Oldalképek
PDF
ePub

in those days will be found to fall under the title Process. But people were so wonderfully contented with things as they were that the writer can scarcely peril his reputation as a historian upon so bold a statement as that any decided effort was made for the redress of the grievances necessarily resulting from such a state of matters. But gradually the minds of young lawyers were directed to these evils, and they did not fail to point out the abuses and to indicate the remedies. Their voices were not the words of power, but it cannot be doubted that they helped the cause they had at heart, for one truthful thought well stated and enforced, must inevitably reach the seat of power and find its realization in action. Reforms came almost as a matter of course. These reforms are so familiar to us, and their beneficial effects are so apparent, that it is difficult to understand how the world could have so long done without them, or how any human being could have made eloquent speeches against them. But have not we also made objections to reforms that are still demanded? No one can complain that there is general contentment with existing things in the age in which we live. There is no institution so sacred, no theory so cherished, as to be beyond the restless and relentless spirit of inquiry that at present pervades all classes of society. Law reform-like reform of every other description-has its advocates everywhere. Every lawyer, and almost every layman, has his own scheme, which, like an universal medicine, is a specific for all evils. Many and wild are the theories which one meets with everywhere. Among these, we may instance the abolition of the Court of Session, the abolition of the Sheriff-Court, the abolition of the bar, the abolition of town agents, the abolition of town and country agents, the elevation of the status of sheriff-officers and policemen, with innumerable other proposals, all leading to the doctrines, recognised in the grand old times, which, with charming simplicity, dispensed with all rules of law but the very practical one "that possession was property, but only so far as you could of your own might maintain it." The great majority of people look upon these proposals as significant of a healthy state of the public mind. We do not enter upon that question, although we admit that loud voices do in the general case indicate healthy lungs. But while far from finding fault with the freedom and the earnest desire for the public good that allows and prompts the advocacy of such theories, we are inclined to look upon legal reform as rather highclass work. The law reformer should be possessed not only of commanding talents, but also of a very profound knowledge of the law -a knowledge derived from laborious study and extensive practice. It would be too much to expect us to concede those qualities of mind to all the noisy theorists already referred to, since the great majority of them do not belong to any grade of lawyers.

This desire for change is not strictly unanimous, since each theorist would apply only his own specific to all abuses.

It is a curious fact that all nations have a pious horror of any organic changes in those laws which have been handed down to them by their ancestors. You may change their religion almost as often as you can get a great moralist to teach a system that transcends their highest moral notions, provided it has some sort of sympathy with human nature. But nations hold their laws sacred. Religion always comes from without, but laws-are they not the product of the soil? Have they not sprung from the life-blood of the nation? They were not consciously enacted by kings or parliaments, but have grown and flourished from time immemorial. The national traditions, the national glories, the most sacred of the national and family rites and ceremonies, are inseparably connected with these laws, and woe be unto him who would propose to abrogate them. So deeply rooted is this feeling that conquered nations have almost invariably been allowed to retain their own laws; and in many instances where a conquered people were absorbed into the mass of the conquerors, those laws which could not then exist territorially were allowed to remain in force as personal laws. In other words, any of the conquered people could vindicate his rights, not under the law of the territory within which he lived, but according to the law of his own race. proof could be more conclusive that the last thing a people will part with is their legal codes. These deeply-seated feelings save national laws from any violent organic changes from causes external to the nation; but people are not at all so very jealous of changes in their laws by crotchety little men who have acquired legislative wisdom from the mere fact of having had a majority of votes at a burgh or county election. You would suppose in regard to these men that the declaration of the poll had transformed every one of them into a veritable Solon.

No

Our laws require to be reformed occasionally, but the work had better not be done by these untrained legislators.

It is not merely because of the shock to public sentiment that crude legal reforms are to be deprecated. It is far from conducive to the public welfare, or to the prosperity of individuals, to have our laws in such a perpetual flux as to cause a distrust of the stability of existing institutions. Besides, is it not apparent that ill-advised changes are frequently the causes of positive mischief? The law holds that ignorance of the law cannot excuse any one. This is a doctrine which we cannot dispense with; yet we have never been able to convince ourselves of its soundness when applied, as it must be, universally. No man ought to be expected to know a law which is not in accordance with the dictates of his own conscience, unless, indeed, it has been read to him. Well, see how this maxim would apply to the much-desiderated change in our Marriage laws. At present mere consent, however evidenced, is very marriage. Suppose the law altered to the effect that consent does not make marriage, unless evidenced by the writings at present peculiar to marriages in facie ecclesiæ. Is it

not quite supposable that thousands of our population would remain in total ignorance of this change for many years? The result would be that many innocent and virtuous women would find themselves not wives but concubines, and their children not heirs but bastards. Morally and logically too, these women ought to be deemed excusably ignorant of the new law, since neither reason nor conscience prescribes that there shall be only one way of proving the consent which, under any marriage law that one can suppose, must be the essence of this, the most sacred of human contracts.

These remarks are not made for the purpose of proving that law reform is an evil. Our intention is merely to illustrate the danger of hasty and ill-advised legislation.

[ocr errors]

We might proceed to press the danger and imprudence of resigning what is certain and known for what at the best is a mere problematical advantage. But enough has been said in illustration of the general principle that the laws of a country are too sacred to be rashly touched by the hand of innovators-too dearly prized by the people, and too closely connected with their most valuable rights, to be needlessly sacrificed to the love of theoretical perfection, or the views, frequently capricious, of would-be legislators, who know nothing of law or practice beyond what they have learned in their closets. We have no patience with the crudities which such reformers occasionally are bold enough to propose in substitution for what has been sanctioned by the experience of ages. Every proposal of legal reform should first of all be met with the demand for evidence of the evil produced or the hardship inflicted by existing institutions. Let us not be told of greater excellence in principle or theory, more exact accordance with general theory, or perfect uniformity with the laws of neighbouring countries. This is all very well when something wrong, either creating positive injury or palpably impeding happiness, has been proved to exist. Till then such arguments are idle declamation, and alteration in what is established should be scouted as at once useless and hurtful. We, says Bacon, should beware that it be the reformation that draweth on the change, and not the desire of change that pretendeth the reformation" (Law Journal, vol. i.).

