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other cases, not carried to Court of Error, and so open to discussion.
There are, again, many fallacies current among the profession which can only be dissipated by discussion in legal journals. For men much occupied in practice have not time to enter into these
enter into these questions, and have a gregarious tendency to fall into grooves of thought, and follow each other in the use of received terms and phrases, which often embody the grossest fallacies. Such, for instance, is the common phrase as to "fusion of law and equity.” Most members of the profession fancy that law and equity are somehow, because separate, opposed, and that somehow this opposition may be removed by fusion. Yet, as Lord Brougham pointed out long ago, law and equity are no more opposed than civil and criminal law, and can as little be fused. For, as Lord Brougham explained, on the same state of facts, and the same question, law and equity are identical. It must be so, for it is a fundamental principle of equity to follow law. Hence the equity can only differ from the law on a different state of facts, or a different question, from the legal one, and as that difference never can be obviated, therefore they can never be fused. Nor can there be any fusion, even in administration, by a mere union of the judicature, unless it can be administered in one proceeding, for if there must be two proceedings, they are equally distinct, whether it is to be in two courts, or two divisions of the same court. It is manifest, therefore, that the only complete fusion that is possible lies in its codification, which affects only the form of the law, and not its administration or its effect.
Innumerable other instances might be adduced of common fallacies among members of the profession, only to be dissipated by discussion in legal journals. There is a strange tendency in men to blind acceptance of current ideas, even though opposed to actual facts, daily within their observation, and yet not observed. So little, as Dugald Stewart says, do the mass of men observe out of the scope of
their own daily avocations and ideas. Thus, most members of the profession suppose that all matters of fact are determined in Courts of Law by juries on oral evidence, and in Courts of Equity by judges upon written evidence. Yet in the same classes of cases, that is cases relating to property, it is not too much to say that the matters of fact are rarely determined by a jury, and are generally, in Courts of Law as in Courts of Equity, determined by the judges upon written notes, or statements, of the evidence, either in the form of applications to review the verdict, or on reservations of the evidence, with power to the courts to draw inferences of fact; in other words, to decide questions of fact. And in Courts of Law, as in Courts of Equity, points of law are always, of necessity, decided on written notes of the evidence or statements of the facts, either upon points reserved or on special cases. It is only, for the most part, in classes of cases which arise out of torts, especially personal torts, which do not come into Equity, that cases are really determined by the verdicts of juries, and even in those cases the verdicts are reviewed by the judges on notes of the evidence. Innumerable other instances might be adduced, but these will suffice to show how questions may be elucidated and fallacies dissipated by discussion in legal journals.
Owing to the unfortunate separation of the jurisdictions, hitherto the practitioners in each have known little of the other, and hence mutual estrangement and reciprocal prejudices, the result of pure ignorance. Such fallacies and prejudices are often very injurious to the progress of improvement and the success of great measures, and a legal journalist may do much to
remove them. Such is one of the many functions of legal journalism. It is obvious that from time to time legal and constitutional questions arise, some of which do not come into the courts, and which require elucidation, and may receive such elucidation in a legal journal. A legal journal is, indeed, the only medium for the exposition or discussion of such questions as they arise, without reference to any particular interest or
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result, and entirely in the interests of law and jurisprudence as a science, and with the accuracy incident to written compositions, which must await the judgment of a learned profession. Lord Brougham, in writing generally of the Press, evidently contemplated such discussions of questions coming within the scope of political science and jurisprudence.
“On subjects like this every one who had well considered it must have formed his opinions, and it is therefore his bounden duty to declare them, openly and distinctly, after stating the whole case, and the reasons on both sides. He is fairly to expound the views and the arguments of those with whom he differs, and he is to give his reasons for retaining his own sentiments."
