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us to be as certain as those which guide the planets in their orbits. For example, it was till then uncertain whether the second indorsee of a bill of exchange could sue his immediate indorser without having previously demanded payment from the drawer; and it was said three Chief Justices had ruled the point one way at Nisi Prius, and as many Chief Justices had ruled it the other way.
THE REFORM MOVEMENT.
The Reform Movement, which completed by means of legislation. the modernizing of the common law, begun by the court of chancery and carried on by the law merchant, may be said roughly to cover the period from 1776 to 1876. We may begin with 1776 for two reasons: (1) Because in that year Jeremy Bentham published his first work, the Fragment on Government; (2) because in the same year the American Declaration of Independence set free a new group of common-law legislatures to take a hand in the renovation of our law. The period may be said to close with the taking effect of the English Judicature Act of 1873. Although legislation is still active in all common-law jurisdictions, it is no longer directed to sweeping and far-reaching changes. The tendency now is to codify and restate rather than to alter.
BLACKSTONE, COMMENTARIES, III, 267.
But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous evils, which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding everything that is dear to us. In absolute governments when new arrangement of property and a gradual change of manners have destroyed the original ideas on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed. by popular assemblies, even of the representative kind, it is too Herculean a task to begin work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time. form a concise and perhaps an uniform plan of justice: and evil betide that presumptuous subject who questions its wisdom or utility. But who, that is acquainted with the difficulty of new model
ing any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasable to alter any fundamental point of the common law with all its appendages and consequents and set up another rule in its stead? When therefore by the gradual influence of foreign trade and domestic tranquility the spirit of our military tenures began to decay and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feudal actions (guarded with their several outworks of essoins, vouchers, aid prayers, and a hundred other formidable entrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee; but left them as they were to languish in obscurity and oblivion, and endeavored by a series of minute contrivances to accommodate such personal actions as were then in use, to all the most useful purposes of remedia! justice and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges who have sate in our courts of equity to shew them. their error by supplying the omissions of the courts of law. And since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their frictions and circuities; but when once we have discovered the proper clew that labyrinth is easily pervaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments now accommodated to daily use are cheerful and commodious, though their approaches may be winding and difficult. BLACKSTONE, COMMENTARIES, IV, 442.
We have seen in the course of our inquiries in this and the former volumes that the fundamental maxims and rules of the law
which regard the rights of persons and the rights of things, the private injuries that may be offered to both, and the crimes which affect the public, have been and are every day improving, and are now fraught with the accumulated wisdom of ages: that the forms. of administering justice came to perfection under Edward I; and have not been much varied nor always for the better since: that our religious liberties were fully established at the Reformation: but that the recovery of our civil and political liberties was a work of longer time; they not being thoroughly and completely regained till after the restoration of King Charles, nor fully and explicitly acknowledged and defined till the aera of the happy revolution. Of a constitution so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise which is justly and severely its due:-the thorough and attentive contemplation of it will furnish its best panegyric. It hath been the endeavour of these Commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan; to explain the use and distribution of its parts, and from the harmonious concurrence of those parts, to demonstrate the elegant proportion of the whole.
POLLOCK, THE LAW OF ENGLAND, I-L VICTORIAE, 3 Law Quar. Rev. 643.
Blackstone caught and expressed the spirit of his time with consummate skill, but he caught it only just in time. Hardly was his ink dry when Bentham sounded a blast that rudely disturbed the supposed finality of the common law, and (what was even a greater matter) the independence of the United States, insured the free and ample development of English legal ideas in directions and for purposes as yet unknown. With the nineteenth century we are started in a wide and ever expanding field of new adventures.
The commencement of our sovereign lady's regnal year coincides approximately with the opening of a new period of development in the law of England. That period is not yet closed, but enough has been done to make it certain that for the future historian of our law on what shore of what ocean soever he is destined to arise, Her Majesty's reign will not be less eventful or interesting than that of Edward I. or Elizabeth.
LORD BROUGHAM, SPEECHES, II, 288 (1838).
