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

SPIRIT OF THE PUBLIC JOURNALS.

TIMES—it 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
comprebeusipe 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 tor several centuries the principles
and practice of jurisprudence have been the special
duty of a learned profession. Vet it would be
hardly too much to sly 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 e'en 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 anC 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 indicted 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 la wyer-ridden public, and committed
itself to some abstract pledge to roduce the bulk of
our law. Mean while the two famous maxims, that
every man is presumed to know the law, and that
the law expects impossibilities of no man, are left to
stand together in the glaring antagonism to each
other which Romilly ridiculed so :sappily. 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superseded, have been passed within the last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 fanner. 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 deezdendt 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
whe 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 significance ex-
cept where 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 ii
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

excic de from the new edition all Acts that are other I
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 20,000 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
been 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 turn 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 nave 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 notcrious Rita Pasha and his two auxiliaries,
Hassib and Saffeti, are put on their trial, and that
five other fernier official peculators have been ban-
ished the empire. Some three months ago Faud's
retirement 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 Drnses 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 financialanission