396
The Green Bag
practical familiarity with its working brings a common law lawyer — who has not blindly prejudged the matter and is in consequence not open to con version — finally around to the notion that it was very unfortunate for us in this country that in breaking with England we did not break away from her law, as we did from her monetary system, her social order and her state church. Our money, our manner of life, our art and our architecture were developed substantially on French lines, and molded after French models. Our law and our weights and measures might well have followed the same course. At the time of our Revolution it would have been entirely possible for our law yers to have worked out a reform in our jurisprudence along the lines of codification, somewhat as the French did at the time of their Revolution after 1789. . . . "Was anything ever more incongru ous and absurd than for civilized men to assume to derive their law from a parcel of savages, and then to belaud it as superior to the Civil Law, and to befool themselves by singing the Te Deum over and over! We might just as wisely affect admiration for the way those people prepared their food, or for their taste in the matter of dress or in architecture, or for their constructive genius in letters or in the fine or mechan ical arts. All of it is the merest wor ship of idols, a sheer bowing down to a fetich, an adoration of images — not even graven images at that, but a mere figment of the uninstructed imagination of the fathers. It is as much forbidden by the first commandment of Moses as anything that ever goes on in a Chin ese joss-house. Jeremy Bentham, a hundred years ago, pricked the bubble, but the waters closed over him, and we have gone on for another century
in the old blind fashion. In our own day David Dudley Field did some manly work in a right manly way to promote the codification of our law; but he, too, is dead, and his sanity seems swallowed up in the ocean of common law indif ference to reform." The common law is unscientific, says Mr. Beach; "our system of reporting precedents and of relying upon them as authoritative statements of the law — forbidden by the Code Napoleon, and unknown to the civil law anywhere — is an impossible one, and has in it the seeds of death. Only a moment's con nected thinking is sufficient to demon strate that, and it ought not to be hard for us to realize it, especially here in St. Paul, sitting as we do under the shadow of the great reporting enter prise of the West Publishing Company, and thus having a first-hand knowledge of the present volume of American case law." Our system of judicial prece dent "is perfectly uneconomical of time and money and effort, and an absolutely unscientific scheme for for mulating legal principles. It reduces common law research and practice to a mere fishing about in pools of muddy water for stray bits of law suspected of being immersed or in solution therein — the pools growing larger and deeper and muddier, and the fishing becoming more difficult and unsatisfactory die in diem." The upshot is that "we shall be com pelled in no very long time, by the sheer necessities of our case, to abandon common law theory and practice, and to come squarely to the Franco-Roman law scheme of codification, thus getting in line in our law and in our procedure as we ought to have done hundreds of years ago, with the rest of the modern world as well as with the wisdom of the ancients."
