著者 Zang Dongsheng journal or
publication title
Shizuoka law journal
volume 11
page range 385‑384
year 2019‑08‑16
出版者 静岡大学地域法実務実践センター
URL http://doi.org/10.14945/00026779
■ 国際学術シンポジウム ■
Contents
Introduction ………385
Gierke’s Question in 1889 ………387
The Story Report of 1836 ………390
Story’s Role in Developing Private Law ………393
Contract and the Constitution ………394
The Dartmouth College Case (1819) ………396
The Charles River Bridge Case (1837) ………398
The Code and Its Guardians ………400
Introduction
China is now in the process of making a comprehensive Civil Code, which may be accomplished next year. Recent efforts in codifying civil law were started at the Communist Party’s 18th Central Committee 4th Plenum Conference, on October 23, 2014,（1） when it was declared that China will further establish laws related to market in the coming years, including a Civil Code （民法典）. In March 2015, the National People’s Congress (NPC) Standing Committee’s Legal Affairs Committee (LAC) formed a group of experts from other branches of the government, includ- ing the Supreme People’s Court, Supreme Prosecutoral Office, State Council’s Legislative Office, Chinese Academy of Social Sciences, and Chinese Law Society.
（1）中共中央關於全面推進依法治國若干重大問題的決定 (Oct. 23, 2014), passed at the Chinese Communist Party 18th Central Committee 4th Plenum), available at: http://cpc.people.
com.cn/n/2014/1029/c64387-25927606.html.
The Helpless Code
Dongsheng Zang
Early in August 2015, NPC Standing Committee decided to add civil code to its calendar.（2） August 28, 2015, LAC finished the first internal draft and invited outside experts in September 2015 to LAC meetings.（3） On June 14, 2016, President Xi Jinping listed to reports of civil code drafting work, and instructed that a two-step approach: first the general principles of civil code; and second, major chapters of civil code. This facilitated the process. In June, October and December, 2016, LAC reviewed bills for the general principles of civil code three times. On March 8, 2017, the first part―the General Principles of Civil Code―
was passed at the 12th NPC’s 5th Session.（4） Now, LAC is working on separate books in the second part, setting the target of having the separate books of the Civil Code passed in the year of 2020.
In Great Britain and the United States, China’s recent efforts on a civil code caught the attention of major newspapers. In the United States, the Wall Street Journal reported on March 10, 2017 of the legislation and noted that “How sig- nificant is a matter of debate.”（5） The Journal noted that, “The latest effort was ordered up directly by the Communist Party, not the legislature, in 2014 as part of an overall push to upgrade the legal system.”（6） Furthermore, the Journal re- minded its readers that “[o]ther lawyers and legal scholars are skeptical a civil code will improve China’s legal system, in part because the authoritarian govern- ment often shows little respect for current laws.”（7） The other major newspaper, the New York Times, covered the development in China on March 16, 2017.（8） It quoted Professor Jerome Cohen of New York University as saying that “a civil code could help reinforce Mr. Xi’s efforts to reassure domestic and foreign inves- tors about the strength of China’s economic and political system.”（9） The British
（2）增加編纂民法典等34件立法項目，人民日報，2015年8月6日第4版.
（3）梁慧星《中華人民共和國民法總則（草案）》：解讀、評論和修改建議，華東政法大學學報 2016 年第５期 (2016).
（4）中华人民共和国民法总则 (Mar. 8, 2017), passed at the 12th National People’s Congress 5th Session), available at: http://www.npc.gov.cn/npc/xinwen/2017-03/15/content_2018907.
htm (last access February 3, 2019).
（5）“China Takes Fifth Try at Civil Code of Law,” Wall Street Journal, Mar. 10, 2017, A7.
（6）Wall Street Journal, Mar. 10, 2017, A7.
（7）Wall Street Journal, Mar. 10, 2017, A7.
（8）“Pushing to Remake China’s Legal System,” New York Times, Mar. 16, 2017, A4.
