Wednesday, January 11, 2017

Improvement of the Law by Private Enterprise

The object of this paper is to bring before the public, and more particularly before both branches of the legal profession, a scheme for the systematic improvement of the law by private enterprise. In the course of the last half-century immense improvements have been made in the substance of the law. These very improvements have, however, made its form worse and less intelligible than it used to be before they were effected, whilst they have greatly increased its bulk. The great object still to be effected is the improvement of the form of the law by its condensation and rearrangement. This is essentially a literary problem, though it is not usually regarded in that light; but, till it is so regarded, and till systematic and organised efforts are made for its solution as such, I do not believe that codification, except on some isolated subjects, will be possible; and I doubt whether an attempt to codify other parts of the law would be of much real use. I will attempt to explain the ground of these views.

The law of England is at present contained in a library of considerable dimensions. The Statutes at Large consist of between fifty and sixty large quarto volumes. The reported cases fill many hundred volumes—how many hundred I do not profess to know, but the Council of Law Reporting has published ninety-four such volumes since the year 1865, and the Reports begin in the reign of Edward the First. The name of the writers of handbooks, text-books, digests, and the like, is Legion, and the bulk of the statutes and cases is so enormously great, and the rapidity with which matter accumulates is so overwhelming, that it is practically impossible for any one, however diligent and learned, to trust to his own acquaintance with the original sources of law upon any one department of the subject. As if this were not enough, vast masses of law, which in former days were either non-existent or of comparatively small extent and importance, have now assumed importance or increased in bulk. The study of Roman law has revived during the last twenty-five years, and this has made it necessary or desirable for English lawyers to take far more notice than was formerly requisite not only of the Institutes, the Digest, and the Code, but of the works of French and German commentators upon them. American law reports, which reproduce with curious fidelity all the peculiarities of our own system of reporting, are almost innumerable, and—as well as the works of American authors like Kent and Story—are frequently quoted in our courts. The Judicial Committee of the Privy Council, again, is a focus to which appeals converge from an Empire to which that of Rome was narrow and uniform. The following cases, recently decided by the court set this in a strong light:—1. A group of cases on the law of Victoria as to the principles on which land is to be distributed by the Government amongst persons desirous of occupying it. One of these involved the question whether the doctrines of Coke and Plowden about royal mines were applicable to Australian gold-diggings. 2. A case on the question how far a Chinese resident at Singapore is restrained by English Acts of Parliament from establishing a foundation for the purpose of feeding his ancestors’ ghosts; and on the further question whether anything corresponding to what we understand by marriage and legitimacy ever occurred to his mind. 3. Various cases on strange distinctions between the self-acquired and the ancestral property of a Hindoo. 4. A case involving the problem whether, by the Roman-Dutch law in force at the Cape of Good Hope, a minister of a Lutheran congregation is bound to believe in the devil. 5. A case throwing some light on the question whether an Englishman who denies the existence of the devil can force his parish clergyman to give him the sacrament notwithstanding. 6. A case establishing the right of a French Canadian to be buried in consecrated ground, although he died in a state of ipso facto excommunication. There is no system of law, no race of men, no creed, no. order of ideas, which has not from time to time to be considered by the Judicial Committee of the Privy Council. Highly civilised clergyman denounce their judgments on vestments in language which would have caused Archbishop Land to have his scissors sharpened and his branding-irons heated. The artless natives of one of the wilder districts of Eastern Bengal lately took the more conciliatory course of carrying off an old idiot to the top of a hill and offering him up as a burnt sacrifice to the gods who preside over their Lordships’ deliberations. In short, the mass and the variety of legal matter of various kinds with which English lawyers may be called upon to deal is probably unexampled in the history of the civilised world. All the great relations of human life, all the great institutions, political and ecclesiastical, which we have established, come in one way or another under the consideration of English lawyers. If the various principles of law by which these questions are decided were sought out and set in order, if they were expressed in simple natural language and so arranged as to show their mutual connection and relation to each other and to human affairs generally, it would be seen that they are at least as important and as interesting as the questions which are decided by them. As matters actually stand, however, law is to Englishmen in general a sealed book, the knowledge of which is as much confined to a very small group of experts as the knowledge of astronomy or anatomy. This is all the more remarkable because no nation in the world treats legal decisions with so much respect, or takes so much interest either in legislation or in the administration of justice. Parliaments and courts of justice are the objects of universal interest; but the laws which parliaments make, and by which courts of justice are guided, are by common consent regarded as unintelligible to every one who does not devote a lifetime to their study.

I have long believed that the law might by proper means be relieved of this extreme obscurity and intricacy, and might be displayed in its true light as a subject of study of the deepest possible interest, not only to every one who lives under it because he does live under it, but to every one who takes an interest in politics or in ethics, or in the application of logic and metaphysics to those subjects. In short, I think that nothing but the rearrangement and condensation of the vast masses of matter, contained in our law libraries is required in order to add to human knowledge what would be practically a new department of the highest and most permanent interest. Law holds in suspension both the logic and the ethics which are in fact recognised by men of business and men of the world as the standards by which the practice of common life ought to be regulated, and by which men ought to form their opinions in all their most important temporal affairs. It would be a far greater service to mankind than many people would suppose to have these standards clearly defined and brought within the reach of every one who cared to study them.

