Imatges de pàgina

evil, by showing that the defects of the judicial system, as a whole, are such, in quantity and quality, as to render it totally inadequate to the ends of justice, he presented to the public mind an object of that commanding importance, without the excitement of which a deep interest cannot be raised. He did not present the remedy, in all its magnitude, but he presented the mischief in all its magnitude; nor can the unspeakable advantages to be obtained by the removal of that mass of evil thence fail to suggest themselves. It is not a small object which, as a reformer, Mr. Brougham proposes to himself: with evidence of this the whole of his discourse is pregnant. An object more extensively affecting the interests of the human race, the human mind can hardly propose to itself. We may therefore be satisfied, that the interest which it creates will be progressive. It is not a flash of excitement, which will be seen for a moment, and then pass away,—not a state of mind which makes a loud noise for a little time and presently after is silent, but a natural offspring of the times and circumstances in which we live: destined, therefore, to perpetuity and increase.

As the first thing to be done for reform, in a country where you have an unwilling legislature, from which every thing is to be dragged by a sort of force, is to educate the public mind, which is the dragging power; and as the first grand advantage to be obtained from the speech, from the authority, and the future exertions of Mr. Brougham, will be manifested in this education, in maturing the conviction of the nation that a great reform is required, that infinite good is prevented by withholding it, and that the pretexts by which it is opposed are merely the forgeries of imbecility or interested craft; we shall content ourselves, on the present occasion, with lending our aid to the production of this effect; with pointing the public attention to the evidence of the evils which the nation suffers, and to the disgrace which it incurs, by allowing its affairs to be conducted according to a system of rules which exist in mockery of human understanding

We do not, therefore, deem it expedient, on the present occasion, to lay before our readers our own view of the entire field of legal reform; or to show what a really wise and virtuous legislature would do, for rendering perfect the operations of law in England at this present moment;—whether in the exact definition of rights which constitutes the civil code; and the exact definition of such violations of those rights as require to be restrained by punishment, which, with the apportioning of punishments, constitutes the penal code; or, in settling the adequate number, and the best possible order, of the judicial servants of the state, constituting a perfect judicial establishment; and prescribing the best possible rules for conducting the judicial inquiry, and giving effect to the judicial decrees, which constitute the code of procedure. This is a subject which may well be supposed to require an article, or rather articles, to itself: and to this it will be our duty frequently to recur. In the practical course of proceeding, however, we regard the subject which forms the principal topic of Mr. Brougham's discourse, as indispensably preliminary; we mean the defects of the present system ; for, before people can be persuaded to make the effort necessary for a change, they must be convinced that there is much evil, on the one hand, from which they may escape, and much good, on the other, which it is in their power to attain.

In the mean time, there is one prejudice, which meets the proposition for rendering law in all its branches as perfect as it is possible to be, which it seems of great importance immediately to remove: that is, the notion, that a change of laws means a change of rights. Nothing is more common than to meet with men, who are alarmed at every attempt for the improvement of law, as if it implied a transmutation of property; as if, by the alterations which are proposed, it were intended that the men who now possess property should be deprived of it, and they who are now destitute of property should receive it.

Never was any conception more absurd. He who is now the real owner of property will obtain a peculiar share of the benefits arising from the improvement of the law. His title will be rendered more clear and indisputable; the execution of all his purposes regarding his property, whether in selling, or lending, or pledging, or leasing, or willing it, will be rendered more easy, more cheap, more certain ; and any

violation which may be committed of the rights which he has in it will be more promptly, completely, and easily redressed. His rights, therefore, instead of being diminished, will be increased, by the improvement of law. Under a bad system of law, property is, to all intents and purposes, less property than under a good system. You may go on making law worse and worse, till property vanishes, and at every stage of the deterioration of the law more and more property becomes extinct. Without law there is no property. With a bad law there is very imperfect property. It is only a good law that gives to property its full value. Even in defining rights, the reformer of law would not take away any existing right, he would only describe clearly what it is; and in his other operations he would hedge it round from violation, and render more easy and effectual every possible mode in which the owner might choose to dispose of it. Of all men, therefore, the owners of property have the greatest interest in the reform of law.

In the view, which Mr. Brougham thought it expedient to take, of the defects of English law, he begins with the judicial establishment. This, undoubtedly, was a very delicato subject to be handled by a man who had terms to preserve with the members of that establishment, and the classes who deem their interests connected with theirs. What would constitute a perfect judicial establishment, is in itself a pretty simple question. What practical prudence would suggest, in a country which has already such a judicial establishment as ours, with such interests and prejudices protecting it, is, on the other hand, a question of great complexity. It is as obvious, for example, as any of the hackneyed maxims of life, that for the judicial business of the country you ought to have judges, sufficient in number for the performance of it, and so distributed over the country, as to be most conveniently situated for the wants of the people. It is equally certain that you never ought to have more than one judge, where one is sufficient for the service, more especially where the service is likely to be better performed by one than by more.

A tribunal consists of a judge, and the agents, whom he has occasion to employ, in carrying into effect the executive orders which it is necessary for the purposes of justice that he should issue. About the number and functions of those agents of the judge, nearly the same for every tribunal, there is no theoretical difficulty. This may be, therefore, considered as a given point; and, if so, the only question which remains is this, whether, since you are to have a judge wherever there is occasion for the services of a judge, the same man who renders any part of the judicial services should render the whole ? in other words, should settle all disputes which arise in his district respecting rights, one set as well as another, without any exception, and should take the evidence of all alleged resolutions of rights, and pronounce the award of the law ?

