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of mind is simple enough. In all matters which touch the practical side of life it is impossible to dispense with a professional class, and whenever a professional class exists, its superior technical knowledge enables it to dominate the ideas of society. Outsiders feel their weakness and seldom venture to enter the lists against professional dogmatism ; but their submission, for the most part, is the submission of sullen rebels rather than of reverent disciples. This is emphatically the case as regards law. The public in this and other countries is profoundly convinced that the administration of the law is not what it should be or what it might be. The law's delays have always been counted among the special curses of civilised life. The cost of law is accepted as an inevitable tribute paid to a grasping profession. The glorious uncertainty of law is recognised at once as an evil which might be remedied if lawyers chose, and as a fate against which it is hopeless for the lay world to struggle. This despairing tone of public opinion has always been the most serious obstacle to the improvement of judicial machinery. Not very long ago an eminent law-officer, since translated to the Bench, was soundly taken to task in the press for having said that the great difficulty in reforming the law arose less from professional prejudice than from public apathy. And yet nothing more true was ever said. The interest taken in such subjects seldom rises beyond vague discontent with things as they are, and it scarcely ever seems to occur to thinking men outside of the profession that although they are—and indeed because they are without the pale, they have something to teach as well as something to learn. Instead of striving to force the technicalities of legal procedure into the mould of common sense, they are content to accept without a thought what lawyers offer them by way of remedy, consoling themselves with the reflection that if professional projects of reform may do little good they cannot do much harm to what they believe to be a system of ingenious pitfalls.
This prevailing state of opinion and feeling is a grave misfortune, for no construction or reconstruction of a system of law or legal procedure can ever be a real success without the co-operation of minds free from the trammels of professional habits of thought. We do not say this from any disposition to revive the vulgar calumny which still perhaps finds favour in some cynical minds, that professional men, whether priests, doctors, or lawyers, must needs be tempted to frame rules with more regard for their own order than for the interests of the public whom they serve. This is not the way in which professional bias works. We may assume that in these days lawyers are not consciously governed by corrupt motives, but they are not the less ingrained with
traditional traditional habits of thought which lead them into errors curiously like those which self-interest would foster. The root of the mischief lies apart from selfish greed. A professional class (as a class) never is and never can be philosophical, because it always is, and always must be, the slave of custom. If the administration of justice is ever to be based upon a sound philosophy, the impulse must be given in the main by a strong and sustained blast of lay common sense.
No one, we hope, will suspect us of meaning that the technical experience of lawyers is to be superseded by the broad but crude philosophy of unprofessional thinkers. Each class has its own function, and it is not difficult to define the appropriate boundaries of the province of lay thought. The errors of men who are not familiar with the practical working of legal institutions will be errors of detail. The vice of professional opinion is the neglect of first principles. The practice of an art is apt to obliterate from the mind the science on which its philosophy is grounded, and it is in recalling and enforcing the larger doctrines which the actual business of life overlays, that the influence of unprofessional minds will be most beneficially exerted. Guided by this ruling idea, it may be useful to consider what it is that the lay mind can contribute to the problem of judicial administration. And first let us fix our thoughts upon the end and object of every practical system of law. To make such a system perfect these conditions must be satisfied :-First. The law must be just. Secondly. The law must be certain. Thirdly. The law must be living and growing, in order that it may accommodate itself to the growing wants of a living society, always tending by the universal rule of evolution to become more complex as time goes on. Fourthly. The law must be applied to every particular case with the minimum of error. Fifthly. The law should work with the minimum of delay, and, sixthly, with the minimum of expense.
With the first three of these conditions we do not propose to deal at length on the present occasion. They involve many questions of very grave importance which have divided legal reformers into different schools. How far the development of law should be entrusted to Judges, and to what extent it should be guided by the less elastic process of legislative amendment; what measure of respect should be paid to recorded decisions; whether digests or codes can be so framed as to secure at once precision and simplicity : these, and other analogous questions, deserve a far larger amount of consideration than they have yet received. Still it is not here that the most serious defects of English law present themselves. Our law is approximately
just; just; it is more certain, probably, than the law of any other country, and, in spite of a multitude of anomalies, it has adapted itself with reasonable facility to the growing needs of society.
Where our judicial institutions have most signally failed is in their administrative machinery. We have not succeeded in minimising error, delay, and expense. A law may be fairly just and certain, and yet by far the most fruitful root of error may send forth shoots and branches in rank luxuriance. For one miscarriage of justice, which is due to error of law, there are fifty which spring from error in fact. When once the truth is accurately ascertained, tbe judgment of such Courts as we enjoy will, in the great majority of cases, be correct. Here and there a new question of legal principle arises—yet oftener a difficulty occurs in applying recognised rules to novel circumstances; but cases of this kind are not nearly so numerous as the exceptional prominence which they acquire would lead one to suppose. The problem which really tries Judges in their daily work is the investigation of facts, and the difficulty is very largely due to the imperfection of the methods which have been elaborated for the purpose.
