The Sun.
London, England, 1864-09-24 00:00:00

commercial community of the world has surely called for
the destruction of as much that was old and useless as the
creation of what was new and requisite. What have been
the means employed to this end ? With rare exceptions,
nothing but the judicial power. It has been left to the tri-
bunals themselves so to mould old principles into new forms
as to make them subserve modern uses. The law lying in
no fixed code, but only in tradition and the records of its
own application, was capable enough of being bent to new
purposes and fashioned to:new ends; and administered by
powerful minds with great labour, and a body of men drawn
from no particular or favoured class, the structure has been
raised, chiefly within the last century and a half, of which we
may well be proud. But this fabric, like the political con-
stitution of this country, has been a thing of very gradual
growth. If any ono doubts this, let him ask himself
with what success he would be likely to search the year
books or the pages of the old reporters for any authority
in support of nine out of ten of the decisions to which a
single term now gives birth. Let him ask himself with
what probability of success ho would search in the history
of remote centuries for the incidents and combinations which
now daily ask for judicial solution. Land, it is true, still
exists, but how occupied an' enjoyed ? under what relations
and conditions ? to what ends and purposes, as contrasted
with feudal days ? Such reflections as these serve to show
how great a change must have passed over our judicature.
A few further reflections may tend to show with what in-
evitable defects. In saying this, lam far from the sugges-
tion or belief that this gradual progress of the law, built up
on old foundations, resting step by step on precedents
reaching far back into remote antiquity, and thus bringing
up to the surface the experience and wisdom of past gene-
rations, was altogether faulty in system, or void of invalu-
able features. It had, however, this capital defect, that the
powers of the courts of law were constructive only; under
the name of adaptation theycould practically create ; under
no name could they destroy. But it was not enough to
create, power was needed to abolish; it was not enough to
build, unless timely clearance could be made of the ruins
and rubbish of past structures. Here it is that in my
opinion the system has broken down. This defect it was
that choked the access of justice with empty forms and
worn:out expedients, and induced those vices of procedure
which the labours of the law reformers of the last 30 years
have scarce sufficed to remove. And this it is which still
affects the body of nar laws thpmgelveg, binding our real
property in the clogs and shackles of feudal rights, and
tainting the laws of personalty with analogies largely drawn
from the same extinct system. Yes ; the life, the body, and
even the spirit of the feudal system has passed away, but
the armoury of its weapons and defences is still cherished
in-our halls of justice. Let us examine our English system
of law-making a little closer and observe the inevitable
process. Did a new position arise for which the jurist had
no precedent, analogy was resorted to. If no near analogy
was at hand, a more distant one was sought ; if none
found in the region of similar rights, a more remote
one taken from a different class or branch, was often
brought forward and bent, perhaps distorted, till it
served the end. It might perhaps have been better to deal
with a new class of cases as avowedly demanding an appli-
cation of law, for which there was no precedent; and this
has been sometimes, though more rarely, done. But it must
be borne in mind that the courts at 'Westminster had, in
strictness, no power 'to make the law, but only to declare
it. They had no alternative, therefore, between declaring
the voice of the law to be absolutely silent, and adapting its
recorded oracles, such as they were, to the case in hand as
beat they might. And thus the law has grown, professedly,
indeed, drawing its decisions from its own inexhaustible
stores, but in reality framing, adapting, creating as it went
along. From this method both evils and benefits have
flowed of a sufficiently remarkable character. It is no small
benefit that, in a fresh application of legal principles to a
new class of cases, there should be apparently mingled the
element and the sanction of time. The decisions of the
Courts being avowedly nothing more than enunciations of
the pre-existing law, though in reality new determinations
framed upon old principles, carry with them the veneration
of tradition, while they embody the spirit of the time. It
is another circumstance of value that the changes effected
are gradual, and while they do not anticipate, yet keep pace
with the necessities of the day, Further, when any new
subject engages the attention of the Courts, it is the pecu-
liar feature of this system that each step ;s taken separately,
never exceeding the particular circumstances of the case or
aiming at generalities. Thus tho law falls into shape as the
subject becomes familiar; opportunity is given by the suc-
cession of each fresh example for contrast and reconsidera-
tion ; the direction first taken is followed out, modified, or
even reversed ; limitations and qualifications make their
appearance, and something like a general rule at length
emerges, well suited to the actual exigencies from the ex-
perience of which it is drawn, If this is legislation, it is
legislation of the best kind, for it is framed by those who
have no popular interests to support or collateral ends
to attain, and who bring to the task carefully-trained in-
tellects familiar with the subject in hand. The evils of
the system are, perhaps, equally apparent. Invested with
a power larger than avowed, the tribunals may be said to
have too much or too little confided to them. If they frame

