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only useful portion of a state of teinds is the statement of the free teind taken from the previous process, with the amount of augmentation last awarded deducted. The information for making that statement is obtained at the Teind Office, and could as easily be obtained by a clerk employed there as by an agent appointed under the present system. There is hardly any case where such a statement of the free teind would not amply suffice for all the purposes of a locality, but in too many instances voluminous documents are lodged containing disquisitions on the law of teinds, and it not unfrequently happens that these documents turn out to be wholly useless for the purpose they have been prepared to serve. The Committee further think that a good deal of litigation might be avoided by adopting this suggestion. A majority of the Committee are of opinion that the state of teinds, as hitherto, ought to be prepared by a common agent. But the Committee suggest that the common agent should not in any case be a party to any question which may arise in the course of the locality without authority from the heritors, but that any such question should be reported by him either in his state of teinds or by a note lodged in process, and the parties whom it concerns may or may not, as they may be advised, contest the point so raised.
"The Committee unanimously approve of the suggestions made by the Commissioners for the conduct of the Teind Office. Every one at all familiar with the working of that office is aware of its unsatisfactory nature. The work is cumbrous, and the staff is not sufficiently numerous. The Committee would therefore suggest, that, as a tentative remedy, a competent staff of clerks should be immediately appointed to work up the arrears of the Teind Office, especially in the department where the schemes of localities are prepared."
Why do not the Committee notice the culpable neglect of the Government to appoint a depute teind clerk, to which we formerly called attention? There is now, we understand, no probability of a general Act anent the judicial establishments this year; and even if there were it would be no excuse for increasing the accumulation of arrears of work that must be done at some time.
The following is the only important paragraph in the brief notice of the Sheriff Courts :
"The Committee gather from the evidence that one of the objections urged against an appeal from the Sheriff-substitute to the Court of Session is the expense of such an appeal, contrasted with the comparatively insignificant expense of an appeal to the Sheriffprincipal. They think that a system might be devised whereby appeals from the Sheriff to the Court of Session might be more cheaply conducted. This might be accomplished by limiting the
number of counsel to one on each side, and modifying the fee to be paid to counsel and agent according to a scale."
We concur in this proposal, although it must be admitted that the system of tariffing fees must lead, in many cases, to hardship. The advantages, however, would, we think, counterbalance the evils to which it must lead.
THE remark of the philosophic Roman, "Corruptissima respublica plurimæ leges," denotes the mutual working of two influences. It indicates, on the one hand, the tendency of internal corruption, which breeds swarms of idlers, studious of new things, to multiply laws until they fill the porches or the statute-books in which they are inscribed. Whereas, said another, "those states are well ordered where the citizens carry about the laws inscribed in their hearts." (Isocr. Areop. p. 292.) On the other hand, the aphorism may be taken as declaring, with Plato (ap. Strab.), the effect of multiplicity of laws to be lawsuits and corruption of manners, just as diseases abound where physicians are numerous. Hence, from the time of Adam, it has been the desire of every people, as it advanced in civilization, to have one simple rule of right, that the virtuous citizen might clearly know his rights and be able to vindicate them; that the vicious might have a plain and ever-present warning, and prompt retribution if he neglected it. And it has been the peculiar glory of great monarchs to leave their subjects in possession of laws better and better known than they enjoyed before. The Code of Justinian is to this day a text-book in every law school of Europe, and has exercised a more powerful influence on modern civilization than almost any other human work. And the blessings conferred on their subjects by Napoleon the Great, Catharine of Russia, Frederick of Prussia, and other kings and princes of Europe, through the introduction of new codes or liberal plans of law reform, will be remembered with gratitude when all their conquests and material grandeur are forgotten.
The need of a compact system of Statute law was early felt in England. Reformation in religion hardly preceded the sense of the necessity of a reformation in law. We find the following words in the Remains of King Edward VI. : "I would wish when time shall serve, that the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them, which thing shall much help to advance the profit of the commonwealth." Lord Coke represents many Statutes in his time as antiquated, and as snares to entangle the subject withal. He proposed their revision, and that "one plain and perspicuous law should be made,
that every subject might know what Acts were in force, and what repealed, in part or in whole, and clearly see how to obey them." Lord Bacon, too, treats of the subject with great skill and felicity in his proposal for amending the laws of England, and his offer to the King of a Digest. Before this Sir Nicholas Bacon, the Lord Keeper, had drawn up a plan for "reducing, ordering, and printing the Statutes of the realm;" and during the reign of Elizabeth the subject had often been under consideration. King James I. recommended the matter to Parliament, and spoke as wisely about it as the Hebrew Solomon himself could have done. During the Protectorate three successive committees, in which are found the names of Cromwell and Hale, were appointed for the arrangement and consolidation of the statute law. But the undertaking was probably frustrated by the opposition of the lawyers, at that time averse to such a project, because, most of them being secret partizans of the Stuarts, they thought, as Napoleon very shrewdly thought 150 years later, that nothing would be more likely to reconcile the nation to a new régime, and make a restoration impossible, than a complete revision of the old laws. After the Restoration a Committee of the House of Commons was appointed on the subject, including Finch, afterwards Lord-Keeper, Mr. Serjeant Maynard, and Mr. Prynne. But they too left the work unbegun. No further notice is found of the subject, except reports to the House of Lords in 1796 and 1803, till in 1816 that House came to two resolutions declaring the expediency of arranging the Statute-Book under distinct heads, and that a person learned in the law, with clerks, &c., should be appointed for the purpose; and the Commons concurred. Even Lord Eldon approved of the proposed measure. The evil was universally admitted, but still no remedy was applied. But, said Dr. Edward Young
"To know ourselves diseased is half our cure."