I have on various occasions insisted on this as a theory, and I have tried to produce two definite illustrations of what I assert by publishing a Digest of the Law of Evidence [Third edition. Macmillan, 1877] and a Digest of the Criminal Law [Macmillan, 1877].  I must refer to those works as illustrations both of my assertion that law is a matter of deep interest, and of my assertion that it is possible to put important branches of it into a form at once full, correct, and readily intelligible to any one who cares for the subject enough to read attentively a work of very moderate length. In the Introduction to each of these works, but more especially in the Introduction to my Digest of the Criminal Law, there will be found an account of the means by which the law may be thrown into the shape in question. I have no doubt that every part of the law might be exhibited in that form, and it is equally clear to me that, if this were effected, it would not only be an immense convenience in itself to every one who is in any way concerned with the administration of justice, but. it would enable Parliament to legislate on legal subjects with its eyes open, and with an infinitely clearer perception of the nature and probable results of its legislation than it is now possible to obtain. These books, in fact, were written mainly as specimens intended to show that it would be possible and useful to form a general digest of the law, and so to ascertain distinctly and authentically what it actually is at a given moment. Such a step I believe to be an essential preliminary to the codification of the law—that is to say, towards recasting it in a form regarded as satisfactory, and intended to be permanent.

The formation of a complete digest of the law is a work presenting several special difficulties, apart from its great extent and the immense labour which it would involve. It is a work of which it may be said that it can neither be done by one man nor by many men. If it is to be of permanent value, it ought to be the work both of one and of many. A digest of the law ought to be planned in the first instance by one person. The plan should be settled by a small body of men possessed of the highest possible qualifications for such an undertaking, and it should be executed in parts by a considerable number of persons specially acquainted with particular subjects, but working with reference to the general plan. I believe that if such an undertaking were seriously taken in hand, and were vigorously pressed on, the law of England might be, so to speak, transfigured in fifteen or twenty years, and made at once short, full, systematic, and intelligible. No one, who has not actually tried the experiment of condensing it, can imagine the degree of condensation of which every one of its constituent elements admits. The Statute Book, for instance, consists of from fifty to sixty large quarto volumes. By the simple process of repealing expressly all the obsolete matter, and publishing an edition omitting what is so repealed, forty-two of those volumes have been reduced to twelve much smaller volumes, forming the work known as The Statutes Revised. The publication of that work has been an immense benefit to the profession and to the public; but I have little doubt that if the revised statutes were redrawn so as to give their effect instead of their actual words, in the way in which I have redrawn the particular statutes which relate to the subjects of crime and evidence, these twelve volumes might be reduced to four or less. About three years ago I prepared for the India Office a bill consolidating the statute law relating to India. It gave in one act of 168 sections intelligibly arranged the net result of forty-three statutes passed between 1770 and 1874, explaining, amending, and qualifying each other till they are hardly intelligible, and filling the greater part of a quarto volume of 700 or 800 pages. This bill is one of the large number of omnibuses (to adopt a well-known metaphor) which never managed to get through Temple Bar. Indeed the prospect of passing it appeared so remote that it was never even taken out of the stable.

To a person who is not a lawyer it may appear incredible that our law should be so compressible. I will give a single small illustration of the way in which our legislating is done in order to explain it. One small bit of the law of England may be thus expressed:— ‘Whoever commits high treason must be hanged by the neck until he is dead, provided that if the offender is a man, the Queen may direct by a warrant under her sign manual, countersigned by a Secretary of State, that the offender shall not be hanged, but that his head shall be severed from his body whilst alive. It is not quite certain whether a similar direction may be given if the offender is a woman, but it is probable that it may.’

This simple but singular state of the law is at present expressed in the following manner:—
1. By the common law the punishment of high treason was hanging, drawing, and quartering alive for a man, and burning for a woman.
2. By 30 Geo. III. c. 48, s. 1, it was enacted that women should no longer be burnt for treason, but hanged instead.
3. By 54 Geo. III. c. 146, it was enacted that men should no longer be hanged, drawn, and quartered alive, but should first be hanged till they were dead, and then quartered, and it was provided that the King might substitute beheading for hanging by a warrant countersigned by a Secretary of State. This statute says nothing about women.
4. By 33 & 34 Vic. c. 23, s. 31, so much of the 54 Geo. III. c. 146, as required persons to be drawn to the place of execution, or their bodies to be quartered after execution, was repealed.
5. Before these statutes it was doubtful whether the substitution of beheading for hanging was lawful in any case, and especially in the case of women, because beheading formed no part of the sentence on a woman. This doubt is strengthened by the statute 30 Geo. III. c. 48, s. 1, because it expressly declares that women shall be hanged. But it is doubtful whether this was or was not meant to take away the royal right to direct beheading, if such a. right ever existed.

