TOPICS OF THE DAY.
LAW REFORM.
FROM an allusion made by Lord BROUGHAM towards the close of the discussion on the second reading of his Criminal Law Con- solidation Bill, it appears that the number of Peers present had at that time (about eight o'clock on Monday evening) dwindled down to three. And there was probably as much of truth as sarcasm in the grotesque descriptions given by the Chancellor and Lord CAMP- BELL of the probable procedure of a Select Committee of the Lords on such a bill. It follows from these premises, that it is not to the House of Lords we need look for a consolidation of the criminal law. That august assembly may permit the thing to be done : if Ministers will take the trouble to procure a digest of which they are willing to burden themselves with the responsibility, a sufficient number of Lords may be got together to admit of its being passed. This is all that can be hoped. The House of Commons is still worse. The House of Commons has been, and from the necessity of its nature must continue to be, the main source of the crude antl incongruous acts, "in number number- less," which session after session overgrow the statute-book like weeds. And the House of Commons, in addition to its being equally inert with the house of Lords in the cause of systematic law reform, is so thick-sow n with pragmatical nibblers at small isolated atoms of legal abuse, that it will be difficult for any Government to pilot through it coy matured measure for the consolidation of either criminal or civil law.
It is clear that our only chance of obtaining such a consolidation
of the whole body of penal and distributive law as shall render it a protection to the innocent instead of a trap for the unwary, is in the task being undertaken by the Government. Multitudinous miscellaneous assemblies—whether elective or hereditary—are by their constitution unfitted for such a task. The Executive Govern- ment of the day must grapple with it—employ competent men to prepare the code or digest, and present it when prepared for the sanction of the legislative assemblies. Such a compilation can only be produced by a few men of competent skill and learning; the politicians who discharge the functions of administrative go- vernment may form a general opinion of their work ; and the Legis- lature—the representatives of the nation—may in the nation's name accept the new code, if they see no reason to apprehend any encroachment upon their liberties under the insidious guise of law reform. In this manner was the law amended in the time of ED- WARD the First, "the English Justinian." In this way alone BENTHAM has declared it to be his opinion that the laws of a na- tion can be amended.
It scarcely needed the arithmetical details produced by Lord
BROUGHAM on Monday evening to convince every one that the au- thoritative sources of the law have become too voluminous to be accessible, not merely to laymen but to professional lawyers. The continual increase of statutes and decisions alone for some hun-
• dreds of years, has rendered a complete law library a thing which few lawyers can afford to purchase, and none to peruse thoroughly and effectively. From their Blackstones and from elementary trea- tises on isolated branches of law, our lawyers acquire a general bird's-eye view of the whole contents of our legal system and its distribution. Their practice in the courts enables them to master the details of law applicable to particular questions, or, it may be, to become unwontedly learned in some particular branch. They have— what the unlearned used to have in former days—a general notion of what is law ; and when any particular case is submitted to them, they plunge into their ocean of books to pick up the statutes and decisions applicable to it. In that enormous expanse, it is with the most versant in such researches pretty much an affair of chance whether they hit or miss the right acts of Parliament and decisions. An argument in the Courts at Westminster is a meeting of two arrays of lawyers to hear from the Judges which side has been most lucky in its chance-hunt after decisions. Either is confident of vic- tory, until the one produces a report which has escaped the notice of the other ; and the judgment of the Court still leaves the minds of all parties unsatisfied as to whether some decision or statute may not have escaped all their researches, which would have led to quite a different result. The Statutes at Large and the Reports are a kind of lucky-bag out of which our lawyers draw tickets, and the business of the Judges is to decide who has drawn the great prize. This is the ccndition to which the law of every great nation must come in the lapse of centuries. New laws or modifications of old laws are called for by the altered circumstances of society : every question submitted to the decision of a court of justice has some- thing peculiar to itself that calls into exercise the ingenuity of the Judges in applying to it the general terms of the statute law. Many cases occur that must be decided more by a general analogy than by the letter either of the statute or the consuetudinary law. It is an inevitable necessity that the law—the customs of the country, the enactments of the legislature, the judgments of law courts— must increase in number and complexity with every year. And this process cannot fail in the course of time to render those au- thoritative sources of legal knowledge so multitudinous and volu- minous, that unless some remedy be adopted the law must break down under its own e eight ; the nation must lose the benefit of a definite and cognizable law, from its law having outgrown the powers of human comprehension. Two kinds of remedies have been proposed. The favourite panacea in our days has been a perfect philosophical code, that should render unnecessary the constant accumulation of statutes
and decisions. Such a task could only be performed by omniscience : but the impossibility has not deterred from making the attempt BENTHAM had his codes ready cut and dry to offer for the accept- ance of every state from the North American Union to Russia. And the Code Napoleon has been held up in its day as something of the kind. It is indeed a fair specimen of what may be ex- pected from any such attempt. That a number of explanatory statutes, of judicial decisions, and of ingenious commentaries, have already been superadded to it, is no disparagement to the Code Napoleon : the exigencies of society, and of such laws as fallible human beings can make, render this constant growth in- evitable. But the true ground for adjudging the Code Napoleon a failure is, that owing to its incompleteness and vagueness—the consequence of its being compiled by theorists who had no sharp practical knowledge of the law—it is a bad starting-point for this inevitable accumulation of supplementary enactments, applications, and explanations. Its superficial vagueness infects the whole ap- paratus that has been constructed upon it.
