Of the objection drawn from the ex

2. The first argument specifically advanced against the codification or reduction of our laws to writing, may be

State of the English Laws of Real Property, with the outlines of a Code." The Code Napoleon is the model which that gentleman has fixed upon for the one he proposes; whilst for the Code now recommended, that model, for the reasons hereafter given, has been rejected. I am not making these remarks in the spirit of criticism; the display of which would be as uncalled for as it would, on my part, be indecorous: but when others, in directing their batteries against this gentleman's system, seek to involve me in the same common fire, the necessity of separating the two systems, and showing that mine must be tried upon its own peculiar grounds, becomes indispensable.

But though it is neither necessary, nor my inclination, to enter into the abovementioned controversy, I may be allowed to make a remark or two upon the following passage in Mr. Sugden's letter. "The reply dwells with great satisfaction on Mr. Hammond's statement, that Owing to the quantity of materials to which our unwritten system has given birth, we are, beyond any other nation, in possession of means for framing a written Code. General rules never can be laid down accurately at first. Experience only can point out their proper qualifications, limitations, exceptions, and relative bearings. This experience we possess in the volumes of judicial controversies to which the unwritten system has given birth.' But you can hardly be aware of Mr. Hammond's sentiments on this subject. If I mistake not, you and that gentleman would differ toto cœlo in the proposed work. You would form a new system, depending upon general rules, which, although they can never be laid down accurately at first,' you would comprise in some fifty pages of letter-press, whilst he would, in many a folio volume, digest the old system, and from it extract his rules. The nature of the task, as Mr. Hammond would execute it, may at once be collected from the digest already published of the criminal law, which, of course, he would not rank higher than any other treatise on the same subject written by any other intelligent lawyer. But the criminal law may, for obvious reasons, be safely re-modelled by Parliament, whenever it may be thought expedient to take that step."

Now, upon the observation-"The nature of the task, as Mr. Hammond would execute it, may at once be collected from the digest already published of the criminal law, which, of course, he would not rank higher than any other treatise on the same subject written by any other intelligent lawyer:"-after expressing my serious doubts that any such information can be so collected, and the propriety of which doubts will appear when the occasion offers for entering into the details of the measure, I beg to observe, that the comparison cannot be instituted, for there is no work of the same description extant in the profession. The perfection of science lies in referring particular facts to general principles, and these again to principles of a still more general nature. A digest, therefore, to be perfect, should consist of conclusions of the most general nature, drawn from wide observations of particular cases. And this course, beyond doubt, every considerable writer would be willing to follow, were he at liberty to pursue the bent of his natural genius and inclination. But it unfortunately happens, to the infinite prejudice of legal works, that the writer designs, not so much what the dignity of his subject requires of him, or the general taste of those he would most wish for his judges approves, as what the practitioner demands. For legal works are written to be read by lawyers; now, the practice of the law is conversant about particular facts, which, again,

other Codes.

stated thus: The end which the Code proposes to attain perience
is, that by reducing the law to writing you reduce it to a
certainty and completeness, and thereby cut off in many
cases, and diminish in all, the sources of litigation. But
experience has fully established, that so far from dimi-
nishing litigation, a written Code is emphatically the
parent of uncertainty and doubt. The controversies,
commentaries, and discussions, to which the Code Na-
poleon has given birth, already form a considerable library.

But it having been shown that between the Code Napoleon, and that which it is proposed to establish, there is no sort of analogy, the argument falls to the ground. The Code Napoleon has been a plentiful source of litigation, 1. From its not having so framed its general rules as to include no cases which ought to be excluded, and to omit no cases which ought to be included; 2. And from not having defined the meaning of its terms. That in

are regulated, not by an abstract rule of right, but by the positive authority of decided cases, or the more positive authority of Acts of Parliament; and the consequence is, that no men are less addicted, and have less taste for generalization, than practising lawyers. Hence a writer, to be successful, is compelled to avoid abstraction and generalization. Moreover, to a practitioner, it is immaterial to know by what steps the system attained its present form. Historical disquisitions, therefore, in legal writings, are regarded as impertinent intruders. And equally unimportant to him is it to be certified whether that system be right or wrong; since, however erroneous, stare decisis is the maxim. Critical dissertations, therefore, are regarded in a similar light. For these reasons it has come to pass, that there is nothing extant which fully and sufficiently makes us acquainted with the principles of that system we are about to reform; and to supply this deficiency, and as a branch of the proposition for reducing the law to writ ing, the digest, to which allusion was made, has been, with infinite pains, prepared.

As to estimating myself the merits of my own performance, I, of course, should be the last person so to do, or even to adduce any testimonies of others of which I may happen to be in possession. But should any gentleman think it worth his while to examine its merits, he will, of course, deem it a sine quá non to make himself thoroughly master of the mode in which it is proposed to reduce the law to writing, (a task perhaps impossible, until the details are exhibited, and those principles ascertained upon which the general rules have been constructed,) and then view my performance as a mean to that end.

of

Of the objec

tion that a re

an unsettled state.

contemplation, 1. Promulgates the law in the shape of general rules, so framed as to accomplish those objects; 2. And, by defining the meaning of those rules, interprets them.

3. Should it be objected, that, by reducing the law duction of the to writing, you place it in an unsettled state;-the law to writing will place it in objection can apply to those Codes only which substitute a new law for that which governed before. Laws are in an unsettled state, when it is not settled, 1. What the meaning of their language is; 2. To what cases they apply. And a system, therefore, which, like that in contemplation, avails itself of those assistances that daily observation and experience afford, to render laws more certain and complete, so far from unsettling those laws, emphatically does the reverse.

SECTION 4.

Of the Benefits which the Code now recommended will confer, and the Evils which it will redress.

THE nature of these has been sufficiently explained already.

SECTION 5.

Concluding Observations.

SUCH, then, are the general outlines of the Plan for the Reduction to Writing of the Criminal Law of England. A measure which, however important in itself, as unquestionably it is, is chiefly to be prized as the parent of the Codification of our Civil Jurisprudence. For every thing advanced in favour of the one, has an equal application

to the other; and, as the great guide and director of our daily concerns, the path which the civil law is destined to point out, should be rendered as lucid and unavoidable as human intelligence can make it. And though no system of jurisprudence will ever reach a state entirely perfect, yet the experience, observation, and reflexion of every succeeding year, will advance it the nearer to that point. It may be a sufficient incitement to human endeavours, that the system now recommended, if its principles are admitted to be just, will, in its very outset, far surpass any that has ever yet been established in society; without pretending to bestow upon any work of man that perfection which Nature seems to have refused to her own productions.