Thus, in order to arrive at the simple proposition that the punishment for treason is death by hanging, it is necessary to compare a common law rule, part of which is uncertain, with three Acts of Parliament passed respectively in 1790, 1814, and 1870, all of which have to be printed at length in their chronological order in the Revised Statutes.

If this were an isolated instance of the way in which the Statute Book might be compressed, it would be unfair to refer to it; but any one who is acquainted with the subject would admit that it is a highly characteristic illustration of the way in which Acts of Parliament are passed.

The reports of cases admit of even more condensation than the statutes. They form, as I have said, a considerable library, but large numbers of them have been overruled, a still larger number relate to statutes which have been repealed, and to doctrines which have been either abolished by statute or become obsolete, and a very large number ought never to have been reported at all, as they carry the law no further, but depend entirely on matters of fact or on the construction of documents. Others again fit into each other, and establish collectively a short rule easily understood, which supersedes the necessity for referring to the particular cases by which it was established, just as an arch supersedes the scaffolding by the help of which it was constructed, and produces an effect altogether different from that of the individual stones of which it was composed. Any one who wishes to see specific illustrations of these assertions will find numbers of them in the Digests to which I have referred. The definition of murder and manslaughter given in Article 223 of my Digest of the Criminal Law gives the result of many hundreds of authorities, as I have shown in detail in Note XIV. in the appendix to that work. The rules as to giving evidence to interpret written documents, and as to the exclusion of evidence to vary a written contract, which will be found in Articles 90 and 91 of my Digest of the Law of Evidence, represent the effect of nearly as large a. number of decisions.

These, and some other circumstances which I cannot here enumerate, make it possible for mere private writers without any aid from the Legislature, by a simple exercise of the power of arrangement, care, and diligence, to compress the law into a moderate compass, and to bring out and display the unity and system which really belong to it. Such an operation would of itself constitute a most important reform in the law, and would facilitate legislation for the same purpose to an incalculable extent. It is not easy to illustrate this last proposition in such a manner as to make it intelligible to an unprofessional reader, but I will try to do so.

Every one is aware that the law relating to landed property is the standing disgrace of English law. After many attempts to simplify it, it remains as complicated as ever; and numerous efforts to simplify titles by the establishment of systems of registration, by providing short statutory forms of conveyance (which are, I believe, never used), and by other devices, have utterly failed to produce the sort of effect which was desired. The reason of this is that the law relating to land is irrational in itself. It consists almost entirely of legal fictions invented for the sake of accommodating the rude institutions of feudalism to gradual changes in the state of society, and the result is that the law is practically much more obscure than it would be if it were written in a foreign language, inasmuch as it is expressed in Words which, though English, are employed in such technical senses that any one but an expert would be misled by them. [Here is an instance:—‘The legal seisin or possession of lands became then (on the passing of the Statute of Uses) for the first time disposable without the formalities previously required, and amongst the dispositions allowed were these executory interests, in which the legal seisin is shifted about from one person to another at the mercy of the springing uses to which the seisin has been indissolubly united by that Act of Parliament.’] The only reform of the law relating to land which would be really satisfactory must be preceded by an adequate translation of the existing law into plain English free from fictions. At present, the law of real property is based upon such propositions as these: ‘All lands are holden;’ no one owns land, but only estates in land of various magnitudes. ‘The fee simple or inheritance of lands is generally vested and resides in some person or other, though divers inferior estates may be carved out of it.’ ‘Sometimes the fee may be in abeyance, there being no person in case in whom it can rest and abide, though the law considers it as always potentially existing.’ ‘The effect of the Statute of Uses is to convey the legal estate to the person to whose use land is granted through the person to whom the grant is made as through a conduit-pipe.’

These are all figurative ways of saying that if a man wishes to secure the transmission of his property after his death in the way in which he has by law power during his life to direct that it shall be applied, he can appoint trustees who will be compelled to execute his intentions if they are lawful. Instead of saying this simply, the law is made up of a set of idle distinctions between owning land and owning an estate in land, and silly metaphors by which interests in land are likened to running water, and human beings to the pipes through which the water runs. Such rubbish as this is the foundation on which the whole mystery of conveyancing is erected, and titles and title-deeds will never be really simplified or shortened, however ingeniously and elaborately their contents may be registered, till the phraseology in which these fictions are expressed has been replaced by plain English. Parliament only has in theory the power to do this, and Parliament will never be practically able to do it until the work of translating the law of real property as it stands into plain English has been done for it by private persons or public officers. With such a translation before it, Parliament would be able to put the law relating to land into a form as simple as was consistent with the maintenance of whatever might be regarded as the best mode of holding and enjoying land. Till the whole matter is thoroughly explained in a perspicuous manner and in language free from legal fictions, all legislation upon the subject will be legislation in the dark, and all real discussion upon it will be discussion between a few experts, many of whom are still influenced by the delusion (for such I believe it to be) that it is for the interest of the profession to which they belong that the subject should continue to be shrouded in mystery.