The Law of Scotland is at present in a somewhat fortunate condition. Our feudal law has been consolidated, a great part of our statute law has been revised, and our common law, in consequence of its being a completely self-contained and harmonious system, is easily intelligible, while the genius and learning of our institutional writers have rendered it accessible to all who can purchase and read a copy of Stair or Erskine. The body of our laws therefore is not at present in need of improvement.

But though our law is thus so accessible and so intelligible there are various proposals for its improvement. The most important of these is the proposal for codification. We consider codification to be a great mistake in any country in which the law is not so

hopelessly tangled and inaccessible as to demand its total abolition. For this is what all arguments for codification have necessarily to presuppose. Codification is but another name for the repeal of the existing body of the law, and the re-enactment of it in a more definite form. It is a declaration of what the Legislature understand to be the law. It is therefore absolutely necessary only when the system dealt with is from any cause in such a condition that its doctrines are not cognisable without such declaration. Such was the state of the Roman law when Justinian applied himself to the preparation of that code which has rendered his name immortal. But the man who asserts that our law is in that condition must pardon us if we venture to recommend him to study it more attentively; and even should he plead a full and adequate knowledge of it, we shall still insist that he must have such a craze for theory as to render him a very indifferent man for the practical work of law-reforming. It would seem however that even these arguments would not put our codifying friend out of Court. We should still have to listen to the old arguments about theoretical perfection, harmonious relationship among parts, definiteness of statement, intelligibility, and so on. All these are qualities very much to be desired in any law; but one can scarcely expect that legal notions can be qualified and quantified into the beautiful precision of mathematical statements. Human nature contains more elements than the three cardinal quantities of time, space, and number. It is so various that you cannot define its limits; it is practically incommensurable. A law that is the slow and steady growth of centuries is much more apt to suit human nature, and even meet the requirements of theorists, than law made to order by even a Bentham or an Austin. But granting that in the present condition of our law a code is desirable, the question must be asked, How is it to be framed? You may execute the work department by department, or perform the whole at once. If you take the latter course it is perfectly obvious that one great mind must superintend the whole. We think it will be conceded that it is next to impossible to find a man so talented, so learned, so free from bias, so conversant with men and affairs, as to frame a code that would be at all suitable for the determination of the many and varied questions inevitably arising in a country like ours. But it may be asked,-Why not proceed with the work departmentally? The work can undoubtedly be accomplished very easily in that way. But the result will be, that the head of each department will inevitably proceed from his own peculiar stand-point; and the work when finished will be a mere set of disjointed regulations connected by no general principle, and owing their adhesion not to any real affinity, but solely to the will of the sovereign power. It will be anything but the realization of the grand ideal of the advocates of codes. Now it is the case that a law that is allowed to grow as the natural outcome of experience, supplemented now and then by such legislative enactments as a prudent philosophy shall have

found necessary, has all its doctrines in some necessary and logical relation to each other. But your departmentally prepared code stands out of all relations. Each separate doctrine is but the cold and frigid dictum of the despotic power which made it. Each doctrine is, so to speak, sui juris, acting independently of all its neighbours. As soon hope that old Chaos would not return again if the planets were allowed to go at large through space, as that a law so framed can be otherwise than productive of mischief and confusion. If our laws are to be reformed, the work of reformation must be conducted with care and deliberation. The changes that experience may from time to time seem to commend ought to be talked about and written about for such a length of time as to enable the public mind, and particularly the legal mind, of the country to judge wisely and well as to whether they are necessary and proper. We do not know that any important law reform should be carried out until a Parliamentary Commission has reported favourably regarding it, for it is only in this way that you can have the higher legal minds made conscious of the necessities of the people, and enabled to determine the expediency of removing what the untrained popular mind declares to be unsuitable to the conditions of modern life.

We have written very freely of law reformers, and quite anticipate that, in the judgment of some, we may incur the risk of being talked of after the same fashion, if we proceed to point out some things that to our mind stand in need of reform.

All lawyers are aware of the very intelligible and expressive language in which the legislative wisdom of this country is in the habit of addressing us through the pages of the Statute-book. Our Acts of Parliament, though presumably read six times by a collective wisdom superior to anything of the kind that the world has yet seen, are so expressed as too often to render their interpretation on any grammatical or logical principles a matter of sheer impossibility. In consequence of this much judicial time is wasted, and much money spent in vain endeavours to discover the intention of the Legislature. Intention is the proper phrase, for meaning there is

none.

one.

The remedy which we have to propose for this is a simple Let no bill be read a third time in either House of Parliament until a standing committee of trained lawyers appointed for the purpose, and devoting themselves exclusively to the work, have reduced its provisions into the English language. We do not consider the task a difficult one, and it is quite evident that great benefits would follow from the adoption of the proposal. The same Committee might also be usefully employed in revising private bills, and in expunging those clauses which the promoters so often contrive to introduce for their own benefit,-clauses not at all. necessary to the carrying out of the private undertaking, but inserted for the advantage of a few individuals, to the great detriment of the general public. We are quite familiar with clauses of this kind. Instances of what we mean will be found in some

« ElőzőTovább »