« PreviousContinue »
It is good
for us to be here : if thou wilt, let us make here three Tabernacles, one for Thee, and one for Moses, and one for Elias.”—Matthew, xvii. 4.
Nor Elias nor Moses appear,
For see, they would pin him below,
Nor knows the foul worm that he frets
and a prey.
Shall we build to the purple of Pride,
Alas! they are all laid aside:
The treasures are squandered again.
Ah! here is a plentiful board,
Or fled with the spirit above.
Which compassion itself could relieve!
And here there are trophies enow.
The second to Faith, which insures it fulfill'd;
Art. V.-1. The Statutes of the United Kingdom of Great Bri
tain and Ireland, 58 Geo. III. Vol. VII. Part. II. 2. An Analytical Digest of the Reports of Cases decided in the
Courts of Common Law and Equity, of Appeal and Nisi Prius, in the Year 1817. To be continued Annually. By a Barrister. THE first of these books is the latest part of the Statutes at
Large which has been published; and the second is intended as an Epitome of the whole body of Cases in Law and Equity reported within the year for which it appears; and they have been selected in order to bring under review the whole class of publications to which they respectively belong. Our object is to direct the attention of such of our readers as may be disposed to follow us, to the enormous magnitude which acts of parliament and law reports have already reached, and the rapidity with which they are continually increasing; to inquire into the causes of this increase, which we cannot help considering as an alarming public evil; and then to point out some of the consequences which must inevitably follow unless its progress be speedily arrested. To those of our readers who turn over the pages of a periodical work merely in search of amuse
sement, we are aware that no allurement we can throw around the present subject will make it attractive; and by those whose station, studies or employments have led them to attach to it that importance which it eminently deserves, no adventitious recommendation will be thought necessary. We shall therefore, without further preface, proceed to the examination of the topics we have announced.
No maxim in jurisprudence is more firmly settled, than that every state ought within the limits of its own territory to exact, and its subjects to yield, obedience to all its laws. The foundation of
this obligation on the part of the people is, that the legislative authority on its part is presumed to have made the laws so clear and public, that every member of the community either knows them, or must be culpably inattentive if he does not. Leges sacratissimæ,' says the Roman law, 'quæ constringunt hominum vitas intelligi ab omnibus debent, ut universi, præscripto earum manifestius cognito, vel inhibita declinent vel permissa sectentur.'— Cod. lib.i. Tit. 14. 99. This presumption is indispensably necessary in order to preclude the plea of ignorance which would otherwise be advanced whenever a question about breach of law occurred, but never was supposed to be justified by the fact. Even in the earliest stage of regular government it never happened that all the laws were known to all who were amenable to their jurisdiction. As civilization advances, and science, trade and wealth increase, the public and private relations of the different members of society become more complicated, and laws necessarily niore nume
At last, when refinement has been carried beyond a certain point, to understand the whole or even a branch of the system of law established in any state, becomes the business of a laborious life, and no skill or industry can then mould it into such a form as to make a thorough knowledge of it attainable even by persons of liberal education and pursuits. That we cannot however do all we wish is no reason why we should not accomplish all we can; and when it is recollected that obedience to enactments which affect the person, property, and reputation of every individual, cannot be reasonably required unless such enactments have received all practicable perfection and publicity, it appears to us that to carry these improvements as far as judgment and experience will permit, is not a boon which the government of a country may confer or withhold at pleasure, but one of the most urgent and sacred duties which it is called upon to discharge.
It is to be lamented that so few attempts of this kind have hitherto been made among ourselves, and it is difficult to be accounted for otherwise than by supposing that the extreme number of technical expressions which occur in the law of England, and the artificial form into which almost every part of it has been thrown, have prevented it from becoming so general a study as in an enlightened country peculiarly jealous of its rights and privileges we should expect to find it. In saying this we are far from intimating any desire that it should become a prevailing habit to intermeddle with the practice of courts of law or innovate in legislation. We only mean to urge that if a succession of men of cultivated and conprehensive minds, not lawyers by profession, and especially those filling or likely to fill seats in either House of Parliament, had made themselves more intimately acquainted with the details as VOL. XXI. NO. XLII.
well as principles of our civil and criminal code, and had subjected every part of it to frequent ard dispassionate private examination, it would have been highly honourable to themselves and beneficial to the nation. As an instance of the sort of knowledge for which a desire is here expressed, and of the advantage which would have resulted from its application, we refer to Earl Grey's Speech in the House of Lords in 1817, on Lord Sidmouth's Circular Letter, which shews how successfully an acute mind, not regularly trained to the study of the law, may prosecute the investigation of some of its most abstract doctrines.
