would largely mitigate the evils of intermittent legislation, would not be open to the objections that have been urged against continuity of legislation. I should suggest that each House should pass a standing order to the effect that at the commencement of each session a list should be made out of all the bills before it which were not disposed of in the previous session, and indicating the various stages which they had reached. It should then be the duty of the Speaker of each House to declare all such business to be in the same position as it occupied before the recess, unless he should have received notice from some member that he intended to divide the House upon the question that a certain bill do not stand in that position. If this suggestion were adopted, I have no doubt that most of the business would be permitted to go on as a matter of course, and that it would be only in cases where a considerable change of opinion had taken place that an adverse notice would be given. Thus even if a bill were opposed, instead of having to go through four different ordeals, as stated by Mr. Wright, one discussion upon it would suffice, unless the opposition were successful, when of course it would be only right and fitting that the measure should be thrown out and commenced de novo. Such a course of proceeding would enable us to advance a step at a time, which is the English way of doing business. But in any case this much is certain, that we must do something to prevent the block in legislation that occurs at the end of every session. Our present system threatens the existence of the House of Lords, and I venture to think that the House of Lords is a better legislative machine than the House of Commons. If continuity of legislation, limited as I have proposed, were brought about, the House of Lords would feel itself justified in declining to pass crude and ill-digested measures in a hurry at the end of a session, and would defer their consideration until the following session, when they would have sufficient time to cast the bills in an intelligible and an accurate form. Any one who has to construe Acts of Parliament knows that it is perfectly impossible to understand them —in most instances a meaning has to be forced upon them. The result of the present system is that we get no legislation whatever upon most important but less prominent subjects, which have no popular feeling at their back; whereas, if we could proceed step by step with bills relating to them, members would at once bring in such

measures.

The CHAIRMAN (Mr. Joseph Brown. Q.C.).—I desire to say but few words in reference to the question before us. I may very safely, on behalf of the Society, express my thanks to Mr. Wright and Dr. Grece for their very interesting and able papers I confess, for my öwn part, I share the views which have been so clearly expressed by Professor Amos, because it appears to me that there may be some subjects with regard to which legislation may be improved by there being a drag upon the wheel. It is perhaps right that we should go on year after year, as we did in the case of the Catholic Emancipation Bill, until public opinion has been sufficiently educated on such questions. But there are other matters on which the public mind is ripe, and on which legislation is greatly obstructed by the rules that

now exist. It would, in my opinion, be a simple and appropriate remedy for the evil complained of, if, under the standing orders of Parliament, bills which have passed a certain stage-which have got through committee, or have passed their second reading-could be resumed at the same stage next session, subject to the power of the House to direct a contrary course to be taken with regard to them. The system followed at present by the House of Commons is much the same as though we were in the courts of law, in cases where judgment had not been pronounced in one term, to direct that the cases should be commenced de novo the next term. I need not say what inconvenience, delay, and expense would result from such a course in our courts of law, and I cannot conceive why it is adopted in Parliament.

CODIFICATION OF THE LAW.

Is the Codification of the Law of England Practicable, and if so, in what form? 1-By W. T. S. DANIEL, Q.C.

I

VENTURE to think that both these questions have, for all practical purposes, been sufficiently answered by the two Reports of the Law Digest Commission.

By the first report, dated May 13, 1867, the Commissioners unanimously reported in favour of the preparation of a digest comprising the whole body of the civil law in whatever Court administered, the criminal law, the law relating to the constitution, jurisdiction, and procedure of courts, including the law of evidence and constitutional law, considering the creation of such a corpus juris civilis for England practicable and desirable.

By their second report, dated May 11, 1870, after stating the steps they had taken, with the sanction of Her Majesty's Government, to obtain specimens of a digest upon three subjects -Bills of Exchange, Mortgages, and Easements-and that the gentlemen whose assistance they had had had laid before them materials of considerable value, and had enabled them to form conclusions as to the conduct of the entire work, the Commissioners stated that they thought it unadvisable to continue that mode of proceeding, and gave as their reasons that the examination and revision of those materials with that rigorous care and accuracy which would be requisite before they could lay them before Her Majesty as specimens of a digest of law, would involve considerable further delay and expense; while, on the other hand, they had satisfied themselves that those specimens would have again to be revised and perhaps recast 1 See Transactions, 1873, p. 219.