new applications of the law they are obliged to do so on old
models only, and administer them under old forms. Tied
down by the f ast, they are too little set at large to work out
entire justice. Working in the trammels of tradition, they
are driven to the resort of legal fictions. Founding all de-
cisions on precedent, they are circumscribed and limited by
the analogies on which their decisions are founded. The
broad rile of:right is but too apt to suffer in such circum-
stances, and full justice must needs be at times shorn down
to obtain a footing on precedent. But the worst feature
attending a law purely traditional is its incapacity to obli•
terate. Tradition is the expression of permanence—and if

it perpetuates truth it also embalms error. It renders what
is really obsolete unquestioned because it is familiar, and

fences it from attack by giving it the immunity of age.
Thus it is that many of the positions of our law pass with-
out inquiry, though their justice might well be challenged.
Now, let us compare this system of law .making with the
more comprehensive system of a code adopted inmost other
countries. The attractions of the code are obvious, and its
faults not so apparent. The object of both is alike to form a
permanent frame for the action of justice. The chief point
of contrast lies here—the framers of a code propound their
principles in accord with justice, and casting about in their
minds to imagine the possible cases falling within them, ad-
just them accordingly, giving them expression in elaborated
rules. The English system framesno rule in advance, looks
backwards in place or forward, and substitutes the actual

experiences of the past fot the possibilities of the future.
True, the future is not provided for in the latter, except so
far as principles are gradually evolved, which make solution

. .
not difficult or unexpected when the case arises, whereas
the former professes to make such provision. But is this
provision ever made with success ? Does any code really
offer a text, which, when applied to the circumstances of an
individual case, at once, and without reasonable doubt, de-
cide it ? Let the innummerable decisions on some of the
most celebrated codes answer the question. Take the Or-
donnance de la Marine of Louis XIV. How simple and brief,
and apparently plain the text. Yet who ever read the inge.
nious commentaries of Valin or Boulay-Paty on any and

