CO885(2-3) — Page 395

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found in the other; but as to English Common and Matute Law there can be little doubt that it was taken account of more or less in the Indian Code at least (for it was in force within the jurisdiction of the Chartered Courts, though not in the Motussil), and probably also in the American. And as to our judicial decisions, in so far us English principles were adopted, they would probably be consulted for the purpose of enlarging, com- tracting, or rectifying the provisions of the Statutes and supplying some defects of language or of substance. În each of these Codes, however, a new scheme of Penal law was adopted, and one which may be conceived to have thrown out as alien or superfluous the far larger portion of our

Case Law. And, indeed, the value of Case Law in Case Law more valuable in civil

than is criminal jurisdiction. criminal jurisdiction seems much more question- able than its value in civil jurisdiction. In civil jurisdiction the precise definition of legal rights in every aspect in which they have been known to present themselves is of much importance as averting litigation by supplying the parties with a foreknowledge of what would result; and as far as the public weal is concerned the great object of law in civil jurisdiction should he to avert litigation. Whether A. or B. is to have the enjoyment of a given property, the sum of enjoyment is presumably the same, and the public weal is not affected one way or the other; whereas it is greatly affected if litigation takes place, and both A. and B. are subjected to the expense and trouble and the anxiety and vexation

How Far Criminal Case Law may le supplanted and State Law improved by current conditica tedi and the process when by.

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commonly connected with it, which, so far as the public weal is concerned, is a pure subtraction from the enjoyment to be derived from the property in dispute. But in criminal jurisdiction, and especially in criminal jurisdiction where there is a Public Prosecutor (and no one could now think of constructing a Penal Code without a Public Prosecutor), the question concerning Case Law is widely different. In the first place, Case Law is no longer required in these times for the purpose of restraining corrupt or arbitrary Judges. Criminal Judge in these times may be trusted not to strain the law against a prisoner, and-com- monly the more free he is left to administer justice the better will justice be administered; and if so, the language of à Criminal Code should be large, so as to give the Court a free power of ~ interpretationu od koe; and it may be a question whether, if periodical revision, correction, and amplification of Statyte Law were to be duly provided for, any Judge of a superior Court should be bound by the deciŝious of his prede cessors that is, whether there should be any Case Law at all.

I believe that some Codes have aimed at the abolition of accruing as well as of existing Case Law, but with only partial success; and this may

be owing to the omission of what has often been contemplated by Jurists, but nowhere, I think, hitherto effected, a process of current codifica- tion to proceed pari pussu with the occurrence of With a view not only to dispense with [251

C

Case.

PUBLIC RECORD OFFICE

Reference :-

THEPLIC.O. 88

.885

3 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO