religious study. The book which he read without intermission. was the New Testament. It formed for many months the subject of his daily perusal; and he left in writing his important testimony to the comfort which he derived from the gospel truths. The last matter of a secular kind which occupied his attention was the Edinburgh Congress and its proceedings, the very day before he retired to that rest for which he often said he was anxious and prepared: "Soul of the just! companion of the dead! (Thomas Campbell.) 26 Address BY THE RIGHT HON. SIR JAMES P. WILDE, JUDGE OF THE COURT OF PROBATE, ON JURISPRUDENCE AND AMENDMENT OF THE LAW. THE HE 7th of February, 1828, was a memorable day in the annals of Law Reform. Then it was that the greatest orator of his age delivered his celebrated oration in the House of Commons, and laid open the sweeping changes which our law required. From that moment an impulse was given which has not ceased to be felt. Interest was aroused, indignation excited for the errors of the past, and a basis laid on which to build fair hopes of the future. Since that time, the progress of Law Reform has been unceasing, though gradual. And now, after thirty-six years, after the destruction of a host of anomalies, and the removal of barriers and obstructions, such as set justice at defiance, we find ourselves still engaged in the same work, and, singularly enough, under the guidance of the same hand. No one can rise from the perusal of that remarkable speech, and a contrast with the reforms actually since effected, without marvelling at the success with which the defects and weak points of our judicial system were hit upon and exposed. And it is not too much to say, that ninetenths of the precise evils there indicated have been successfully met by the precise remedies there proposed. A glance at the subjects dealt with will serve to show us both the benefits that we have reaped, and the evils from which we have escaped. It will further serve to stimulate us to successful labour in the same field. The monopolies of the serjeants and the attorneys of the Common Pleas, and of the latter in the Exchequer, tending as they did to exclude business from both these courts, and overwhelm the Court of Queen's Bench, were exposed. These monopolies have been abolished, and the business of the courts equalised. The Welsh judicature was denounced, and has since been successfully abrogated. The constitution of the privy council as a court was impugned, and has been reformed. Passing from jurisdiction of courts to the defects in Crown law, the Crown has ceased in most cases to pay no costs when defeated, and justice has been made more attainable by the subject against the sovereign, by improvements in the petition of right. To save the necessity of a second suit in another court, equitable pleas have been allowed at law. Expense and delay in undefended actions, such as on bills of exchange, have been avoided by a prompt remedy, devised for the purpose. Antiquated forms have been remodelled, or suppressed. Wager of law has been wholly abolished, whilst a new and short form has been given to fines and recoveries, trusts to preserve contingent remainders, and the action of ejectment. Passing, then, to the conduct of a suit, the tyrannous pressure of arrest on mesne process, and the ruinous pitfalls of special pleading, no longer exist, while the way has been laid open to the manifestation of truth by various facilities. Power has been given to inspect documents, payment of money into court allowed, increased powers relative to arbitration conferred. Leave to proceed without appearance, large amendments on matter of form, admissibility of parties themselves, and interested persons, as witnesses, double speeches by counsel at the trial-these and other invaluable improvements all asked in that speech of 1828-have since, by one hand or another, been carried into effect, and command the approval of the entire profession. But it has taken between twenty and thirty years to effect these improvements-a melancholy proof of the tenacity of established abuse, and the sluggishness of the current of change. Great and useful have these labours been, but the object of this retrospect on the present occasion, is not wholly felicitation for the past, nor example for the future: for I wish to draw attention to the fact that the whole of these changes have been confined to the Procedure of the courts and the method of applying the law, not to the body of the law itself. It is the double function of Procedure to precede and follow legal adjudication, first ascertaining the facts in dispute and then carrying into execution the decrees of the law upon them. It is, therefore, properly the machinery of the law; but it is nothing more. Now, in 1828, the avenues to justice were so choked with artificial obstacles that approach was practically denied. Expense, delay, uncertainty-these three monster evils barred the access of the suitor, or terrified him into submission. The clearing of these obstacles, while it has opened the way to the speedy and certain administration of the law for the suitor, has brought the law reformer face to face with the body of the law itself. The question, then, forces itself upon us Is the law itself free from defects of a similar character to those which have disfigured its Procedure? Can we boast of a judicature, so logical, so free from entanglement and inconsistency, so clear and uniform, so harmonious and well-balanced, as to be worthy of our social progress, and equal to the mixed and multiplied wants of our age? Law means justice administered according to method. And in this, justice should be paramount, and method subordinate. Good laws will work occasional hardships, for they should be unbending; but if well administered, never injustice, for their principles should be unerring. Every legal system must impose some forms upon the business transactions of life, but they should be as few as possible, lest from guides and supports, they pass into fetters and trammels. The law should also be clear, because simple in principle. though diffuse in details, and compact in form because well collated, though compendious in grasp. How far can we conscientiously say that the common law of this country fulfils these ends? To what extent can it lay claim to simplicity, certainty, clearness, and unerring justice? Above all, what can we say of its compactness whose principles wander at large through the pages of 300 volumes, and the leaves of whose oracles lie as they first fell, scattered and unsewn? When we reflect on the history and growth of our laws we have no need to be surprised or ashamed. The marvel is that they contain so much worthy of admiration and homage. If they do not meet all our modern wants, to how many of them have they been gradually and insensibly adapted? Is it to be wondered at if laws which sufficed in the time of the Plantagenets fall short in the present age? Bear in mind that the laws of this country have suffered no general revision from time immemorial. As the middle classes forced their way, as the wealth of land found itself emulated, if not surpassed, by the wealth of trade, as civilisation bore its universal fruit of complicated relations in life, the laws regulating these relations ought to have felt an equal progress. Provision should have been made by the legislature for new requirements, and the obsolete constantly thrust out. But was this ever done? Did the change of our social condition at any period of our history carry with it a new system of laws framed by the legislature for the new matter with which it had to deal? Was a fresh chapter from time to time added to our code to keep pace with the fresh chapters of history? Far from it. With the exception of the Statute of Frauds, the Statute of Limitations, and a few Acts directed to very limited objects, the legislature has laid no hand on the body of the common law. What wonder, then, that after the lapse of centuries, legal procedure should have been found incompetent to the swift movements and varied turns of a community whose time had become wealth. And in like manner, who would reasonably expect that laws which, originally highly artificial, were adapted to the time when nearly all property consisted in land, should be unfit to pursue the complications of personal property and the intricate folds of trade? The gradual development which has turned a handful of military adventurers and a population of serfs into the wealthiest commercial community of the world, has surely called for the destruction of as much that was old and useless as the creation of what was new and requisite. What have been the means employed to this end? With rare exceptions, nothing but the judicial power. It has been left to the tribunals themselves to so mould old principles into new forms as to make them subserve modern uses. The law lying in no fixed code, but only in tradition and the records of its own application, was capable enough of being bent to new purposes and fashioned to new ends. And administered by powerful minds, with great labour, and by a body of men drawn from no particular or favoured class, a structure has been raised, chiefly within the last century and a half, of which we may well be proud. But this fabric, like the political constitution of this country, has been a thing of very gradual growth. If anyone doubts this, let him ask himself with what success he would be likely to search the year books, or the pages of the old reporters for any authority in support of nine out of ten of the decisions to which a single term now gives birth. Let him ask himself with what probability of success he would search in the history of remote centuries for the incidents and combinations which now ask daily for judicial solution. Land, it is true, still exists, but how occupied and enjoyed? under what relations and conditions, to what ends and purposes, as contrasted with feudal days? Such reflections as these serve to show how great a change must have passed over our judicature. A few further reflections may tend to show with what inevitable defects. |