every article of it without owning that the text was only
plain because the difficulties of particular cases were not
present to view, and only simple because their complications
were excluded? The same thing is true of the codes of the
French empire, and of all others which the world ever saw.
The truth is that the intricacies and complexity of possible
combinations of fact are beyond the range of human con-
ception, and any attempt to foresee and provide for them all
beforehand, and dispense a ready made justice with success,
will give little reward to the labour it wastes. But a code
resting on no detailed decisions or elaborated instances to
expound it has an especial evil of its own. There is no more
fruitful source of doubt and litigation than the meaning of
language. Tho careless use of language does much, but the
inadequacy of language as the vehicle of precise thought
does perhaps even more. What treaty, or code, or statute
was ever so framed that its moaning in all possible contin-
gencies was free from reasonable controversy ? Now the
especial evil of all codes and statutes is that over and above
the difficulty of framing adequate principles the ambiguities
of construction are introduced. Expressed in certain defi-
nite language, its force depends on the interpretation which
ingenuity may give or deny it. And here the system of case
law contrasts favourably, for its principles, enforced in every
variety of language, and under every turn of thought,
shine out in their application rather than in their expres-
sion, and are further removed from the cavil of words.
The most ardent lover of uniformity and symmetry would
hardly be prepared then to surrender the treasures of our
common law for the inevitable litigation of a code ; but does
it follow that nothing can be done to render our system
more uniform, and cur jurisprudence more compact and
harmonious ? We have nothing in the English law between
the succinctness of a maxim and the detail of an individual
case. We have no declared body of rules, however general,
and no set of political principles, however broad. There are
no doubt to be found scattered up and down our reports
enunciations of general legal principles, but even they have
never been collated or brought together,and their mutual
dependence shown by group or contrast. But, in far the
majority of cases decided,no general principle is propounded.
The principle is indeed there, guiding and controlling the
decision, a silent appeal is made to it in the mind of the
tribunal, but such is the jealous caution of the judicial miad,
and so great the obstacles cast in the way of generalities
by a system which calls only for the decision of the indivi-
dual cases, that broad rules are seldom or never laid down.
Hence it comes that cases containing the law on ono par-
t icular branch or subject are rarely appealed to in discussion
of another branch or subject, though these may be cognate
and though the law ought to be and probably is in harmony
with respect to them. No subject can be treated philoso-
phically that is treated entirely in detail, and no 83 stem can
promise harmony that is based on separate trains of inde-
pendent thought. Is it not possible to amend our legal
system in this regard ? If it bo considered not wise that
the tribunal should do more than decide the individual case,
and pledge itself as it wars to an area of law wider than that
occupied by the matter in hand—and this to preclude the
possibility of prejudging cifliculties not foreseen ; still the
law as already settled, and to the extent to which it has al-
ready been actually applied, might surely be bound together
and epitomised for the practical use of mankind. Is not this
what in fact and practice every well-read lawyer more or
less does for himself ? When a case presents itself to his
mind for legal solution dies he instantly recur to some spe-

cific case forming a pr cadent, or does ho rather fall back
upon the general legal principles with which his mind is
embued t Now, I hope I ain not too sanguine in this, but
Ic,nnot resist the belief thatwithin the bounds of labour and

time the general principles and broad bases on which our
common law reposes, and which tacitly guide the decisions
of our Courts, might bo brought to the surface, grouped
together, subordinated in their several relations, and con-
trasted in their differences. (Cheers.) An attempt of the
kind, and not without great success, was made by the late
Mr Smith in his Leading Cases. And those who have studied
the notes of that book will not fail to perceive how easily
and with what success large groups of cases treated and
handled together have been made to yield up short and suc-
cinct propositions of law. What I desire to see is a similar
attempt made with authority, and on a much larger scale,
to be finally confirmed by Act of Parliament; but Ido not
conceal from myself that the first judicial minds of the coun-
try are alone adequate to the task, at least in its ultimate
stages, and that it is far beyond the rerch cf the unpaid ser-
vices of occupied men. If such a result could be obtained,
the benefits are nc,t doubtful —to the student and the general
public the vast area covered by the law would present
district set out in order in place of a tangled thicket. The
true bearing of each abstract proposition would stand out
plainly, because side by side with others of a similar nature.
Here, too, another great advantage would bo reaped.
As the decisions which have radiated from some central case
came to be classed together, and their common principles
with its qualifications and limitations extracted, all those of
a questionable soundness would come to be suppressed. That
our books abound with such cannot be denied ; and their
expurgation by authority is an end of great importance. For
once entangled in them, the Courts are either led astray or
only escape to the doing of justice by some refined distinc-
tion, which in its turn becomes a snare for the future. It is
thus that error once committed under our present system is
perpetuated. And decisions whose soundness is doubted
for years continue for years to be the rule of judgment and
the source of endless distinctions and refinements, until at
last they aro either trampled out by the reiterated dicta of
the tribunals, or reversed in regular form by the Courts of
Appeal. Many, too, are the instances of discordant deci-
sions on identically the same subject, and it is not an un-
common remark " That all the cases upon this subject
cannot be reconciled." Any classification by authority
must decide between them, and thus remove, pro tanto,
one of tho worst evils of the law—uncertainty. But the
great gain that would accrue to the law would be the reduc-
tion of its bulk. 'We possess in our legal records accumu-