when the time arrived for inserting them as portions of a complete and systematic work. The experiment, however, had served an useful purpose. It had brought out very clearly the difficulties to be contended with, and the conditions under which the work must be executed. The Commissioners further stated their belief that the materials which had been thus collected might be made use of with advantage in the formation of a general digest of the law, and they agreed in opinion that the work of a general digest, based on a comprehensive plan and with an uniform method, should be at once undertaken. They added their opinion that a complete digest could not be executed without the assistance of the most highly-skilled persons whose services could be procured. The success of the work would depend on their efficiency. They must give to the undertaking the whole of their time and energy. And it was obvious that the services of such persons, and under such circumstances, could not be obtained without the offer of permanent employment and high remuneration. They therefore reported their opinion that it was expedient that a body of persons such as they had described (and not exceeding three in number) should be constituted, to be charged with the duty of executing the digest as a whole, being provided with the necessary means and assistance, and acting under such directions and control, either of Her Majesty's Privy Council or otherwise, as to Her Majesty should seem fit. This report was signed by eleven out of the twelve then acting Commissioners-the late Lord Westbury as chairman, Lord Hatherley, Lord Cairns, Lord Penzance, Mr. Lowe, Sir John Lefevre, Lord Selborne (then Sir Roundell Palmer), Sir Thomas Erskine May, Mr. (now Sir Henry) Thring, Mr. (now Sir Henry) Maine, and Mr. Reilly. The late Mr. Justice Willes appended to the report the following dissent: I respectfully dissent from the report for the following reason-Because fully agreeing that a firstrate modern digest of English law is to be desired (for professional use), I think it will when made after all be only a makeshift for a code, or rather a series of codes. Quite apart from the authority and example of so many other countries, which can hardly all be mistaken, a code is preferable to a digest in many points of view. A digest gathers and compiles what has been decided, or deemed to have been decided, and amongst other relics it will preserve the conflicts of Common Law and Chancery, and the rest; whereas a code must needs once and for all lay down uniform rules of justice to govern every court. Thus a code will swallow up at once mischiefs of detail, the instances of which would choke a digest. Moreover, a digest will be

even

limited to English reports and treatises, and so far as regards affairs peculiarly our own, such as real property, this exclusion of foreign systems may be tolerable enough; but as to mercantile and maritime affairs, there will be so much opportunity for choice and improvement thrown away. It seems possible that a really well-considered code, not restricted to a digest of our own jurisprudence, but embodying improvements suggested by a comparison of our own laws with those of other countries, might contribute something to a great object—the gradual formation of international mercantile and maritime laws.'

We must all feel that anything upon such a subject as reducing our laws into a compendious and accessible form, which fell from the lips or pen of Mr. Justice, Willes, is entitled to the greatest respect. But if he had been spared to see the realisation of so large a portion of the fruits of his most anxious labour, as the author of the Common Law Procedure Acts, 1852 and 1854, and as a hard-working member of the Judicature Commission, which has been effected by the Judicature Acts, 1873 and 1875, he would, we may be sure, have hailed with delight the removal of his first objection to the digest recommended by the Commissioners, namely, the necessity of preserving the conflicts of Common Law and Chancery. The anxieties of the leaders of the profession to protect suitors and the public against the possible evils of a radical change in the procedure and practice of our Superior Courts have not prevented the foundation being laid, and the establishment to a large extent secured, of a system which it was the aim of Mr. Justice Willes as a practical law reformer to have silently and imperceptibly, but surely to have brought about by the legislation which he influenced more than twenty years ago.

This delay, however, the public and suitors have perhaps no reason to regret, because the interval has afforded the opportunity for creating an opinion within the ranks of the profession itself favourable to the change, and which has had the effect of lessening the influence, and in the end overcoming the combined power manifested both in and out of Parliament of prejudice and privilege. Another objection,or class of objections, urged by Mr. Justice Willes, is founded upon the assumption that the digest recommended by the Commissioners must be rigidly confined to the law of England, as expounded by existing authorities; that it must, as it were, stereotype and thus perpetuate all existing anomalies, defects, and inconsistencies, and would be incapable of embodying improvements. Now I venture to think this is an entire misapprehension. I

apprehend it is quite consistent with the recommendations of the Commissioners, and it is expressly adverted to in their first report, that the correction and amendment of the law in every desirable form and to every desirable extent should, under the sanction of Parliament, go hand in hand with, and be made part of the process of the preparation of the digest, aud that when the proposed corrections and amendments had been sanctioned by the Legislature, they should be introduced into and form part of the digest. If a precedent were wanted for such an amendment of substantive law as I refer to, it is afforded by sec. 25 of the Judicature Act, 1873, and sec. 10 of the Judicature Act, 1875. The same system was, I believe, pursued in framing the digest of the laws of Canada. There remains the objection that there is a fundamental distinction between a code and a digest. This distinction was evidently strong, not to say insuperable, in the mind of Mr. Justice Willes, and this assumed distinction divides professional opinion at the present time. But now that the mischievous and irrational difference between Common Law and Chancery has been abolished-I hope for ever, and without danger of revival in any other form-(though I feel there may be some apprehension on the subject, seeing that the old names remain, and divisions appropriate to those names are created to which the old jurisdictions are attached)-and if we are justified in considering that correction and amendment of substantive law may under legislative sanction proceed hand-inhand with the digest and form part of it-it really appears to me that the distinction between a digest and a code is more nominal than real. A code speaks for itself without other authority, and its meaning is to be collected from the words in which it is expressed. Experience seems to show that no form of words which the ingenuity of man can devise is capable of providing for all time, past, present, and future; and as the future is continually giving birth to new circumstances, and bringing men into new relations with each other in every variety of form of which the social system is susceptible, the words of a code when to be applied to the future will be found to be inapt, and even when applied to the present may be defective or uncertain, unless a light be thrown upon them reflected from the past. And thus a code is in danger of becoming arbitrary and unjust if the interests of the future are to be forced into the rigid and inexpansive limits of its words, or if its words are to be expounded and perhaps expanded by the authority of cases which have arisen calling for a decision upon these meanings, and these