VI. Lecture indeed, as yet established religious equality, but modern liberalism, which has in this matter inherited the ideas of the school of Bentham, had by the middle of the last century removed nearly all effective legal restraints on free discussion, and has since that date practically established a liberty of opinion almost as wide as that demanded in 1859 by Mill in his treatise On Liberty. The Adequate Protection of Rights.-The labours of Bentham and of the lawyers who have followed in his steps, have been incessantly directed towards securing for every person the power to enforce his rights that is, towards the amendment of everything which can be brought under the head of legal procedure, if that term be used in its very widest sense, so as to cover everything connected with the actual enforcement of a citizen's substantive rights, and thus to include the regulation of judicial evidence, the constitution and the jurisdiction of the courts, and all the steps in an action which English lawyers call practice, the reduction of the cost of legal proceedings, and a lot of other topics as dull and technical as any part of the law. Procedure, dreary though the matter seems, was the favourite object of Bentham's intense attention and prolonged study. Why, a student asks himself, was a legal philosopher so deeply concerned with a matter which seems to possess little speculative interest? The answer is, that in nothing did Bentham more markedly display his logical consistency and his sagacity as a reformer, than in the supreme importance which he attached to providing the means for the easy enforcement of every man's rights. A right which VI. an individual cannot enforce is to him no right at Lecture all; the dilatoriness of legal proceedings, and their exorbitant cost, or the want of an easily accessible Court, work greater and far more frequent injustice than the formal denial of a man's due rights. The passion for amending procedure was only one side of Bentham's desire to protect individual freedom, and this passion, stirred up by Bentham, has now for more than seventy years led to constant attempts at improving the machinery of the law which have on the whole been crowned with marked success.1 Let us take a few typical examples of the scores of enactments which during the nineteenth century have reformed that system of legal procedure which, when Bentham made himself its critic, was full of patent faults. The Evidence Acts, beginning in 1833 with Denman's Act, 6 & 7 Vict. c. 85, and ending with the Act of 1898, which allows persons accused of crime to give evidence on their own behalf, have rationalised the whole of our law with regard to the competence of witnesses. The County Courts Acts 1 The ardent wish to amend legal procedure connects Bentham more closely than he perceived with the greatest English judges. Our lawyers in and out of Parliament have instinctively felt that a right which cannot be enforced is no right at all. It is unfortunate for Bentham's reputation that the writers who in England have been the chief representatives of utilitarianism have either possessed little knowledge of law or else have lacked sympathy with Bentham's enthusiasm for law reform. Neither James nor John Mill were either lawyers or jurists. Austin had a firm grasp of a few most important legal conceptions, but nothing in his writings betrays anything like systematic study of the laws of England. Sir J. F. Stephen was a considerable criminalist, but he hardly claimed to be, in the Benthamite sense of the term, a reformer of the law. Sir Leslie Stephen, who is by far the ablest of Bentham's critics, was not a lawyer, and did not pay as much attention as the matter deserved to Bentham's claim to be a legal philosopher. VI. 1 Lecture from 1846 to 18882 have provided tribunals in every part of the country, to which persons may have recourse for the recovery of small debts which before 1846 were often in practice not recoverable because of the expense and difficulty of proceeding in the superior Courts. The Court of Chancery, which towards the middle of the nineteenth century was still a byword for dilatoriness and technicality, was, even before the passing of the Judicature Act, 1873, reformed to a great extent, though in a partial and fragmentary manner, by legislation subsequent to 1850.3 Almost hand in hand with the reform of the Court of Chancery the procedure of the Common Law Courts was simplified, and everything which could be deemed useless in the technicality of pleadings was abolished by the Common Law Procedure Acts, 1852,* 1854,5 and 1860. At last that fundamental reform of procedure both in the Court of Chancery and in the Courts of Common Law, which had been the constant aim of Bentham and of every man imbued with his spirit, was with more or less completeness attained by the so-called fusion of law and equity 1 9 & 10 Vict. c. 95. 2 51 & 52 Vict. c. 43, with which now read the County Courts Act, 1903, 3 Edw. VII. c. 42. 3 Ashburner, Principles of Equity, pp. 17, 18; Holdsworth, History of English Law, i. pp. 231-235; 14 & 15 Vict. c. 4 (1851); The Court of Chancery Acts, 1852 (15 & 16 Vict. cc. 80, 87); The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86); The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27); The Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42); and see for earlier legislation of a reforming character, 53 Geo. III. c. 24 (1813), 3 & 4 Will. IV. c. 94 (1833); the Court of Chancery Acts, 1841, 1842 (5 Vict. c. 5; 5 & 6 Vict. c. 103). 4 15 & 16 Vict. c. 76. VI. under the Judicature Act of 1873,' which, taken Lecture together with the subsequent enactments which have amended it, has at last created an omni-competent Court in every Division of which every kind of right known to the law of England is recognised, and where every kind of remedy for the enforcement of rights may be obtained. Nor ought we to omit reference to the experiment of the new Commercial Court which in its absence of forms, in the wide discretion given to the judge, and in the rapidity of its proceedings, almost realises Bentham's ideal of a perfect tribunal. Compare now the defectiveness of English procedure in 18002 with the masterly picture of the actual administration of our law drawn in 1887 by one of the ablest and most enlightened of our judges. Thus writes the late Lord Bowen : “A "complete body of rules-which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear-governs the procedure of the Supreme Court and all its branches. "In every cause, whatever its character, every possible relief can be given with or with or without pleadings, with or without a formal trial, with "or without discovery of documents and inter"rogatories, as the nature of the case prescribes 66 66 66 66 66 - upon oral evidence or upon affidavits, as "is most convenient. Every amendment can be "made at all times and all stages in any record, 1 36 & 37 Vict. c. 66. To understand the full extent of the change introduced under the Judicature Acts a student should read the fifteen Acts which make up the Judicature Acts, 1873-1899, and the Rules and Orders made thereunder. See Stephen, Comm. iii. (14th ed.), p. 352. 2 See pp. 86-94, ante. Lecture 66 pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an "honest litigant in her Majesty's Supreme Court to "be defeated by any mere technicality, any slip, any "mistaken step in his litigation. The expenses of "the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased "to be a scientific game that may be won or lost by playing some particular move." i 66 66 Any critic who dispassionately weighs these sentences, notes their full meaning, and remembers that they are even more true in 1905 than in 1887, will partially understand the immensity of the achievement performed by Bentham and his school in the amendment of procedure-that is, in giving reality to the legal rights of individuals. Nor is it irrelevant to note that the more closely the renovation of English institutions under the influence of Bentham is studied, the more remarkably does it illustrate the influence of public opinion upon law. Nothing is effected by violence; every change takes place, and every change is delayed or arrested by the influence, as it may seem the irresistible influence, of an unseen power. The efforts of obstructionists or reactionists come to nothing, the toryism of Eldon, the military rigidity of the Duke of Wellington, the intelligent conservatism of Peel, at a later period the far less intelligent conservatism 1 Bowen, The Administration of the Law, The Reign of Queen Victoria, i. pp. 309, 310. |