« PreviousContinue »
soning together, and to discover in what way an error has arisen or undue weight come to be attributed to any particular principles in the course of an abstruse discussion; and the inconsistency in the judgments of courts of law and equity would have been much greater than it is, if the judges who have presided there had relied upon their own abilities in applying a few abstract principles to every case which came before them, ignorant or regardless of what had been done or thought by their predecessors. If ever it was fit that memorials of solemn judgments should be transmitted for the instruction and guidance of future judges and advocates, the practice ought certainly not to be discontinued in the present times. For without detracting from the capacity or credit of those who have flourished in antecedent periods, it may safely be affirmed that the judgments pronounced in the different courts of law and equity within the last sixty or seventy years have never been surpassed either in this or any other country, in the comprehensiveness of the views of policy which they disclose, the soundness of the legal principles on which they have proceeded, or the closeness of the reasoning by which the conclusion is attained.
It will not therefore be supposed that we entertain any disposition to depreciate Reports, when published under reasonable restrictions with respect to number, length, and subject. It is only when carried to excess that they become blanieable, and that such excess exists at present we think there will be no dispute. The following passage occurs in Lord Coke's preface to his Fourth Reports : 'To the former reports you may add the exquisite and elaborate commentaries of Master Plowden, a grave man and singularly well learned; and the summary and fruitful observations of that famous, and most reverend judge, Sir J. Dyer, Kt. late Chief Justice of the Common Pleas, and mine own simple labours: then have you fifteen books or treatises, and as many of the reports, besides the abridgements of the common laws; for I speak not of the Acts and Statutes of Parliaments of which there be divers great volumes.' So that in Lord Coke's time a sufficient library for a lawyer consisted of something more than thirty volumes, with which if he was tolerably acquainted it is to be presumed that he was prepared for practice. In the present day, Reports alone amount to upwards of 200 volumes, exclusive of those which relate to Election, Admiralty, and Ecclesiastical law, and contain a mass of precedents far beyond the power of any man engaged in business to read, without making allowance for the time which ought to be spent in digesting them. But this is not all. The progressive rapidity with which they are increasing is an evil of a more alarming wature than even the bulk to which they have already
reached. * Those periodically published are Swanston's Cases in Chancery, Wilson's in Chancery, Maddock's in the Vice Chancellor's Court, Barnewall and Alderson's in King's Bench, Dow's in the House of Lords, Daniell's on the Equity side of Exchequer, Buck's in Bankruptcy, Ball and Beatty's in Chancery in Ireland, Moore's in Common Pleas, Price's in Exchequer, Taunton's in Common Pleas; Starkie’s at Nisi Prius in King's Bench and Common Pleas, and to complete this muster-roll of names, Chitty's points of practice in King's Bench, besides Cabbell's Election Cases, Dodson's in the Admiralty, and Phillimore's in the Ecclesiastical Court.
reached.* They amount together even now to 8 volumes a year, at which rate they will have swelled to 160 more in the course of the next twenty years, and 800 within the century. That such an accumulation can go on is impossible. The evil must speedily be arrested, or long before it has attained this height, a Digest will become indispensable, and another Tribonian must be selected to superintend its execution.
To produce this multiplicity of reports various causes have contributed. Lord Coke tells us, that from the tiine of Edward III, to Henry VII. the kings of this realm did select four discreet and learned professors of the law, to report the judgments and opinions of the reverend judges, as well for resolving of such doubts and questions, wherein there was diversity of opinion, as to fix the genuine sense and construction of such statutes and acts of Parliament as were from time to time enacted. When this selection was discontinued, Plowden, Dyer, Coke, Raymond, and Croke, who supplied their place, and published lavishly enough perhaps for their times, were men of high rank and reputation, who did not print for emolument, but from a wish to perpetuate their name, or benefit the profession which they loved. This character reporters have now lost, and the practice of reporting is resorted to for the purpose of obtaining experience, instead of communicating it, as a source of emolument, and an introduction to practice. For the attainment of these ends, it is necessary to keep themselves as much in the eyes of the world as possible, and cases at nisi prius which never ought to have been received as authority at all, unimportant matters of practice, points perfectly settled, and speeches of counsel at full length, are detailed as laboriously as the most solemn determinations of the judges on the points in question. In fact their own interest, or that of their booksellers, induces the Reporters of the present day, instead of printing as little as they can, to print as much as the public will absorb. It ought at the same time in justice to be mentioned, that Reporters cannot now exercise their own discretion respecting what they publish. Where there are two concurrent Reporters, each is anxious to publish as much as he can, as he who publishes most is sure to have the greatest sale; and where one Reporter occupies the ground, he is afraid of raising a competitor if he does not publish enough. But
however these considerations may operate as a justification of Reporters, they in no respect alter the case with respect to reports themselves. They still remain too numerous ; speeches of counsel are given too much at length; and even the judgments of the court might frequently be abridged, and would appear to greater advantage if they were. Indeed it appears worthy of consideration whether the learned persons who preside in courts of justice, might not with advantage more frequently make use of extended notes in delivering their judgments than they have ever done, or read them entirely from a written paper. The practice of making these notes, or of writing them fairly out, would no doubt occasion much trouble to judges, especially to those who had not been in the habit of committing their thoughts to paper; but the obvious and important benefit resulting from the practice would greatly overbalance all the inconveniences attending it. No one who has heard Sir William Grant read a judgment, or Sir William Scott pronounce one believed to be written, can have any doubt of the value of such a sort of preparation. . In cases of nicety at common law, and in the still more complicated ones which occur in equity, it is beyond any judge's power, whatever his abilities may be, to proceed regularly through an extended series of facts and legal principles, assigning to each its due place and importance, if he trusts to scattered remarks or extemporary recollection. Much that is irrelevant will be introduced, and more or less of what is important will be omitted; the greatest presence of mind will not be a sufficient security against wandering and repetition; the most logical reasoner will occasionally yield to thoughts which suggest themselves at the moment, and insensibly lead to positions palpably unsound; and the most correct speaker will not at all times use appropriate language, and that in matters where the exact ternfs and turn of expression employed are of material consequence. We are persuaded that to these sources of error, we owe many of the dicta and illustrations of judges, which they themselves never intended to have introduced, which perplex the argument in which they occur, and threaten to puzzle the bar and the bench in all time to come.