The best specimen of the other kind of remedy that has at times been applied to law become useless from excessive growth, is to be found in the compilations of JUSTINIAN. The two principal books (the Institutes are a mere elementary text-book for learners) are exactly what the Common Law Commissioners were directed to prepare. The " Codex" is a digest of what may be called the statute law of Rome, which was actually in force in the time of JUSTINIAN. The " Pandects " are a digest of what may be called the common law of his time. They are neither more nor less than the law of JUSTINIAN'S time as it was known to TRIBONIAN and his few assist- ants. The knowledge which their work shows these accurate and learned lawyers to have possessed of the best enactments, decisions of judges, and opinions of counsel, of their own and preceding ages, was amply sufficient for practical purposes. The Emperor's de- cree that their digests should have the force of law—that all statutes, decisions, and opinions to be found in them, and none else, should be authoritative—removed the danger to which we are daily and hourly exposed, of judgments pronounced in favour of the party whose lawyer has drawn the lucky ticket in the lottery of decisions. That decree at the same time reduced the valid law within such a compass as rendered a thorough and intimate know- ledge of it on the part of practitioners possible. And by the judi- cious determination to give merely the law as it was—to attempt. no impracticable idealization of it—all the sharp-defined forms, all the practical common sense which men trained in real business had impressed upon and inspired into the Roman law, was retained. And the consequence has been, that the law-books of Jusrastew were not only an inestimable boon to his own time and nation, but have been the source of much of what is most valuable in the law of every nation of modern Europe. Digests of the statute and common law of England, executed on a principle analogous to that upon which TRIBONIAN compiled the law-books of JUSTINIAN, appear to be what is most desirable in the present state of our law. A digest of the most important acts of Parliament, and a digest of the most important decisions and opi- nions, such as is understood to have been prepared by the Law Commissioners, revised, corrected, and augmented by lawyers like Lords COTTENHAM, DENISIAN, and LYNDHURST, would be a satis- factory body of law. It would be within the compass of the studies of men of average talent and industry to obtain a thorough know- ledge of it. It would insure men against the danger of supposed obsolete statutes or forgotten decisions being raked up against them. It would not render explanatory or emendatory statutes, or reports of the decisions of courts, or text-books and commentaries on special branches of the law, unnecessary; but it would for the time bring back the whole of the law within the sphere of human comprehension ; and when the necessary course of events had made the law again too exuberant, the same process of retrenchment might again be adopted. We do not regret the caution evinced by Lord LYNDHURST respecting the immediate adoption of the digest of statute and common criminal law embraced in Lord BROUGHAM'S bill ; but we could have wished a more decided and hearty expres- sion in favour of the principle of consolidation. What the country most urgently requires is to know what and where the law is Reform—improvement—will doubtless be required ; but let us have a law : at present, from its sheer redundance, we have as good as none.
Honour to whom honour is due. To Lord Baounrum are we mainly indebted for whatever steps have as yet been taken in the course we have indicated as most desirable. The inquiries of the Common Law Commissioners originated in his motion in 1828; and the commission directing them to extend their investigations to the Criminal Law was issued when he was Chancellor. He has taken charge of—produced to public notice— urged the adoption of—the digest of the criminal law prepared by the Law Commissioners. He has urged upon the Ministers the introduction of the digest as a legislative nieaeure of their own ; and, failing in this, he has invited the attention of his own House of the Legislature to it. He has by his perseverance awakened a certain degree of public attention and extorted some show of action from Government; and if by further perseverance he carry his !mint, he will confer a benefit upon the country, the extent and importance of which it ,is not easy to estimate. In that event, he may allow his enemies their small triumphs at hitting the weak points he frequently exposes to their aim—the weighty obligation he confers upon the nation will overshadow them all. It may be said of him, that as a learned and sound working lawyer he was excelled by many of his judicial contemporaries: it may be said of
him, that he could -not have compiled the very digest upon which he seeks to build his fame : but it will also be said, that had it not been for the impulse he gave, that digest would never have been undertaken, and had it not been for his unflagging enthusiasm it would never have become law.
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