Where there is a well-made law, a law so made as to speak a clear and precise language on every point, and where the tribunals of primary jurisdiction are adequately superintended by courts of appeal, the language of reason is clear upon this subject; the man who does one part of the judicial business in any district should do the whole; the man who is not fit to be trusted with one part is not fit to be trusted with any: and when the whole business of judicature is performed by one man in one district, the plan of the judicial establishment is simple and clear; nothing is required beyond those tribunals of primary jurisdiction, except the constitution of a perfect court of appeal, to which all the same principles, as to the primary courts, with the single exception of locality, apply.

What a mess, compared with the simple and efficient organ which reason recommends, was that to which Mr. Brougham had to apply his critical powers, in the judicial establishment of his country! There, the judicial business is distributed, and is pro


vided for, as if done by a set of men whose object was to make a mockery of human reason; to sport, like mischievous monkeys, with the things on which the happiness and misery of human creatures depend. The determinations concerning the rights of individuals are distributed, in one very ill-defined portion, to a set of men called common law judges; in another equally ill-defined portion to another set of men called equity judges; in another portion to men called ecclesiastical judges; and in a portion miscelIaneous, and almost indescribable, to a most numerous and strange class of judges, called justices of the peace.

The mode also in which these men operate is nearly as illcontrived for the performance of their business as it is possible to conceive. Whereas four men, when properly employed, can do four times as much work as one man, English law sets four or more judges to work, at the same time, upon the same thing, where many men cannot possibly do more than one, but generally, of necessity, do less. And whereas reason recommends, that there should be a judge to do the business of a judge, as there is physician to do the work of a physician, a priest to do the work of a priest, wherever one is required, on the contrary, the judges, of the higher order, in England, are all assembled in the capital, and the demand for justice must either travel to them, or put up with a virtual denial.

From this specimen of the absurdities which disgrace the provision made for the judicial services required by the community in civil cases, let us turn our eye toward the provision which is made in penal cases. Is there a functionary for the performance of the business whenever and wherever it is required ? Far from it. Human ingenuity could hardly devise a more preposterous expedient than that with which the people of England have hitherto been provided. We take away a portion of the judges of the metropolis from the business in which they are there engaged, and send them about the country twice or three times in the year, to get through, in such way as they can, the penal business which has been accumulating for months. This, at least, is the provision made for judicature in the more highly penal cases; for the less highly penal cases, by far the most numerous, and therefore the most important, there is the truly extraordinary establishment of the justices of the peace. But to describe in detail the absurdities, and, we may even say,

the atrocities, of the judicial establishment in England would carry us far beyond the limits to which we are restricted. Besides, we are much more desirous that the reader should

upon this subject hear Mr. Brougham than ourselves.

“ In the first place, let us proceed to the Courts in Westminster-hall, and observe the course pursued in them. The House is aware that, whatever may have been the original of our three great Common Law Courts, they now deal with nearly the same description of suits; and that, though the jurisdiction of each was at first separate and confined within very narrow limits, their functions are now nearly the same. The jurisdiction of the Court of King's Bench, for example, was originally confined to Pleas of the Crown, and then extended to actions where violence was used,—actions of trespass by force; but, now, all actions are admissible within its walls, through the medium of a legal fiction, adopted for the purpose of enlarging its authority, that every person sued is in the custody of the Marshal of the Court, and may, therefore, be proceeded against for any personal cause of action. Thus, by degrees, this Court has drawn over to itself actions, which really belong to the great forum of ordinary actions between subject and subject, as its name implies, the Court of Common Pleas. The Court of Common Pleas, however, in its exertions for extending its business, was not so fortunate as its rival: for, though it made a vigorous attempt, under Lord Chief Justice North, to enlarge its sphere, it never was able to obtain cognizance of the peculiar subject of King's Bench jurisdictionCrown Pleas.

“I hope, Sir, the House will allow me, for the sake of a little divertissement in the midst of so dry a matter, to state the nature of the contest between the two Courts, as described by Roger North in his biography of the Lord Keeper, a work of amusement with which I am sure my Learned Friend (the Solicitor-General) is as well acquainted as he is with the subtleties of his profession.

" It appears from his account, that the Courts of King's Bench and Common Pleas had quarrelled as to their respective provinces; for he says, · The Court of Common Pleas had been outwitted by the King's Bench, till his Lordship came upon the cushion, and that by our artifice in process called ac etiams. His Lordship used the same artifice in the process of his Court, where it was as good law as above. But Hale exclaimed against it, and called it altering the process of law; which very same thing his own court had done, and continued to do every day.(6)'. In another place he tells how, « The two courts being upon terms of competition, the King's Bench outwitted the Common Pleas;" and how the latter inv ed a shift' against th

King's Bench. • There,' says he, the Common Pleas thought they had nicked them. But the King's Bench was not so sterile of invention as to want the means of being even with that device;' and he shows how-concluding with this remark— The late Chief Justice, Sir Orlando Bridgeman, and his officers of the Common Pleas, gave this way of proceeding by the King's Bench very ill language, calling it an arbitrary alteration of the form of legal process, and utterly against law. But the losers might speak; they got nothing else; and the Triccum in lege carried it for the King's Bench; which Court, as I said, ran away with all the business.(c)'

“The Exchequer has adopted a similar course; for, though it was

(b) North's Lives of Lord Keeper Guildford, &c., vol.i. p. 130.
(e) Ibid. vol. i., p. 203.

« AnteriorContinua »