EDITORIAL DEPARTMENT of the common law and of the advocates of codes, taking strong ground in favor of the common law. " Judge-made " law is objected to as difficult of ascertainment and subject to change according to varying views of judges, but Mr. Hornblower maintains that code law is even more uncertain and therefore produc tive of litigation. The argument that " judgemade " law is ex post facto and that one is held by a law he could not possibly have known, is declared more specious than real, as the great majority of cases simply call for the applica tion of well-settled principles. The layman, says Mr. Hornblower, more often goes astray as to the statute law than as to the unwritten law. The facility of amendment is a further serious objection to codes. "A striking example of how a section of a code can be amended without any sufficient reason for the amendment and without exciting the attention of the public or of the bar is afforded by an instance which occurred recently. 1 venture to say that not one lawyer in a thou sand in this state knows that in 1904 the Code of Civil Procedure was amended so as to change the requirements with regard to the contents of a complaint in an action. Section 481 of the Code of Civil Procedure, as it stood prior to 1904, and as 1 believe the corresponding section stood in the former Code of Procedure of this State, and as it had existed for more than a generation, provided that the complaint should contain: "' 2. A plain and concise statement of the facts constituting each cause of action without unnecessary repetition.' "In 1904 the Legislature, precisely why nobody seems to know, amended subdivision 2 of this section so as to read as follows: '"a. A clear, precise and unequivocal state ment of the facts constituting each cause of action.' Laws of 1904, Chapter 500. "Just what the legal effect of thisamendment was no human being could tell, and only the Court of Appeals at the end of a litigation could settle. Why the provisions of the code as to a complaint should be amended so as to strike out the clause ' without unnecessary repetition,' or so as to change the word ' con cise ' to ' precise,' or so as to change the word ' plain ' to the phrase ' clear, precise and un equivocal ' is hard to understand. Some law yers discovered, during the year 1904, that this amendment had been made, and by Chap ter 431 of the Laws of 1905, Section 481 of the code was put back into its former shape by restoring the phrase 1 a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.'
This is certainly a curiosity in legislation. Quaere, whether in the meantime ' unnecessary repetition ' in a complaint was allowable?" In practice codes here and abroad are declared not to have met the expectations of their advocates, while the unwritten law has shown itself able to develop so as adequately to deal with the complex conditions of society caused by inventions in the last hundred years. JURISPRUDENCE. " Roman Law and Mohammedan Jurisprudence," by Theodore P. Ion, Michigan Law Review (V. vi, p. 44). This first installment of an article intended to show the close analogy of the two systems of jurisprudence and the influence the laws of Rome exercised in the development of the Islamic legislation is devoted to the exposition of historical facts which account for the Roman influence. JURISPRUDENCE (The Jury). " Le Jury a Rome et en Angleterre," by H. Speyer in Law Quarterly Review (V. xxiii, p. 420). An article in French pointing out great similarities and some differences of the jury system in Roman and English law. JURISPRUDENCE. " The Law of Moses," by Lex, The Law Magazine and Review (V. xxxiii, p. 1). An analysis of the Mosaic law, comparing it with modern law. In the following passage the anonymous author upsets an idea generally held: "Persistent breaches of the fifth command ment were punishable by death, but only in case both parents claimed the infliction of the penalty. No duty was imposed on any one else with regard to the prosecution or infliction, and even with the parents it was not a duty but a power. This power, I may remark, explains some passages in the proverbs of Solomon on which the advocates of flogging young people lay great stress. Solomon writes, ' Withhold not correction from the child: for if thou beat him with the rod he shall not die. Thou shalt beat him with the rod, and shalt deliver his soul jrom the grave ' (see marginal reading); and again, ' Chasten thy son, seeing there is hope, and set not thy heart on causing him to die ' (I again adopt the marginal read ing of the R. V.). Beat your son, says Solo mon, instead of bringing him before the elders of the city and asking to have him stoned. Solomon could not interfere with the law of Moses, but he urges parents not to avail them selves of the stringency of its provisions as regards disobedient children."