These illustrations, I hope, sufficiently show that the reduction of the law to a state of systematic and orderly arrangement, its translation into plain English, and the process of setting it free from legal fictions by stating in plain words the objects which those fictions are intended to effect, are essentially literary tasks—tasks which private persons are quite competent to perform without any assistance from Parliament or from the Government. I hope I have also succeeded in showing that if these tasks were performed, the result would be to enable Parliament to legislate upon all legal questions with a freedom and a conscious command of the subject which at present it does not and cannot possess. The literary and the legislative reform of the law might thus go on part passu, the literary reformer classifying, arranging, systematising, and explaining the law, and the legislator setting his seal on such parts of it as appeared to be sound and wise, and amending those which required alteration. I fear that systematic codification without such assistance would, as all past experience shows, be practically impossible, and there are many subjects in connection with which it might be mischievous.

It is not, however, merely by way of assisting legislation that the systematic cultivation of legal literature would be of use. Though our law libraries are in a state of rank luxuriance, a vast number of legal literary undertakings which would be useful in the highest degree alike to lawyers, to politicians, and to persons interested in every branch of historical learning, are altogether neglected. I will mention a few such undertakings to explain my meaning, but the number is really unlimited.

The Law Reports, as I have already observed, form a library of many hundred volumes of all possible degrees of interest, value, and authority. Of the many thousand cases reported in them large numbers relate to matters of no interest whatever from any point of view, legal, historical, or otherwise. Others are on all these grounds exceedingly important and interesting. The earliest series of reports is known by the name of the Year-books, and extends from the reign of Edward the First to the reign of Henry the Eighth, during which period they were compiled by officers of the Court specially appointed for the purpose. In former times the education of a lawyer consisted to a great extent in acquainting himself with the contents of these works, which form about ten folio volumes. They are at present hardly known or studied at all, although they contain the foundations of several important branches of the law, and although a good deal of the confusion in which the law is involved is traceable to principles which have become obsolete, and which can be understood only by the help of the information they contain. Some of the reasons why they are not studied are these. They are written in law French, a language so very unlike modern French that a person perfectly familiar with the latter is constantly obliged to guess at the meaning of the former. They are printed in black letter, with contractions of which no explanation is to be found, except by a great deal of trouble.

They are so arranged that it is impossible to discover whether the person who speaks is counsel or judge, without following the example of the late Mr. Justice Willes, who made a list of all the judges mentioned in the Year-books in order to read them with profit. The result is, that as to all legal antiquities, on which a larger proportion of modern law than many persons would suppose depends, [‘For a strange illustration of this, see my Digest of the Criminal Law, Article 254, note, and see Note 11. in the Appendix.] we are practically at the mercy of a few writers like Coke, whose works have been taken as ultimate authorities, not because their intrinsic merits entitled them to such a distinction (Coke was one of the most confused, pedantic, and inaccurate of men), but because the older authorities are practically almost inaccessible. I think that if all the Year-books were translated into English (as some of the earlier ones have been, under the orders of the Master of the Rolls), and were printed in a convenient form, and with proper notes, a new light would be thrown on many legal and historical questions of the greatest interest, and the foundations and real meaning of many things which are at present impenetrably obscure would be brought to light.

The importance of publishing a translation of the Year-books would probably not be immediately obvious to every member of the legal profession, but it would render possible, and he a natural introduction to, another undertaking, which I should think would be regarded by every member of the profession, from the most eminent judges downwards, as an unspeakable convenience. I refer to the publication of a series of reports which should stand to the existing reports in the same relation as that in which the Revised Statutes stand to the Statutes at large. They might be called by some such title as ‘Select Cases,’ or ‘Classified Cases.’ They should contain that part of the existing reports which is still living law, the obsolete, overruled, or unauthoritative decisions being omitted, and the reports themselves being shortened where necessary by the omission of useless matter, of which most of them contain a considerable proportion. There would be no great difficulty, and there would be indescribable convenience, in classifying the cases, first according to their subject-matter, and next in the order of their date.

Suppose, for instance, that all the cases about contracts were extracted from the general mass; that those which refer to the general principles affecting all contracts—such, for instance, as the formation of contracts, the effect of fraud, misrepresentation, and mistake, &c.—were put first; that those which relate to particular contracts, the sale of goods, the loan of money, mercantile insurance, and the like, were also put together, each in a place of its own; and that each class were then to be arranged in order of time: the subject would become of itself organic and intelligible, and an amount of servile labour would be saved to the profession, which can be estimated by those only who habitually undergo it. To have an the authorities on a particular point brought together in a single volume, instead of being obliged to load one’s table with perhaps ten or twelve volumes painfully collected out of a library, would be a luxury so great that it seems almost impossible that it should ever be attained. I think, however, it would require less management and organisation to bring it about than was wanted to establish the new system of reporting. A great part of the work would be merely mechanical. No part of it would require higher qualifications than those which may be procured in practically unlimited quantities and at a very low price amongst the junior members of the profession. A moderately complete series of select or revised cases would form in itself a rough digest of the greater part of the law, and would supply the materials for as good a digest as could possibly be prepared.