lated instances of exact justice, in individual cases, series
after series of social duties and relative rights, set forth in
every variety and combination and pursued into the minutest
details, and to all of which, each in their turn, the law has
been applied and adjusted with a precision and laborious
rectitude such as the legal annals of no other country can,
I believe, produce. Tho national attribute of exact labour on
minute objects has stood us in good stead in the beating of
our laws. And they bear the impress throughout of the
national characteristics in the spirit of liberty, the spirit of
equality, and the hatred of injustice and oppression. But
they exist in a scattered, inconvenient, and unmanageable

form. Instances in piece of precepts, examples in place of
rules, our recorded decisions stand thick together like a fair
field of grain—full of wealth and worth, but waiting the
hand that shall gather it into sheaves and store it to the US6
of man. (Cheers.) And here I would observe that the
method I propose is properly a digest, and not a code; and
a digest has this advantage, that it permits of gradual for-
mation. Unlike a code, which is the offspring of large and
comprehensive views— and should deal with all subjects as
a whole—a digest, with narrower aims, may properly be
worked out piecemeal. In times past the "Diget of Comyn"
and the "Abridgment of Bacon" did much in this direction,
though they owned no authority but that of their intrinsic
merit. And in modern times the law would be almost unap-
proachable but for the text-books, some of them executed
with admirable talent, with which the labours of the Bar
have enriched us. If there be those who fear to handle a
body of laws which, on the whole, work so well, I would ob-
serve to them that I propose to.displace nothing. I would
not that the authority of the cases should necessarily be ex-
tinguished by the authority of the digest. Unless expressly
set aside, and inconsistent with decisions better approved, I
would have all decisions remain of authority, content to await
the time when the life shall have passed into their offspring,
and they fall away of themselves, and pass into a sure decay.
(Cheers.) If there be those who think that a system which
has survived with success for five or six centuries can have
no great inherent vice, I would recall the attention of such
to the position in which we now find ourselves. Each year
now calls into being a number of decided cases so long as to
threaten the extinction of the law as a conscientious study.
I do not stop to inquire into causes, but the fact is that the
present century has added more decided cases to the law
than are to bo found in the records of the five preceding
centuries put together. (Cheers.) This vast agglomeration
breeds not only confusion in those who are to be bound by
the law, but inconsistency in those who administer it. No
power of assimilation can keep pace with that of such pro-
duction, and the tribunals, occupied to the full with the
business before them, have little time to master the results
of cotemporary decisions. This evil is aggravated by a c )m-
-petitive system of reporting, and the records of useless do-

cisions; but the source of it lies deeper, and the time has

now come when we may well ask whether the record of our
law is always to lie in detailed instances, whether its prin.

ciples aro capable of no exposition, and whether the most
laborious and wealthy community in the world will be con-
tent to pass on to posterity a shapeless mass of scattered
laws as the legacy of its lab )urs and its wealth. (Hear,
hear.) But the cause is that of the present generation as
well as of posterity. Is the nation well content with things
as they are ? Are the conclusions of the law any longer
accepted without test, and received without inquiry ?
Time was when the law had its priesthood, its mysteries,

and its votaries. The science of the few was ever the

mystery of the many; and while want of knowledge in
th© latter forbade the support of reason, possession of it in
the formGr commanded the homage of reverence. Our

