Page images
PDF
EPUB

upon. the whole, the safer course, although certainly it is, if not carefully guarded, apt to produce evil consequences, of which our present purpose is only to mention one—the chance of the judge committing himself, and throwing out opinions which he ought afterwards to correct. This risk is always so far guarded against as can be done, by stating that the question is put, or the objection made, without any intention of indicating an opinion one way or another. Nevertheless, in some judges at least, there is unavoidably a leaning of opinion betrayed, and therefore they ought to be carefully on their guard against being influenced in their ultimate decision, by a feeling that they had, to a certain degree, committed themselves. But what we are about to consider is a much more hurtful practice than even the least guarded interlocutory discussion. We allude to the course sometimes pursued of declaring, at the close of the hearing, the impression which has been made, although time is taken for final judgment, on the ground of the case being of great importance, or of considerable difficulty, or it may be on both grounds.

This is a practice, as it seems to us, always to be carefully avoided—we mean, of course, in all cases where there is no desire for further information from the bar, and where the hearing is entirely finished. The ground of our repugnance is obvious: whatever pains the judge may take to state that he has not finally made up his mind, he has so far announced the inclination of his opinion; and this is known to the parties, and to the bar, and very possibly is given in the regular report of the case, almost certainly in the newspaper account of it. Thus, can it be doubted that he will have a bias on his mind, powerful in proportion to his self-esteem ? With some judges this may have the effect of making the interval between the prelibation (to use the Roman expression) and the actual judgment, spent not so much in fully examining the merits of the arguments, as in finding reasons for supporting the views thrown out at the close of it. With other judges there may not be the same evil occasioned; but, with almost all, there is a motive allowed to operate wholly foreign to the only one that should prevail—an absolute desire of ascertaining the truth, and doing justice. Judges are men, and subject to human infirmity; and there may always be a disposition to shew that they were not mistaken in their first view of the question, even in those who are the least prone to rely upon their own infallibility. There is a snare laid for them—a pitfall dug, into which they may slide when more or less heedlessly moving onward.

A great judge, one of the greatest that ever presided in the courts of this country-Lord Mansfield-would sometimes, at the close of an argument, break the case, as he said, for the benefit of the student. It may be presumed that he seldom if ever did this where there was any great interest at stake, whether of the parties or of the law, or any material doubt of the ultimate decision. But Lord Mansfield might be safely trusted where most other judges would err, because of his extremely cautious nature, bordering on timidity, and the closeness with which he knew he was watched, both by professional and political jealousy; in so much that a clamour was once raised against him for giving an opinion judicially after hearing the point argued, contrary to one which he had given in advising on a case of a client-most absurdly raised, no doubt, but indicating the kind of eyes that watched him. We refer, of course, to the celebrated case of Perrin v. Blake. Other judges of great eminence have sometimes fallen into this reprehensible practice with little or no evil result, as Lord Eldon ; but then they who best knew his judicial nature were quite aware that when he discussed the case, as it were, provisionally, and postponed his judgment, he had, on almost every point, made up his mind, and only hesitated about giving forth his decision. There was therefore very little, if any, effect produced by this premature statement, generally of doubts which he little felt, more frequently of criticisms upon the arguments he had heard, in so far as he had given his attention to them. But we speak of the general case, and we feel confident that we have not gone too far in expressing a very decided opinion against the practice.

Nor let it be supposed that, if in consequence of some such premature statement one judge be misled, he can be corrected

,

by his brethren where there are several, or by the Court of Appeal if he sit alone. A doubt is thus cast upon the soundness of the decision by the needless diversity, or apparent diversity, of opinion, as not unfrequently happened from Lord Kenyon's disregard of the other judges, hardly justified by his great acuteness and the extraordinary quickness of his apprehension. As for proceedings in appeal or error, it is both certain that cases which require it do not always undergo the corrective process, and that one of the evils inseparable from appeal is the tendency which the knowledge of their decisions being subject to it has to make some judges rely upon remediless mischief being thus prevented. Every judge is undeniably bound to decide as if he were certain that his decision must be final.

ART. IX.-THE FAILURE AND FATE OF THE

STATUTE LAW COMMISSION.