The age of law reform and the age of Jeremy Bentham are one and the same. No one before him ever seriously thought of ex
posing the defects in our English system of jurisprudence. He it was who first made the mighty step of trying the whole provisions of our jurisprudence by the test of expediency, fearlessly examining how far each part was connected with the rest, and with a yet more undaunted courage inquiring how far even its most consistent and symmetrical arrangements were framed according to the principles which should pervade a code of laws, their adaptation to the circumstances of society, to the wants of men, and to the promotion of human happiness.
Extracts from A CENTURY OF LAW REFORM (1901). (These extracts are from the Introductory Lecture of Dr. Odgers.)
We find since 1800 a marked improvement both in the substance of our criminal law and in the whole tone of its administration. In the year 1800 there were more than 200 crimes punishable with death! Of these more than two-thirds had been made capital during the eighteenth century. Sir Samuel Romilly asserted that there was no other country in the world "where so many and so large a variety of actions were punishable by loss of life." Nearly all felonies were capital. If a man falsely pretended to be a Greenwich pensioner, he was hanged. If he injured a county bridge, or cut down a young tree, he was hanged. If he forged a bank note, he was hanged. If he stole property valued at five shillings; if he stole anything above the value of one shilling from the person; if he stole anything at all, whatever its value, from a bleaching ground; he was hanged. If a convict returned prematurely from transportation; or if a soldier or sailor wandered about the country begging without a pass: he was hanged. And these barbarous laws were relentlessly carried into execution. A boy only ten years old was sentenced to death in 1816; whether he was actually executed I can not say.
Thanks to Sir Samuel Romilly, and later to Sir James Mackintosh, the number of capital offences was gradually reduced; and now we have but four crimes punishable with death, two of which very rarely occur. In 1800, too, our prisons were sinks of iniquity and disease; the gaolers feared to enter a cell lest they should catch gaol-fever; and a sentence of imprisonment was often a sentence to death. Now great care is taken of the health and morals of our convicts in prison. And a criminal trial now is conducted in a very different fashion from a trial in 1800. The prisoner now is treated with the utmost fairness and consideration.
In Common Law, and in the procedure of the Courts which enforce it, many great changes have taken place during the century. Of course a contract is much the same now as it was in 1800. But in 1800 no contracts, except negotiable instruments were assignable. Only the original parties to a contract could sue on it. Now the benefit of nearly every contract is assignable. On the other hand, wagering contracts in 1800 could be enforced in the courts of law; and all sorts of extraordinary actions were the result. If a bet was made, not upon any illegal sport, or any game or race, the result was a legal debt, for which an action would lie; and such actions were solemnly tried in open court. This was put to an end by an Act passed in 1845.
With a few exceptions, the principles of law applicable to torts remain much as they were in 1800. The most marked change was made by Lord Campbell's Fatal Accidents Act, 1846. As the law stood in 1800, if a passenger was upset in a stage-coach and his leg broken, he could sue the proprietor and recover damages for the pain which he had suffered, the injury done him, and the medical and other expenses which had been incurred. But if he was killed outright by the accident, his family and his executors had no redress whatever. They could not even recover his funeral expenses! His right of action was said to be personal and to have died with him. So it was a bad thing pecuniarily for the proprietor of a stage-coach, if his passengers recovered from their injuries; it was to his advantage, if there was to be an accident at all, that they should all break their necks. This was put a stop to by Lord Campbell's Act in 1846.
The principles of equity have not materially changed since 1800. What was a breach of trust then is a breach of trust now, though great and much-needed relief has been afforded to trustees by enabling them to plead the Statute of Limitations in many cases where their default was not fraudulent. The rules laid down by Lord Eldon in Ellison v. Ellison are still applied in cases of Voluntary Trusts. The law as to constructive notice declared by Lord Hardwicke in Le Neve v. Le Neve and other cases endured till 1882, when it was modified by the Conveyancing Act. The old doctrines of the Courts of Equity as to conversion and election, ademption of legacies, priority of mortgages, and marshalling assets, remain sub