MR. STEPHEN ON CODIFICATION.
HE English Newspaper system, and for that matter the newspaper system of every country not possessed of a journal at once official and popular, breaks down at a very odd point of fracture. It is very nearly impossible to obtain the
general republication of any lengthy document except a Premier's speech, however valuable or however readable. We
can give no clear reason, after a quarter of a century's experi- ence of journalism, why this should be ; why the conductors of newspapers should shy so constantly at a long document ; but it is quite certain that they do, and very injurious to the public. The American President's Message is, so far as we know, the only lengthy paper which many journals re- print verbatim, and a Cabinet Minister's speech the only utterance at home ever allowed more than half a page. Yet speeches are delivered on the Continent which would interest Englishmen much more than the rubbish which often takes their place, and documents are issued in England which it is of the highest importance for Englishmen to read, We ven- ture to say, for example, that if Mr. Fitzjames Stephen's recent lecture on Codification as carried out in India could be republished in every daily journal in the kingdom, the work of codifying English Law—a work of the most urgent neces- sity—would be half performed. The majority of persons who rule elections would see that an immense addition to their capacity for doing the work of life, to the security of their property, and to that respect for law which is declining among us, could very easily be made, and they would compel their representatives to overcome the two grand difficulties in the way of making it. These difficulties are the position of the Government as a Committee responsible to a huge debating society, and the position of the legal profession, and unless these difficulties can be overcome the measure will never be passed, and Mr. F. Stephen's arguments, which seem to us irresistible, will be so much wasted force.
We will assume for a moment that the electorate is not only willing, but anxious for Codification—a state of mind which Mr. Gladstone could produce by a few speeches in a single Recess—and consider only the steps which must be taken to make that consensus executive. The first would be the preparation of the Codes, but that would not be difficult. We could not trust Mr. Stephen alone, as Louisiana trusted Mr. Livingstone, or New York Mr. Dudley Field, or India Mr. Stephen himself, for he is only fitted to be the law-giver of an effective despotism, despising freedom too sincerely and too thoroughly ; but the Government could appoint a Commission, consisting of the Lord Chancellor, another law lord, a great com- mercial lawyer, Sir H. Maine, and Mr. Stephen, which would in five years produce the four necessary Codes—the Penal Code, the Code of Criminal Procedure, the Civil Code, and the Code of Civil Procedure—on the model of the Indian
system, which has proved so unexpectedly successful. These Codes would then, after rectification by Special Committees and so on, be submitted to Parliament as a body as Bills to be made Acts, and there the difficulty would begin. The In- dian Government for work of this kind is a body of some ten men, who, if tolerably united, can by merely sitting in a room, pass without discussion any laws they please,—who in fact, actually did pass a law sweeping away the Koran, till that day the common law of the Empire, without consulting any body of Mussulmans about that revolutionary change. The Govern- ment in England for purposes of legislation consists of eleven hundred persons, of whom every one has a legal right to make his opinion effective by a vote, and of whom six hundred have the highest conceivable interest in stat- ing that opinion at great length, and in the way most calculated to attract outside sympathy. On a subject like a Code every Member of Parliament would have something, and most members a great many things, to say. We can imagine the sort of faces with which the legal members, the Radical members, and the old Tory members would spring at the clauses in the Penal Code about treason, capital punishment, and violent crimes ; or those of the Civil Code about realty and personalty ; or those of the Criminal Procedure Code about the authority of justices,—instances which we give, of course, merely as illustrations. They would leap at them like cats at birds. Mr. Stephen will say that, as he would codify only the law as it stands, without attempt- ing to improve it, no discussion would be necessary ; but we reply that, necessary or not, it would arise ; that no man or Committee of men could rewrite English law in a list of short and intelligible precepts without risking such changes as Members would feel compelled to support or to resist. We saw that last year in regard to the law of mer- chant shipping. A code has been drawn up devoted to that single subject and making no unpopular changes in the law, and it is just as impossible to pass it as to make Deuteronomy the common law of the United Kingdom. The debate would be endless, even if the lawyers did not stir, and the lawyers would stir. No profession will endure to see itself stripped of three-fourths of the advantages belonging to its special knowledge, to see its art and mystery thrown open to the vulgar, without making a stir ; and the profession is very powerful, as every member knows who has ever tried to simplify the conveyancing of land. That is, perhaps, the only law reform which would directly tend to impoverish every legal firm in the country, and consequently the lawyers resist it with desperate tenacity. Mr. Stephen may say the lawyers could not unseat the members, and that would be true ; but they could and would make matters so unpleasant for them that every member would be com- pelled to "put in his oar," to modify something, to resist something, or to justify himself about something at full length. Indeed, most members would do this without pres- sure, for as Mr. Stephen, in one of the ablest passages in his lecture, has already pointed out, a Code which you are to obey is of all documents in the world the one which excites most intellectual interest, so that people otherwise uneducated often, as in France, get it at their fingers' ends, and men like our Radical Members would be wild to discuss its provisions in the minutest details. The talk would be interminable, would last under any form of debate through entire Sessions, and would under our forms last for ever. The only conceivable way of passing the Codes would be the way adopted by the Education Department,—to lay them on the table as Acts, not Bills, and then let members attack them if they chose. But would Parliament ever consent to such a plan,—to pass a self-denying ordinance about the gravest of all conceivable innovations, the total remodelling of the form of English law ? We gravely doubt it, and yet if it is not done the elaborate machinery suggested by Mr. Stephen—
machinery which is far too elaborate and too clearly devised to elude the difficulty it appears to meet—would be absolutely worthless. The Code Bill would be made perfect by half- a-dozen competent Committees, but it would never become an Act. The strongest Government that ever reigned in England could not drive it through.
But this objection, if true, is fatal to the very proposal of
a Code Certainly it is, and if Mr. Stephen fights his battle
in the way he is doing, through an appeal to the intellectual classes, there never will be any Code passed. He is beginning at the wrong end. Fortunately for his purpose, the notion
of a Code—of a book that one could read, and so understand the law—is a very popular one, and it is in that popu- larity that he must find a lever. If he can induce a strong Ministry to advise the electors to pledge their members to pass a Bill allowing the Code to be laid on the table as an Act operative after one year's notice, he may pass his Code, for the primary motive of discussion, the reaponsibility of a Mem- ber to his constituents, will then be at an end, and a strong Minister by a dead heave might with wise obstinacy pre- vent any private alterations till "the country had some experience of the Code it had pledged its representatives to establish." But without that, without a distinct decision by the constituencies that they will have a Code paned in that fashion, no Code will ever be passed, even if Mr. Stephen spends his life in promoting his object, and con- vinces all politicians, all journalists, and all sensible men that it would be well he should succeed. He must con- vince the constituencies—that is, in practice, he must convince Mr. Gladstone, for no other person alive could induce the constituencies to come to a decision in the matter, or convince them of what is the plain truth, that the reduction of English Law to a Code would make them all, without exception, happier, wiser, and more prosperous men,—happier because they would be relieved of a source of anxiety which is endless ; wiser because they would know the system of law they lived under; and more prosperous because, knowing their rights and duties as regards property, they would enjoy a new security as to their possessions, their wages, and their credit. The work can be accomplished, say in five years, at little expense— say .£100,000—without serious changes in the substantive law, and without crippling that discretionary power in the Judges which, as it is now used, so tempers the rigidity of the law, but it could not be done unless the electors would on this subject permit their representatives to be superseded. We think they would permit it, and should heartily like to see the Ministry make the request, but without the permission, given at a general election, Mr. Stephen will find his life thrown away in pursuit of a dream.
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