（9）New York Times, Mar. 16, 2017, A4.
magazine, The Economist, while recognizing that a new version of civil code would be an improvement of current laws, was nevertheless skeptical and com- mented that: “A civil code―embracing laws of property, contract, inheritance, family and marriage―will not guarantee fairness. The Communist Party will continue to ignore the law when it wants to.”（10）
I believe the above media reports reflect certain widely shared Western views of China in general. This is only stronger today, in the mid of trade wars and the rise of populism on both sides. However, my comment today, critical as it is, is not from this political perspective. I am here speaking as an admirer of scholars like Professor Sun (孙宪忠) and his colleagues, who are undoubtedly sincere and often courageous in their dedication to the Code, with the underlying hope that a Code would facilitate China’s further development and improvement of its legal system. From my more skeptical perspective, however, true believers of codifica- tion in China today are tragic heroes. Their efforts may not take China very far as they hope for. I wish to explain my skepticism by first looking into the debate of codification in Germany of the nineteenth-century; then I will discuss the codi- fication debate in the United States, reflected in the 1836 Story Report. I will use two cases decided by the United States Supreme Court, the Charles River Bridge Case (1837) and the Dartmouth College Case (1819) to explain what is missing in China’s codification.
Gierke’s Question in 1889
In an article published in 1889,（11） Otto von Gierke, a critic of the 1888 draft Civil Code circulating in Germany at the time, asked his fellow German codifiers what they admired about Roman law, considering that the latter had its own flaws.
Gierke pointed to the example of individualism, extensively reflected in its civil law but did not prevent the Roman Empire from keeping slavery: “it did not know how to get past slavery; it had simply drawn a line so that a slave still ranked as a thing...” Gierke then stated:
（10）“China Finally Starts to Write a Proper Civil Code,” The Economist (Mar. 16, 2017).
（11） Otto von Gierke, Die soziale Aufgabe des Privatrechts (1889), English translation by Ewan McGaughey, “The Social Role of Private Law,” 19 German Law Journal 1017 (July 2018, No.4).
Built on this tremendous lie, without which slavery was unthinkable, the individualism of Roman private law stood helpless and powerless in the face of society, and the power it incorporated. （12）
Gierke’s question to the codifiers is fundamental. It is only one step further to ask the codifiers in China: even if they are successful in drafting the perfect Code, would it stay helpless and powerless, nevertheless? In the past decades, China has made impressive progress in codifying its civil law on paper. However, if one fol- lows Gireke, one has to ask the following questions: Did China’s first comprehen- sive Property Law of 2007 help villagers protect their land from being taken by municipalities? Did China’s first comprehensive Uniform Contract Law of 1999 help private businesses have a level playing field in the market? Did China’s first comprehensive Tort Law of 2009 help consumers in making it easier for them to get compensations? It may be too early to ask the same question about the 2017 General Provisions of Civil Law (GPCL). But is any reason do believe that GPCL would be different?
In 1889, Gierke was writing in a Germany bursting with national pride, growing power and prosperity, like China today. Gierke’s critique of individualism, based on his study of associations in history,（13） was from “the Social” perspective,（14） a significant insight for his times that was shared by intellectual leaders across Europe, such as Rudolf von Jhering (1818-1892), Carl Friedrich von Gerber (1823- 1891), Josef Kohler (1849-1919) in Germany, and Eugen Ehrlich (1862-1922) in Austria, and Léon Duguit (1859-1928) and François Gény (1861-1959) in France.
The Social is both a perspective, as in its critique of individualism, and a method- ology. As a methodology, it insisted that true law comes from its Germanic soil, not from metaphysics, nor from foreign, abstract doctrines. Both these perspec- tives shaped the final version of German Civil Code.（15） When the German Code
（12） Otto von Gierke, id., at 1038.
（13） Otto von Gierke, Community in Historical Perspective (Antony Black ed.), Cambridge University Press 1990.
（14） Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850-2000,” in The New Law and Economic Development 19 (Cambridge University Press 2006).
（15） Ernst Freund, “The New German Civil Code,” 13 Harvard Law Review 627 (April 1900, No.8), at 630.
was followed in other countries, however, this Germanic origin part is dropped, substituted by the claim that the German Code is superior for its scientific and rational characters.
