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not be a more complete misapprehension. Austin emphatically repudiates any but the “ familiar and vulgar meaning” of the word “ person ” (Lectures, p. 362). “Things” he defines as “ such permanent objects not being persons as are perceptible to the senses” (p. 368). Can Sir James Stephen give a simpler definition ? “ Artificial” is one of the vague terms of disparagement to which people often resort when speaking of matters which they do not understand. Sir James Stephen's criticisms certainly do not proceed from so shallow a source, but I scarcely think he has done his opponents the justice of fully studying their views.
Again, when Sir James Stephen advocates re-arrangement, what are the advantages which he expects re-arrangement to procure ? Speaking negatively, he hopes thereby to dispel confusion. Speaking affirmatively, we may say that we expect thereby to make our language clear and concise. Sir James Stephen does not disclose his plan for accomplishing this object, but from the reference he makes to certain well-known localities, he evidently considers that the arrangement required is one of the geographical sort. In other words, it is to be one which proceeds, like an index, upon some external characteristic. Is not this a complete fallacy? Any arrangement which is to secure for us brevity and distinctness must surely be based upon the internal relations and distinctions between the parts of the Code itself, not upon any external peculiarities; in other words, it must be a scientific arrangement. A wellarranged code will be brief-Why? Because the subjects will be so grouped as to avoid the necessity of constant repetition. Its language will be clear-Why? Because the particular subject under consideration will always be clearly defined and distinctly kept in view; and our powers of expression are not rich enough to enable us to be clear unless this is provided for. Sir James Stephen speaks of “natural divisions," and gives, as familiar examples of
definite branches of the law, the law of procedure, the law of contract, and the law of immoveable property. Where will he place the law of contracts relating to immoveable property? Where will he place specific performance of contracts ? Sir James Stephen must answer these and many other such questions, or else he must abandon altogether so much of his proposal as relates to re-arrangement. Possibly some useful measures of law reform may be introduced without re-arrangement; but re-arrangement requires a plan, and a plan requires consideration—I venture to think a very long and patient consideration. '
I have examined the views put forth by Sir James Stephen with the care, and, I hope, with the respect due to his position as an eminent lawyer and legislator. I do not think he has either withdrawn or modified these views, though he has since expressed an opinion that the difficulties of codifying the law are at present practically insuperable. This may be true. But what I cannot admit is the intimation which seems to be given in the later essay, that the sole difficulty is the external one arising out of the necessity of passing the Code through Parliament. Sir James Stephen seems to think that if Parliament would only commit the work to one man, one man could be found at once to do the work. Here I differ from him. But I can at least claim the advantage, for my present argument, of Sir James Stephen's last statement of his views. It has been objected (by himself as well as others) that to postpone the Code, as I would postpone it, until a new system of legal education has been established and had its effect, would be to postpone it indefinitely. If, however, for any cause the work cannot be undertaken at present, at least there is time for the experiment of a new legal education to be tried.
I now propose to examine the views on codification and legal education of another eminent lawyer, Sir Henry Thring, as contained in a pamphlet (on the Simplification of Law) from
which I have already quoted; and I shall afterwards endeavour to throw some further light upon the relation between law reform and legal education, by reference to the views of other distinguished Jurists. Sir Henry Thring is a lawyer who has had great experience in drafting statutes, and no doubt well knows the difficulty of stating propositions of law in an abstract form, so as exactly to cover the ground intended. I have the greatest respect for experience in these matters, and though I differ from many of Sir Henry Thring's conclusions, I have read with pleasure and advantage this statement of his views.
