at this moment deploring the loss of a judge, whom some might venture to compare, not disadvantageously, with his greatest predecessors in the Court of Chancery, who not only illustrated, by his bold and farsighted decisions, but acknowledged, in express terms, the progressive and alterable character of English rules of Equity 63.

A moral meaning of the word clearly survives in some of what are called the maxims of Equity, e.g. that “he who seeks Equity must do equity," "he who comes into Equity must come with clean hands," &c. Here, however, that reasonable modification of existing law which I take to be the pervading idea of the word in foreign, if not now in English, jurisprudence, seems narrowed to something like what was once expressed under the name of conscience+.

65

The recent statutory adoption of the principles of Equity into our Common Law Courts may undoubtedly be understood as simply extending the sphere of those rules which had been developed in the Court of Chancery up to the date of that adoption. It is conceivable, however, that a wider view might be taken of that "fusion" from which so much was once anticipated. The distinct tribunal, which has constituted one of the principal differences, to our disadvantage, between English Chancery and Roman Praetorian law, is done away with, but not by a return to the system which rendered that distinct tribunal necessary. It has been shewn above that equity in the wide sense is a property as desirable for one court as for another, in fact for any good jurisdiction or judicial legislation whatever. Only, it is a property which has been hitherto more sparingly exercise by our

63 The lamented Sir George Jessel. Division, p. 710, In re Hallett's Estate.

64 Above, p. 375.

€5 By the Judicature Act 1873.

66 Austin 35. 619, 620: 36. 636.

See Law Reports, 13 Chancery

67 P. 370, especially note 32.

Common Law courts. It is not necessary here to recount the historical reasons for this fact. One or two, however, may be added to the list of those generally alleged, which it is to be hoped will now cease to exist. The theory that our Common Law is something pre-existent, declared or evidenced but not made or developed by judgements, may not have exercised much influence, but such as it has exercised has been against improvement. The reference, not merely to precedent, but also to general principles, which has characterised our Courts of Equity is no doubt partly due to their freedom from this theory. Again, such improvements as might have resulted from our Common Law Jurisdiction, at least under modern requirements, in spite of that theory, have perhaps been checked by the fact that there was a power elsewhere to whose special function they belonged. If all our courts alike come to admit the principle of reasonable modification, recognising that law is a matter of growth, progress and self-adaptation to changing requirements; while there is very little fear of indiscretion with so conservative a body as our bench and bar", the chances of improvement by judicial legislation will be greatly increased. The fault in form, of this legislation, will of course remain and constitute a sensible difference from the statutory law of the Roman Praetor". This fault, however, together with that of piecemeal and unsystematic accumulation", belongs to case-law in general, and is considered elsewhere".

68 See Austin 36. p. 636.

66

69 See the words, almost identical with these, of Lord Coleridge, in the Queen v. Ramsay and Foote, on what is now a 'blasphemous publication.” (Times newspaper, Ap. 26, 1883.)

70 As to the control exercised on judicial legislation by private lawyers, see Austin 38. pp. 666, 7.

71 Austin 36. p. 637. Also above, pp. 208, 210.

72 Which Austin, ib. p. 639, considers to belong to the Roman Equity equally with our own. 73 Above, pp. 259–262.

I have not thought it necessary to survey in detail Austin's comparison of Roman Praetorian and English Chancery Law. Some of the differences which he notices are removed by the recent Judicature Act; others, e.g. as to subject-matter, might be so obviously anticipated that it is scarcely necessary to mention them.

CHAPTER XVI.

CODIFICATION.

Treatment of the subject. In this last Chapter it is not my intention to follow Austin' very closely. Almost half of his lecture on codification consists of a comparison of statute and judiciary law, a subject upon which I have spoken elsewhere. The remaining part of this lecture is employed in answering certain objections to the idea of codification in the abstract. His suggestions, many of them very valuable, for the practical carrying out of that idea, are to be found rather in the Notes on this subject and the short Essay printed at the end of the Jurisprudence.

For a

It does not appear to me that the objections referred to require very much notice here. Some belong to the controversy between the admirers of statute and of judiciary law; and others are now almost obsolete. majority of jurists, and a large proportion of practising lawyers, have long been of opinion that codification is not only expedient but is gradually becoming practicable also.

The objection, of Hugo and others, that it is impossible and undesirable to provide, in a Code, for every case that

1 Lecture 39: Notes on Codification (pp. 1056-1074); Codification and Law Reform (pp. 1129-1137).

can arise, is merely an objection to bad legislation. It is perfectly possible for statutes to be drawn comprehensively, so as to include genera rather than species of cases3. As a matter of fact, the multiplicity of separate provisions. upon points with no material difference between them, springs in general from that disorderly accumulation of past times, which a Code purports to arrange or remove1. For the attainment, however, of the generality here spoken of, it scarcely appears necessary that the "whole field of law" should be taken in view". But this is the question of codification by divisions of law or in toto, on which I have to speak hereafter.

The alleged failure of the French and Prussian Codes" is certainly a matter upon which there are two opinions and instances of codification have occurred, in America, in our own dependency of India, and in Switzerland, which have been a decided success. Two main faults, however, appear to have been committed by the compilers of the two first-named Codes, for the avoidance of which a modern legislator might advantageously profit by their experience. The terms and principles of the old law are assumed and referred to but not defined: while for the supplementary law, judiciary or otherwise, which is sure to be required, there is no provision, or at least no adequate provision, for working such law into the Code'. Ignorance of Roman law, and hasty performance of their task, whether on the part of the French or German codifiers, are no arguments against codification in general. Nor does there seem to be any serious weight in the other objections of Savigny or Hugo3.