Another literary enterprise of immense and unquestionable importance, which would go far to improve the existing character of our law, and would, I think, possess in itself unsurpassable interest, would be an authentic collection of the different laws of different parts of the British Empire. [The statutes for the consolidation of the criminal law in force in Victoria are very much in advance of our own acts upon the same subject, and the legislation of the same colony on the subject of the manner in which the waste lands are to be allotted to applicants, contains a practical comment of the deepest interest on some of the questions which lie at the basis of the whole theory of property. Read in connection with the acts by which the subject of land revenue is dealt with in India, they form a contrast between different ways of looking at the whole theory of public and private rights which reminds me of Mr. Grant Duff's comparison of the institutions of Russia to flocks of sheep feeding side by side with herds of megatheria.] Hardly any one in this country knows how actively our fellow-subjects in different parts of the world have been engaged in the work of simplifying, consolidating, and improving their law, and few indeed appear to me to have the faintest notion of the number of problems of high and permanent interest with which Indian and colonial legislators have to deal. No one, again, whose professional pursuits have not led him to inquire into such questions has any notion of the difficulty of discovering accurately and distinctly what is the constitution of any given colony. No common book, for instance, gives copies of the documents which it is necessary to study in order to say precisely what is the constitution of the Legislative Council of Ceylon and what are its powers. The authority exercised by the Crown in China, Japan, and Constantinople over British subjects there is one of the greatest legal curiosities in the world. The details, without which it is impossible to understand it properly, are no doubt to be found by searching the Gazette for certain Orders in Council; but they are nowhere recorded in any standard book accessible to the whole profession. A collection of the statutes of British legislatures, and of the ordinances, royal letters, &c., from which colonial legislatures derive their authority, would be an invaluable monument of the great ness of the Empire; and though the whole series might be valuable principally to public libraries, a large number of persons would be glad to have parts of it.

I might multiply to any extent illustrations of the sort of literary undertakings which would greatly facilitate and contribute to the object of throwing the law into a proper shape, whilst they would have an independent value of their own; for it mast be remembered that, however completely the law may be digested, it will be difficult to understand the digest fully, and impossible in most cases to understand the grounds on which the law that it records rests, unless it is possible to refer back to the materials from which the digest was drawn. I will not, however, insist upon this point, but will mention a few works which, whilst they would have great value for legal purposes, would also be of much interest in connection with other branches of knowledge.

Many years ago Mr. Froude, when beginning his great work, made some observations on the historical value of the Statute Book. He might have added, with perfect truth, that the problem of understanding the Statute Book is to a great extent an historical one. In reading a statute it is often almost impossible to find out from its bare words either its real intention and operation or even its meaning. The really important point is, in many instances, contained in some apparently trivial provision which no one would notice if he were not acquainted with bits of contemporary history, which are forgotten with surprising rapidity. Let any one look, for instance, at the 25th section of the Education Act of 1870, and ask himself whether, if he read it for the first time say ten years hence, he would form the very faintest guess that it ever had been, or ever could have been, the subject of fierce and protracted controversy.

To take an older instance, it is enacted in substance by the 11 Hen. VII. c. 1, that ‘no person who attends upon the king and sovereign lord of this land for the time being in his person, and does him true and faithful service of allegiance in the same, or is in other places by his commandment in his wars within this land or without,’ shall (the reader will be surprised to learn) be regarded on that account only as guilty of high treason. Who, it is natural to ask, ever supposed that a person could commit high treason by doing ‘ true and faithful service of allegiance to the king for the time being,’ and what is the sense of an act for the protection of meritorious conduct? The answer is, that the act was passed to protect adherents to a king de facto against the possible vengeance of a king de jure, and that it was one of the most notable of the traces left on our law by the wars of the Roses.

Such a work as Barrington’s Observations on the Statutes, systematically carried out from the earliest times to the present day, would form an invaluable and almost indispensable commentary upon the statutes themselves. It would infinitely facilitate the interpretation of them in innumerable ways.

Lastly, of all the collections of the records of past times which have been published, none throws a broader or more varied light on the manners and customs, the history, the law, and (what is a very different thing) the practical administration of justice at different times, than the State Trials. If any one wishes really to understand the passions which were roused at the different turning-points of our history, and to have at the same time distinct and faithful accounts in minute and picturesque detail of an infinite variety of transactions typical of every rank, every profession, and every shade of opinion, he can resort to no better authority than this great collection, which extends from the earliest times to the year 1822, and forms what might almost be called a judicial history of England.

Since the year 1822, the number of trials which ought to be permanently recorded in the same way has been greater than during any equal period in history. They have been for the most part reported with the most elaborate care, but they have never been collected as they might and ought to be. Such a collection would throw invaluable light not only on a great variety of legal subjects, but on many chapters of that part of history which is at once the most interesting and the most obscure part of it—the history of a time which men entering upon middle age hardly remember at all, and which is too well remembered by their elders to have become as yet the subject of history.

