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Art. VIII.-- Abstract of the Bill for Establishing Courts of Local
Jurisdiction. --Ordered by the House of Commons to be printed 21st June, 1830.
The memorable motion of Mr Brougham in February, 1828,
upon the Reform of the Law, has at length been followed up in a condign manner. It first led to the important measure of the two Commissions, one upon judicial proceedings, the other upon the law of real property; and each of these has prepared already two elaborate, voluminous, and most valuable reports upon the subjects intrusted to their investigation. Although Mr Brougham expressed himself to be extremely dissatisfied with the selection of Commissioners, by which those were placed on one commission whose promotion to the Bench was expected immediately; and by which Mr Humphreys, the man best qualified to aid the enquiry, was left out of the other list; yet he has uniformly done ample justice to the talents, the learning, and the firmness, mingled with discretion, which both the Commissions have so amply displayed in their proceedings; and he has cordially supported all the propositions which they have made for reforming the law. Consistently with this view of their merit, he abstained for some time from proposing any measures of his own, lest he might interpose obstacles to their plans; and this cautious and delicate, as well as judicious course, was, without any hesitation whatever, or without any shadow of truth, ascribed to a prejudice against law reform, that is, against his own measure; and pretty plain insinuations were Aung out, that he had become estranged from the cause by ambitious views, of a professional nature. He who had (as he indignantly exclaimed in Parliament) refused the highest judicial stations, and taken steps even to prevent the very office alluded to from being tendered to him by those who desired nothing better than his acceptance of it, was, by the mean jealousy of other reformers, charged with abandoning the question upon which his fame was to rest with future ages, for the purpose of paying court to the powers that be, with a view to his own promotion !
While such persons were thus venting their feeble spite, he was maturing the great measure, the outline of which forms the subject of the paper before us. We consider it as too important to be lightly passed over, and there is no better or fairer way of bringing the whole subject before the reader, than by first stating the nature of the evil, then the difficulties of the cure, and, lastly, the remedial measures now brought forward by Mr Brougham,
The all-important subject of Judicial Reform has, of late years, nappily occupied the almost undivided attention of thinking men, n every part of the country. In Scotland, as well as in England, there exists the most lively interest in all that relates to matters of Jurisprudence. Every attempt to amend our laws upon sound principles, meets with favour and encouragement out of the legal profession, and more out of Parliament than within its precinct. The subject matter, then, of our present remarks, will not readily be deemed either dry or trivial, by almost any class of readers in either part of the island.
I. THE EVIL.-All the mischief and inconveniencies of an antiquated system, formed in different times, and adapted to an opposite state of things, but rigorously enforced and tenaciously adhered to when every other thing has undergone a change, are formed to impede and encumber the administration of justice in England. Let any one but take the pains to consider wbat was the state of society in the times of the Edwards and the Harrys, when the foundations of our legal polity were laid, and contrast that state with what we now see around us. The people were scantily dispersed over a country covered with forests, and yielding little return to the regular toil of the husbandman. They lived little in towns, unless when they chanced to be collected under the walls of some baron's castle, whose protection they sought. They directed their lives to the chase, to plunder, to war, and a very little to agriculture. The towns bad hardly any existence,-trade next to none,-manufactures absolutely none. The barons, or privileged class, lorded it over them as vassals, who were ready to follow their fortunes in a tumultuary war,—now against a foreign prince,—now against their own,now with one another. În peace, those vassals were their idle and dissolute retainers, and shared the rude hospitality of their strongholds, in which law and subordination to the power of the state had as little place as sobriety or rational occupation. The most profound ignorance pervaded and darkened the land, only broken by the scanty and useless learning of the priests, who domineered over the minds of the superstitious multitude as absolutely as the barons did over their persons and property. The bulk of the people, indeed, were the chattels of those lay and spiritual lords, once held in property as their beasts, or arms, or tools, and latterly held with the land, and with it transferred like its fourfooted inhabitants. Almost every habit and practice, whether of business or indulgence, that now occupies the various ranks of the community, from the prince to the peasant, is the growth of later ages; most of the classes into which the people are divided, had in those early days no existence; except one kind of property, none of the things in which wealth now consists were then known, even by name; and that kind is used or enjoyed as differently as if it were not the same sort of possession. There is really no exaggeration in saying, that a native of one of the South-Sea Islands would be as much at home, if set down by the captain of a merchantman in Cheapside, as would a baron or a woodman of the times of Edward the First, were he recalled to life by some magician's wand, and awakened from his repose in the Temple Church, to hear in Fleet Street the blowing of the guard's born, or the puffings of the steam-boat; and the click of the printing-press would certainly scare a High-Priest from Timatave, less than it would the Beckets and Bigods who once ruled us by the breviary, and muttered the incantations of their superstitions under the cloisters of their venerable abbeys.
Now, it was for the society, the habits, the property, the rights of such remote ages, that the laws were framed. They were adapted to the pursuits, and regulated the disputes, of men in such an opposite state of society. Their provisions might all have been absolutely perfect for that purpose, and as entirely unsuited to the state of things in the present day. Can we wonder that there should be little chance of fair treatment for the poor, under a system controlled by those who held the common people in property, as they held their cattle? Can we expect the principles of laws, made when there was no wealth but the soil, to embrace the questions which arise between manufacturers and merchants? Can we marvel that the statutes made, or the rules of procedure fashioned, before bills, or notes, or stocks, were known by name, should not extend their provisions to the claims arising upon these valuable subjects of commerce ?
