relating to real property, above included in the domain of codifiable law, is to be distinguished from the body of the law affecting the ownership and transfer of property real, we fail to see. Telegraphs ought not to have been mentioned without telephones; nor either without public heaters, and these without railroads and steamboats.

These are the principal subjects of litigation, and it seems to be intended that that branch of the law with which lawyers come in contact is to be left to itself, while the rest may be codified at leisure. Nor is this remark to be passed by: that on all these points the modern English and American law may be said to be the opposite of the ancient; that the change has been heretofore considered as having been affected by legistion; so that the most of these subjects seem already to have come under the hand of the legislator.

As to the treatment which this pamphlet gives to the historical phase of the subject "It will be observed," it says, "that the system of law by decisions is a characteristic of States of popular origin, while the system of codes is a characteristic feature in those which have a despotic origin." I take issue upon this. The system of taking the law from the cases actually decided is the system of no people except of those of England and her children. Those are, at the present day, undoubtedly popular. But this system of law is handed down from England in the times of the Plantagenets and Tudors; under whom England was by no means popular.

On the other hand the code of Solon was introduced in Athens at the time she was entering upon her career of democracy; the Twelve Tables were introduced in Rome just before the democratic era; the Koran was a code introduced as much by a people bursting its bonds and becoming free,as by a conqueror. The Prussian Code, initiated, perhaps, in 1751, but not made general till 1780, if forced upon the people, was in no manner resisted, is celebrated by all their historians as the beginning of the German nation, and grew up with the people in the period of its splendor and renown. The Napoleonic Code was begun under the republic, and in obedience to republican sympathies and aspirations. Austria (whose code Mr. Carter leaves unmentioned), and Prussia both entered upon their first decidedly republican periods in 1848, and in both that period introduced activity in the construction of their codes. As to the code of Louisiana we know how far that State was despotic when its code was adopted. The same of California.

My knowledge of the Prussian Landrecht is extremely imperfect; but in some respects very satisfactory. I am prepared to say that neither among the common people. nor in the literature of the country, has there ever been heard any thing but self congratulations on this great achievement; it is regarded as the greatest of the many triumphs of Frederic II. The formation of the German empire was immediately followed by the adoption of a code for the whole of it, to which there was no opposition, and I have never heard from lawyer or layman a word of suggestion that the code ought to be repealed. I have had opportunities of seeing how the peculiarities of American law present themselves to the mind of Germans; and cannot but say that the result tempts me to look with envy upon the state of their legislation. The same is the case with the Austrian code.

In regard to the example of France, it is but justice to say that at the time of the revolution the country was divided into thirty or forty provinces, in the southern half of which the "Droit Ecrit," or statutory Justinian Code was the common law, while the others were each for itself, "Pays Coutumiers," countries having an unwritten customary law. A lawyer was a plant of his native village, and could not flourish out

of it; very much like our own States, each of which now breeds its tribe of lawyers, prepared to find the law of every other a mass of absurdities. The idea of repealing their code would strike them as the idea of a lunatic. I venture to say it has never been proposed. How it can be called a failure is inconceivable. It is quite impossible to imagine such a state of things as a continuance to this day of a division of France into thirty little variable principalities.

to.

The history of Rome must be now carefully adverted "Political motives," says our author, "led to the adoption, in Rome, at a very early period, of a system of written law, covering, it seems probable to a greater or less degree, that domain of jurisprudence which we have insisted upon as being the peculiar province of unwritten law." In other words Rome had a code ever since 450 B. C., in the form of the Twelve Tables. This code was administered by the prætors, who were elected for the term of a year. They found occasion to amend the Twelve Tables, "and in order that the public might know beforehand the extent to which this discretionary power of the prætor would be carried, it became the custom for each of these magistrates before entering upon his judicial functions, to draw up and promulgate what was styled an edict, in which the rules were laid down by which he avowed that he would be guided in his official action." This process went on for six hundred years. At last the Perpetual Edict of Sabinus Julianus closed the long line of annual legislations, and thenceforth the development of the law was conducted by means of commentaries upon that.