Most of the political and many of the social questions of modern times have given occasion to proceedings of greater or less interest and importance in the Courts, and it would take little trouble to make a collection of them which would be more interesting than any number of novels, and more important than a very large proportion of histories. Old Irelanders, Young Irelanders, Fenians, Chartists, members of trades unions, frame—breakers, ‘Captain Swing’ and his followers, Ribbonmen, and innumerable other persons of every rank and calling, Queen Caroline, the last of the descendants of the Mogul Emperors of India, the Gaekwar, Palmer the poisoner, Lord Cardigan, Governor Eyre, Mr. Gordon, whom be caused to be hanged, and many others, would all take their places in one part or another of such a collection.

This is what I mean by saying that the problem of law reform, conceived on the widest and most permanent scale, is essentially a literary one, and that the only satisfactory way of dealing with it would be by treating it as such. The question is how is this to be effected?

My answer is, by establishing another body like the Council of Law Reporting, which might be called the Council of Legal Literature, the object of which should be to undertake the direction of the composition and publication of the different classes of works which I have been describing. In order to show what such a body would be like and how it would act, I will give some account of the body I have named. The facts I am about to state are perhaps not very distinctly understood even in the profession, and probably not at all out of the profession. They show, however, what may be done by judicious organisation in such matters, and what might be done by a body of a similar kind, but with different objects.

The Council of Law Reporting is an incorporated association identical in principle with the cooperative stores. Down to the year 1865, the Law Reports were booksellers’ speculations. A law bookseller engaged some barrister or barristers to supply him with reports of the cases in one or other of the Courts of Law or Equity. The reports came out in parts at irregular intervals, and were from time to time bound up in volumes, which were, and are still, commonly quoted either by the names of the reporters or by the name of the courts. The result was that the reports became exceedingly expensive, they were published at irregular intervals, and they varied greatly in value, as the reporters were employed by persons who had no special knowledge of the subject, and only a commercial interest in it. Under this state of things any one who wished to keep up a complete set of the published reports had to pay for them a sum of from £25 to £30 per annum. They were, moreover, so irregularly published that reports not recognised by the judges and not furnished with copies of their judgments, but cheaper and more punctual, were established; and it was in many cases necessary, or at least advisable, to buy them either as a stop-gap or as a cheap substitute for the authorised reports.

The inconvenience of this state of things was so very great that the profession determined to find a remedy for it. The Incorporated Society of Law Reporting was accordingly established, for the purpose of supplying cheaper and better reports. The principle of it is exceedingly simple. It undertakes, in return for a subscription of six guineas a year, to supply in monthly numbers reports of all the cases in all the courts, and a copy of the statutes for the year. The affairs of the society are managed gratuitously by a council which is appointed by the four Inns of Court, Serjeants’ Inn, and the Incorporated Law Society, and of which the Attorney-General and Solicitor-General are ex officio members. These affairs consist mainly in the engagement and payment of editors and reporters, making arrangements with the firm by which the reports are printed, and settling from time to time the terms on which the whole or part of the publications ot‘ the Council are to be ofl'ered to subscribers. This involves a considerable degree of trouble and responsibility, but the success of the system has been complete. The annual subscriptions enable the Council to engage, at considerable salaries, the services of two editors and twenty-four reporters, and to produce with nearly complete punctuality reports very much superior in many essential respects to the old ones for about one-sixth or one-fifth of the price. Moreover, as the Council are leading members of the profession continually obliged to make use of the reports, their attention is at once directed to any shortcomings, and they have a direct personal interest in correcting them.

These results speak for themselves, and afford clear proof that a practical proposal for the improvement of the law touches the immediate interests of a large and wealthy class so closely that it is likely to succeed.

The Council is established under the 23rd section of the Companies Act, 1867, which enables associations for the purpose of promoting ‘commerce, art, science, religion, charity, or any other useful object,’ to be registered with limited liability without the addition of the word ‘limited’ to its name, if the intention of the association is to apply the profits or other income of the association to promoting its objects, and to prohibit the payment of any dividend to its members.

The work of a Council of Legal Literature would be far more varied and interesting than that of the Council of Law Reporting, though I do not think it would involve any such continuous labour as to make it difficult to secure continuous supervision. If such a body were established, its business would be something of the following kind. Its first duty would be to decide what undertakings it would carry out. Suppose, for the sake of illustration, it determined to proceed with a general digest of the law and the publication of a series of selected and classified reports on the principles indicated above. The first step would be to procure from any one who might be regarded as most competent to discharge such tasks general plans for the work. The plans would then be settled by the council, and the execution of the particular parts of it would be confided to particular persons who might be regarded as most competent, with general directions as to the manner in which the work should be carried out. It would be essential to the carrying out of the scheme to obtain the services of one or more principal editors, under whom the authors of particular branches of the work would act.

