthy of the name, are based upon principle. As a rule, however, each statute stands by itself, upon its own ratio legis. To a lawyer the relation between statute law and common or case law may be likened to the relation between a dictionary of the English language and a masterpiece of English literature; for example, Paradise Lost. Each work may be conceded to be invaluable. Each word in the dictionary stands by itself, and all the words when read together convey no connected meaning to the ordinary mind.

5. The legislature is more closely in touch with the electorate, or political sovereign, than the courts. While this fact has great advantages, it has some disadvantages. The legislature can enact promptly in a statute the deliberate public opinion of the electorate, but it is also in danger of mistaking mere temporary emotion for deliberate public opinion. Not every current of public feeling which passes over a community is worthy to be enacted into law. It is an advantage to the community that case law develops slowly. It is controlled by reason, and protected against gusts of passion or sentiment by the method of its growth.

6. Case law is useful as a basis for legislation when the principle of the cases has been developed to its full extent, and the needs of the community require a modification of the principle, or the introduction of new rules based upon new principles. Thus the legislature both in England and in the United States in dealing with the property rights of married women had the benefit of the rules. worked out during centuries in the courts of law and equity. So in the law of master and servant, the mass of litigation over the

1 Moyle, Inst., I ed., Introduction, 31.

2 United States v. Hudson, 7 Cranch (U. S.) 32, per Johnson, J. (1812).