That the confusion which would arise from applying our old laws to our present condition and affairs, has been spared us, is only owing to the necessity under which lawyers, ever hostile to all change, bave been placed, in spite of their very teeth, to new-model the law from time to time, in many essential particulars. The country must have come to a downright standstill but for this; and it required no less imperious a necessity to produce the alterations. But still as much of the old and inapplicable matter is retained as was possible. The problem to be solved has always been, not how the community could be best fitted with laws suited to the circumstances of those who were to obey them, but how the community could go on with as little provision of new and fitting laws as possible. This minimum of change, that is to say, of improvement, and adaptation, and convenience, was always sought after, and generally
hit. The waggon bad got over the edge of the road, and if left to itself, must stick fast or tumble headlong. Its drivers would by no means raise it and put it on the level again, but only poised it barely enough to let it slide on, without falling over.
In the meantime, if the lawyers did not try to mend their system by reversing or adapting it, they were busy enough in adding to it parts which augmented its burden on the people. Those additions, and the changes that accompanied them, were contrived to increase their own gains, and suit their own convenience. They were, in truth, very great alterations in the system, and they were, for the most part, alterations for the worse. The one which worked the most serious and extensive mischief, was the bringing all business away from the suitor's doors, and thus adding to the delay, the vexation, and the cost of all proceed. ings. The simple proceedings of rude times were, in most respects, ill-adapted to the present refined state of society; but, in one particular, they were admirably suited to the exigences of the people, in all stages of refinement. They were formed upon the principle of domestic justice, so far as to assume, that the suitor came in contact with the judge, or at least was always near enough to have access to bim. Hence, the judge resided in the district over which he was to distribute justice, and he was controlled by appeal to the superior judicatories, wbich, from time to time, also sent members of their own body round the kingdom.
By the disuse of such local tribunals, and by a thousand artifices and abuses which have crept into the administration of the system, the English have at length arrived at their present state,-nearly the worst in which any country can stand. They bave all the defects, and inaccuracies, and irreconcilable incongruities of a jurisprudence formed for a perfectly different people and country, partially and clumsily adapted to the altered state of things; and they have, moreover, all the mischief which could be inflicted upon them by the arts and industry of those whose interests could only be consulted by dropping almost all that the original constitution of the system had of good and natural, and by adding much of evil peculiar to our own times and country. The people suffer and the craft gains by the evils of both the old and the new order of things, without the advantages natural to either.
To enumerate, even generally and superficially, the results of this, as they are every day experienced by the people, would be to perform, inadequately and feebly, a task upon which the learning and the genius of Mr Bentham have been exhausted. To his master-hand we owe a picture, which, for depth of colouring
and vigour of design, has no match ; it is the greatest service ever rendered to the country which he adorns, by any of her political philosophers; and its contemplation has produced, as sooner or later it was certain to produce, the resolute determination of the ablest statesmen to clean out the Augean stable, whose recesses he has laid open, and upon whose accumulated nuisances his powerful hand has directed the river to roll.
But, although we are far from intending to make any such recital of the evils, we may remind the reader of what has been said, and not denied, of the actual state of things. England, then, be it remembered, is a country, in which the first lawyers aver that no man but an idiot, or one who cares nothing for his own interest, would ever think of suing another for so small a sum as twenty, or even thirty pounds, in one kind of Court, and for so little as a hundred in another; and where, if he were called on to pay such a sum a second time, by a creditor, whose stampt receipt he had in his pocket, having paid it to the same creditor an hour before, he would at once pay the money rather than gain a suit commenced against him by defending it.--England is a country, where, if a man be knocked down with injury and insult, he has but one substantial means of redress, putting bis antagonist to death, for which he will be punished, though not capitally.—England is a country, where, if a man's character, or that of his wife, or his child, be slandered daily for a year, he cannot, without risking the bread he and they have to eat, bare any remedy but assassinating the supposed defamer.- England is a country, where no secure conveyance can be made, at any expense, of almost any real property, and no conveyance at all of property under forty or fifty pounds.-England is a country, where, if there be left a legacy of a hundred pounds, the plain and obvious course for a prudent man to take, is to say nothing about the matter, and let the executor keep it instead of himself, unless he will voluntarily pay it over, which he is substantially under no kind of obligation to do.-England, moreover, is a country, which, by the common consent of almost all its own inhabitants, has no equal on the globe, for the excellence of her institutions, and of these the first and the most excellent is her system of jurisprudence, which all who understand it extol to the heavens, as the most divine production of perfect wisdomwhich all, who know it by experience of its blessings, curse as the worst mischief that ever proceeded from the infernal regions.
II. THE DIFFICULTY.-To reform such a system, to restore whatever of its primeval simplicity is truly beneficial, to adapt the whole to our own times, to lop off what is redundant and pernicious, to make it capable of performing its office—the real