« AnteriorContinuar »
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 hastily 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
to any proposal of amelioration, and accordingly the bulk of legal practitioners never extend their views beyond the mechanical functions they are called upon to fulfill; and remain unconscious of the inadequacy of any of our judicial establishments to answer the ends for which they were instituted, until a precipitate but irresistible desire for sweeping reform has been loudly and generally expressed, some symptoms of which have already made their ap
pearance. It is to avert any such extremity as this, and to super* sede the necessity of any great and instantaneous change in the
substance 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 I 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
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 blameable, 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 uature than even the bulk to which they have already
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 time 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 ParTiament 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
* 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.
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