The preparation of a digest either of the whole or of any branch of the law is work of a very peculiar kind. It is one of the very few literary undertakings in which a number of persons can really and effectively work together. Any given subject may, it is true, be dealt with in a variety of different ways; but when the general scheme according to which it is to be treated has been determined on, when the skeleton of the book has been drawn out, plenty of persons might be found to do the work of filling up the details, though that work is Very far from being easy or a matter of routine. If, for instance, the following question were to be proposed—‘ To what extent is the owner of land entitled to the lateral support of the adjacent land for his land, and for any buildings which he may put upon it?’—the answer would have to be obtained from the study and comparison of, say, ten or twelve decided cases, and the principles to which they refer; but almost any competent lawyer who had those cases under his eye would deduce from them nearly the same general proposition. The place of such a proposition in a general statement of the law of easements, the place of the law of easements in a general statement of the law relating to land, the place of the law relating to land in a general statement of the law relating to property, and the place of the law relating to property in a general digest of the law of England, are questions of quite another order.

Some of these questions, and the most important and interesting of the number, might, I think, be ultimately decided by such a council as I have suggested, deciding upon the report made to them by any person or persons whom they might regard as specially competent to perform the important task of making such a report. The mode of carrying out the details, and the degree of supervision to be exercised by the editor-in-chief over the authors of particular parts, would be matter for consideration, guided by the experience which would be acquired in the execution of the work.

I think, however, that if the scheme were fairly started the council could hardly fail to be able to offer to their subscribers a certain number of volumes a year of works which would ultimately form a law library in themselves. The general digest of the law would, of course, be executed by slow degrees. It is a kind of work which, for many obvious reasons, cannot be hurried, and which could not be completed for a considerable number of years; but such a work as the publication of the selected or classified cases might proceed very rapidly. No very elaborate classification would be required, and the most laborious part of the work would be nearly mechanical.

I believe that ultimately such an undertaking as I have described would be self-supporting, as has been the case with the Council of Law Reporting. The general superintendence being gratuitously given, and the income being derived from annual subscriptions, the main expense would be the salaries of the editors and the payment of the authors. Some of the editors would, no doubt, have to be very highly paid if the work was to succeed, as there would be no use in undertaking the scheme unless men of high professional standing, whose names would be a guarantee to the public and the profession, had the principal part in carrying it out. The authorship would be less expensive. The great inducement to write law books is the prospect of getting the reputation of being an authority on a particular legal subject, and the number of able men at the bar who will compete with eagerness for any kind of work which will give them a certain amount of steady pay and bring their names in any way before the legal world is practically unlimited. Having been for some years a member of the Council of Law Reporting, I have been astonished at the number of admirably qualified candidates who present themselves for every reportership which becomes vacant, although such men might earn more money with less labour in ways which, if they did not promote, would not obviously injure, their professional prospects. I have no doubt whatever that if such a council as I suggest were established, and were composed (as it ought to be) of the leading members of the profession, the honour and advantage of working for them at a very moderate rate would be the subject of keen competition amongst very able men.

The expense of setting such an undertaking in motion would no doubt in the first instance be considerable. Some years would probably pass before it would pay its way, and, unless it were to some extent independent of common trading considerations, it could hardly carry out successfully the sort of undertakings which I have suggested, which would certainly be advantageous rather from a legal than from a merely monetary point of view. How, it may be asked, would you propose to meet these expenses? I reply that I think that if such an undertaking were set on foot by a sufficiently weighty body of persons, the Inns of Court might very well he asked to guarantee the expense for a sufficient time to give the scheme a. fair trial, just as they have actually spent, and are now spending, sums amounting to upwards of £5,000 a year in supporting the Council of Legal Education. It appears to me that the Councils of Legal Education, Law Reporting, and Legal Literature might work together in such a way as to promote each other’s objects in the most effective manner, and I can hardly imagine a more suitable employment for the funds of the Inns of Court than the support of such of those institutions as require it.

What I have said of the Council of Law Reporting shows that that body is perfectly independent, and has been brilliantly successful. It has indeed been only too successful. Too many reports may drown the law, as too much water drowned the miller. The rapidity, punctuality, and profusion with which the reports are published make it impossible for any one to read or remember them, and it constantly happens that decisions are given which conflict with others, merely because, to use the customary expression, ‘the attention of the Court was not called’ to their existence. A body which should work up and arrange the vast mass of excellent raw material which the Council of Law Reporting is continually providing appears to me to be absolutely necessary in order to prevent the Council from becoming a nuisance.

As to the Council of Legal Education, much might be said of its work, but, as I am both a member of the Council and also one of the professors employed by it, it is perhaps not my place to speak of it in any detail. I may, however, make a few observations without impropriety. The result of recent changes has been to give a strong impulse to the system. The attendance at the classes of all the professors for the last year and a half has been large and steady, and nothing, as far as my own observation has gone, can exceed the degree of attention paid by the students to the lectures addressed to them. I feel, however, more and more strongly convinced that nothing could give such an impulse to legal education as the reduction of the law itself to a form in which it is capable of being studied and taught systematically.

