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Art. IV.-HISTORY OF LAW REFORM.
Lincoln's Inn, Nov. 1830. After long neglecting my promise to give you some account of the phenomena characterizing the process of Law Reform, as going forward in this country, I have been stimulated by your recent remonstrances, and shall endeavour to make some progress; though it is no easy matter to fix on any convenient period for so doing, amidst the commotion around me, which (however symptomatic of ultimate good) has hitherto been little fruitful in matured results. England, when the work began, was very backward in juridical knowledge: she had to go to school, and, unfortunately, began to practise before she had even well read over her lesson. At present, it is too easy for each legislative speculator to ride his own hobby, on the mere condition of letting his neighbour do the same; while those propositions, which are best digested, and most “hammered” by the aid of experienced men, well paid, and patiently waited on, seem to be the last considered and the least promoted.
The changes so worked are likely to be unconnected, imperfect, and inconsistent. One measure is passed when reform has obtained a very moderate or restricted degree of momentum; another is made-in pari materia too—when the current of innovation is strong. One report issues from a commission of inquiry instituted and conducted on principles of guarded decorum : another comes from a body of different parentage and more active spirit. Can their results be expected to be congenial ?
Yet, even from these attempts, there is certainly much instruction to be derived. What I see around confirms me in that prudential circumspection, which has sometimes led me to tell you that your measures are often too precipitate. My conviction is certainly strengthened, that to give reforms of old legal institutions a fair chance of success—to make them improvements as well as changes —something better must be done than leaving every speculator to push his scheme through a popular assembly; that putting every thing into disorder is not the most orderly plan of action ; and that the whole of a system should be contemplated, and a well
• These letters, addressed to a friend in America, have been placed in our hands with permission to make them public. Of this permission we gladly avail ourselves, coinciding as we do in the general tone of the writer's observations, though we may occasionally differ from him in his opinion upon particular points.—ED.
considered plan of operations settled, or at least imagined, before hasty conclusions and partial changes are applied on insulated points.
One thing, however, I may assure you, that the old principle of nviolability for all abuses, however flagrant, is gone for ever. Many of them, to be sure, have fast and powerful friends, and die hard. In the modifications made, whether by judges or the legislature, on the commissioners' suggestions, you may almost always see something which has the effect of preserving the official part of a nuisance. But the present position of the cause of legal reform insures it many friends, even from the indifferent, and, indeed, the hostile ranks.' Exposure has rendered many things intolerable, which gave little offence while they could be decently concealed. The muddy reservoir becomes a double nuisance when stirred, and even a lazy neighbour will then help to clear it out.
The practitioner feels, moreover, that if nothing but exposure be effected, his calling is damaged in repute, and can only be restored by amendment. Personal interest thus identifies him with the suitor's call for redress. Law must then be made better;
" And certes there is reason for it great,
Withouten that, would come an heavier bale." The public hear all around a loud boast of the remedial processes said to be going on. It no doubt imagines that all is working well. How far this is correct we may see by-and-by. I shall begin (taking my stand at the close of the Duke of Wellington's administration), and shall give you a short review of what has hitherto been done and is now on the anvil. We will try the temper of the machinery hitherto employed, and see how its parts harmonise, and judge what it is likely to effect.
The Court of Chancery was the culprit entitled to the first trial and purgation, from the number and enormity of its offences. Unfortunately, its being the first tried, seems hitherto to have given it something like impunity. The scythe of reform, at that period of the process, was unsharpened; the harvest was ripe ; but the labourers were either wanting, or without spirit and example. The Commission of Inquiry (which issued in 1824) was directed to the heads of the court, and to several parties intimately connected with the old system. There was, therefore, no indecorous prying into the administration of justice in the judicial department, and little attempt to grapple with the glaring subjects of complaint any where.
The report of this commission formed two huge folios, printed in 1826. It cost the country many thousands, and it rests, for the perusal of the curious, à monument sacred to the memory of its authors,
For a while, this effort seems to have exhausted the energies of the reforming principle. But, not long afterwards, Mr. Brougham selected the field of law for one of his gigantic exertions; and, after a speech from him of some hours' length, the cautious minister of the day, Sir R. Peel, conceded a half-and-half measure ;—the common fate of such proceedings in England, when total resistance becomes desperate. Two commissions were issued, which certainly, in spirit and composition, marked a very different æra from that of the Chancery board, which never was intended, and certainly was not calculated, to do anything effectual. For these two commissions were carved out two branches of the subject,—the practice of the courts of common law, and the state of the law of real property. Objections are obviously applicable to such subdivisions of a subject, in which distinct lines of separation are not very clearly marked out; and to the want of any general supervision, which ought to exist somewhere. As to the men selected or rejected, observations also were made. It is useless, however, to remark on want of general acquaintance with sound principles of jurisprudence. It would only be saying what must be said, with very few exceptions, of all English lawyers—their legal education rarely travels beyond the short limits of a particular department, even of their own law.
Both bodies of Commissioners have certainly exerted themselves meritoriously; and the greater part of the “Common Law” Commissioners fill the new judgeships, which the first measure founded on their suggestions established (absit invidia!) Successors have been appointed who, though of less weight of reputation, have entered zealously, and in the same spirit, on the continuation of their predecessors' work.