If it is imagined that without any interest in the state of the law being manifested by the nation at large, the executive government for the time being, or those who are concerned in the administration of justice, will of their own accord take care to rectify or supply whatever is erroneous or defective in our jurisprudence, we apprehend there never was a more mistaken notion. The slightest historical retrospect will shew how rarely any point of general law has been taken up within the walls of parliament, unless attention has been previously directed to it from without. The officers of the crown seldom introduce any bills except such as are called for on the spur
of the moment; and instructions for these are usually sent bastily to the solicitor of that department of the executive government to which they belong, or to the person usually employed by government in preparing acts of parliament, and as hastily ihrown by them or by their clerks or pupils into the required form. And as to those who are engaged in the administration of justice, however singular it may seem, they are among the last persons from whom any amelioration of the law is to be expected. The judges, from the hour of their appointment, are too much occupied with the execution of the law as it is, to be able to devote much consideration to what in their judgment it ought to be, and contract with advancing life an increasing fondness for forms and practice with which they have become familiar, and an aversion to any alteration of them. Those on the other hand who have acquired great reputation and experience at the bar, are obliged to submit to a degree of labour even more severe than that of the judges, and tending still more to disqualify them for suggesting any legislative improvement. Their whole powers are exhausted in comprehending minute facts or in exertions to secure the success of the party by whom they are employed; and to suppose that under such circumstances they can bestow much reflection on the means by which law and equity might be more expeditiously or effectually administered, is almost the same thing as to expect that the human understanding should be contracted and enlarged at the samie moment.
Even the kind as well as degree of labour which they undergo seems unfavourable
o any proposal of amelioration, and accordingly the bulk of legal ractitioners never extend their views beyond the mechanical funcions they are called upon to fulfill; and remain unconscious of the nadequacy of any of our judicial establishments to answer the ends or which they were instituted, until a precipitate but irresistible Iesire for sweeping reform has been loudly and generally exressed, some symptoms of which have already made their appearance. It is to avert any such extremity as this, and to superede the necessity of any great and instantaneous change in the ubstance or administration of our laws, that we now solicit the attention of the public to their present size and condition, being firmly convinced that some remedy must at no distant period be applied, and that the longer it is delayed it will only be the more violent and its efficacy the more doubtful.
It is only to that part of the law which is composed of Reports and Acts of Parliament that our observations, as we have already mentioned, are at present meant to extend, and on each of these subjects we shall offer in succession such remarks as the attention we have paid to them enables us to suggest, beginning with the Reports of adjudged Cases in Courts of Law and Equity.
All reflecting men naturally desire to know what those who are distinguished for wisdom and experience have said or done in cases similar or analogous to those in which they themselves may be called upon to act or deliberate. This species of authority must be of peculiar value in law, where intuitive genius or a penetrating understanding without further assistance are of less use than in most other sciences, and especially where the decisions reported have been given by judges of exalted reputation, whose minds have been accustomed to unravel the distinctions and balance the conflicting facts and doctrines, which perplex the cases which are brought before courts of justice. If due allowance had been made for the arduous duty, which devolves upon the judge, we apprehend the uncertainty of the law would not so frequently have been made the subject of ridicule and reproach. It is not in points of easy solution that such uncertainty usually prevails, but in cases where it is impossible to avoid pronouncing sentence in favour of one party and against another, and yet where the circumstances of the case, and the rules of law so cross and perplex one another, that it ought not to be matter of surprise if men of the greatest natural and acquired endowments should often arrive at opposite conclusions. Yet even in such instances, a judicious selection of reports of cases in which this discrepancy occurs, is of important service in advancing justice, and promoting uniformity of decision. It is making real progress in knowledge to compare two chains of reaC 02