However perfect the Code is, it does not answer Gierke’s question. I suspect that Gierke did not even answer his own question. Gierke and his Germanic school was the continued “Social Conservative” in Germany, dating back to Savigny’s Historical School.（16） Their true agenda was to reject the universal value of the Enlightenment, as well as its symbol―the Napoleon Code. Though critique of individualism at the turn of the century was a general trend in Europe and America, its solution in Germany often leaned toward authoritarianism. Gierke’s reference to slavery in 1889 appears to be merely for convenience. If he had been serious about slavery, Gierke would not have considered Abraham Lincoln and Otto von Bismarck, Chancellor of the German Empire, as equals.（17） After all, Lincoln fought the Civil War (1861-1865) to abolish slavery; while the Chancellor, in 1884, hosted the infamous conference in Berlin in order to partition East Africa.（18） Despite Gierke’s awareness of such social issues as pauperism, agrari- an reforms and labor issues that were happening in Gierke’s life time,（19） it should have been obvious for Gierke that a perfect Code had the same fate as Roman law. The Code remained helpless and powerless in the wake of authoritar- ianism that Gierke himself not only tolerated but even advocated. The codifica- tion debates, from Savigny’s attack on Thiabut in 1814, to Gierke’s 1889 article, really reveal the nineteenth-century nature of politics in Germany. David
（16） Hermann Klenner, “Savigny’s Research Program of the Historical School of Law and Its Intellectual Impact in 19th Century Berlin,” 37 American Journal of Comparative Law 67-80 (Winter 1989, No.1); Hermann Beck, The Origins of the Authoritarian Welfare State in Prussia: Conservatives, Bureaucracy, and the Social Question, 1815- 70, Ann Arbor, MI: University of Michigan Press 1995.
（17） Otto Gierke, “German Constitutional Law in Its Relation to the American Constitution,” 23 Harvard Law Review 273-290 (Feb. 1910, No.4), at 290.
（18）Bismarck, Europe and Africa: The Berlin Africa Conference, 1884-1885, and the Onset of Partition (Stig Förster, Wolfgang J. Mommsen & Ronald Robinson eds.), Oxford University Press 1988.
（19） Karl Kautsky, The Agrarian Question (Pete Burgess trans. 1988), first published in 1899.
Blackbourn, one of the most distinguished historians on German history calls this period the “long nineteenth century.”（20）
Today’s true believers of codification in China probably face a similar situation.
Do they really believe that simply by claiming scientific rationality of the perfect Code they can convince the ruling elites to give up their arbitrary power? They may be sincere in believing that public law and private law are separate spheres, that private law is self-contained and autonomous, that the true quality of pri- vate law is its rationality and coherence. But isn’t it obvious, as it was for Gierke, that their belief is self-deception only?
The Story Report of 1836
European imagination of the perfect code was shaped by a powerful English voice: the radical reformer and philosopher Jeremy Bentham (1748-1832). Before the Savigny-Thibaut debate, Bentham was already influential in France, Russia, Spain and Portugal in their codification movement at the turn of the century from the eighteenth to the nineteenth.（21） Bentham did not forget America ei- ther. He wrote a number of letters to governors and politicians in the United States, including President James Madison.（22） In 1815, he sent a letter to the governor of each state offering to codify its law.（23） In his letter to Madison in October 1811, Bentham passionately offered his service of drafting a complete code for America:
I will forth with set about drawing up, for the use of the United States, or such of them, if any, as may see reason to give their
（20） David Blackbourn, History of Germany 1780-1918: The Long Nineteenth Century (2nd ed.), Oxford: Blackwell 2003.
（21） Dean Alfange, Jr., “Jeremy Bentham and the Codification of Law,” 55 Cornell Law Review 58 (Nov. 1969, No.1); Charles Noble Gregory, “Bentham and the Codifiers,” 13 Harvard Law Review 344 (Jan. 1900, No.5).
（22） Jeremy Bentham, an Englishman, To the Citizens of the Several American United States (July 1817), in 4 Works of Jeremy Bentham 478 (John Bowring ed. 1843).
