Codification was for many years a word to provoke discussion in any gathering of American lawyers. The idea of a simple and complete code, with which the name of Bentham is chiefly associated, received great favor in this country, although the efforts to put into practice Benthamic theories were seldom even partially successful. During recent years, however, we hear little of codification. The interest of the bar and of political scientists in this theory has apparently greatly waned.
The relative merits of the common law and a code are not within our present field of discussion. The literature upon the subject would probably fill many volumes. I do not even venture an opinion whether the demerits of the code are sufficient to account for its abandonment. I do not believe, however, that the subject was really settled upon its merits or that if similar conditions to those existing twenty-five years ago were to return we should not have the discussion again revived. Probably the most powerful factor in the elimination of this idea has been the rapid increase in the written law. The question is now not whether we shall codify the unwritten law but whether we shall reduce to the form of a partial code the statutes already existing, and if so, how this result can best be accomplished. We cannot codify the unwritten law until we codify the written law.