authority is attested, their validity, how deep-rooted soever, is what we see challenged without remorse. A radical weakness, interwoven into the very constitution of all unwritten law." (y) Among the various objections which have been raised against codification by those who profess not to be opposed to it upon principle, is the alleged difficulty, or even impossibility, of finding individuals properly qualified for the task of digesting such an unwieldy and heterogeneous mass of decisions as that which constitutes our unwritten law into such a form of arrangement and method as the term "code" seems to imply. Others again, who are altogether averse from the project, ground their resistance in fact on its alleged inutility, inasmuch as, by the aid of the numerous compilations and treatises on different branches of law, the inconvenience supposed to be attendant on the existing system is in great measure obviated. Now, it is impossible not to see that the latter argument destroys all the force of the former; and, while we are far from subscribing to so untenable a proposition as that the number and value of those excellent works which we possess, and which do so much honour to the private individuals who have composed them, are such as, in their present unauthorized form, to supersede the necessity of which we are treating, we cannot but, at the same time, admit them as affording a triumphant answer to the objection founded on the difficulty of the undertaking. There is, indeed, little else wanting to the formation of codes of law applicable to the several subjects they have treated of, than to give a mandatory shape, under the sanction of the legislature, to the admirable Digests of Fearne, Preston, Sugden, Phillips, Cruise, Abbott, and others, whom it would be invidious to particularize, as it is impossible to enumerate all whose stores might furnish useful contributions to such a work. We are not afraid then to confess that, in the mere proposition, that it would be well if the law were not only written, but reduced to something like order and consistency (which is all that we understand by the obnoxious terms codification and tribonianism) we can really discover nothing to excite the hostility of antiinnovators, or the sneer of self-sufficient practitioners. It is mere obtuseness of intellect which persists in confounding the plain dictates of common sense with revolution and subversion; in ascribing to the advocates of a code the doctrines (which they never professed) of immutability and perfection; in applying the arguments of certain able and patriotic writers of Germany, employed in resisting the introduction of a foreign system, to a project so wholly dissimilar as that of revising and consolidating our own; in citing D'Aguesseau as an authority against codifica (y) Fragment on Government. Pref. p. xix. Note. tion with the same breath that records him as having designed "faire un corps entier de legislation;" in insisting on the alleged flourishing state of litigation in countries recently subjected to the dominion of a code as a reason against the adoption of a similar mode of encouragement in our own country, and at the same time deploring that the evils of our institutions are such as, by an absolute denial of justice, to check that spirit which a better system is blamed for fomenting. (a) Into so many strange inconsistencies may we be betrayed by a desire of differing from others; a motive of opposition to improvement which Bentham himself seems to have overlooked, when he classes all opponents as either dupes or impostors crafty lawyers, who falsify the law to serve their own interests, or half-taught reasoners, deluded into a belief that reform is impracticable. Persuaded that Mr. Cooper belongs to neither of these classes; believing him in the main sincerely to desire the public good which he professes to cultivate, we exhort him to renounce this spirit, which is unworthy of him, and to stand 66 The (x) Lord Eldon, in defence of his proverbial habits of procrastination, was fond of recording such instances as the following: "The late Lord Thurlow," he used to say, once sent a question for the opinion of the Court of King's Bench, to which Lord Kenyon (then Lord Chief Justice) returned an answer so little satisfactory to the Chancellor that he sent it back, with a request that it might be re-considered. Lord Kenyon was somewhat surprised at such a proceeding, but he did re-consider the subject, and the result was that he gave a second opinion, directly opposite to the first. I myself (the noble Earl would add) at another time requested the Court of King's Bench to certify to me their opinion as to the estate which a person took in some lands. Court was unanimously of opinion that he took an estate in fee simple. I was not satisfied with that opinion, and sent the case to the Common Pleas, the judges of which Court were unanimously of opinion that he took no estate at all in the lands in question. Now, I was impertinent enough to think that they were all wrong. I made an order at variance with the opinions of both courts; and, what is very extraordinary, my decision satisfied all the parties concerned." We do not vouch for the accuracy of this