（23） Terry DiFilippo, “Jeremy Bentham’s Codification Proposals and Some Remarks on Their Place in History,” 22 Buffalo Law Review 239 (Fall 1972, No.1).
acceptance to it, a complete body of proposed law, in the form of Statute law: say, in one word, a Pannomion, ―a body of statute law...（24）
However, it took President Madison five years to reply to Bentham.（25） Though he saw “much to admire in the comprehensive and profound views taken of its subject,” Madison expressed that “the only room for doubt would be as to its practicability...”（26） Nor did most of the governors in the several states (with the exception of Louisiana) find it worthwhile, even though Bentham did have some following.（27） In South Carolina, efforts were taken in 1826 but failed.（28） William Plumber, Jr., United States Congressman from New Hampshire, observed that Bentham’s proposal “struck most of them [governors in the several states] as so improper, not to say absurd, that the proposal was dismissed, almost without de- bate.”（29）
In the Commonwealth of Massachusetts, Governor Edward Everett,（30） with en- dorsement of the Senate,（31） recommended a commission of five members to look
（24） Jeremy Bentham, To the President of the United States of America (October 1811), in 4 Works of Jeremy Bentham 453 (John Bowring ed. 1843) (emphasis original).
（25） From James Madison to Jeremy Bentham (May 8, 1816), in Papers Relative to Codification and Public Instruction 67-70 (1817).
（26） From James Madison to Jeremy Bentham (May 8, 1816), id., at 68.
（27） George M. Hezel, “The Influence of Bentham’s Philosophy of Law on the Early Nineteenth Century Codification Movement in the United States,” 22 Buffalo Law Review 253 (Fall 1972, No.1).
（28）“Codification of the Laws of the United States of America,” 2 Jurist, or Quarterly Journal of Jurisprudence and Legislation 47 (May 1828, No.1).
（29） Letter of William Plumber, Jr. to Justice Joseph Story (Sep. 28, 1841), reproduced in
“Letter of Jeremy Bentham,” 27 American Jurist and Law Magazine 62 (April 1842, No.53).
（30） Address of His Excellency Edward Everett, to the Two Branches of the Legislature (Massachusetts House Doc. 6, Jan. 6, 1836). For further background, see, F.W.G.
[Frank W. Grinnell], “Some Forgotten Massachusetts History about Codification and Its Relation to Current Legislative and Judicial Problems,” 1 Massachusetts Law Quarterly 319 (Aug. 1916, No.4).
（31）“Report of a Special Committee of the House of Representatives, of the Massachusetts Legislature, to Whom Was Referred so Much of the Governor’s Address, as Relates to
into the matter. In December 1836, a commission led by Joseph Story,（32） who was serving as Associate Justice on the United States Supreme Court. The com- mission’s report, known as the “Story Report,” concluded that codification was not a practical approach.（33） In explaining its rationales for this conclusion, the Story Report felt the need to address the issue of “common law”:
In truth, the common law is not in its nature and character an abso- lutely fixed, inflexible system, like the statute law, providing only for cases of a determinate form which fall within the letter of the lan- guage in which a particular doctrine or legal proposition is expressed.
It is rather a system of elementary principles and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and com- merce and the mechanic arts, and the exigencies and usages of the country.（34）
Justice Story had been more open to the idea of codification earlier on. However, in an article published in 1817, Story has already had a change of mind:
It is impossible to provide by any code, however extensive, for the in- finite variety of distinctions, as to civil justice, arising from the imper- fection of human language and foresight, from the conflict of oppos- ing rights, from the effect of real or apparent hardships, and from those minute equities, which are often found in different scales, adding somewhat to the weight of each, but rarely forming an exact equi- poise.（35）
the Subject of Codifying the Common Law” (Jan. 1836), 15 American Jurist 111 (April 1836, No.29).
（32）Codification of the Common Law (David Dudley Field ed. 1882).
（33）“Report of the Commissioners Appointed to Consider and Report upon the Practicability and Expediency of Reducing to a Written and Systematic Code the Common Law of Massachusetts, or Any Part Thereof” (Dec. 28, 1836), 17 American Jurist 17 (April 1837, No.33).
（34）Codification of the Common Law 29-30 (David Dudley Field ed. 1882).