Now we propose to place our law upon the footing occupied by the Roman law from the time of the Twelve Tables to that of Sabinus Julianus. Our Twelve Tables are our Civil Code; when that is enacted, it will be annually amended by the Legislature by a prætorial edict in the shape of an act of assembly.

This is our answer to the charge of errors in the code: "Adopt the code, and amend it afterward! For the reason that constant amendment is in any event a necessity of its adoption. The opponents of the code are never tired of ringing the changes on the social revolution; the untrammeled growth of the law. We do not deny this, and do not propose to interfere with it. If we had not an annual Legislature, we probably should not propose a code. We have the one and we propose the other. If the one case arises on which the whole argument of the pamphlet is erected, the "exhibiting the conditions prescribed by the code, and then falling within the class, but at the same time exhibiting other unforeseen conditions which render the operation of the statute unjust," then, for all future cases, let the Legislature amend the code as indicated by the new set of conditions. The case will arise once or twice at every session. The cases where experience will advise a modification of the code independently of the new conditions of the cases, will be at first much more frequent. After a time they will die out. This will be the actual experience of the cerrors with which the pamphlet is charged from cover to cover.

Nor will it require many years to reach such a state of things as is described for Prussia and for France. "The mass of new laws (i. e., amendments), and authoritativo interpretations which have been introduced subsequently to the promulgation of the code, is many times the size of the code itself." Well it may be, and yet nothing whatever in comparison with the mass of new laws, i. e., decisions which they would have had without a code! Yet the author has the nerve to say, "It is miserable to live under imperfect or erroneous law. It is scarcely less miserable to live under law which is liable to annual change." If ever any one

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bad experience of this, it is a subject of New York law of the present day without a code. "It is agreed," says the author, that a legislative body consisting principally of laymen, possesses no single qualification, which enables it to prosecute the cultivation and improvement of this science, and its adoption to human affairs." To this I take categorical exception. A body of lawyers would by amendments make the law worse and worse, and finally intolerable. A body representing the clients is the only one which can decide what is useful for the people. A striking instance of this is found in the case of the great council called by Catharine II, to propose a code of laws for her empire. They were selected out of the peasants, the artisans, the burghers, and the nobility. Though no code resulted from their labors, yet those labors have always been considered as the one piece of useful political work which has been done in that illstarred empire since its appearance on the stage of history.

In conclusion, there is a fatal doubleness in the results predicted from a code. When it is examined in detail, it is found that the sections "embrace only those general principles and rules which have been well established for half a century. Concerning the rules themselves, there is neither difficulty nor doubt. The claim therefore advanced by the promoter of the Civil Code, to the effect that it will supersede the necessity for consulting the present multitude of decisions and commentaries, is wholly unfounded. It is certainly safe to say that the code itself would never be consulted, or if consulted at all, it would only be for the purpose of ascertaining whether it contained any thing inconsistent with the law as derived from other sources." This agrees substantially with what is represented to be the actual experience of California and Louisiana.

How does this agree with the main argument of the work: "If a rule clearly embracing the particular case has been enacted in writing, no question of justice or injustice can be raised. It may be that the case is obviously one which the founder of the statute did not foresee, and did not make provision for, and consequently, the enforcement of the rule as written, will work gross injustice. The law would nevertheless be enforced as it stood written and enacted."

It is clear that either one or the other prognostication will not be fulfilled. Either the code is not so vague as not to be cited, or it will not fail, by covering too many cases, to do justice. Experience in Louisiana, and particularly California, seems to point in favor of the former result. So far as the supporters of the code are sentenced to disappointment, it will probably be of the former kind. Why, then, this excitement? It is here that the following remark comes in: "We are simply therefore to ask, is this work, having been published for nearly twenty years, at the elbow of every lawyer and judge, and, like Kent and Blackstone, in the hands of every student?" I must answer for myself: Whenever I have taken it up, I have been delighted with it, and have formed the resolution to make it my vade mecum, and to look into it in connection with every case. I have found it a material aid. Nevertheless, I have always dropped it again. To what this was owing, I am myself puzzled to tell. Partly no doubt to the fact that it is not cited, and that I could not expect to advance any causes by citing it myself." Here is the difference between this code enacted, and unenacted. Enacted, the citation will always be listened to. It will be made whenever any good result can be expected. There will thus be generated, in the minds of judges and lawyers, a habit of looking at cases in their bearing on leading principles of the law, and of understanding, always, whether the matter under discussion was a point of detail, or