people have ever loved justice and order, and revered the
law as the guardian of both. Perhaps this reverence has
been in past times carried too far. It concealed its errors
and even gilded its faults, Did an estate pass to an unex-
pected hand by a flaw, the victim received his condolence,
but the superior wisdom of the law had its warship. If
strength has the element cf the sublime, the inscrutable
has not less so, and it was just because the ways of the law
sometimes passed reason that they achieved admiration. A
severe exactitude in the application of a system highly tech-
nical has ever been the foremost blemish of English juris
prudence. It was not difficult to exalt this severity of precis
sion into the inflexibility of justice, and mistake an iron rule
for a golden precept. And such was the tendency of the
national mind, hugging itself in the conceit that its laws
were not as the laws of other countries, and well content to
worship what seemed at least mysteriously wise. But our
lot is cast in times of a far other character. Reason and
veneration—the two great forces by which instituted rights
are upheld—bid fair to change places, and while ono has
waxed, tho other has waned, There is no subject so sacred,
not even the sacred subject of all, which escapes inquiry,
observation, and the hard scrutiny of distrust. The law is
no exception, and the popular sense of justice may not be
violated with impunity, though its violation may be backed
by the sanction of forms or rules, however time-honoured or
venerable. The time has surely come when those who really
revere our noble laws should have it at heart to place them
beyond cavil, and give them that hold on the good sense of
the people which they have ever had on their affections, and
it should not be difficult. For all reform is now possible,
and the mere respect for what exists presents no longer any
barrier to improvement. The slow formation of a general
opinion, and the vis inatice which holds the present in its
place—characteristics both of the national temperament
—are the chief impediments to salutary change. Autho-
rity denies nothing now to the general desire, and the
waters of discontent are no longer pent up till they over-
flow. But, for this very reason, the current of amendment
flows torpid and slow. Tho active pressure of resistance,
forcing men into concord towards their common aim, is with-
drawn, and freedom to think and act with independence
brings with it freedom to differ. It is therefore in times
such as these that the attainment of a general consent is
most difficult. The most proper method to come at this
purpose is general discussion. For interchange of ideas and
comparison of mind begets both , ultimate agreement
and moral force to carry it into action. We are here met
with this intention, and as the great honour has fallen to
my lot of presiding over your deliberations, I have thus
made venture on your patience, affecting not to inform, but
rather to remind, and for the greater part to confirm rather
than convince. But it is from those like yourselves, who
have the knowledge to conceive and the public spirit to ela-
borate, that the impulse of reform must come. The spring
and root of all our law reforms have been laid in public
opinion. They have been moulded into shape and carried
into result by the unpaid services of lawyers. It is good to
reflect on this, for the power and the machinery are still
ours ; and it is no bad omen for future amendment that
men have been found skilled in the mysteries of the law, and
nurtured in its most cherished anomalies, ready to turn that
skill to their amendment or removal. (Cheers.) I venture
not on any enumeration of the numerous shortcomings and
defects of our legal system, beyond that to which I have
shortly drawn attention. They will be amply discussed, I
trust, by others. But I may add a word on the spirit legal
changes should be approached. The great evil which has
ever beset ourjudicature is that which legal education engen-
ders—the prizing above their worth of refinement and preci-
sion. This it was that in legal procedure sacrifised the
substantial rights of thousands at the altar of mere words.
It culminated in the new rules of pleading of 1834, and
begot its own downfall in the triumph of its complete
adoption. But it still lives in all branches of our law. The
fear of going too far ever present ; the fear of not reaching
justice faintly felt ; positive injustice worked in the present
to avoid possible injustice in the future ; rights so bound in
safeguards, lest they become wrongs, that they cease to be
worth asserting; a structure in which form ever overlays
substance, and a contest in which justice is apt to sink
under tho weight of her own armour; while precedent,
casting its shadow both ways, binds the present by the
errors of the past, and narrows it by the possibilities of the
future—such are the fruits which a spirit of over-jealous
caution and exactitude is calculated to bear. Nor is it the
spirit of the lawyer alone. It is not long since a great peer
was accused of shooting at a fellow-subject in a duel and
acquitted, because it was not made to appear beyond doubt
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