The Sun.
London, England, 1863-06-13 00:00:00

SPIRIT OF THE PUBLIC JOURNALS.

is little to the credit of English law-
yers that a Lord Chancellor, in the reign of Queen
Victoria, should be planning for the first time a
comprehensive digest of our law. From the age of
the Norman conquest something like a regular sys-
tem of civil and criminal justice has existed in this
country, and for several centuries the principles
and practice of jurisprudence have been the special
duty of a learned profession. Yet it would be
hardly too much to sty that not a single law-book
worthy to be called philosophical has emanated from
this body during all these long ages; that no attempt
whatever has been made to abridge, or even to ex-
purgate the eleven or twelve hundred volumes em-
bodying the Case Law, which by a strange perver-
sion of ideas we call " unwritten ;" and that 'not one
considerable branch of our Statute Law has been
consolidated, much less codified. Again an:: again
the need of a thorough revision has been recognised,
but it has been recognised as men recognise the
value of a blessing which they never hope to enjoy.
Edward VI. expressed an honest but futile wish
that useful enactments might be simplified, and the
useless and tedious ones eliminated from the Statute-
book. Bacon pointed out in his weighty language
the formidable growth of precedents and statutes,
and indicated the remedy in a treatise every word
of which Lord Westbury could adopt without quali-
fication. The Reformers of the 17th century applied
themselves, though in vain, to the same subject, and
now and then in later times the awakened con-
science of Parliament has feebly echoed the despair-
ing cry of the lawyer-ridden public, and committed
itself to some abstract pledge to reduce the bulk of
our law. Mean while the two famous maxims, that
every man is presumed to know the law, end that
the law expects impossibilities of no man, are left to
stand together in the glaring antagonism to each
other which Romilly ridiculed so happily. Nothing
—that is nothing amounting to a first instalment of
this colossal work—has yet been done—a few Con-
solidation Acts, copying the provisions, and often
stereotyping the defects of those which they
superseded, have been passed within the last
twenty years. The Criminal Law has been
condensed into several consecutive statutes which
were happily taken on trust by Parliament, but
which are far from perfect as specimens of legisla-
tion. One or two similar experiments have been
tried in Ireland, and that is all. The rules of com-
mon law and equity have still to be extracted from
a series of reports which fills whole libraries ; our
statute law still reposes in more than forty huge
quarto volumes. We are assured on excellent
authority that above half the business of all the
courts consists in settling disputed questions on the
construction of the latter; and, of the rest, at least
half consists not in applying but in ascertaining the
legal purport of the fcriner. This is the state of
things which lawyers of the old school tell us is
beyond remedy, but which the present Lord Chan-
cellor has undertaken at least to mitigate. His object
is twofold—to bring into a manageable compass all
the precedents which have any real value, and to
divest the statute book of all superfluous matter.
Of these two enterprises the first is probably the
more difficult. A pernicious theory has long domi-
nated over judicial decisions. That theory is that a
principle of law, applicable to every possible com-
bination of facts, already exists, and that the judge
has nothing to do but to discover and declare it.
The consequence of this theory is that the plainest
rules of inference or analogy have to be strained or
set aside in order to make the ratio decidendi in
some obsolete and irrelevant case cover an entirely
new group of conditions. No sooner has this been
done than the fiction is dropped. and the next judge
who has to deal with a similar point does not scruple
to quote and follow his predecessor's judgment as a
substantial addition to the law. A very good in-
stance of this clumsy and absurd process was given
by Lord Westbury last night. When the sudden
development of railways created a new class of
associations called provisional committees, it was
necessary to make out that such a contingency
had not eecaped the foresight of the common
law. The only thing that looked at all like
the relation of provisional committeemen was the
relation of partners, and accordingly the stringent
Law of Partnership was brought to bear on a
totally different status, to the ruin of many, while
the false analogy governed the practice of the courts,
and to the ruin of many more after it was at last
detected and abandoned. It is vain to deny, as Lord
Cranworth appears to do, that such a system
produces uncertainty in the law itself. When it
lies entirely within the discretion of an individual
either to interpret a previous decision as though it
contained a doctrine of universal application, or to
narrow it so as to deprive it of all significance4ex-
ceptwhere the circumstances are precisely identical,
consistency is impossible, and without consistency
how can there be certainty ? As the Lord Chan-
cellor truly says, our Judges become law-makers
ex arbitrio, and Judge-made law fluctuates as much
as the course of legislation. The real doubt is, not
whether the law is now uncertain, but whether the
standard could be fixed by analysing, abridging,
expurgating, or amending the Reports. To do so
would be in effect to distinguish between sound and
unsound decisions, to select some as deserving of
respect, and to set aside others as mischievous, un-
intelligible, or effete. This would require great
judgment, but we cannot see why it should be con-
sidered impracticable, and we are quite sure that if
done it would infinitely facilitate further reform.