quotation, which is taken from the Times newspaper, July 25, 1827, and which appears liable to some grave technical objections. But, in substance, it resembles very closely the style of illustration which his Lordship was accustomed to employ, and tallies extremely well with his often-repeated boast that, whatever might be the delays imputable to him, he was not conscious of ever having, by a wrong decision, deprived a lawful owner of property, or given it to one not entitled. What, in effect, does such a boast amount to-or, rather say, how can it in justice be uttered, when the state of the law is such, resting as it does on the authority of frequently conflicting precedents, that in a very large proportion of cases it would be impossible to pronounce a decision wrong, on whichever side it is given; whilst, in a far greater number, no possible mis-decision could be attended with half the injury to the parties concerned which is the unavoidable consequence of reiterated hearings and indefinitely protracted judgments? The satisfaction of all parties, which Lord Eldon describes as the unexpected result of his decision, given (as we have seen) in opposition to the conflicting opinions of both the courts of common law, might have flowed from a very different source than that of persuasion; and this we remark, not in any spirit of detraction from the merits of so great an equity judge as Lord Eldon, but as strongly illustrative of the defects of a system resting on so obscure and unsteady a foundation as that of random acts of parliament, and the decisions, or even mere dicta, of judges, taken down with greater or less degrees of accuracy by voluntary and irresponsible reporters. VOL. II-JI". no longer in the light of solid improvement. Let him confess that it is not necessary to read Hugo and Savigny, or to take a degree in the Historical School of Legislation, in order to become properly qualified for the great work of practical improvement; that the evil he is called upon to combat consists "dans l'incertitude de la loi non écrite, et dans l'immensité des statuts, qui, faute d'ordre et d'ensemble, rendent la loi inaccessible aux citoyens;" and that, "quant à la difficulté d'y remédier, elle s'accroît par le mal lui-même: elle s'accroît par le nombre des interessés, fauteurs de ce mal, par l'ascendant croissant des legistes, par le découragement des bons esprits, par le désespoir même qui se place comme un épouvantail à l'entrée de ce labyrinthe. On est effrayé de la phalange de sophismes au travers desquels il faut passer en les combattant; sophismes qui renaissent d'eux-mêmes, comme ces diables de Milton qui, après avoir été coupés en deux par le fer des anges, réunissaient bien vite leurs membres séparés et recommençaient le combat." Bentham. "De la Codification," &c. "There is one measure (says Mr. Cooper) suggested by the Report (of the Lords' committee on the appellate jurisdiction) which might be successfully applied to diminish the number of causes-viz by passing declaratory acts, to remove doubts on points which furnish a constant harvest of litigation on other points, where no relief can be had at common law, but it is obtained, of course, on application to Equity, remedial acts might be passed to render the institution of a suit unnecessary, by placing the parties at once in full enjoyment of their legal rights. In this way (he adds) one fifth of the business might be annihilated." We need hardly express our entire concurrence with Mr. Cooper in these suggestions; but then we must ask, What is this but partial codification? And what occasion is there for sneering contemptuously at those whose views in the same line of prospect may be only somewhat more extensive and general? Nay, we doubt whether Mr. Humphreys's entire volume contains a more sweeping clause than the last part of the passage above cited, which tends to nothing else than the abolition of a separate equitable jurisdiction. We refer to the following table as pointing out the several places throughout England and Wales, at which provincial courts of justice might conveniently be established, regard being paid to the joint considerations of population and distance. The result will afford for every tribunal an average jurisdiction over about 100,000 inhabitants, and 600 square miles, but subject, of course, to great and unavoidable inequalities in the distribution. The metropolitan courts are not included in the table. The county of Middlesex is omitted, as falling almost entirely within the circle of their jurisdiction, which may conveniently be fixed at a distance of ten or twelve miles from the capital; and allowance is made in the judicial establishments assigned to the contiguous counties of Surrey, Kent, and Essex, for a proportional amount of the population, and extent of each of those districts to be embraced in the same metropolitan division. The great commercial and manufacturing districts of Lancashire and the West Riding defy all approximation to relative apportionment. Cumberland (2).......... 159....15 .... Carlisle 154 Whitehaven 12 * The asterisks are intended to denote those places whica appear to be most suitable to the formation of the higher provincial courts above spoken of. |