The Pamphlet Collection of Sir Robert Stout: Volume 83
Among the new books before us is a "History of the Law Reports." It is, of course, intended for the profession. We are not.
No heresy is involved in the statement that the English law, at the beginning of this century, was an outrageous mass of iniquity. Rather more than fifty years ago Lord Brougham exposed the villanies of the law in a parliamentary speech which lasted six hours, being all that time occupied by the mere statement of facts Most of the abuses to which he alluded were rectified before the time when Sergeant Ballantine was at his zenith. Yet that veteran pleader, looking back in his published recollections, says he is astounded at the abuses which have come under his own cognisance.
Are we to conclude that the law is now purified and perfect? page 23 Nay, it is still a hot bed of injustice. We write from long experience of courts, hundreds, almost thousands of cases. To be sure, we have racy memories of Ireland, Aspinall, Dawson, Michie, Purves, and a score of brilliant barristers, together with respectful memories of Stawell, Barry, Molesworth, Fellows, Stephen, Higinbotham, Holroyd, and the Williamses as judges but all this does not blind us to the essential iniquity of the instrument they wield.
The English common law is scattered over about a quarter of a million of books. Who is sufficient for these things? Why, of course, nobody but the expert. He decries any attempt to codify the sacred law. "Fie! 'twill discredit our mystery," as Boult, the pander, says in "Pericles." Men like Lord Selborne or Lord Cairns, who earn their £20,000 or £30,000 a year as high priests of the nefarious temple, could, with a year's work, draft a rough codification of the whole law. But this would not suit their policy, which is ever to darken knowledge by the multitude of words.
Napoleon found the French law just in the same entangled, mazy state. He pooh-poohed every objection of the mystery men. His action was like that of the Czar Nicholas of Russia, while the railway engineers were squabbling before him over the route between Petersburg and Moscow. He coolly ruled a straight line with his pencil on the map and the railway took that line.
Napoleon only emulated the Emperor Justinian, who had codified the Roman law. Justinian is a kind of saint in legal circles. The thing to be done, however, is to execute the same work. It is idle to say that the work is impossible. New Law Courts are built, but we want new law. The lawyer was made for the litigant, not the litigant for the lawyer.
The most damning blot upon the history of the law in Victoria was the action taken by the Legislature in passing the Land Act of 1869. It was expressly placed outside the jurisdiction of the Supreme Court, which of course, meant that, in the opinion of the Legislature, the law was mischievous. In this case, parliament had been goaded by the partiality of the judges of the period.
Hatred of the law permeates all classes of society, from the workman to the merchant. It is strange that no Tribunal of Commerce is erected in Melbourne. The law has to be evaded by references to arbitration and such devices. But why is not the law such a pure and righteous instrument that every man, with a just cause, rejoices in it? On the contrary, it is the delight of the rogue. The honest man avoids it all he can.
Possession is nine-tenths of the law, and money is nine-tenths of justice. There is a rush for the eminent barrister, because he page 24 has the power to distort the minds of juries and judges. He is the individual best able to pervert the course of justice. If you have a thousand pounds available you will get superfine law. You may obtain second-class law for five hundred, say, and so downwards, but if you have not money you cannot get law. The rich man can appeal to the Privy Council, and so can the poor man—if he gives five hundred guineas security for costs.
The central principle of the law, its rigid fixity, is false. There is an iron Procrustean bed laid down, to fit which the quivering limbs of the victim must be lopped off. The mental procedure of an upright judge is in trying to square the law to his innate notions of abstract justice.
Perhaps we are going a little too far here. Fair and softly. The first thing to be done is the complete abolition of technicality: The wherefore, whereas, nevertheless, and notwithstanding. All is done in a jargon purposely contrived to be unintelligible to the lay mind.
With regard to the Criminal Law, we would insist on juries imposing the sentences it is most unfair to leave the liberty of the prisoner just convicted at the discretion of one man, the judge, who may award a sentence which is cruelly heavy or ridiculously light. We recall two special instances. One was when the late Judge Macfarland sentenced a young man to four years for stealing a coat. Another, the opposite extreme, was when the late Justice Fellows excited the ire of the whole country by sentencing a gang who stole gold from a mine to only six weeks.