This passage very well indicates the proper duty and function of the editor of a legal journal, prepared on any question to declare his own opinion, while giving full consideration to the opinions and ideas of others. From time to time legal or constitutional questions arise, or doctrines and opinions are put forth on such subjects, which require examination and consideration. Those who are engaged in the constant exercise of the functions of advocacy have no leisure to consider any questions except such as they are paid to consider, and then only with reference to the interests of those by whom they are retained. It is only in the pages of legal journals or periodicals that such questions can receive adequate, dispassionate, and disinterested examination. Nor is it only questions of municipal law which require such examination. Questions of international law from time to time arise which may lead to war, and are of the deepest interest, not only to this country, but to the whole civilized world. Such, for instance, is the question raised by the case of the Virginius, whether foreigners sailing to another country with intention to assist insurgents there, can be captured on the high seas, in vessels bearing a foreign flag, and summarily executed ? Such questions require discussion in a legal journal, and a monthly publication affords time for a more full and deliberate discussion of
them than can possibly be expected from daily or even weekly journals. Again, the influence of legal journalism is beneficial with reference to legislation, and changes in the law or the judicial system, especially in an age in which, as Savigny observed—the prevalent spirit is that of change, and political causes too often influence the changes which are made. As Mr. Burke observes, nothing is more easy and nothing more perilous, than change, without the most careful consideration and co-operation of various minds.
“ The errors and defects of old establishments are visible and palpable. It calls for little ability to point them out. The same lazy, but reckless disposition directs the politicians when they come to work for supplying the place of what they have destroyed. To make everything the reverse of what they have seen, is quite as easy as to destroy. No difficulties occur in what has never been tried. At once to preserve and to reform is quite another thing. When the useful parts of an old establishment are kept, and what is superadded is to be fitted to what is retained, a vigorous mind, steady, persevering attention, various powers of comparison and combination are to be exercised *** nor have I ever seen any plan which has not been mended by the observation of those who were much superior in understanding to those who took the lead in the business."
And he then shows how this is, in words very well applicable, for instance, to the operation of our new judicial system :
“The effect of each step is watched; the good or ill success of the first gives light to us in the second, and so from light to light we are conducted with safety through the whole series ; the evils latent in the most promising contrivances are provided for as they arise; one advantage is as little as possible sacrificed to another; we compensate, we reconcile, we balance, we are enabled to unite into a consistent whole the various anomalies and contending principles which are found in the minds and the affairs of men. From hence arises excellence in composition. When the great interests of mankind are concerned, the work requires the aid of more minds than an age can furnish.”
And, of course, therefore, the aid of all the minds of the present age which can be brought to bear upon the matter. Therefore the observations of any, however humble their position or their capacity, if moderately capable of under
standing the operation of the system inaugurated, and carefully and constantly directed to it, in a spirit of candour and intelligence, cannot fail to co-operate with and assist, in some humble measure and degree, if only by suggestion, those who who are responsible for its success.
Lord Brougham has pointed out the advantage of watching the operation of measures of legislation. He observes that
“All legislation, to be profitable, or even safe, must be experimental, and, as it were, tentative. The prudent legislator must proceed with a confident reference to the effects which his measures have produced. Hence the absolute necessity of having full and regular details of the action of the law. We make some change in the system. We are bound to examine how the new law works. Unless we know all the facts connected with its execution how can we tell whether or not it was wisely, that is usefully, adopted. So long," he says, “as human legislators are fallible, so long must their legislative labours require correction and elucidation. For their law must always admit of some doubt, and numberless points must escape the maker of the law, which can only be suggested in the course of its administration."-Works vii. 227.
These remarks are peculiarly applicable to the great measure, the operation of which is now likely for a long time to enjoy the attention of the profession; and not merely of the profession but of the public, who have now come, in a great degree through legal journalism, to take a great interest in such subjects.
If indeed the writer were asked more particularly to describe his object, he would say it would be to show the operation of a judicial system, in the administration of justice, and the formation of law, a subject of special importance at this time, when the attention of the country is likely for some years to be fixed on the gradual transformation and reconstruction of our judicial system. The writer says “gradual,” for it is the opinion of the most thoughtful and reflective minds that it will probably be twenty years before the great work is consummated. More that one of our most experienced statesmen have thrown out this prediction, and in all probability