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Chief Justice, in which he tells me that he has addressed a letter to the Hon. the Premier, respecting certain subjects connected with legal reforms, on which, at the Premier's suggestion, he had conferred with the Judges present at the late sitting of the Court of Appeal; and that he has intimated therein that I had prepared a memorandum of some length on those subjects, which I would forward to the Government direct. I have now the honor of enclosing the memorandum in question, and of intimating to the Government that if they approve of my suggestions, I shall be willing to undertake, as an initiatory measure, the preparation of a Bill for a Statute consolidating and amending the Law relating to the constitution,, jurisdiction, and procedure of the Supreme Courts (as stated in the Memorandum), on the principles and in the manner indicated in that document. I have, &c, The Hon. the Colonial Secretary. Alexandee J. Johnston.
Enclosure in No. 2. Memobandum on the Consolidation of the Statute Law of the Colony and the Amendment of the Peoceduee of the Supeeme Covet. Befeeeing to His Honor the Chief Justice's report of a conversation with the Hon. Mr. Vogel on the interesting subjects of the consolidation of the Statute Law of the Colony, and the improvement of the procedure of the Supreme Court, so as to render it more accessible, and its action less dilatory and expensive, I think it desirable to digest on paper a few remarks and suggestions with the prospect of further discussion. I feel as anxious as I know the rest of the Judges to be, to offer my best assistance to the Government, the Legislature, and the community, in any sober, intelligent, well-directed attempts to improve the law and its administration; and I should be well pleased if any efforts of mine connected with those branches of law reform to which I have had occasion for many years to pay particular attention could sensibly contribute to the attainment of those important objects. I assume that the real desire and intention of the Government is not to make political capital out of a hasty, crude, ill-digested series of pretended reforms, projected for the purpose of conciliating popular favour—but to grapple with those difficulties and objections and deficiencies which unquestionably do exist in our statute law and procedure, and which are within the reach of present remedy. Now, it seems to me that the first initiative step to be taken towards reformatory legislation is to discover what real grievances and mischiefs exist, what is their extent, what are their causes, and whether or not it is practicable at present to remove them. It is never to be forgotten that peoples with free institutions are always prone to grumble and find fault with tho practical operation and effects of them, and that it is not unusual to attribute to laws and regulations and systems, evils and mischiefs which would be more properly assigned to the ignorance, prejudice, negligence, and unreasonableness of individuals and classes. A greater and more common delusion than the possibility of establishing among a people advanced in civilization, a simple, plain, easily intelligible body of law and system of procedure, which " Every one who runs can read " without the assistance of expert students and practitioners, has never existed in the history of popular errors. It is hardly credible how many educated men there are who believe that the Pandects of Justinian and the five codes of Napoleon 1., and other modern codes, contain bodies of law selfinterpreting, and sufficiently plain and easy of comprehension to enable the mass of the people to know their rights and liabilities, and to conduct their legal affairs, without professional assistance. The works of Tribonian and his sixteen coadjutors —for which Justinian gets credit—though hasty and ill-arranged —were efforts of the highest professional skill, moulding the materials supplied by the experience and learning of thirteen centuries, made operative by absolute despotic legislative power, and intended not for the direct instruction of the people, but specially for the education of experts, became the law of the Empire only on the eve of its dissolution. The comments upon that body of law by the jurisprudents of those modern nations which have based their legal systems upon it, far exceed in bulk the limits of an ordinary English law library: and before half a century had elapsed after the promulgation of the codes of Napoleon—which even then did not by any means contain the whole of the law of France —they were overrun with comments; and the new laws passed during that period contained in the " Bulletin dcs lois " had substantially affected their text, and had gathered to a bulk bidding fair to rival that of the English Statute Book. Indeed, it seems probable that the very best modern specimens of codification of particular subjects, such as some of the recent Indian codes, although greatly superior, in respect of arrangement, simplicity, and clearness of expression, to the average statute law of England, will be found to be little more easy of comprehension by the general mass of the community than ordinary text-books now in use amongst lawyers. The Utopian ideal of a code intelligible without assistance by the whole body of the people must be dismissed as impracticable ; and it is an open question whether a complete codification of the whole Common and Statute Law is or is not desirable, if practicable. It is very clear, however, that the colony cannot expect to be able, under the most favourable circumstances, to undertake so gigantic a work for a very considerable period; and it would seem to be a great waste of its energies and resources, if, with its present scanty appliances, it were to embark upon portions of this enormous task which will probably be undertaken and carried out in England in respect to some important branches of law within a comparatively short period. There is one important branch of law peculiarly suitable for codification, namely, tho Law of Evidence, which the English Government has already undertaken to consolidate, after the example of Mr. Stephen's Indian Act ;* and it seems probable that some branches of the criminal law, both common and statute law, * Note. —I find that the Attorney-General, at the close of the recent Session of Parliament, withdrew this measure for want of time, announcing that, by the liberality of the Treasury, he had been enabled to employ Mr. Fitzjames Stephen in its preparation.
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