Whatever may be the case with students at a university, the students of a profession wish to acquire not so much training for their faculties as definite knowledge of the calling by which they are to live. The main difficulties of legal education have arisen from the fact that the law is in such a state that it is difficult in the last degree to learn it practically otherwise than by attendance in the chambers of practising lawyers. In this way no doubt, in the course of years, men acquire a vast amount of ill-arranged knowledge, and great familiarity with the manner in which courts decide cases; but they might not only get their knowledge far more readily, more completely, and more distinctly by learning it as a system, but such a training would enable them to understand and profit by practice far more than they could without it. A student who has got up the Indian Penal Code as he might get up a work on mathematics learns much more from a year’s practice in Indian courts than he would have learned from a year’s practice in the same courts when the law was not codified and could be learned by practice only. People may have different views on the comparative value of theory and practice if you have to choose between the two; but that sound theoretical knowledge is the best of all introductions to practice can be seriously disputed only by persons who deny that it is an advantage to practical engineers or seamen to know mathematics and navigation. My belief is that a good general digest of the law, which could be systematically taught to students of it, would go a long way towards solving all the difficulties of legal education. I am quite sure that to spend money in procuring it would do infinitely more to promote legal education than the establishment of any number of the scholarships and other prizes on which the Inns of Court have lately laid out large sums of money. Considering what the profession of the law is, and what its prizes are, I can never help feeling that to give grown-up men large sums of money for the assiduity with which they have studied the means by which they are to be enriched is a questionable application of the text, ‘To him that hath shall be given.’

The proposal that the Inns of Court should, at all events in the first instance, contribute to the scheme which I suggest, leads me to say a few words in conclusion on the position of those bodies, which I think is much misunderstood. My views on the subject are derived from my acquaintance with the affairs of the Inner Temple, of which I am a bencher, and which is, I believe, the richest and largest of the societies. It is not at all unnatural to ask what becomes of the income of a body which possesses a large freehold property let to solvent and in many cases wealthy tenants in one of the most important business parts of London. No doubt if a private person owned the Inner Temple and made the most of it in a pecuniary sense, he would be a very rich man. The owners being a body of persons instead of an individual, it is very natural to ask, ‘What do you do with your money?’ and I, for one, do not feel disposed to say to the public, ‘What is that to you?’ There really is no mystery about it, and there is nothing whatever to conceal. For many reasons I cannot give precise figures on the subject, but, speaking generally, the answer is this:—

First, we, the benchers, manage the property, and derive from it no money benefit whatever in any shape or form. I became a bencher in 1868, on which occasion I paid the Inn 300 guineas. I thereupon acquired the right to dine in the hall during the four terms (say twelve weeks in the year) if I were so disposed, and I incurred the duty of paying four guineas a year for that privilege, whether I dined or not. If I should continue to be a bencher for six or eight years more, I shall probably become entitled to the rent of a set of chambers. The chambers held by the senior bencher who has chambers are worth, I believe, about £120 a year. Those which are held by the junior bencher who has chambers are worth less than £50. The net result is that (as far as the mere money question goes, and apart from public duties which impose corresponding obligations) a bencher of the Inner Temple is simply a member of a very pleasant and rather expensive club. Not a shilling of the income of the Inn finds its way into his pockets directly or indirectly. Where then, it may be asked, does it go?

It goes principally in providing chambers for the barristers and others who live in the Inn at a much lower price than might be got by a speculator out of the ground on which they stand. If the Temple were pulled down, and shops and warehouses built upon the site, no doubt a large income might be got from the rents. The Inn foregoes the income, and thereby brings its rent-roll to moderate dimensions, in order to provide chambers for barristers and others at moderate rents, which in practice are never raised or varied. Besides expenses of management the following are the principal items of expenditure: 1. The Temple Church, which belongs jointly to the Inner and Middle Temple. 2. The garden, which on summer evenings is a playground for many thousands of the very poorest children in the City, and which is at all times one of the ornaments of London. 3. The maintenance of one of the very finest law libraries in England— a library so constantly used by barristers and students that it is often difficult to find room in it at certain times of the day. 4. Something, though not very much, is spent in occasional entertainments to distinguished persons. 5. A very large amount is, and has been for many years past», laid out in different ways on legal education. The remainder forms a building fund out of which the Inn is gradually rebuilt and new buildings are erected. As the new buildings are of course a profitable investment (except indeed in such cases as the building of a new ball or the restoration of the Church), there is a surplus which might be made available for such purposes as I have described. What the position of the other Inns may be I am not aware, but I do not think it can differ in principle from that of the Inner Temple.

It seems to me that if the Inns generally were to expend part of their surplus funds in a serious effort to improve the law, and if the eminent persons who stand at the head of the profession would undertake the superintendence of such a scheme, and so give the public a guarantee for its value and prospects of success, the money would be nobly employed. The members of the governing body would find a most useful and dignified employment for part of their time, and the public at large would derive from the whole undertaking benefits which it would be difficult to overvalue, and which, though long desired, have never yet been attained, and are not likely to be attained in any other manner.

The Nineteenth Century, September 1877.

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