• Had it been our duty to remodel the law, without any prescribed adherence to its ancient structure, we might have deduced a system of rules more general, consequently more compendious and more uniform, and apparently more scientific and practical. The execution of this duty would have been more simple and easy than it has been to digest systematically the existing body of criminal law; for whilst doing this requires an equal attention to method and arrangement, the performance is rendered more difficult by the further condition annexed, of retaining and embodying in the same system, not only the existing distinctions of the unwritten law, but also of consolidating a very considerable body of positive statute law; and thus, whilst it has been impossible that the completed work should exhibit the same appearance of scientific brevity, and the same scrupulous regard to order and arrangement, which might have resulted from a total re-modelling of this branch of the law, it has required greater exertion than would have been necessary to re-construct the whole. We cannot, however, but express our firm conviction, that the great advantages attending as close an adherence to the existing law as is compatible with removing obvious defects, very far outweigh any which would possibly be expected to result from a more extensive change; whilst the disadvantages necessarily incident to any experimental change in legislation are avoided. A written Exposition of the law, although necessarily involving a careful and laborious selection, correction, and preparation of the general rules in which it is embodied, comprises no further alteration than this-that what was before to be collected by the aid of precedent and analogy, is now to be judged of by reference to the written rule; the same sense is still attached to well-known technical forms of expression, and consequently all the benefit derived from the continued and familiar use of such expressions is retained. To the formation of new laws, which are to supersede an ancient system to any considerable extent, much inconvenience naturally attaches. In framing an entire new law, the temptation occurs to frame it in very concise, general, and abstract terms. It frequently, however, happens that the limits of so general a law are uncertain, and it is a matter of experience that great difficulty arises in their practical application, and that subsidiary supplemental laws become absolutely necessary for the removing of doubts.

'Whatever pains may be taken to render a digest of the law perfect, much must necessarily be left to judicial interpretation. A digest, or code, does not undertake to decide with certainty every supposable case; it establishes directory principles; it defines much that was before indefinite; it supplies imperfections, and removes inconsistencies; it effects, upon system and simultaneously with respect to the whole law, that which a variety of statutes has at different periods attempted to effect with respect to particular parts of the law. But it can never supersede the necessity for judicial construction, which rightly understood, and applied with certain limits, is not only necessary but beneficial.'

Many, however, are in favour of a code. They would have a work

work which should contain the whole of the written law entirely new cast, without reference to existing rules or decisions. The Code Napoleon is usually cited as the great authority on this point, an example in nowise applicable to our country, although we are perhaps fast approaching that state at which the Roman historian complained when he said, 'that the infinite variety of laws and legal opinions had filled many thousand volumes which no fortune could purchase, and no capacity digest.' Yet we doubt whether the remedy is a code. The Commissioners of New York, who are now entrusted with the preparation of a new embodiment of their laws, have made an excellent remark which is not enough considered by those who would commence de novo. Law,' say they, 'is the growth of time and circumstance. An original system of jurisprudence, founded on mere theory, without reference to national characteristics, habits, traditions, and usages, would be a failure. The science of government and law is progressive: new regulations spring from necessity, or are suggested by experience, and the application of the rules of justice to human affairs is constantly modified by the changing circumstances of human society.'

Whatever praise may be due to the Code Napoleon with reference to the circumstances under which it was framed, experience has shown that much is wanting to fit it to the complicated exigencies of such a society as now exists in France. It is often an ambiguous and imperfect enunciation of some incomplete rule which the courts have to adapt as they can to the requirements of the case. Indeed the most cursory reference to the numerous volumes of reports, and to the various treatises attempting to expound and apply the general maxims, will convince the most sceptical that such an example is rather to be shunned than followed.

No one in fact who passed in review our institutions, our commerce, and establishments, would be absurd enough to suppose that the whole of our laws could be compressed into some two or three volumes of abstract rules without leaving the greater part of the law to be determined subsequently by the Judges, instead of being settled beforehand by the Parliament. What has been often called the 'glorious uncertainty of the law,' would be ten times more uncertain than ever. The late Chief Justice Tindal, when Solicitor-General, pointed this out in a speech which he addressed to the House of Commons in 1828 :

'The commerce and establishments of this country are of such a nature that our laws must necessarily be of a complicated nature. A simple code of laws would answer well for a simple state of society, but if you wish to make your laws beforehand-if you wish that they should have a perpetual operation-then I say they must of necessity

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be of an intricate and complicated nature. Why, Sir, we have at this moment more law in a single turnpike bill than would be sufficient to govern an Indian territory under any of its ancient dynasties. And why is this? It is because we wish to leave as little as possible to the discretion of our Judges. Our laws are declared beforehand; and if society is so complicated that its interests cannot be provided for but by an extreme body of laws, there must be a class of men accustomed to explain them. Such a class is, under these circumstances, actually necessary for the benefit of the people, in order that the great body of them may not be distracted from their labours by considering the nature and operation of those laws which the complicated state of society has produced. The evils complained of are therefore rather the result of circumstances of the times than of the laws themselves.'

It is a remarkable proof of the wisdom of Dr. Johnson, that, in his Life of Frederic the Great,' he foresaw the whole difficulty of selecting the right medium in the enunciation of a written law. Speaking of the Frederican Code as being comprised in one small volume, and therefore only containing the rules to be applied in particular cases at the discretion of the judge, he observes that to embarrass justice by a multiplicity of provisions, or to endanger justice by reposing confidence in the administrators of the law, are the opposing rocks between which legislative skill has never yet found an open passage.