You who have seen how these things are managed in “ the old country,” will, of course, be aware that this apparatus costs no trifling number of thousands per annum.
Of this I shall not complain ;-—the labourer is worthy of his hire ;—but I shall certainly use the cost, and the country ought to use it too, as a sound argument for seeing that adequate fruit results from the operation.
It will of course strike you that the English plan of operations is, from the beginning, defective. When different branches of our legal institutions are handled by bodies of such dissimilar spirit as the Chancery and more recent boards evince, it is plain that if unity and consistency of result arise, it will be in spite, not by means, of the scheme. The machines are quite different
« L'un va en tortue, et l'autre court la poste.” But were it otherwise, still is it not strange to suffer portions even of the administration of the law to go untouched, and to leave the law itself almost unnoticed? It has not been so elsewhere, and it would not be so here, if the work were to be done again. But, meantime, the defective system has been acted
upon, and is still pursued. Mr. Parkes has shown us, that in New York you have dealt with the matter much more wisely. The English Court of Chancery passes through an inverse process to the one you pursued. The Commissioners' report was first followed by a code of imperfect practical details ; next, by abortive attempts to settle and re-arrange the constitution of the court, which, if successful, would render new practical rules necessary; and as to the law to be administered, and in which the mischief after all often lies, they have let it altogether alone ; except so far as the “Real property." Commission may deal with part of it.
Excuse me if I advert again to the differences in the plan and scope even
of the boards of inquiry on which we are now acting. The “Real property" Commission (which owed its origin very much to suggestions as to that branch of the law in the Chancery Report) embraces a division of the law, with no direct reference to its practical administration; and is confided to persons whose views and movements differ widely from those of the suggesters. The “ Chancery” Commission, we have seen, was not even allowed free
range over the whole machinery of its own court. The “Common Law" Commission grapples as yet with mere practice; but then it deals with its subject searchingly; not being, however, directed to any investigation of the law administered in the courts. The consequence is, that even while it is at work, legislative schemes are in discussion, which would sweep away the very materials which it is moulding. Thus the Commissioners abolish local jurisdictions, and strengthen the force of Westminster Hall, while a bill is running side by side with their own, which would make local courts universal, and prove the old force of the higher courts to be too strong instead of too weak.
What wonder that, under such circumstances, considerable doubts are entertained of the successful issue of pending operations ? If unconnected, detached, and inconsistent alterations are multiplied, who does not suspect that a chaos will be created rather than removed; and that after all the trouble, expense, and annoyance of repeated changes and experiments, the work must begin again on some more harmonious basis ?
Nov. 1830. The report of a Commission of Inquiry has here rather a tortuous course from the first. It is delivered to his majesty's secretary of state for the time being, and there (as far as official consequences are concerned) it might usually lie, guiltless of good or evil
. The House of Commons, however (for the convenience of its members), usually prints a copy; which is then pirated and sold by the booksellers ; and is thus, by a sort of breach of privilege, obtained by the public, whose money has been expended upon it. Neither in theory nor practice, however, does it appear to be any one's duty to act upon it.
The Commissioners have no authority to prepare bills. The “Common Law" Commissioners did so, but had them thrown back upon their hands by Sir J. Scarlett, the late Attorney-General. The report, in short, is a “waif or stray. Here and there we find a legislative fisherman who hauls up the casket in which the Commissioners have packed up their scheme, like the Genius bottled off by Solomon; but, generally speaking, the reports slumber on the shelves till public opinion is once more roused; and then comes forward some disjointed scrap of the subject, dignified with the name of a measure “recommended by the commissioners," who would not willingly own a limb of the misshapen bantling. It comes in late in the session-is buffeted about-falls through, nobody cares how-or passes into a law so crudely fashioned, that it is sufficient employment for the next session to cure its blunders.
I will now note the actual results of our proceedings, and first enumerate the fruits of the inquiry into Chancery.
1. The report having been made in 1826, Lord Eldon himself kept aloof from a practical adoption of its suggestions. But still the ministry of the day thought it decorous to lay the whole as a project before parliament. Accordingly, Sir John Copley, then Master of the Rolls (since Lord Chancellor), obtained leave in that
year to bring in a bill (which, however, he took care not to bring in, in fact, till 1827) " for the improvement of the administration of justice in the High Court of Chancery.". That bill, it is true, made no pretence of remedying any judicial defects of the court. The Commissioners had evaded the subject. It cut down none of the heavy pecuniary abuses. That topic also had escaped notice. It contained, however, 26 sections, and 145 clauses of practical regulations, which had been laid down in the report, and on that account had the advantage of unity of purpose.
A change, however, came over the drama--the scene shifted. Lord Eldon lost, and Lord Lyndhurst obtained, the seals. In grasping at the prize he dropped his bill, which has been heard of no more.
From this time the theory of Chancery reform appears to be, that the head of the court is the proper person to prosecute the necessary measures, and to judge what they should be. Promises were rife; and practical statesmen were satisfied to ask, and Lord Lyndhurst was hasty enough to give, pledges that a chancellor