CO885-(2-3) — Page 396

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C.O.885

3 PUBLIC RECORD OFFICE, LONDON

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Case Law, but also to improve the fabric of Statute Law, I would propose that it should be the duty of every Judge, at the close of encli Circuit or of each year, or at any more convenient periods, to report to the Government whether or not he had encountered any signal defeat of justice through defect of law, or whether or not his judicial experience of the year, or other prescribed period, had suggested any amendment of the law which appeared to be important. And inas- much as suggestion should work its way through towards action, amplifying, contracting, and cor- recting itself as it goes, and no one who suggests a law will quite know what he is about without drafting his Bill, I would further propose that each Judge seeing reason to suggest legislation should be authorized to employ one of the barris- ters of his Circuits (payable by a fee), to assist him in drafting such a Bill as he shall approve. to accompany his Report; and it would then be for the Government, with the assistance of its Law Officers, to decide whether such a Bill, or some other having the like object in view, should be introduced into the Legislature. And at longer intervals the substance of new law should he incorporated in the Code. Austin, when

answering those who object to a Code-on the ground that it is necessarily incomplete and cannot provide for all future cases, observes that "at all events existing law by a Code is given pure from particulars, whilst the comparatively small body of judiciary law formed upon it is

How far to hązant innovation.

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formed upon a compact and perspicuous whole, and may easily be wrought into it." (Austin's Jurisprudence, vol. ii, p. 1068). The facility of fusion would be, I should think, still greater if amendments or additions suggested by cases were to form themselves out of the cases as they arose under the hand of the Judge who encounters the difficulty or the want.

Whatever assistance may be derived from previous Penal Codes in constructing a new one, there are questions of penal jurisprudence demand- ing attention, which the precedents of other Codes will not suffice to determine. There are now available means and materials and evidence and experience which were not in existence when the American and Indian Codes were produced, and still less at the date of the Code Napoleon. Since those times there Is been much investigation and discussion of controverted questions; and in this country experience has accrued, especially. since transportation erased, which may well": suggest questions not heretofore propounded. At the same time it will no doubt be very important

to consider carefully what should be the limits to be observed in theoretic and innovating legis- lation,

Such legislation, even when plainly expedient, is for the most part impracticable in this country, because no innovation will be accepted by Parliament, however supported by authority, without much opposition and controversy; and