And the beginning of improvement was not far distant. The writings of various liberal philosophers of our own and of foreign countries, and among others those of Jeremy Bentham, had already exercised a large influence on a small band of powerful minds, some of which were to lead the battle of law reform. Unpractical and unwieldy as Bentham's writings are, Romilly and Brougham were the first to acknowledge their importance and own the aged recluse as a worthy teacher. And hardly an important innovation has been made in British law during this century that was not first agitated by Bentham. It was painful to see a philosopher of such extraordinary talents and such large benevolence deprived for a long time of the fame and the gratitude he deserved. But even his most admiring scholars are forced to admit that his style is the driest and the most intricate that man ever wrote, and that his arrogance and exaggerations are unmatched in the pages of any respectable author. His suggestions have
been adopted only through the exertions of more practical reformers than himself and his immediate pupils.
If, apart from those defects of manner already mentioned, we then seek for a reason for Bentham's failure, since he did fail, in what he himself regarded as the end of his labours, we shall find it in the fact that he was more skilful in laying down general rules for the determination of rights and the punishment of crimes, than in adapting these rules to the wants and circumstances of particular countries and times. Perhaps, however, this defect, which caused his failure in what he wished for himself, may have made his works more suggestive to the general legislator; and along with the labours of M. Dumont, may have procured for them much of that acceptance abroad which, during his life, might have consoled him in part for the neglect of his countrymen. For they furnish us with an ideal legislation, fit for a Utopia it may be or an Atlantis, but not to be at present adopted by any nation; an unattained perfection to which human laws have ever a tendency to approximate, and to which it is the business of the lawgivers to facilitate their progress. They set up an imaginary limit to the progressive improvement of legislation, and in the meantime are a standard by which to estimate the excellence of particular institutions. Goethe represents the poet as wishing that the wreath about to be placed on his head might be lifted on high, and ever soar higher and higher, and beyond his reach, that his life might be an everlasting pilgrimage towards it; thus teaching that life (and if life then history at large) is a great striving after objects beyond our grasp, not, in the view of a higher philosophy for the sake of these objects themselves, but for the lessons learned in the strife. The idea falls short of the truth as it appears to the philosophic man of the world, who perceives that the strife is not barren, for it always procures some worldly advantage, inferior indeed to that aspired after, but still good in itself, and worth the struggle it has cost.
But to return. The achievements of Lord Brougham and other law reformers have changed the face of English law since Bentham drew up his plans and his codes and Romilly wrote his article in the Edinburgh Review. An infinity of obsolete Statutes has been repealed, and considerable progress has been made in the work of consolidation for we are apt to forget that a complete criminal digest for England has been drawn up; but in the way of general codification nearly all yet remains to be done.
It would be a fatal mistake to suppose the first step towards the possession of a code to be the utter abolition of all existing law. On the contrary, codification, rightly understood, is the arrangement of materials which are at hand, with the elimination of all that is superfluous or injurious; and this under every possible guarantee for the faithful and accurate execution of the work. The most earnest advocates of codification have also, very naturally, been the keenest assailants of abuses in the actual law, and often, no
doubt, have carried their demands for change beyond the limits of moderation. But even they have always admitted the necessity of leaving the matter of the existing law in the main unchanged. All they ask for is an improved form. An objection to codification, urged chiefly by German writers, in pointing out certain defects in the Prussian code is, that while the purpose in that code was not to change the existing matter of the law, but to give it an improved form, it yet belongs to the nature of every legal theory (and that a code must be constructed according to certain theoretical principles must be assumed) that the legislator is sometimes carried beyond the end he has in view, and arrives at results which were not at first contemplated, and which, if they had been foreseen, would have thrown suspicion on the whole enterprise. This danger was pointed out by the Roman jurists. "Regula est," says Paullus, "quæ rem quæ est breviter enarrat. Non ut ex regula jus sumatur, sed ut ex jure quod est regula fiat, quæ simul cum in aliquo vitiata est perdit officium suum." A caution against sacrificing any well-founded concrete decision to the love of theory; against unconditional surrender to general formulas constructed so as to include a multitude of particulars, which are somewhat apt to lead to neglect of well-established exceptions, and to be regarded as foundations of the law, instead of mere attempts to concentrate its essence. It is this reaction of form upon matter which has been urged against all systematic arrangement of the law. The adoption of one fixed rule is apt, it is said, to cause many well-founded particular decisions to be overlooked. It for ever fixes as law the present product of scientific observation, and thus prevents the rule so determined from being purified and expanded by future inductions. This objection again proceeds on a misapprehension of the true scope of the project, by assuming that the codifiers are adherents in respect of the proposed code of the untenable doctrine of finality. No modern law reformer would dare with Justinian to prevent the growth of a juristic literature, and consequently of all discussion on legal subjects, by prohibiting under severe penalties all reports of decided cases, and everything of the nature of a commentary. Nor would such a measure be possible in a country where the deliberations of Parliament are so unshackled, and their discussions carried on with such unwearying zeal as in ours. The faults of the Prussian code, as pointed out by its earlier critics, may be traced, by a connection too long to be here followed out in detail, to two causes; first the absolute separation which the new Statue book made between itself and what was to follow on it and all that had gone before. All prior jurisprudence, both theoretical and practical, was so vicious, that it was desired absolutely to annihilate it, and substitute a new system of things. The second cause is the want of the new legal literature which was expected to arise in place of the old-but when the decayed tree was rooted out, it was not to be expected that a young