of significance. Herein would be its greatest utility. It is clear that when one side has its claim upon a fundamental principle, another upon a dot or a t stroke, the former ought to prevail. It is the experience of all lawyers, that in the absence of a code to fall back upon, the latter has the better chance of success. The mind can generally grasp it more easily, and, to every technically trained mind, it is vastly more familiar.

Will you allow the space to disabuse some people's minds of the ideas that may have found entrance in them through Mr. Carter's remarkable pamphlet against codification? Mr. Carter's bitter antagonism to codification may have stimulated his energies to such industry as perhaps makes him much my superior on such a topic as the expediency of a code for New York. I will not annoy you by discussing that question. I have practised law in Louisiana, and have to the best of my ability endeavored to master the history and the sources of its code. Evidently Mr. Carter knows nothing of either. He has thrown out as authentic the general but false notion of both. I am not at all surprised at Mr. Carter-for (men his equal) Judge Thompson, author of Homesteads, etc., like Mr. Carter, assumes to criticise Louisiana decisions, and evinces in his criticism just such ignorance of the Louisiana Code, as Mr. Carter does of this code in particular, and of what a code really is. At page 61 of his pamphlet Mr. C. says:

"As in the case of Frederick, the leading motive with the Emperor Napoleon was political and dynastic. France was composed of States originally independent of each other, and still maintaining their several and discordant legal systems. It was the ambition of the Emperor to consolidate these different elements into one harmonious State and to strengthen his dynasty by the consequences which would flow from such an achievement."

The fact objectionable and obnoxious to the true history is that Napoleon gave France the code for his own motives. The truth is that Napoleon was elected on what I might call a "plank in the platform" which demanded a code. The idea of a code was not original with Napoleon. In Potter's Dwarris on Statutes and Constitutions, page 300, will be found the truth. In 1793, a very celebrated lawyer and jurist, Cambaceres, proposed a code of laws. He presented to the convention a Projet de Code Civile." Other questions engrossed men's minds at that time, and the eminent lawyer's work did not receive that attention which it deserved. In 1795, Cambaceres being a member of the council of five hundred, presented to that body an amended "projet." It was ordered printed-nothing tending to its adoption was done. I quote, "on the overthrow of the directory by the revolution of the 9th of November, the attention of the new consular government was immediately turned to the subject of a code." Napoleon made it a matter of charge against the directory "that they had not achieved a work so loudly called for by the spirit of the age, and the unsettled jurisprudence of the country." It was a consular decree, in the first year of his consulate, that ordered a commission to take up the three "projets" of Cambaceres and frame the codes. Napoleon but did what France demanded. Conceive Napoleon doing any thing against France's wishes for political ends not one year after the revolution which had overthrown the directory, and when he was in the first year of his first consulate. The directory was overthrown by the revolution of the 9th of November, 1799. Napoleon's consular decree was of date, August 12, 1800. It would be the truth to say-France demanded, and lawyers framed the code. Napoleon did take part and no doubt gave material aid, but the

credit is to the advanced civilization of France and to the lawyers. If Mr. Carter will study the history of the Code Civile of France, he will find his prototype. There were men who opposed Cambaceres just as he opposes Mr. Field, and he may find that in his case, as in many other instances, history has repeated itself, and he has repeated their arguments. In the name of common sense, if the French Code is a failure as compared to the condition of French law, prior to its adoption, what a race of idiots must the French be, not to have seen it up to this day-and how could the greatest of their jurists say after years (nearly fifty) of its trial:

"La France eut enfin un corps de lois uniformes, vraiement national, lequel—malgrés les obscurites, les lacunes, les vices de redaction, et quelquefois les vices de fonds qu'on y trouvé seras toujours regardé, et avec raison, comme un des plus veaux ouvrages sortis de la main des hommes." Marcade, vol. 1, ch. ii-x3d. By the way, what has Mr. Carter to say of the Partidas?

