EDITORIAL DEPARTMENT
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The disappearance of the doctrine he re Continental method of treatment of judicial gards as an inevitable result of human prog decisions, or else it will be accompanied by ress through the increase of business and the some such legislative sifting of the reports as enormous multiplication of precedents. I have outlined by way of suggestion; but I do not believe that it will be done until the "The argument and decision of any still unsettled question, or question claimed to be present system has become so overloaded that unsettled, thus involves an enormously greater the American bar with substantial unanimity expenditure of time at four different points — will decide that almost any kind of codifica in the preliminary preparation by counsel, in tion would be an improvement." the oral argument, in the court's subsequent examination of the previous authorities pre A STRIKING confirmation of Mr. Whitney's liminary to the decision, and in their discus theory of the logical succession of codification sion (when, as often, they are discussed) in to judicial precedents is afforded by an ex the opinion which is subsequently formulated, amination of Roman legal history from the so as to serve as future evidence of the law. point of view of an English lawyer. Professor NTow, on the contrary, instead of expending Munroe Smith's address before the Congress more time, all parties expend less." "Few if of Arts and Sciences on ' ' Problems of Roman any of the Federal appellate courts, or similar Legal History" is published in the December courts in any of the larger States, can at the number of the Columbia Law Reineui (Vol. iv., present time secure that assistance from coun p. 523). His comparison of the legal develop sel, allow that time for oral argument, go ment of Roman law with that of England through that subsequent examination of the furnishes striking and instructive analogies authorities, discuss and analyze the general showing the broad similarity of social develop principles of law, public policy, and ethics with ment rather than direct borrowing. He finds that thoroughness, or observe that care in these analogies in politics and government, formulating the arguments approved and the but more especially in the judicial system. decision reached, which are theoretically in He refutes the theory that Roman law was in cidental to the development of judgemade its origin a codification, and shows that it was law." developed by judicial opinions. The Roman jurists, though not at first public officials like A tendency to disregard decisions as au our judges, were impartial experts rendering thority and seek relief in text writers is be lieved to be apparent. Some suggestion of opinions on points of law without pay at the request of litigants to enable the indices who remedies are considered but codification is de clared to be "the one and only remedy that were laymen like our juries to decide cases. has ever been suggested which amounts to The jurists were the product of natural selec more than the mildest palliative, and which tion like the ancient "law-speakers" of the Germans, who were the ancestors of our has received substantial support from any in fluential section of the profession and the judges. Under the Empire, the Roman jur ists were selected by the state. public." "The main real obstacle to codification in "Roman praetorian law and English equity America is undoubtedly the experience which are in so far analogous as they both repre we have had of codification in particular, and sent what the Romans called ins honorarium — 'official law.' In both cases the new law of statutory law in general, in the past." was produced by governmental agencies which These, however, are declared to be avoid able evils, the main difficulty being to secure were not exclusively nor indeed primarily ju the right man to do the work. The author dicial — agencies which set themselves above believes "that codification will be accom the previously existing law, and not merely plished within the lifetime of men who are al supplemented it but overrode it." ready admitted to the practice of the legal "It was by the iteration of the same rule profession; and I believe that either it will be in successive prastorian edicts (edicto iralaaccompanied by the avowed abolition of the licia) that the Roman official law was built doctrine of stare decisis and substitution of the up. It was by the observance of precedents