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The subject of law reform occupied a large portion of the attention of the meeting last autumn at Liverpool for promoting social science. Lord John Russell, the President of the Law Section, was carried away by the delusive notion of a pendious code. No one, he remarked, could doubt that it would be a great public benefit if our laws could be set forth in a clear style and contained in two, three, or four volumes of moderate compass; nor would any one deny that the first step to such a result should be the consolidation of the existing statutes, subject by subject, without material alteration. • But what,' he continued, 'I maintain is, that the mere enactment of such a consolidation, unless Parliament was determined to go further to repeal what is obsolete and supply what is defective, to condense what is dispersed and to place in lucid order what is obscure and confused-would be of little advantage.' This process, however expedient, would assuredly not lead to the condensation of all our laws, written and unwritten, in two or three volumes. His Lordship then proceeded to speak of the Code Napoleon and the Revision of the Laws of New York, and contrasting unfavourably our own proceedings, says that in each year we are at the beginning of the beginning. Is it not time,' he asks, that we should set about the task in earnest? I will venture to say that if four or five persons of competent qualifica

tions were appointed, they would in a few months make an actual commencement, and in a few years present to Parliament a complete code worthy of the country, simplifying and improving our laws on principles fit to be adopted by an enlightened age, founded on the solid masonry of our ancient legislation; nor can I doubt that such a work would be sanctioned by Parliament-not, indeed, without debate, but without any serious delay. Is it possible that Lord John Russell can be serious in his belief that, in a reformed House of Commons,' a code entirely remodelled could be passed in ten, nay twenty years, by a House containing above 100 lawyers, numerous county magistrates and chairmen of quarter sessions, and lay members under the direct influence of their attorney constituents? What has been, we may inquire, his own experience with respect to the passing law bills through the House without cavil or delay? Has he not found that, since the Reform Bill, it is most difficult to effect any change in the law without the risk, approaching to a certainty, that the alterations and interpolations will make the remedy pretty nearly as bad as the disease? Has not he found the difficulty increasing session after session? Does he think he could now even carry those criminal law bills which, to his great credit, he introduced at the beginning of this reign, when he abolished the punishment of death for some thirty or more offences ?- —a merciful change, which forms the earliest and the brightest page in the statute-book of our Queen. Sir Robert Peel foresaw the increasing difficulty in a reformed House of Commons of passing any well advised measure of law reform on any subject which trenched on the prejudices or the interests of a large mass of the community. Will a reformed House of Commons, he asked, when the scheme for amending the representation of the people was under discussion, pass a bill for the general registry of deeds? and when reform came, the Whig Ministry never ventured to introduce the measure, though a fruitless attempt was made by Mr. William Brougham, with the sanction and partial support of the Government. If, therefore, we are to take his speech at Liverpool as the test of his notions on the subject, we think that the views of Lord John Russell are not matured, and betray some discrepancies. If, however, his meaning substantially is, that we should step by step get our statutes consolidated and simplified, our Common Law revised and made consistent with the exigencies of our time, obscurities removed and defects supplied, he has our most cordial concurrence, and as the subject is more discussed, and the evil becomes more apparent, we have little doubt that our progress will be quickened.

In the account which was given by Lord John Russell at Liverpool of the reforms made by the revisers of New York, he scarcely stated their proceedings accurately; and we are the more particular on this point because we think that this American precedent affords us an example which we may be content to follow, especially as the laws of the state of New York were in the main the same as our own. It would seem that the task was begun as far back as 1801. In that year the statutes were in a rough way revised and 'consolidated." No legislative sanction was given to the work, nor was it anything more than an edition of the statute law then in force, arranged under suitable heads, and without alteration of language. In 1813 a similar process was gone through. About 1825 the first attempt was made to produce such a digest as now exists. This was formally enacted by the Legislature in the course of two special sessions devoted to that purpose. There have since been three new editions of this code, in which the effect of subsequent legislation has been incorporated; but these new editions have not been enacted, and have, we understand, no further authority than is derived from the character of the editors.

A more complete code is now in contemplation; and an Act was passed in April, 1857, appointing Mr. Dudley Field and two other persons to reduce into a systematic code the whole body of the law of the state, or so much and such parts thereof as should seem to them practical and expedient, excepting practice and pleading already reported on. The commissioners are to divide their work into three portions, are to hold their office for five years, and to send in a report from time to time to the Legislature with a general analysis of the codes projected and an account of the progress made. When any portion is completed it is to be distributed amongst the judges and other competent persons for examination, after which the commissioners are to re-examine their work, and consider such suggestions as may have been made to them. The code as finally agreed upon is to be circulated more extensively for consideration six months before being ultimately presented to the Legislature. The commissioners have already made a short introductory Report, containing their views of their task, in which they show that they are fully aware of its magnitude and difficulty, and have submitted their general analysis of the proposed code to the Legislature. The day we think is far distant at which such an attempt at a systematic digest will be commenced in this country. Following the example of New York, we must proceed step by step, and must begin less ambitiously than Lord John Russell proposes. When the attempt is made we shall at least