Mr. Carter says of the Louisiana Code what he said of the French Code. Every reputable lawyer in Louisiana would double the eulogy Marcade gives the French Code, in speaking of the Louisiana Code, and this after nearly sixty years of trial. Mr. Carter impliedly admits that the "strikingly characteristic " defects of French jurisprudence have not been repeated in Louisiana jurisprudence, and he attributes it to the good sense exhibited by the bench and bar of our State. Thus far well enough, but ignorant as he must be of the history of that code, and of other codes which were not adopted, when he undertakes to give the causes of that good sense, he blunders. Mr. Carter says: "Largely imbued with the principles and methods of the English common law they have looked to that body of jurisprudence, so far as the code per. mitted them, as containing the real sources of the law, and have fully adopted its maxim of stare decisis, etc. Mr. Carter is right in stating that the bench and bar are largely imbued with common-law principles. With no desire to shock him I may state that the Louisiana Code contains many of them. I know that there could not be in his estimation a greater crime than codifying to the least extent the common law, but it is done, and in the Louisiana Code. I give here a list of the common-law books, as contradistinguished from civil law, the Supreme Court requires a candidate for the bar to be well read in the cause of all this I will explain shortly: Blackstone's Commen. taries, Fourth Book; Kent's Commentaries; Smith on Mercantile Law; Story or Parsons on Notes; Chitty or Bayley on Bills; Greenleaf, Starkie or Phillips on Evidence; Russell on Crimes. This is the least in which he must be well read.

Now as to the historical part, Mr. Carter's cause for Louisiana jurisprudence being free from the "strikingly characteristic" defects of the French, and his assertion that we look to the common law as containing the real sources of law, will be found to have no foundation in fact or in conjecture.

Louisiana had a code in 1808; but the code was not exclusive of other law, and the Partidas held sway with it. In 1825 the Civil Code was adopted. The code of 1808 was a digest of the civil laws in force at the time of its adoption, and repealed only such parts of those laws as were contrary to or incompatible with it. Cothin v. Cothin, 5 M. (O. S.) 94; Lacroix v. Coquet, 5 M. (N. S.) 527.

The code of 1825 became law on May 20th of that year. 6 M. (N. S.) 692; 11 L. 60; 1 A. 54.

The following quotation from Wagner v. Kenner, 2 Rob. Rep., p. 122, will give one of the causes for Louisiana jurisprudence being plethoric with citations of common-law decisions: "The counsel for the

appellant has contended that all commercial questions were not intended to be regulated by the Code of Louisiana. That the Legislature intended to prepare a code of commerce, which should contain the principles according to which such questions should be solved. That they appointed jurisconsults who prepared such a code, and that we have it in print; though it has never received the sanction of the Legislature. The Supreme Court of the late territory of Orleans, very early held that although the laws of Spain were not abrogated by the taking possession of the country by the United States, yet that from that event, the commercial law of the nation became the commercial law of New Orleans; and this court (1842) has frequently recognized the correctness of these early decisions, principally in cases of bills of exchange, promissory notes, and insurances."

And in Thompson v. Mylne, 4 A. 210, the court said: "In adjudicating upon commercial transactions much uncertainty often arises in consequence of the nonadoption of the Commercial Code, prepared by the framers of our Civil Code. It is safe to presume however that in framing the Civil Code, they intended to leave our commercial jurisprudence as it was before, in harmony with that of other commercial nations."

This is one of the causes of the frequent quotation of common-law decisions in Louisiana jurisprudence. Another is that at the time of the framing of the Civil Code and Commercial Code, a Criminal Code was framed. The Criminal Code was never adopted. There is no legal crime in Louisiana, unless it be the creature of statute; but section 976 of the Revised Statutes (Acts 1805 and 1855) provided for the adoption of the common law of England, both in the intendment and construction of statutory crimes, offenses, and misdemeanors, and in the forms of indictment (without prolixity), the rules of evidence, the method of trial etc., unless otherwise provided.

