f decided at all, precisely as they would now is to say, by analogy to some rule in the Code, omitted from the Code, and therefore still e dictates of natural justice.*

posed by some that the greater part, if not the s perfectly new. Now, though the Legislature in the exercise of its supreme authority, create et of laws, yet every Code, of which we are ramed from the existing laws. The Codes of amed with the greatest care from the existing missioners have endeavoured to collect those own to our law, which are applicable to our nces, and ought to be continued ;† but, in = constitution under which they acted, they arious alterations and amendments which they to be adopted.‡

k Commissioners have so fully and so ably acticability and expediency of codification, that n from presenting their views in their own

," they say, "whether a Code is desirable, is n between written and unwritten law ;§ that en law written by the lawgiver, and law not tween law promulgated by that department of which alone has the prerogative of making the laws, and law not so promulgated.||

› render a definition of their relative rights a d ven an impossible task, and there, of course, a writt tion is not likely to be attempted; and because a titution is not thought desirable, written laws are su e undesirable. These reasons have no application try. We have no orders in the State; no classes of ing with each other. The will of the people eme law; that will is fitly expressed by their writt tion and their written laws. It should seem, ind no other fit expression.

There are those who argue that an

unwritten law i

The contrary

It can scar

irable to liberty than a written one. to be more consonant with reason. ght favourable to the liberty of the citizen that he overned by laws of which he is ignorant, and it be thought that his knowledge of the laws is prom being kept from print, or from authentic stateme

en form.

Whatever is known to the judges or the lawyers ten, and whatever has been written in the treat ers, or the opinions of judges can be written in a code.

It is no answer to say that nothing can be written, not be susceptible of different interpretations. Th ue. But, it is no more susceptible of different inte when written in a Code than when written in the R

S.

ed by the judicial tribunals, and which had er in legislative enactments, now forgotten, from ancient times, or in the consciences of he cases came before them. The decisions have been for ages preserved in writing. If time when they were held in memory alone, g passed. All that we now know of the law, itten records. To make a Code of the known , but to make a complete analytical and npilation from those records. The records w are in the reports of the decisions of the cords of the statute law are in the volumes That these records are susceptible of and arrangement, might have been assumed if we had no proof in our libraries, in digest e or less perfect, to which we daily resort nd instruction. The more perfect a digest e nearly it approaches the Code contemplated ion. In other words, a complete digest of common and statute, dissected and analysed, ons, and rejecting contradictions, moulded positions and arranged in scientific order, dments, and in this form sanctioned by the Code which the organic law commanded to people of this State. That this was possible en by what had been already done among

the law of other countries. The law of Rome, in the time of Justinian was, to say the least, as difficult of reduction into a Code as is our own at the present day. Yet it was thus reduced, though, no doubt, to the disgust and dismay of many a lawyer of that period. The concurrent judgment of thirteen centuries since, has, however, pronounced the Code of Justinian one of the noblest benefactions to the human race, as it was one of the greatest achievements of human genius.

66

France, at the beginning of her revolution, was governed partly by Roman and partly by customary law. The French Codes made one uniform system for the whole country, supplanting the former laws, and forming a model, by which half of Europe has since fashioned its Legislation. It should seem therefore, to be quite beyond dispute that a general Code of law is possible.

"Whether it is also expedient is a different question. One of the objections made is, that it is not possible to provide for all future cases. You may, it is said, stretch your foresight to its utmost limit; you may exhaust all the sagacity and ingenuity of the human mind, the future, nevertheless, is a sealed book; you cannot look into its unopened leaves, and, therefore, attempting to provide for what they contain is spending your strength in a vain and fruitless effort. This does not appear to be an objection of any weight whatever; because we cannot provide for all cases should be thought a poor reason for not providing for as many as possible. To render the existing law as accessible and as intelligible as we can, is a rational object; though we cannot foresee what ought to be the rule of law in cases yet unknown. To cast aside known rules which are obsolete, to correct those which are burdensome or unsuitable to present circumstances, to reject anomalies or ill-considered cases, to bring the different branches into a more perfect order and agreement, may be of immense value, though we cannot look beyond the present to make provision for what has never yet appeared.

"The objection, however, assumes more than should be granted without qualification. There are certain departments of the law, of which we may affirm, with perfect confidence, either that we have provided for every possible case, or that when a new case arises, it is better that it should be provided for by new legislation than by judicial decision. Thus, in respect to the Penal Code, it may be affirmed that every act for which punishment may be inflicted ought to be designated beforehand; that no man ought to be punished for an act not so designated; and that if any act should be committed for which society has prescribed no punishment, it may go for once unpunished, and a new law be made against other like acts in future. As to the Political Code, it must, by its very nature, cover the whole subject. And for the Code of Civil Procedure, it is enough to say, that when the first Report was before the Legislature, some of the members were troubled with similar fears about the want of provision for future cases, and, to satisfy them, this provision was introduced:-" If a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this Act, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice;" but no such case has ever yet arisen.

"If a case unprovided for could not arise under the Code of Civil Procedure, much less could it arise under the Code of Criminal Procedure. It may, therefore, safely be affirmed that there is but one of the five Codes-that is to say, the Civil Code-to which, with any semblance of justice, it may be made an objection that it cannot provide for all future cases. This Code is undoubtedly, the most important and difficult of all; and of this it is true, that it cannot provide for all possible cases which the future may disclose. It does not profess to provide for them. All that it professes is to give the general rules upon the subjects to which it relates, which are now known and recognised, so far as they ought to be retained, with such amendments as seemed best to be made,