（35） Joseph Story, “Course of Legal Study” (1817), in The Miscellaneous Writings of Joseph Story 70-71 (William W. Story ed. 1852).
Like Civil Law lawyers’ faith in the code, Story considered common law cases as
“the true repositories of the law.”（36） In March 1837, the Massachusetts Legislatures passed a decision to codify the penal law.（37） Governor Everett invit- ed Story to be the chairman of the Board of Commissioners, Story politely de- clined.（38） Story’s contemporary, James Kent (1763-1841),（39） Chancellor of the State of New York, held similar position on codification.（40）
Story’s Role in Developing Private Law
Justice Story was an admirer of Lord Mansfield, the Lord Chief Justice of the King’s Court between 1756 and 1765, responsible for developing commercial law in England through his decisions. But Story’s contribution to developing private law in the United States was more through his books. Roscoe Pound, Dean of Harvard Law School, noted that along with Chancellor James Kent, Justice Story was “the pioneer among our great text-writers.”（41） In the 1830s and 1840s, Story published a series of influential texts: Commentaries on the Law of Bailments (1832), Commentaries on the Constitution (1833), Conflict of Laws (1834), Equity Jurisprudence (1836), Equity Pleading (1838), Commentaries on the Law of Agency (1839), The Law of Partnership (1841), Bills of Exchange (1843), and Promissory Notes (1845). Pound believed that “this body of legal writing is in many ways comparable to that of Coke. In each case, the judge-made law of that past was restated and was made conveniently and, as it were, authoritatively
（36） Joseph Story, “Progress of Jurisprudence” (1821), in The Miscellaneous Writings of Joseph Story 198-241 (William W. Story ed. 1852), at 207.
（37） Resolve Providing for a Codification of so Much of the Common Law as Relates to Crimes and Punishments and the Incidents Thereof (Mar. 10, 1837), Chap. 30, Resolves of the General Court of the Commonwealth of Massachusetts 500 (1837).
（38）“I have reflected seriously on your kind proposal that I should be the chairman of the board of commissioners to be appointed on the codification of the criminal law. I am compelled, by a sense of duty, to decline the honor which would thus be conferred on me.” To His Excellency, Edward Everett (Mar. 28, 1837), 2 Life and Letters of Joseph Story 251 (William W. Story ed. 1851).
（39） John B. Cassoday, “James Kent and Joseph Story,” 12 Yale Law Journal 146 (Jan.
1903, No.3).
（40） James Kent, 4 Commentaries on American Law 351 (2nd ed. 1832).
（41） Roscoe Pound, “The Place of Judge Story in the Making of American Law,” 48 American Law Review 676 (Sep.-Oct. 1914, No.5), at 679.
available for the future.”（42） In other words, Story achieved in the United States what the codification movements had achieved in Germany, through systematical collection and commentaries of caselaw. Some years after, Christopher Columbus Langdell, who invented the case method, followed the same approach in collecting contract cases and stated: “Law, considered as a science, consists of certain prin- ciples or doctrines.”（43）
In spite of his work in systematic organization of caselaw, however, Story did not fall to the victim of codification myth. This is because the function of the judges in common law was fundamental:
...the belief, from the first moment that I ventured into the deeper studies of the law, that the independence of the judges is the great bul- wark of public liberty, and the great security of property; and that the Revolution of 1688 would have been but a vain and passing pag- eant, a noble but ineffectual struggle against prerogative, if the tri- umph of its principles had not been secured by this practical means of enforcing them.（44）
Retrospectively, Story’s approach not only “saved the common law,”（45） as Pound had commented, but also made America safer for democracy. Interestingly, this is accomplished even later in his tenure in the Supreme Court, Story has actually become a conservative, thus his views on contract has become minority view, as reflected in his opinions in Charles River Bridge Case (1837).
Contract and the Constitution
In Charles River Bridge Case (1837),（46） a writ of error case appealed to the United States Supreme Court from the Supreme Judicial Court of Massachusetts
（42） Roscoe Pound, “The Place of Judge Story,” id., at 693.
（43） Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts (1870), Preface, at vi.
（44） Joseph Story, “Progress of Jurisprudence” (1821), supra note 36, at 209.