In " revising" the Statute Law Lord Westbury will
not meet with so much opposition. Every one admits
that Statutes should not contradict each other,
either expressly or by implication, and the ground
has here been already broken by the Statute Law
Commission and the two gentlemen who have suc-
ceeded to its labours. " Revision" is but the first
step towards the dreaded end of codification, which,
of course, would not be complete unless it included
the whole corpus juris of Common Law and Equity.
Let us see, then, what revision involves. We must
exclude from the new edition all Acts that are other
than general and public ; all that have been speci-
fically, implicitly, or virtually repealed ; all that
have ceased to be in force either by expiration of
the term to which they were limited, or by failure
of the purpose for which they were passed ; and
all that have been superseded or become obsolete.
All the misquotations in the residue would still
remain to be corrected, all the inaccuracies of
language to be amended, and all the doubtful con-
structions to be replaced by less equivocal terms.
When this has been done, it is calculated that four,
five, or at most six volumes will contain all the
operative parts of our 15,000 or 20,009 Statutes,
being from a seventh to a tenth of the space which
they now occupy. Then will come the still more
arduous task of classification—that is, of arranging
under proper heads and titles the chaotic materials
hitherto rudely stratified in chronological order.
Later still must be the endeavour to give harmony
and symmetry to the mass thus formed out of the
ruins of an earlier legislative epoch. Last of all, if
, we may look forward so far, is the grand consum-
mation which we call codification, an aim which, as
the Lord Chancellor wisely reminds us, cannot be
realised, and ought not to be entertained, till our
system of law shall have passed through the tran-
sitional, and shall have entered the stationary,
period. We have briefly glanced at a grand subject
of which Lord Westbury did but trace the outline
in his lucid speech last night. It is a subject which
deeply concerns every one of us, and which we have
oeen too long content to leave in the hands of
lawyers. Here is the secret of our failure. Lawyers
are not only trammelled by professional interests
and prejudices, but prevented by their professional
engagements from doing effective service. A brief-
less barrister cannot venture to tarn Reformer, and
would have little influence if he did; a retired bar-
rister or judge seldom cares to leave the law better
than he found it; while a barrister in full practice
is too much' engrossed in construing and evading
statutes and cases to devote much time or thought
to systematising them. To this, as well as to the
want of any responsible authority, whether a minis-
ter of Justice or a board of commissioners, we are
disposed to attribute the apparent apathy of the
country at large to the state of its law. The highest
legal intellects have never been brought to bear on
this great work, and until such men are employed
upon it in sufficient numbers, for a sufficient time,
and at a sufficient salary to command their exclusive
devotion to it, it will never be taken up in earnest.
Let this be done, and we firmly believe that in 10
years' time our law would have emerged from its
present barbarous condition into a state which
would enable us to compare it without shame with
that of modern France or Imperial Rome.
POST.—Turkey has at length regained the ser-
vices of her ablest and most trusted Minister in the
post of Grand Vizier. Fuad Pasha has returned to
the headship of the Government; and it is one of
the least important incidents of his restoration that
the Boterious Riza Pasha and his two auxiliaries,
Hassib and Saffeti, are put on their trial, and that
five other former official peculators have been ban-
ished the empire. Some three months ago Feud's
retiremeett created a general alarm at Constantino-
ple, and an undisguised satisfaction among the
enemies of the Porte. To him had been owing—
under Abdul Aziz at least—nearly all the vigorous
measures of reform that had been introduced during
the present reign. It was Fuad Pasha who went
to Syria with a Turkish force, and suppressed the
civil war between the Druses and the Maronites,
before the French troops that were sent out osten-
sibly for this purpose had so much as landed at Bey-
rout. His success in this mission gaining for him
the Grand Viziership of Turkey, his appointment
coincided with inauguration of the leading reforms
of the present reign, and with the financial mission

of Mr. Foster and Lord Hobart from this country.