ON

N the 10th of February, 1859, Mr. Secretary Walpole

announced in the House of Commons the intentions of the government with respect to the Statute Law Commission ; and he then took the opportunity of observing, that he thought the commission had given the public “much information," but, on the whole, the government was considering whether the commission might not be stopped for a time.

We presume, then, that the commission is now at an end. Indeed, had the then Home Secretary conveyed the opinion of the government in any but parliamentary language, he might possibly have said, “ The government thinks the commission has done nothing; the government does not believe it ever will do any thing; it has cost a great deal of money, and, if not stopped, will cost much more; the Chancellor of the Exchequer grumbles,

[ocr errors]

and the government is now of opinion, as all the rest of the world has been for years, that the commission had better be abolished

at once.

[ocr errors]
[ocr errors]
[ocr errors][ocr errors][ocr errors]

Although “much information " may have been given, yet that information has not led, nor is it likely to lead, to any practical result; and it has been obtained, moreover, at a somewhat too costly price. Every one knows that the Statute Law Commission is (or was, as the case may be) an inefficient body; that it has not done a whit more than any of its predecessors; and that it has benefited no one but Mr. Bellenden Ker (who, during its continuance, has received £1000 sterling per annum) and the draftsmen, who received certain fees for drawing imperfect and

m

а

[ocr errors][merged small]

useless bills.

The commission, it must be allowed, had enormous difficulties to contend with ; but it never set about overcoming them in the right way. The only plea in extenuation which can be urged in its favour is, that this last commission has done no worse than those which preceded it; for not one of the previous attempts to consolidate and revise the statute law of the realm, numerous as those attempts have been, was ever crowned with even partial success. It is a fact, not a little curious, that three centuries ago, with much becoming gravity, a scheme was propounded with the view of attaining the desirable end which we have just seen our dying or dead commission has so miserably failed in. It is worth while to note the history of this early effort, and how it was fol

TE

alpole

ons of

ssion;

nought

lowed by others.

"but,

e como

nend. bion of

might con has will do topped

, umbles

,

It was in the reign of Queen Elizabeth, A.D. 1557, that Sir Nicholas Bacon, lord-keeper, drew up a plan for reducing, ordering, and printing the statutes. The heads of his plan are as follows :-“ First, where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated. Item, where there is but one lawe for

* The particulars relative to the commissions, &c., prior to that of 1833, are extracted partly from Mr. C. P. Cooper's “ Account of the most important Public Records of Great Britain,” &c., and partly from the report of the Commissioners of 1833.

one thing, that these lawes are to remain in case as they be. Item, that all the actes be digested into titles, and printed according to the abrdgment of the statutes. Item, where part of one acte standeth in force and another part abrogated, there should be no more printed, but that that standeth in force. The doeing of these things maie be committed to the persons hereunder written, if it shall so please her Majestie and her counsell, and daye wolde be given to the committees until the first daie of Michaelmas Terme next coming for the doing of this, and then they are to declare their doings, to be considered of by such persons as it shall please her Majestie to appoint.” A list of twenty committees, each consisting of four persons, is then given, and to each committee it is proposed that a division of the statutes should be referred. The subject, so far as related to the penal laws, was again taken into consideration in the years 1585, 1593, 1597, and 1601, but none of these efforts led to any result.

The next step was taken by James I., who, upon his accession to the throne of England, recommended to parliament a reform of all the statute law, and particularly of the penal laws. In 1610, the House of Commons, in their treaty with this king for the abolition of the Court of Wards, made it a part of their claim, “that all penal statutes be surveyed ; such as are obsolete and useless repealed; and such as are profitable concerning one matter may, for the better ease and certainty of the subject, be reduced into one statute, to be passed in parliament.” 1 In the same reign, Sir Francis Bacon, Lord Chief-Justice Hobart, Serjeant Finch, Noye, and others, by the king's command, made considerable progress in reforming and recompiling the statute law; but it is supposed that the distractions of the government in what related to parliament, caused the failure of those measures.

During the Commonwealth the matter was resumed. In 1650 a committee was named "to revise all former statutes and ordinances now in force, and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious way and exact method, for the more ease and

See History of England, Cabt. Cycl., vol. iv., p. 214.

[ocr errors]

.

« PreviousContinue »