（45） Roscoe Pound, “The Place of Judge Story,” supra note 41, at 692.
（46） Charles River Bridge Case, 36 U.S. 420 (1837).
decision in 1830.（47） Facts of the case date back to colonial settlement times in Massachusetts. In 1650, the legislature of Massachusetts granted Harvard College the “liberty and power” to operate the ferry from Charlestown to Boston and receive profits from it until 1785. In 1785, Harvard College petitioned and was granted a charter to erect a bridge between Charlestown and Boston across the Charles River. In 1792, the charter was extended for seventy years, from opening of the bridge in 1786; at the expiration of the term, it was agreed that the bridge would belong to the commonwealth. In 1828, however, the legislature of Massachusetts incorporated another company by the name of Warren Bridge, for the purpose of erecting another bridge over the Charles River. The two bridg- es were close to each other: on the Boston side, they were only 50 rods (825 feet) away from each other; on the Charlestown side, 16 rods (264 feet). The complaint was that erection of the new bridge impaired the contract between the common- wealth and the proprietors of the Charles River Bridge. In 1830, an equally divid- ed Supreme Judicial Court of Massachusetts ruled that the new bridge did not impair the obligation of the contract, thus dismissed the complaint.（48）
The appeal came to the United States Supreme Court in March 1831.（49）
According to historian Charles Warren, if the case had been decided in 1831, with Chief Justice John Marshall still on the bench, it would have seemed probable that Marshall, Story and a majority of the judges who had heard the argument, had arrived at a conclusion in favor of Charles River Bridge and contrary to the final decision made in 1837.（50） This is because Marshall and Story had deliberat- ed their opinions on the notion of contract in 1819 in Dartmouth College v.
Woodward (1819).（51）
（47） Charles River Bridge v. Warren Bridge, 7 Pickering 344 (Mass. 1830).
（48） Charles River Bridge v. Warren Bridge, 7 Pickering 344 (Mass. 1830).
（49） Joseph Story Letter to Professor Ashmun (Mar. 10, 1831), 2 Life and Letters of Joseph Story 51 (William W. Story ed. 1851).
（50） Charles Warren, “The Charles River Bridge Case: Part I,” 20 Green Bag 284 (June 1908, No.6), at 294; Charles Warren, “The Charles River Bridge Case: Part II,” 20 Green Bag 346 (July 1908, No.7).
（51） Dartmouth College v. Woodward, 17 U.S. 518 (1819).
The Dartmouth College Case (1819)
The factual pattern in Dartmouth College is similar to that of the Charles River Bridge Case: a private corporate entity, Dartmouth College, granted by the English Crown a charter in 1769. In 1816, the legislature of New Hampshire passed laws to change Dartmouth College board of trustees. Plaintiffs, trustees claimed New Hampshire’s laws violated the United States Constitution by im- pairing the contract between private trustees and the Crown. Two related issues are the key for the Court’s decision: First, is Dartmouth a public or private entity?
If it is public entity, the legislature New Hampshire has the power and authority over it. This question is translated to a more technical question: what determines the character of an entity, by the act of incorporation or sources of funding? To this question, Chief Justice John Marshall answered: “The character of civil in- stitutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created.”（52） Second, if the act of incorporation was based a charter granted by the Crown, succeeded by the State of New Hampshire, what is the nature of a charter? To this question, Marshall’s answer is that it is a contract: “This is plainly a contract to which the donors, the trustees, and the crown, (to whose rights and obligations New- Hampshire succeeds,) were the original parties.”（53）
In Dartmouth College Case, Joseph Story delivered a concurring opinion. On both key issues, however, Story was in total agreement with Marshall. On the first question, Story tried to explain the difference between public corporation and private corporation does not lie in its incorporation, but its “foundation”―which he meant source of funding: “... strictly speaking, public corporations are such only as are founded by the government for public purposes...”（54）“If, therefore, the foundation be private, though under the charter of the government, the cor- poration is private...”（55） As if he had anticipated the Charles River Bridge Case ten years later, Story further stated: “But a bank, whose stock is owned by pri- vate persons, is a private corporation, although it is erected by the government,
（52） Dartmouth College v. Woodward, 17 U.S. 518, 638 (1819) (Chief Justice Marshall).