This circumstance, combined with his own acute-
ness and integrity, led him to become the principal
Turkish agent in the elatoration of the system of
commercial, financial, and agriculturnl reforms, the
substantial progress of which Lord Hobart's newly
published supplementary report attests. Being
thus identified with most of the various improve-

ments which the present reign has set into motion,
it was impossible that the unfortunate misunder-
standings which led to his retirement from the
headship of the Ottoman Ministry could be other-
wise than temporary. His restoration to the place
of Grand Vizier, moreover, is at this moment pecu-
liarly opportune. The budget for the new financial
year is now almost daily expected, and Fuad, pro-
bably beyond any other Minister, possessed both the
authority and the disposition to reduce the public
expenditure; while he exhibited that ingenuity in
devising augmentations of revenue without inflict-
ing pressure on the population, which is one of the
most useful characteristics of a practical financier.
The comparative results of the taxation for the
financial years 1862-63 and 1861-62 are now before
us, although the budget has not yet arrived ; and
they serve in a striking manner to vindicate the
expectations which were formed at the commence-
ment of these reforms. It appears that the total
revenue for the financial year now ended has been
in excess of the revenue for the previous year by
more than 20 per cent. In only two items does a
diminut ion take place. In the "special revenues of
the Ministry of Marine" there has been a falling off
from nearly 19,000,000 to something more than
12,000,000 piastres. In another department some-
what less. The total, however, shows an increase
of between 750,000,000 and 800,000,000 piastres in
the revenue for 1862-63 over the revenue for 1861-62.
This difference accrues in the following minner.
The " direct taxation" has increased by 70,312,000
piastres, the receipts for 1861-62 having amounted
to 562,992,000 piastres, and those for 1862-63 being
633,000,000; while the " rachat" on account of
military service is more or less a fixed charge of
120,000,000 piastres. We turn next to the indirect
taxes. Foremost among these stands the tithe or
land revenue. The elevation in the produce of this
tax is stated at 86,000,000 piastres—the figure being
868,000,000 in 1862-63, against 782,000,000 in
1861-62 ; although there is some reason to doubt
whether the whole amount of this difference has yet

been paid into the public Exchequer. That revenue
department, however, which exhibits the greatest
inOrease is the customs ; and the extraordinary rise
which has taken place in this branch of revenue is
naturally owing to the commercial tariff promul-
gated by the Sultan about a year and a half ago, as
well as to the growth of public confidence resulting
from the changes which have been introduced into
every branch of Government. The customs receipts
for 1861-62 were 316,060,000 piastres ; while for
1862.63 they are not less than 565,000,000 ; but
from these, again, a certain, though comparatively
inconsiderable, reduction must be made on account
of the receipts of such Adriatic ports on the Monte-
negrin insurrection prevented from flowing direct
into the Turkish treasury. The increase, according
to these figures, is, however, 250,000,000 piastres;
of which Constantinople and Smyrna in them-
selves represent a large portion. The miscel-
laneous department has an increase of 55,000,000
piastres—the tobacco tax, which is one of the secu-
rities for the loan of 1862, represents an increase of
116,000,000 piastres—the stamp department an in-
crease of 40,000,000—the salt monopolies, in con-
sequence of recent legislation, an increase of nearly
120,000,000—and the mines an increase of 4,000,000.
This last result is the last considerable article of
increase in the main elements of wealth in the
Turkish empire. It is, however, pointed out by
Lord Hobart in a recent despatch to the Foreig n-
office that the miaingrwealth of the Government is
at present an undeveloped engine of great future
revenue to the State itself—and among the joint
projects of Fuad Pasha and Lord Hobart during
the previous Grand Viziership of the former, was
that of utilising and thoroughly working, the more
promising of these mines. Such are the main sub-
jects of increasajn the Turkish revenue. In other
departments the augmentation is too insignificant
to note—and again in others the receipts are fixed.
Such are the tributes from Egypt, Wallachia, Mol-
davia, Servia, Mount Athos, and the island of Scio.
