VII.

ON THE EXTENSION OF THE COUNTY

R

COURTS' JURISDICTION.

[JUNE, 1850.]

ESPECT for the law has been for centuries a sort of instinct with the English people, a distinguishing feature of their character, of which they have just reason to be proud. Even in the early struggles for liberty under the Norman monarchs, their language was always that the law should be allowed its course, that none be against it touched of life, or limb, or worldly goods. This strong attachment to their legal institutions, a thorough Saxon feeling, was the result of their having laws of their own, and of native growth, whose origin who shall tell? forming the bulk of what we designate the Common Law. Other European nations have been differently circumstanced. The civil law, that magnificent and luxuriant growth of Roman polity, where it gained the ascendancy, was yet exotic in its character, and, harmonizing very little with the institutions of the northern tribes, either displaced them altogether, or coexisted in a painful state of contention and strife.* Feudalism and the genius of the civil law were too antagonistic to allow of any perfect union between them. Feudalism and our AngloSaxon institutions on the contrary were germane to one

It is manifest that the civil law could not be indigenous to the Teutonic nations that adopted it, nor of the southern populations can it be considered of native growth as regarded the various tribes, each with their own laws, that settled down in what is, after one of them, now called France; nor Spain, with her Gothic institutions and her FUEROS," and if Italy may, in virtue of her Roman lineage, claim the imperial laws as her ancient patrimony, that claim would

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another, at root possibly identical, and springing from one common origin. The aggrieved Anglo-Saxon franklin, therefore, and the injured Norman noble might well join in one common demand, challenging nothing new, but that the law be recognized and respected. Not, like the goaded peasantry of continental outbreaks, plunging into every excess, nor asking liberty and respect of person and property as some new privilege, but orderly in their movements, and looking on good laws, good as regarded the exigencies of the time, as an Englishman's ancient patrimony and undoubted birthright. The favour the civil law met with abroad, and the stern opposition it encountered here, may be partly attributed to its bearings on the civil and political liberties of the subject, of which that maxim-quod principi placuit legis habet vigorem―of the prince's pleasure having the force of law, was no inadequate expression: a maxim which the spirit of feudalism everywhere indignantly spurned, and in England happily with success.

*

We should grieve to think this wholesome reverence for the laws was on the wane amongst us, whether from prejudice or indifference, or through a superficial view of foreign systems, of which the plausibilities strike the

hardly extend to the Lombards, and other tribes that forced a footing on her classic soil.

It has always appeared to us a superficial view of the subject that arraigns the feudal system, and the polities thence derived, as belonging to a different state of society from the present, and therefore not harmonizing with it, and yet at the same time admits the claims of the civil law in that particular without question. As if the Pandects and Digest, the Constitutions and the Code of Justinian, belonged not to an age and state of society widely different from this. In fact, both systems were alien to the present age and its social relations, and the true question is as to their respective capabilities of expanding and accommodating themselves to the growing requirements of each succeeding age. And in this point of comparison the feudal system has, in this country, shown itself anything but inferior to its more august rival.

stranger, while their practical ill workings are reserved for those who live under them. For ourselves we think that, of all things that task the human mind, satisfactory lawmaking is the most difficult; that laws to be of any worth should be suited to the peculiarities of the people they are meant for. And we very much doubt if it be possible to give a code, freshly and in the lump, that shall answer that character. Whatever the energies and capabilities of any one man, or generation of men, they can ill afford to make tabula rasa of all that has been before. The French made the experiment on an extensive scale in their first revolution, and, in proportion to their success, have reaped the appropriate harvest of crudeness and confusion, civil and political. Time is an excellent and all but indispensable ally in the work of legislation. And that body of laws will be the most likely to square with the genius and wants of a people, which has grown up with themselves, which they have altered, taken from, and added to, law by law, as occasion required. The nation, therefore, like ours, that is possessed of such, would do well to prize the possession, uncouth though it be in some respects, and unshapely considered as a system. For symmetry à la Sièyes we have little regard, holding it to be a very poor matter, whether in codes or constitutions.

Change and alter would we wherever, and as often as, change and alteration grew requisite; such gradual adjustment to the wants of the times having indeed formed our legal history from the beginning. But these changes, let them not be in a spirit of impatience, as undervaluing a priceless inheritance, nor from any undue envy of or eagerness to imitate foreign systems, being well assured that few are the inconveniences in ours but may be parallelled in the best among them, not excepting the Code Napoleon itself, with its camel-load of commentary. Above all should such changes be discussed in entire freedom from

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very serious prejudices, which meet us at the threshold of the enquiry, and which are more common than we could wish, or than some would acknowledge, lurking, as we fear they do oftentimes, unconsciously to the parties themselves, at the bottom of their reasonings upon the subject. One is, that the laws of a great country can be few and simple; the other, which is akin to it, that the knowledge of them can be practically placed within reach of the bulk of the community. These prejudices we should have thought a very little reflection had sufficed to dispel: for what can be more obvious than that, so long as men's actions are to be regulated by laws antecedently laid down, these must be framed to meet the possible contingencies of the class of actions to which they refer, and must of necessity grow in number and complexity as men's actions and their relations with one another became multifarious and intricate? There is no help for it. If simplicity and paucity of regulation be insisted on, social intercourse must proportionately cease to be regulated by antecedent laws, and be left to depend on the discretion of the presiding judge. But who would accept the commodity at the price? Simplicity and prompt decision at the sole arbitrament of a judge may be melodramatic enough, read well in a story, or look well on the stage, but in life the reflective man will none of it. The Cadi's law is good or bad according as the Cadi himself is the one or other, and, in either case, suited only to a barbarous, and almost nomade state of society, altogether irreconcileable with the requirements of a higher civilization, where the spirit of liberty brooks not that the magistrate improvise the law, and so usurp upon the functions of the legislature.

In such a country as ours, the laws cannot be few, nor, from their very number, and the multifarious objects they embrace, other than complex, nor consequently other than an object of separate study, a science, in fact, the know

ledge of which can no more fall within reach of men generally than any other science, business, trade, or occupation. Nor is it necessary that it should. For it is no more

necessary, because a man may have need of law, that therefore he should know law, than that he should turn carpenter and builder, learn to kill sheep and oxen, bake bread, or take to tailoring, because he must be housed, and clothed, and fed. It is enough that he know where to get these things for his money when he requires them. It is enough that the law be such that a practical knowledge of it be within the reach of its professors. In which particular our system yields to none, but on the contrary, as we shall have occasion to notice in the sequel, possesses facilities not to be found elsewhere.

With these preliminary observations on what seems to us the spirit in which changes in our laws should be conducted, we proceed to the subject of our paper, the probable effects of the proposed extension of the County Courts' jurisdiction from twenty pounds to fifty. In which enquiry those of our readers who find us more than usually dull, we trust will shift the blame from us to the subject; and to those who find our sentiments unpalatable we would urge our conviction, and the importance of the matter, which alike forbid silence or disguise.

The necessity for good laws involves the no less imperative necessity of providing a fitting medium through which they may be made available to the community. The constitution of tribunals, and the regulation of their mode of procedure, have accordingly been the subject of deep and anxious consideration with legislators in all ages. The question before us, while it more immediately bears on this subject, is yet not confined to it, but indirectly embraces a variety of other topics, in the examination of which we shall not tie ourselves to any precise method, but deal with them as they occur to us.