（53） Dartmouth College v. Woodward, 17 U.S. 518, 643-44 (1819) (Chief Justice Marshall).
（54）Dartmouth College v. Woodward, 17 U.S. 518, 668-69 (1819) (Justice Story).
（55） Dartmouth College v. Woodward, 17 U.S. 518, 669 (1819) (Justice Story).
and its objects and operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge, and turnpike companies.”（56） On the sec- ond question, Story’s view was equally unequivocal that a charter is a contract:
When a private eleemosynary corporation is thus created by the char- ter of the crown, it is subject to no other control on the part of the crown, than what is expressly or implicitly reserved by the charter it- self. Unless a power be reserved for this purpose, the crown cannot, in virtue of its prerogative, without the consent of the corporation, alter or amend the charter, or devest the corporation of any of its franchis- es, or add to them, or add to, or diminish, the number of the trustees, or remove any of the members, or change, or control the administra- tion of the charity, or, compel the corporation to receive a new char- ter. This is the uniform language of the authorities, and forms one of the most stubborn, and well settled doctrines of the common law.（57）
However, the Court was not able to reach its decision in 1831 on the Charles River Bridge Case. In March 1832, the case was still not decided. In his letter to Ashmun, Story wrote, “[i]n regard to the Charlestown Bridge case, I may tell you confidentially that we are greatly divided in opinion, and it is not certain what the finale may be.”（58） The Court was substantively changed by 1837, when it finally came to a conclusion of the case. Marshall died in July 1835, and Judge Johnson has died in August 1834, and Judge Duvall resigned from the Court in 1835.（59） A new Chief Justice, Roger B. Taney, was confirmed in the Senate in March 1836 and held the office until 1864. Nominated by President Jackson, Chief
（56） Dartmouth College v. Woodward, 17 U.S. 518, 669 (1819) (Justice Story).
（57） Dartmouth College v. Woodward, 17 U.S. 518, 675 (1819) (Justice Story).
（58） Letter to Professor Ashmun (Mar. 1st, 1832), 2 Life and Letters of Joseph Story 91-92 (William W. Story ed. 1851). Historian Charles Warren noted, “It seems that, as the Court stood in 1832, Story, Marshall and Thompson were in favor of reversing the decree of Massachusetts Court, McLean was doubtful as to jurisdiction, Baldwin dis- sented, and Johnson and Duval had been absent.” Charles Warren, 2 The Supreme Court in United States History 233 (1922), note 2.
（59） Charles Warren, “The Charles River Bridge Case: Part I,” 20 Green Bag 284 (June 1908, No.6), at 295.
Justice Taney. Charles River Bridge Case was the first constitutional case for the 1837 term in the Taney Court.
The Charles River Bridge Case (1837)
In Charles River Bridge Case, there was no dispute that Charles River Bridge was a private entity owned by private proprietors. The key was the second question in Dartmouth College Case: what is the nature of the charter granted to the Bridge? Is it a contract, as in Dartmouth College Case? Or is it something else?
Chief Justice Taney delivered the majority’s opinion.（60） Taney first distinguished the 1650 charter for the ferry and 1785 charter for the Bridge:
The exclusive privileges, if they had such, must follow the fate of the ferry, and can have no legal existence without it-and if the ferry right had been assigned by the college, in due and legal form, to the propri- etors of the bridge, they themselves extinguished that right, when they erected the bridge in its place.（61）
What the Chief Justice has rejected in Dartmouth College Case was its assump- tions of monopoly. So what is the nature of 1785 charter to the Bridge then?
Here the Taney Court did not reject the contract framework per se in Dartmouth College Case. “The charter to the bridge is a written instrument which must speak for itself, and be interpreted by its own terms.”（62） From there, the Taney Court translated the issue into a matter of rule of construction―how to inter- pret the charter. There, the Court incorporated recent English decision Stourbridge Canal v. Wheeley (1831), stated the principle that “any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public...”（63） The Taney Court went even further in recognizing the public
（60） Charles River Bridge Case, 36 U.S. 420 (1837). Kent Newmyer, “Justice Joseph Story, the Charles River Bridge Case and the Crisis of Republicanism,” 17 American Journal of Legal History 232 (July 1973, No.3).
