The improvement in the character of the legal profession, which Austin anticipates from codification, is an argument likely to be better appreciated by the laity than by lawyers. The words are somewhat bitter, and they are very sad when read in the light of his own life of unrequited labour". But most thoughtful men, whether in that profession or out of it, will admit that there is some truth in them.

The end or object of Codification. Savigny attributes to the different objects of the jurists who compiled the Prussian and the French Code a significant difference in the codes themselves". My endeavour is, at the present moment, to state some common object, not of codification here or there 13, but of codification in general: in considering, as I shall afterwards do, the means to codification, the writer's view must be a good deal coloured by the capabilities of the particular system in which he is most interested.

This common object, then, I take to be, the reduction. of the entire existing law of a state to a systematic form, and if I may use Austin's term1, a cognoscible bulk. Abrogation of existing law only enters into this object so far as it is necessary for the removal of obvious inconsistencies and superfluities, or admitted obsolete matter 15. Amendment, and a certain amount of new legislation, would also undoubtedly be required in order to reduce to system what has been hitherto unsystematised, and to supply the la

10 Ib. 703, 4.

11 See Mrs Austin's preface, pp. 4-11, &c.

12 System 1. §§ 21, 31.

13 See Austin 39. p. 685.

14 Id. Notes, p. 1060 and passim on this subject. I can find no better phrase than this rather ugly one. Our present English wilderness of matter is, I suppose, accessible, and most parts of it intelligible. But those by whom it is known as a whole cannot be very many.

15 Austin 39. p. 685, Notes, p. 1061.

cunae which a purely practical developement of law has been shewn to leave1. This is the difference which separates a Code from the best possible Digest, as I understand that word. It is very well pointed out by Professor Amos in his remarks on the New York Codes". Mere republication of existing law, even with an improved arrangement, is undoubtedly not all that is included in the idea of a Code. But, on the other side, I cannot help thinking that the claims of science and logic may be pressed so far as to exclude the chances of any Code at all. While I admit some of the objections of Professor Amos against a purely practical school of jurists, I neither expect nor desire to see practical considerations disregarded by any actual legislature.

The common object, then, of codification, which I am endeavouring to determine, appears to be a matter primarily of arrangement and expression, not of substantive reform. The one may lead to the other; for instance, the codification of our real property law might lead to an amendment of our law of settlement, the codification of our property law in general to an amendment of our law of intestate devolution. But the only necessary connexion of such amendments (or, on the other hand, of their deliberate rejection), with codification, would be the more clear and comprehensive view of present law which codification would afford to the nation and its legislative.

Want of provision for the future has been, as was observed above, a defect frequently pointed out in existing Codes. Such provision, though not a part of codification proper, seems to be its necessary appendage. In most human arrangements the greatest practicable amount of finality is

16 See above, pp. 262, 3.

17 An English Code, p. 96. See also, as to the function of a Digest, below, p. 390.

secured by affording reasonable facilities for gradual reform : but undoubtedly the best provision of the kind to which I refer is the original subdivision of matter according to a convenient and intelligible plan.

The means to the end.

In his consideration of this

part of the subject, a writer's views must, as I have said, be a good deal coloured by the peculiarities of his own particular legal system. The materials already to hand vary very considerably in different states. On the arrangement of those materials at present some general suggestions of a common character may be made. But that can scarcely be with regard to the equally necessary provision for the absorption or assimilation of similar matters in the future. I shall endeavour however as much as possible to speak of the questions as they arise on codification in the abstract, and are common to all modern nations.

All or none. According to an eminent author who has been cited above, the prior conception of the Code as a whole must precede any execution of the parts: otherwise, when at rue Code is composed, the whole of the work will have to be begun afresh. Quoting the language of the Jamaica Statute Law Commission, Professor Amos requires the operation so well described by them to be performed for the whole body of the law en bloc, or with the omission of only certain exceptional portions 18. Austin takes to some extent the same view in a passage where he inveighs against bit-by-bit codification. I think however that his requirements might be met by a preconceived plan of the whole system, without its being necessary for that whole system to be undertaken uno ictu1. It has also been suggested 20

18 Amos, An English Code, p. 13, 90.

19 Austin, Codification and Law Reform, pp. 1129-1131.

20 Sir R. K. Wilson, Modern English Law, p. 180. Mr Pollock's re

that an entire code might be produced as a private literary undertaking, with a fair chance of inducing the nation to demand and obtain something similar from their legislature.

It has been replied to the objections which have been urged in England against partial codification that the doctrine which they involve is fatal to the prospect of producing any Code ". In the instance in question, the argument was against the codification of part only of a branch of our law, and it must be admitted to have had considerable weight. But an objection to the codification of large branches or departments of law, until the whole were taken in hand, would certainly prove fatal to the production of a Code, except under almost revolutionary circumstances, in any modern country. With ourselves, at any rate, codification must be done in portions or not at all. There is no question as to the great desirability of a previous general scheme, whether public or private. But I doubt whether such a scheme would come to much more than the comparatively easy enquiry into what main departments our law can be conveniently divided.

A preliminary digest. Assuming that codification must with us, as I believe with any modern nation, be performed in detail, or at least by large departments, I come to consider next the necessary preliminaries for the performance. The first is, undoubtedly, the formation of a digest, including the whole of the existing law upon the subject undertaken, in one systematic arrangement. The comparative uselessness of a mere consolidation of statutes must be admitted, however welcome the work of consolidation has been, in contrast with still worse circumstances. It leaves that portion of the law, which is the most difficult of satisfactory ascertainment, unmarks on "Codification by private enterprise," (Essays, p. 113) bear on the more feasible scheme of Codification in detail.

21 See Stephen's Digest of the Criminal Law, Introd. v. vi.

C. J.

25

touched; possibly to constitute the main bulk of a system wherein the consolidated statutes will be merely an appendix. Being only part of the existing law, it cannot furnish a framework upon which future judiciary rules may be arranged. And its own arrangement, as that of an aggregate, will more probably exaggerate than diminish the disorder of its constituent parts 22.

The formation of a complete Digest is of course no easy matter; but as the difficulties of the task have already been surmounted, in a very important branch of our own law 23, it may be hoped that they would not prove insuperable with other cases, either in England or elsewhere.

The different materials to be contained in a Digest will now be separately considered.

Jus moribus constitutum. In the first place the whole of the customary or "common" law still in force should be included and systematised. Without some personal enquiry, which I have not been able to make, into the present working of the Continental Codes, I cannot say how far this is still a desideratum with them. Their intention has in general undoubtedly been to abolish customary law. But the occasional references to it by the Codes themselves, and its admitted application in several instances to matter not included in the Codes, appear to leave the subject still open 24. With ourselves the old theory of the independent validity of custom still remains; nor can I see much use in an abolition which has to admit very indefinite exceptions. The best practical mode of abolishing customary law is to absorb and express so much of it as appears to be actually observed, in a statutory form.

22 See above, pp. 261, 2: Austin 39. p. 681, 692, 693: Stephen's Digest, xvii: Wilson, Modern English Law, pp. 173-175.

23 By Sir James Stephen's Digest and History of English Criminal Law. 24 See above, p. 323.