At first sight it may seem that if there were any department of legal reform which might be safely left to professional experience, it would be this very matter of forensic procedure. What, it may be asked, can any one but a lawyer know of such things? How can the untrained mind of the wisest philosopher, unaccustomed to the atmosphere of Courts of Justice, offer any suggestion of value on the construction of judicial machinery? And yet it is precisely on this side of the problem that the necessity for lay assistance is most keenly felt. There are principles of procedure no less than principles of law; and no one, perhaps, is more in danger of losing sight of sound methods of investigating truth than the lawyer, who has spent his life in investigating it by one—and that perhaps a very defective-method. The skilled advocate is prone to forget the real end of judicial procedure, while he is constantly increasing his power of dealing successfully with the procedure which he finds in operation. English experience affords a singular illustration of this propensity, which can be matched in no other country. We have for some centuries lived under the jurisdiction of two sets of tribunals, working with two methods of procedure about as widely sundered as can possibly be conceived. Each, as may be supposed, has its strong and its weak points, and yet, such is the force of professional prejudice, it is quite an exception to find a lawyer who can see anything worthy of imitation in the method of the tribunals before which he has not practised. Each man seems conscientiously to believe that what he has been accustomed to is dictated by the eternal fitness of things, and he never dreams of going back to first principles, and asking himself what are the avowed objects of every system of procedure, and how far his favourite machinery adapts itself to the great end in view—the judicial investigation of truth.
In this chaos of professional opinion the true appeal lies to the non-professional mind. Leaving minute details aside, an intelligent man ought to feel no great difficulty in laying down the broad principles by which any inquiry as to facts should be governed. Everyone acts upon such principles in some fashion every day of his existence. In scientific research, in historical inquiry, in the actual business of life, each hour brings with it the necessity of forming an opinion as to facts on more or less imperfect materials. This is precisely what a Judge has to do in every contested case that comes before him; and the same broad principles which determine the methods of the man of science, the historian, and the merchant, must equally lie at the root of judicial investigation.
Let us consider a little what those broad principles must be, carefully eschewing all reference to the technical machinery which lawyers and those who legislate for lawyers will find it necessary to engraft upon them. Keeping ourselves strictly within what we have defined as the province of lay thought, let us inquire whether the philosophy of common sense will not supply a few landmarks, which even the most experienced lawyers may wisely take note of.
The first remark that the subject suggests is that a law-suit is not a game of whist. This may seem too obvious to be worthy of special mention; but no one can go far in the inquiry we have in hand without discovering that the ideas of lawyers are almost invariably built, however unconsciously, upon the opposite assumption.
A few words are needed to explain this singular phenomenon. The object kept in view by those who frame laws for whist, is to make victory depend not simply on the strength of the hands that may be dealt, but in as great a measure as possible upon the skill of the players. If this were not done, the interest of the game would be lost. The rules are consequently framed with this express object, and one of the most essential is that each player shall be at liberty to conceal his hand from his opponents. If the cards were displayed, it would be easy in almost every case to count the honours and the tricks in each hand, and no scope would be given for retrieving a weak hand by superior play.
The object in view in framing the laws of forensic procedure is, or ought to be, exactly the reverse. Whatever the parties may wish, the desire of the Court must be that the side with the stronger hand—that is the side on which the merits preponderate-should invariably win. The primary aim must consequently be to eliminate as far as practicable the influence of professional skill, and to insure the verdict for the right side, however superior the tactics of the adversary may be. Probably no advocate, however much he may enjoy forensic triumphs, would in terms assert that the rules of law, like the rules of whist, should reward professional skill by making victory largely dependent upon it. But certainly there is no advocate of any eminence who could not tell how in unnumbered cases he had been successful, because his pleadings were better framed, his evidence more judiciously marshalled, his cross-examination more effectively conducted, or his arguments better adapted to the mind of the Judge, or the prejudices of the Jury, than those of his adversary. Under any system superior skill will inevitably tend to influence the result of a legal contest ; but it makes all the difference in the world whether this is regarded as an evil to be brought down to the smallest possible dimensions, or as a legitimate incident of the game on which the issue may rightfully be made to depend. Lawyers as a class (whatever their individual reputation may be) have never been special favourites with the public. But probably no one would charge them with anything so heartless as purposely perverting the course of procedure for the sake of turning a solemn judicial quest after the truth into an exciting game for themselves with unhappy clients for counters. To do this of malice prepense would be simply diabolical. But, barring the malice prepense, something very like this has been done in times past, and the fruit of it is reaped in the present day. Rules of procedure have been framed for the purpose, no doubt, of getting at the truth and securing victory to the right side; but always on the assumption that every suitor would find a pleader and an advocate of adequate skill to cope with the ingenuity of the opposite side. This assumption broke down so flagrantly at one period of our judicial history that in a vast number of cases the judgment depended at least as much on the craft of the pleader as on the merits of the client. This result was originally due to the perverse subtlety of the mediæval mind, and it would be unfair to law reformers not to say that the whole tendency of modern legislation has been to mitigate this evil. But the course of these amendments has always been to patch new cloth upon the old garment. The mischief has not been eradicated,