Having mentioned the vast increase of reports and the causes which produce them, we may now turn to the consequences to which it leads. The money which they cost, and the space which they fill, are themselves evils of no small magnitude: but a much more serious one is, that every volume of them which sees the light, immediately becomes authority, and must occasionally be consulted. In this respect they differ from every other species of publication. If a treatise on any branch of political economy, or polite literature makes its appearance, unless possessed of intrinsic merit, it will probably pass unnoticed, and never afterwards be disturbed
by reference or quotation. But reports however unworthy of encouragement from the selection of cases or manner in which they are detailed, if they contain an opinion on a single point on which none has till then been extant, cannot with safety be neglected. The latest and best will naturally be consulted most, but not one in the whole catalogue can be disregarded; and every addition that has been made to it from the year books down to the last blue covered number which has been carried round by the law-bookseller's boy, draws an uvaffected sigh from the lawyer, because it extends the line of front along which he is obliged to fight. As the most persevering industry, with every help he can borrow from Digests and Indexes, will not enable bim to become acquainted with all, to which is he to give the preference? Is he to betake himself to the earliest, the latest, or those generally esteemed the best, which very possibly may be neither the one nor the other? In the mean while, every augmentation of the number more bewilders him, and feeling that they already exceeded what the mind could grasp, he gives up in despair all idea of searching for general principles to connect or controul them. Had this opinion been merely our own we should have hesitated in expressing it so decidedly, but we believe it to be very generally entertained, and have reason to know that several persons of high eminence in the law, and among others the late Justice Dampier and Sir S. Romilly concurred in it, and that Sir V. Gibbs, when Chief Justice of Common Pleas, repeatedly and strongly expressed bimself to the same effect, both in words and writing. If the excessive accumulation of reports has so unfavourable an influence upon the bar, it is not less pernicious upon the bench, as it enables those who are placed there to give much greater latitude to their natural disposition or acquired habits of thinking and acting than they could have done before. The judge who is of a timid or contracted mind will do nothing, however consonant to reason and principle, if a case can be quoted to him in which it ever was decided otherwise; while another, who undervalues precedent, and wishes to make every thing bend to his own peculiar views, is supplied by the present inundations of reports with precedents whether right or wrong to support any change or strained interpretation of principle or practice.
We proceed now to Acts of Parliament, the number of which is swelling with as much rapidity as reports in courts of law.
In the edition of the Statutes at Large by Tomlins and Raithby, which is the most condensed of any hitherto given to the public, they form 16 volumes in quarto and two parts, from Magna Charta to the end of 1818, 5 volumes and a half of which comprise the acts from King John to the end of the reign of George CC4
II., the remaining 10 and a half being filled with those of the present reign. Since the Union with Ireland a huge closely printed volume has been published every two or three years, and the average number of public acts passed in each of the last 18 years amounts to 140. At this rate of accumulation, their size at the end of the present century will have swelled to 50 of such ponderous quartos, and the number of public acts to 14,000.—a suitable companion to the 800 or 1000 volumes of Reports which at that epoch are likely to grace a lawyer's library. If any person should take the trouble to verify this statement it will be found rather to fall below than to exceed the truth, and when the surprize which it is calculated to create has subsided, the first question we are irresistibly impelled to ask, is, Is all this mass of legislation necessary ? If it is, it becomes our duty to submit to it with the silent resignation with which the inhabitants of the Alps survey a superincumbent glacier, which they perceive year after year increasing and descending, and which they are conscious must at last overwhelm them. For that this must be the inevitable effect of the present multiplication of laws if suffered to continue is incontrovertible. We,' says Lord Stair in the dedication to his Institutions of the Law of Scotland, as it stood in his time,
are not involved in the labyrinth of many and large statutes whereof the posterior do ordinarily abrogate or derogate from the prior, that it requires a great part of a life to be prompt in all those windings without which no man can with sincerity and contidence consult or plead, much less can the subjects, by their own industry know where to rest, but must give more implicit faith to their judges and lawyers, than they need or ought to do to their divines. But the necessity of so many enactments ought not to be hastily conceded. If there is any one subject on which experience, and the concurring streams of knowledge of every kind have given us an incontrovertible superiority over our ancestors, it is in that of legislation, and by the use of proper means, there can
, be no doubt that the evil complained of, if not entirely removed, might at least be greatly alleviated. Among the chief causes of the present size of the Statute law are the number of Revenue laws, the number of laws prohibiting or encouraging importation and exportation, the number of local and temporary laws, a love of legislation, and the inaccurate and slovenly manner in which the whole body of Acts of Parliament are drawn up. We shall make a few observations on each of these heads separately.
1. The number of Revenue Laws.-During each of the last eighteen years, the number of acts passed, which relate strictly to the revenue, has amounted to 40, and those which are connected with them indirectly, and but for them would never have