Tne total revenue, however, for the financial year
of Mahomet 1275, or 1862-63 of our era, after de-
ducting for the approximate amounts which have
fallen off through the want of proper persons to
collect and transmit them, under the changing sys-
tem of revenue collection, appears to be consider-
ably in excess of 3,000,000,000 piastres, as distin-
guished from 2,500,000,000 for the proceeding
year. This, moreover, is the result of a pressure of
taxation averaging only 10s. a head—and this
yield is larger than the revenue of France would be
if the pressure of taxation were no greater in that
country than in Turkey ; whereas the pressure in
France is five simes as great. There remains,
nevertheless, a vast deal yet to be done. The an-
nual accounts and the system of public audit which
stand among: the financial measures of Fuad will
assure us of learning the future condition of the
revenue from time to time. Measures are now being
resumed for the extinction of the remainder of the
floating debt. The paper money, too, is now en-
tirely withdrawn, and trade thus freed from one
heavy obstruction. But material reforms, the mul.
tiplication of carriageable roads, the increase of
drainage, are works of time, which respond less
quickly than commercial tariffs. Of such works,
however, Fuad Pasha has, after the Sultan, been
the main promoter ; and there is reason to believe
that they in turn -will-now engross the attention of
the Sultan and his Ministers.
HERALD.—There can no longer be a doubt that
Puebla has fallen. The news, first received from a
source favourable to French interests, has been con-
firmed by advices from New York. The cannon at
the Invalides has given the assurance of victory to
the Parisian public, and the French press is already
discussing the effect of the triumph of French arms
in Mexico upon European politics. So far es
Mexico is concerned the result of the operations
before Puebla leaves little to regret. The gallant
resistance offered by the Mexican garrison to a
powerful army, composed of the elite of the French
troops, is at once a redeeming honour to the Mexican
flag and an additional credit to the intrepidity and
endurance of the expeditionary corps. There was
a general feeling amongst Frenchmen that their
soldiers were battling with a foe whom it would be
little honour to vanquish; but the desperate fight-
ing along the lines and in the streets of the Mexican
stronghold has added fresh lustre to French arms,
and will doubtless give popularity to an enterprise
which has hitherto been regarded with great mis-
giving and repugnance ny the public. The Emperor
has now a fine opportunity of getting out of an
unp:easant situation, which, it is rumoured, he will
not be slow to avail himself of. Puebla fallen, the
Mexican Government will probably not be indis-
posed to accede to terms which it would have re-
jected with scorn three months ago. Altogether,
the beginning of the end of the Mexican affair may
be said to be in sight. Bat precisely on this account
the danger to Europe is the greater. Our Paris
correspondent draws attention to the fact that the
Opposition journals in France are already making
the victory in Mexico the starting point for a
crusade in behalf ef Poland. A protracted war or
a disaster in Mexico would have occupied all the
energies of France for months to come. The news
of a great military success and the probability of
an early termination of hostilities have inspired
all the soi.disant friends of Poland and the revolu-
tionary party with new hopes, and the great topic
of conversations in all circles is the chance of a
war with Russia. • The Emperor of the French
is far sighted, but he is the author of "Les Idees
Nepoleoniennes." There is no Polish Cavour to
lead him into action ; but, on the other hand, the
opportunity is far more tempting than it was
in 1859. The French army is in a far higher
state of organisation than it was on the outbreak
of hostilities with Austria. Prussia has given the
example of intervention, and is incapacitated by
her internal convulsions from vigorous action. Eng-
land, under the auspices of Lord Russell, is blindly
playing the game of follow my leader, as she did
in 1854. We cannot shut our eyes to the truth that
the prospect is a gloomy one, and that the Polish
question requires more delicate handling than ever,
if we are to avoid drifting into the unfathomable
perils of a European war. Our correspondent
alludes to a rumour that M. Drouyn de Lhuys is
on the point of retiring from the Foreign Office.
We sincerely hope the rumour is unfounded. His
redignation at such a moment could have but one
interpretation. It would be an obvious menace to
the existing peaceful relations of the European
Powers, It must not be forgotten that the Polish
cause is, of all causes, that with which the senti-
ment of the French nation is most closely identified,
and that a war waged in behalf of freedom would,
at any rate for some months, have the approval of
all classes. The army and the peasantry of France
would, of course, favour it, as they would any war ;
the clergy already regard the struggle in Poland as
one sanctified by the highest interests of their reli-
gion. There would remain the bourgeoise alone to
count the cost of the enterprise, and even the monied
class in France shares too largely the passion of its
countrymen to be very strongly opposed to war in
aid of the Polish patriots. There are some arrears
of unpopularity to wipe off, one or two matters to
set right. A well-struck blow for Poland might
effect all this. There is no telling how far the
victory of Puebla may tend to bring it about. Let
Lord Russell look to it. He is playing :a difficult
game. He is endeavouring to pursue a straight-
forward English policy at the same time that he is
coquetting with the party of revolution. He may
learn too late that he is playing with edged tools.