Montana Law Review
Decius S. Wade, former Montana Territorial Supreme Court Justice and Code Commissioner, delivered this address to the Helena Bar Association on April 5, 1894. The address came slightly more than two years after Wade, as one of the three Code Commissioners, had reported draft Civil, Political, Penal, and Procedural Codes to the State Auditor and slightly less than one year before Governor John E. Rickards signed the four codes as passed by the Fourth Legislature. Wade's address came just after the Third Legislature, split three ways among the Democrats, Republicans, and Populists and unable to settle on United States Senators, had failed to even consider the codes (or anything else of substance.) By some accounts, Wade's address played a major role in persuading Montanans to adopt the four codes.
Wade was a significant figure in Montana's legal community. Coming to Montana early in the territorial period from a relatively humble background, Wade served as Chief Justice of the Territorial Supreme Court for over sixteen years-- longer than any other member of that court. He authored 192 opinions, roughly thirty percent of that court's output, including many of its most important decisions. Wade also wrote several important articles on Montana's legal history. His address to the Helena Bar Association was thus a major event in the new state's legal development.
Wade does not break new ground in his speech - the arguments he marshals are largely ones articulated earlier by others in other states. Sometimes he acknowledges this, as when he quotes directly from Judge John F. Dillon's remarks to the American Bar Association in 1886; sometimes he does not. It would be surprising if Wade had been able to articulate original arguments for codification. The subject had been debated in the United States since at least 1811, when Jeremy Bentham wrote to President James Madison to offer to compose an American code. New York had just finished a decade of often bitter debate during the 1880s. That debate had involved two of the most prominent lawyers in America, David Dudley Field and James C. Carter, and their writings on the subject were widely circulated.
What Wade did in this essay is pull those earlier arguments together and apply them to Montana. In doing so, he helped persuade Montana to undertake a revolution in her statute law --replacing the volumes of session laws with four comprehensive and weighty (170 pounds, according to contemporaneous estimates ) codes. Moreover, Wade's position as one of the leading lawyers in the state, and possibly the leading lawyer, enabled him to speak with authority. Who better than the author of almost a third of the territorial court's opinions to speak to the coherence and utility of the statute law? Who better than a code commissioner to assure the public that the codes would not be a radical change? No other advocate of codification could speak with such authority on the subject.
As later events would show, Wade was over-optimistic about the benefits of codification, but his optimism was catching. Less than a year after his address the Fourth Legislature adopted the four codes in a whirlwind of activity. Perhaps the only excuse for that body's failure to consider the substance of the codes was their reliance on Wade's participation in drafting and selling the codes. When Wade told Montanans in this speech that "codification, as I understand it, was never intended to change the law," members of the legislature might be forgiven for believing him and neglecting to read the codes carefully themselves." Wade's address is thus worth reading today as the primary source that enables us to understand why Montana chose codification in 1895.
Andrew P. Morriss,
Decius S. Wade's Necessity for Codification,
Mont. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/173