Sir Henry Thring starts with a proposal to consolidate the statute law, but separately, as I understand him, from the common law; agreeing, apparently, so far with Lord Cairns, and differing from Sir James Stephen. He describes at length his process of consolidation, but I find very considerable difficulty in forming an idea as to what the process is, and what kind of transformation it is intended to effect. The change contemplated is certainly very considerable in extent. “There is a large number of statutes,” he says, (op. cit. p. 7) “which may be consolidated mechanically ; that is to say, mere scissors and paste will put together in a small compass a variety of sections dispersed over numerous Acts and divided by long intervals of time.” But Sir Henry Thring afterwards speaks of the codification of the criminal law by the Judges as one part of this same process of consolidation. This is, of course, not mere scissors and paste work, but what is it? Then magisterial law is to be dealt with by a “ Committee of law," a body somewhat similar in composition to the Privy Council; and who will also, therefore, not work merely with scissors and paste. And when Acts such as those above enumerated have been “simplified, abridged, and made consistent with justice,” then certain other Acts are to form the subject of learned disquisition and scientific arrangement. All this, as the marginal analysis shows, is comprised in the process
of consolidation. Sir James Stephen, as we have seen, thinks that consolidation means only “re-drawing and rearrangement.” Sir Henry Thring seems to consider that it also includes amendment to an extent only limited by the notions of justice of the consolidator.
The Reports, which I imagine Sir Henry Thring considers to contain the common law, are also to be “consolidated" in a manner “similar in some degree” to the Statutes. But any similiarity there may be will, I think, be found to be only superficial. As, however, the process here described is a very remarkable one, and as I am by no means sure that I fully comprehend it, I give it in the author's own words (p. 14) :
“ The living law must be separared from the dead, the useful from the useless. That will be done by expurgating the reports, on the principle of striking out every case that is obsolete or over-ruled, and omitting a vast number relating to the construction of eccentric wills and obscure agreements, involving contradictions and ambiguities which from the nature of things can never again occur in combination. Having thus arrived at the judiciary law in force, let us look closely into it, with a view to its systematic arrangement, and we shall find at once that the whole mass divides itself into two distinct classes of cases, that is to say:
"(a) Cases which in effect contain in themselves a substantive judicial enactment, or binding proposition of law, differing only from an ordinary enactment in that it is enunciated by a judge instead of by the Legislature.
“ (b) Cases which serve as illustrations of the mode in which an enactment, using that word as comprehending an enactment enunciated by a judge as well as one contained in an Act of Parliament, is construed and applied to the transactions of mankind.'
“For example, the negotiability of a bill of exchange was determined by a judicial decision, and this decision being followed, very soon passed into the domain of settled law, and when thus established, amounted to an enactment that bills of exchange should be negotiable. The decision in the case of Rees v. Warwick, 2 B. and Ald. 113, on the question whether a letter from the drawee to the drawer, stating · Your bill £ 100
shall have attention,' amounts to an acceptance, involves no general proposition of law, but establishes what may be called an illustrative proposition.
“Now, bearing in mind these distinctions, the reports should be subject to a double process. First, all important legislative cases should be published separately. These cases should be dealt with on the principle of • Smith's Leading Cases,' and be explained by numerous illustrative examples. At the same time a Digest should be formed, as a further step to dispensing with reports in extenso.
“ In preparing a Digest, judicial enactments should be carefully separated from illustrative propositions, or, in other words, substantive law should be divided from mere illustrations or examples of law.
“ Every judicial enactment contained in the Digest should be followed by an account containing just so much of the circumstances of the case which gave rise to that enactment as will enable the reader to judge whether the compiler has or has not accurately expressed the result. There should be added a reference to a sufficient number of other cases to prove that the decision was not an isolated one, but was constantly acted on by the Courts, and thereby acquired the consistency of settled law; and if the judicial enactment on any point be doubtful, the doubt should be pointed out, with a short summary of the conflicting cases on which the doubt is founded.
“ The list of illustrative cases stated in a Digest should comprise a reference to all the decided cases of any consequence; and here again a distinction should be made between leading illustrative cases—that is to say, the cases which stand on the debateable ground between two propositions, and mark their boundaries, and illustrative cases of less importance, which are mere repetitions of former cases, differing only in immaterial particulars. The former cases should be stated in some detail; the latter may be grouped under their appropriate leading cases, with either a slight notice of their circumstances or a mere reference to the reports where the cases are to be found.
" As all or any of these works are completed on any branch of law, rules of court should be framed restricting the quotation of cases in extenso to the published leading cases, and allowing the digest to be cited in support of any proposition in place of the cases themselves. By means such as these, the existing judiciary law would, in a comparatively short time, be reduced to a moderate compass, and the existing reports be relegated