（61） Charles River Bridge Case, 36 U.S. 420, 541 (1837) (Chief Justice Taney).
（62） Charles River Bridge Case, 36 U.S. 420, 544 (1837) (Chief Justice Taney).
（63） Stourbridge Canal v. Wheeley, 2 Barn. & Adol. 792, 793 (1831) (English Court of King’s Bench).
interest in regulating the market: “it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was creat- ed.”（64）“A state ought never to be presumed to surrender this power...”（65）
By contrast, Justice Story insisted his position in the Dartmouth College Case.
“No one doubts, that the charter is a contract, and a grant; and that it is to re- ceive such a construction as belong to contracts and grants, as contradistin- guished from mere laws.”（66） Despite his exhaustive examination of caselaw, Story missed the recent development of contract law in English jurisprudence, thus failed to see the significance of Stourbridge Canal v. Wheeley (1831). Instead, Story insisted the charter as if it were a private contract: “We are to give this act of incorporation a rational and fair construction, according to the general rules which govern in all cases of the exposition of public statutes.”（67） He took pains to explain the “The present, however, is not the case of a royal grant, but of a legislative grant, by a public statute.”（68）
The majority opinion in Charles River Bridge Case was a clear victory of notion of contract with what Gierke has emphasized in 1889, the Social. They decided not to follow Dartmouth College Case because the latter was based on the old no- tion of private contract. Justice Story, on the other hand, was defending the Old Republican ideals based on federalist philosophy.（69） The fight over contract vis- a-vis the Constitution did not end with Charles River Bridge Case. Conservative views came back, in 1905, in the infamous case Lochner v. New York.（70） It took the New Deal (1933-1936) to finally settle the debate and for the Social to tri- umph. During the same time, some of the Social Conservatives in Germany fell victims to the increasing popular fascism.
（64） Charles River Bridge Case, 36 U.S. 420, 547 (1837) (Chief Justice Taney).
（65） Charles River Bridge Case, 36 U.S. 420, 547 (1837) (Chief Justice Taney).
（66） Charles River Bridge Case, 36 U.S. 420, 588 (1837) (Justice Story, dissenting).
（67） Charles River Bridge Case, 36 U.S. 420, 598 (1837) (Justice Story, dissenting).
（68） Charles River Bridge Case, 36 U.S. 420, 598 (1837) (Justice Story, dissenting).
（69） Kent Newmyer, “Justice Joseph Story, the Charles River Bridge Case and the Crisis of Republicanism,” 17 American Journal of Legal History 232 (July 1973, No.3).
（70） Lochner v. New York, 198 U.S. 45 (1905).
The Code and Its Guardians
I have indulged in history while giving comments to something that is happening in China now. But history is not far from us. Social division, together with popu- lism, is on the rise in Western democracies too. Rule of law in some parts of Europe and America is directly attacked. If there are lessons can be drawn from history, for all of us, one such lesson has to be that a perfect code itself cannot help us very much. In Gierke’s Germany, there was no protection of constitution- al principles by an independent court of justice, which was considered by Gierke, to his credit, as a “fundamental deficiency.”（71） Today, we have the Chief Justice of China’s Supreme People’s Court openly denounces judicial independence.（72） If I can quote Justice Story again,
... the belief, from the first moment that I ventured into the deeper studies of the law, that the independence of the judges is the great bul- wark of public liberty, and the great security of property; and that the Revolution of 1688 would have been but a vain and passing pag- eant, a noble but ineffectual struggle against prerogative, if the tri- umph of its principles had not been secured by this practical means of enforcing them.（73）
To the true believers of codification in China: without its guardians, your code would remain helpless and powerless, and your efforts are noble but ineffectual.
（71） Gierke, “German Constitutional Law,” supra note 17, at 284.
（72）“China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince,” New York Times, Jan. 19, 2017, A8.
（73） Joseph Story, “Progress of Jurisprudence” (1821), supra note 36, at 209.
