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4 Tul. L. Rev. 178 (1929-1930)
First Codification of the Substantive Common Law

handle is hein.journals/tulr4 and id is 200 raw text is: THE FIRST CODIFICATION OF THE SUBSTANTIVE COMMON LAW MARION SMITH The Georgia Code of 1861 presents the first codification of the substantive part of the common law. It is the first in two senses, namely, it is the first draft to be prepared and also the first to be enacted into law in any jurisdiction. In this statement the term common law is used in its widest sense as distinguishing the system of law which traces its origin back to the English courts from the system known as the civil law and founded on the jurisprudence of Rome. This first code of Georgia codifies the substantive principles of that system, both on its equity and its common law sides. It needs no argument to show that this fact is one of importance in the history of one of the two legal systems which govern the entire white race; yet it appears to be almost totally unknown, although the documents on which it can be sustained are public records, the dates of which can not be disputed. The extent of the confusion in this respect can be illustrated by the fact that a meeting of the Bar Asso- ciation of the State of Georgia, where the importance of its first code should have been recognized, permitted to pass un- noticed, and without correction in its published proceedings, a statement by a speaker which conceded priority in the codi- fication of the substantive common law to David Dudley Field in New York.' So far as can be found, the only published statement to the contrary is an article written by Field him- self and published in 1889 in a Scottish law review, in which the statement is made that the Georgia code was enacted before he had finished the preparation of his own work and was unknown to him at that time, due, doubtless, as he sug- gests, to the breaking out of the Civil War.2 Turn now to as careful and scholarly a work as Select Essays in Anglo-American Legal History, prepared by a committee under the chairmanship of Wigmore. Volume two of that work contains an essay on the history of codes of procedure. Incidentally, the statement is made that a statute of the Territory of Dakota, adopted in 1865, contains a short and inadequate code of some of the substantive principles of the common law and was distinguished by being the first ef- fort to enact a code of the substantive law Df that system.' 'Proceedings of the Ga. Bar Assn. for 1895, p. 190. 21 Juridical Review, p. 19. 3Select Essays in Anglo American Legal History, Vol. 2, p. 670.

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