The third cause is due to the code itself. Article 21 says: "In all civil matters where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages where positive law is silent."

The courts of this State have under the authority vested in them by this article held:

That where the Code of Practice gave no action the court would provide one. 12 A. 588. The court will recognise an action, though not mentioned in the Code of practice if justice be served. 57 A. 138.

Now what more natural than to do what our courts have done? Our law giving no remedy, they have examined other systems to find how those systems reached the equity of cases representing similar facts; and have in many instances adopted chancery actions. In the 36 A., p. 759, where the court in so many words adopted the chancery action of interpleading, the authorities are cited in the points made by counsel for its adoption.

Mr. Carter makes it appear (p. 65, §3) that the Louisiana judge or lawyer "seek the rule in any given case in the same quarters from which it is sought by us (common-law judges and lawyers), and then inquire if occasion arises, whether there is any thing in the code inconsistent with the rule thus found.

Evidently when he wrote that paragraph he had been reading some humorous work, for this can't be intended as the result of his study, for it is too sad a commentary on his powers of observation or of understanding.

The Louisiana judge and lawyer does not consider the English common law "as containing the real sources of the law."

He thinks just the other way. He has heard or seen it asserted, that most of the provisions of the common

8th. That the said proceedings, as well as the laws and Constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said Superior Court of said county of Sacramento, were in conflict with and prohibited by the fifth and fourteenth articles of amendment of the Constitution of the United States, and that they were therefore void.

9th. That the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of the said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law.

amendment do not mean and have not the effect to limit the powers of State governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change from time to time, with the advancement of legal science and the progress of society; and if the people of the State find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our State Constitution and nothing in the fourteenth amendment to the Constitution of the United States which prevents them from doing so." On the other hand, it is maintained on behalf of the plaintiff in error that the phrase "due process of law" is equivalent to "law of the land," as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and pri

On the 18th day of September, 1883, the Supreme Court of the State affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted.

It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the Constitution of the United States which is in these words:

"Nor shall any State deprive any person of life, liberty, or property without due process of law."

The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that due process of law," when applied to prosecutions for felonies, which is secured and guaranteed by this provision of the Constitution of the United States, and which accordingly it is forbidden to the States respectively to dispense with in the administration of criminal law.

The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restriction upon the legislative policy of the States has been imposed by the fourteenth amendment to the Constitution of the United States.

The Supreme Court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Superior Court, 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows:

"This proceeding, as [it] is regulated by the Constitution and laws of the State, is not opposed to any of the definitions given of the phrases due process of law' and 'the law of the land;' but on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law."

And the opinion cites and relies upon a decision of the Supreme Court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In tha case the court, speaking of the fourteenth amendment, says: "But its design was not to confine the States to a particular mode of procedure in judicial proceedings, and prohibit them from prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury

erument, but the very institutions, venerable by time and custom, which have been tried by experience and found fit and necessary for the preservation of those principles, and which having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the State; that having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the States themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury.

This view is certainly supported by the authority of the great name of Chief Justice Shaw and of the court in which he presided, which, in Jones v. Robbins, 8 Gray, 329, decided that the twelfth article of the Bill of Rights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or presentment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. In delivering the opinion of the court in that case, Merrick, J., alone dissenting, the chief justice said:

* * *

"The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty." * "It having been stated," he continued, " by Lord Coke, that by the law of the land' was intended a due course of proceeding according to the established rules and practice of the courts of common law, it may perhaps be suggested that this might include other modes of proceeding, sanctioned by the common law, the most familiar of which are by informations of various kinds, by the officers of the crown in the name of the king. But in reply to this, it may be said that Lord Coke himself explains his own meaning by saying that by the law of the land,' as expressed in Magna Charta, was intended due process of law, that is, by indictment or presentment of good and lawful men. And further, it is stated, on the authority of Blackstone, that in