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Updated: May 7, 2025
The man who writes a history without indexing it thereby shows his utter lack of the most essential requisite in an historian a knowledge of the art of codification. He also calls down upon his head the curses of every student who tries to use his book.
Second, provision should be made for relief of congestion in the Federal courts by modifying and simplifying the procedure for dealing with the large volume of petty prosecutions under various Federal acts. Third, there should be a codification of the laws relating to prohibition to avoid the necessity which now exists of resorting to more than 25 statutes enacted at various times over 40 years.
It is, however, probable that a general codification now would do harm, and there are strong grounds for contending that Case Law, with its capacity for growth and adaptation to new conditions as they arise and to unforeseen circumstances, is often more convenient and indeed more scientific than a code.
His friend Maine had gone to India in 1862 as legal Member of Council, and was engaged upon that work of codification to which he refers admiringly in the 'View of the Criminal Law. In November 1866 Fitzjames's brother-in-law, Henry Cunningham, went to India, where he was appointed public prosecutor in the Punjab. His sister, then Miss Emily Cunningham, joined him there.
The British barrister and member of Parliament looked upon codification as at best a harmless fancy. 'A jurist, Fitzjames sometimes remarks in a joke, which was not all joking, is a 'fool who cannot get briefs. That represents the view generally taken of his own energy. It was possibly admirable, certainly unobjectionable, but not to the purpose.
He gave unbounded religious toleration, and meditated a complete codification of the Roman law. He founded a magnificent public library, appointed commissioners to make a map of the whole empire, and contemplated the draining of the Pontine marshes. But his career was suddenly cut off by his premature death.
There is surely something more essential to a man even than his codification of himself in the final terms of philosophy. It is that kernel of personality which inclines him in this direction or that. It is this kernel of personality which turns him in the first place to philosophy, if he be a philosopher; or which makes him detest abstract speculation, if he is another kind of man.
Even so, it is a great work if we regard it from the proper point of view. It is, in the first place, a codification of Greek, and especially Athenian law, of course with those reforms and improvements which suggest themselves when the subject is systematically treated, and it formed the basis of Hellenistic, and through that of Roman law, to which the world owes so much.
He insists, too, upon the danger of dealing with certain branches of legislation, where the codification might tend to introduce into India the subtleties and intricacies of some points of English law.
To seem properly intelligent we should have to know about New Zealand's population, and politics, and form of government, and commerce, and taxes, and products, and ancient history, and modern history, and varieties of religion, and nature of the laws, and their codification, and amount of revenue, and whence drawn, and methods of collection, and percentage of loss, and character of climate, and well, a lot of things like that; we must suck the maps and cyclopedias dry.
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