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Hollane Justin Princip reparat Englishsion hanking
Fitzgerald's (Gerald A. R.) Public Health
... ... 258 Indermaur's Principles of Common Law... 140 - Self-Preparation for the Final
143 Leading Cases done into English ...
142 Lloyd's (Eyre) Christian Succession Laws
393 Macleod's Theory and Practice of Banking 398 Marcoartu, Sprague, and Lacombe's Interna
tionalism ... ... ... ... ... ... 137 Mears' Ortolan's Institutes ...
404 Morgan (Osborne) and Chute's Chancery Acts and Orders ...
253 Nicoll and Flaxman's Parliamentary and Municipal Registration ...
255 Nouvelle Revue Historique de Droit . Paterson's Liberty of the Subject ...
403 Pike's (L. Owen) History of Crime in England 261 Revue de Droit International et de Leg. Comparée 259 Revue de Législation ...
390 Revue Générale du Droit ... .
390 Robson's Law of Bankruptcy
394 Rogers' (Arundel) Law of Mines ...
nes ... ... ... 395 Russell on Crimes (By Prentice) ...
408 Social Science Transactions, 1876...
392 Statutes Revised, The, Vol. X. ...
143 Stephen's (Fitzjames) Digest of Law of Evidence 131 Theobald on Wills ...
405 Thomas's Briefly Stated Leading Ca es in Consti
tutional Law ... ... ... ... Trower's Prevalence of Equity ... ... Walker's (W. Gregory) Partition Acts ...
Williams' Law and Practice in Bankruptcy SELECT Cases, Foreign ... ...
125 - (Copyright: Bills of Exchange) --- Scotland. By Hugh Barclay, LL.D.
240, 513 STATUTE Law, New Index to, a Fresh Step Towards a Code... ...
... 491 STUDIES THAT HELP FOR THE BAR. By Sir E. Creasy 29 WHITESIDE, the late Right Hon. James ... ... 334
THE LAW MAGAZINE AND REVIEW.
No. CCXXII.—November, 1876.
1.—ON THE AMENDMENT OF THE LAW.*
BY FARRER HERSCHELL, Q.C., M.P.
JT has often been the practice for those occupying similar 1 positions to that which I have the honour to occupy to-day, to review the progress which has been made during the preceding year in the branch of science with which they have to deal. Were I to adopt this course, my task would indeed be soon accomplished. For my address would be as brief as the celebrated chapter on snakes in the history of Iceland." There are no snakes in Iceland.” I too must have said “ There has been no law reform, no progress in jurisprudence in this country during the past year.” I read, the other day, in a novel which has beguiled the leisure hours of many of us, lately, that the first step towards a true acquaintance with persons or things, is to obtain a definite outline of our ignorance. I think it is equally true that the first step towards any true progress is to obtain a definite outline of our deficiencies. It would be quite hopeless to think of doing this exhaustively in the time allotted to me. You can hardly turn in any direction without seeing some defect calling for a remedy. And were I to attempt it,
I should exhaust your patience long before I had exhausted my subject.
* An Address delivered by Mr. Herschell, as President of the Jurisprudence Department, Social Science Congress, Liverpool, Oct. 1876; revised and corrected by the Author.
. .,.;,.. The only alternative is to select two or three particular subjects, either because they are of pressing importance, or because they have been recently forced upon public attention. For I am only too conscious how almost impossible it is, without the help of this public pressure, to obtain any law reform at all.
At the outset I cannot but allude to a subject which in my opinion stands at the very threshold of all true law reform, though I fear it excites but little public interest. I mean the securing either the Digest or Codification of the law. It is still what our poet has called
“ The lawless science of our law,
That wilderness of single instances." Committees have reported, commissions have made suggestions, experiments have been attempted, and yet we seem as far to-day from the goal as ever we did. I cannot help thinking that this arises in part from the extravagant views, put forward by many of those who have advocated this reform of the law, of the practical effect which it was likely to produce. An extravagance which has rendered it easy for those who were hostile to the reform to show that · the expectations raised could never be realized, and which has enabled them, without difficulty, to depreciate the effects of the change altogether. Some have written and spoken as though you could put the whole law of England into a small volume, to which any person, wishing to know what was the law in any particular case, would be able to turn, in order to find the question answered and all his difficulties solved : as though you would thus have reached the happy time when every man could be his own lawyer, and when far more than half the work of lawyers would be at an end, for the law in all cases being beyond a doubt, there could only remain disputes as to the facts. This is, of course, an absurd extravagance. No Code, however extensive, could possibly afford a solution for every legal question. Even in those
regions of law which seem best explored and most thoroughly settled, new questions are constantly arising. There is hardly a practical lawyer, but is often puzzled to decide what is the law applicable to a set of circumstances of such constant occurrence, that he can scarcely believe that no distinct determination of it is to be found. This, it will be seen in a moment, is scarcely to be wondered at. Lay down your principle with the utmost precision, and define the limits of its application with what accuracy you may, there will always remain a border-land surrounding it, and separating it from conflicting or complementary principles, where numberless cases will be found which it is difficult to group precisely within one principle or the other. So long as the possible combinations of the circumstances or transactions of human life remain infinite, so long will the idea that by a codification of the law you could make every man his own lawyer, and a certain opinion possible in every case, remain the vainest of delusions. The uncertainties of the law, with which law.makers as well as lawyers are so often reproached, are, I fear, to a considerable extent inevitable.
Do not let it be supposed, that because these extravagant notions of the results of codification are unfounded, that to accomplish it would be productive of aught but the highest advantage. There are numberless questions which mercantile men, for example, in possession of a Code, could themselves answer without difficulty, for the solution of which they are now driven to their lawyers, at the expense of precious time and opportunities, or they still oftener have to be content to take the chance of the mischiefs which may result from their ignorance.
Beyond this, I say deliberately, that in my judgment it is a disgrace to a civilized country, that in no branch of its jurisprudence is there to be found a definite and authoritative exposition of the law. I have, I own, more than once felt ashamed when asked by a foreigner where he could find the English law on such subjects as Bills of Exchange or Marine Insurance, to be able only to direct his attention to textbooks on those subjects, and to be obliged to warn him that what he would find there was for the most part the opinions of men more or less learned, and more or less accurate, but must by no means be taken as a certain statement of the law.
In the next place, the existence of a Code or Digest would immensely facilitate the labours of lawyers in advising on, and of the Courts in determining, the law. At present, to answer really simple questions, a reference is often necessary to numerous cases buried in many different reports, and which can only be unearthed by the aid of text-books of portentous dimensions, and by no means astonishing accuracy. And when you have collated the various reported cases, and arrived, as you think, at the principle they embody (and it is a piece of rare good fortune when you can evolve such a principle at all), you find, perhaps, that some enactment has been passed so affecting the law as to render your researches almost, if not altogether, useless. Need I point out what a waste of time is involved in all this, to say nothing of the diminished value of an opinion or decision which, arrived at by such a process, must necessarily be liable to error and uncertainty ? And can it be doubted that, if lawyers could advise, and judges decide, with materially increased ease and certainty, there must accrue immense benefit to the public ?
Above all, without something like a Code or Digest, it seems to me hopeless to look forward to any systematic reform of the law. Without it you will have to be content with desultory amendments, removing here and there some glaring evil, but leaving the law in more hopelessly tangled confusion than before.
I have endeavoured as briefly as I could to point out some of the evils which the present system entails, and some of the advantages which would flow from the proposed change, though much more might be added under each of these