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But whatever may be the legitimate application of the word code (and I hope I shall not have introduced a merely verbal discussion on that subject), the last two schools of legislation are essentially and entirely distinct; the third school of legislation is marked by the natural growth and expanse of the laws, regulated by the application of the science of jurisprudence; the fourth school of legislation bears a character of permanence and rigidity, accompanied by a fascinating simplicity, which make it the appropriate legislation for nations where the course of natural progress has ceased, where all the units are reduced to equality, and the laws flow direct from the central head, which is likewise the fountain of all rank, honour, and power. The efforts of the legislator of the third school are directed, in the words of Lord Bacon, “to pruning and grafting the law, and not to ploughing it up and planting it again, for such a remove I hold, indeed, a perilous innovation." The aim of the legislator of the fourth school is to devise a simple system expressed in brief and precise language, which shall inspire admiration for its scientific beauty, terror for its certainty, respect for its inflexible application to all individuals alike. He legislates for nations which scorn the past, and anticipate no future but the eternal prolongation of the present. His effort, therefore, is an endeavour, by a precise and definite system of laws, to regulate the social order and all human concerns for all time to come. His are the laws of the Medes and Persians—the laws of the Chinese.
Now,under these four heads, all the known systems of legislation may, I apprehend, be classed. To recapitulate them, they are briefly these. 1st. The school of legislators who live at the epoch when a nation is formed out of the confluence of discordant and generally hostile tribes. Their duty is to consolidate the conflicting customs and laws of their tribes, and form out of them one system of law, binding upon the whole nation in the same way as out of the tribes themselves that nation is formed. 2nd. The school of legislation which accompanies the first stages of the national development, and is in fact its natural and inartificial product-a legislation, of course, vary
ing immensely in the different instances of it, but always having the essential characteristic of being the natural result and exponent of the social progress. 3rd. The school of legislation which accompanies the more advanced stages of national development. Like the former, it is the natural product of the social states through which the nation passes, but it is moulded into a logical form and order by the gradual application of the science of jurisprudence; and while the sources of its growth are not cut off, the principles and maxims of the law are evolved into a clear and precise statement, false growths are pruned, and the breath of science gently and gradually dispels the chaos, and arranges into its natural order the system of justice, which reason and experience determine to be the system best suited for the particular nation out of whose social order it naturally arises. 4th. The school of legislation appropriate to nations where a centralized equality is established, and which have arrived at the stage of their development beyond which there is no progress -nations whose future differs only from their present in the capacity for being worse.
Now, the legislation of no nation has remained so long in the second school as that of England. However deplorable the result for the members of our profession, whose shelves groan
with the accumulated law of centuries—who have to study every year a hundred new statutes, and twenty new thick volumes of reports—with no guiding light to lead us through the dark chambers of its learning, but such as we painfully strike for ourselves from the flinty labyrinth in which we are involved; however arduous may seem the task of ever extricating from these hidden depths the clear and definite principles of our law, we ought not, as Englishınen, to repine at the slow gestation of our system of jurisprudence. The fruit may be the more worthy for the time it has taken in its formation ; nor ought we to be otherwise than thankful that to our generation has been reserved the noblest object that can be presented to the ambition of a lawyer, the task of applying the science of his profession to the legislation of his country. By the careful exercise of those habits of general
ization which are the characteristic of highly educated minds, the propositions of our law, in themselves comparatively simple, may be extracted from the mass of facts in which they are now buried, and placed in their proper logical position, in a digest gradually issued under legislative authority; and thus the necessity of resorting to those ponderous records of decisions too often conflicting, and to statutes, respecting which the difficulty of construing them is only equalled by the uncertainty whether they have been unintentionally repealed, may be superseded by the publication of a clear and authoritative digest, which shall embody all that is excellent in our past law, re conciling discordant opinions, and removing the evils which have been produced by erroneous decisions. While, for the future, the natural growth of law might proceed unrepressed with only the provision, that every three or five years the same process should be applied to the legal product of that period, which I have ventured to suggest should be applied to the legal product of the last six centuries.
By those means, and not, as I venture to think, by the establishment of a rigid code, which shall undertake to decide beforehand all future human concerns, the laws of our country may be rendered clear and distinct, not merely to our profession, but to the subjects who have to obey them, the statesmen who may have to alter them, and the foreign jurists who may throw upon them the light of a comparison with their own systems, but who now decline to study laws which they denounce as barbarous; and, however arduous and painful the task of those upon whom this duty may devolve, they will be consoled by the reflection, that the unwieldy mass out of which they have to erect the system of English justice, contains more noble and magnificent principles than those which have rendered illustrious the digests and codes of other nations-principles which will confer eternal glory upon our country, and upon the age which shall first bring them forth from their present obscurity, and will induce jurists throughout the world, and in all ages to come, to abandon the institutes of Justinian for those of Victoria
XIV.-ON TRIAL BY JURY, AND THE EVIDENCE
Read 7th November, 1859. The practice of the Criminal Law is a far less important and conspicuous branch of the legal profession at present, than it was forty years ago. The political prosecutions for treason, sedition, and libel, which once formed so important a branch of the duties of the Attorney-general, have almost entirely ceased for many years past. But the case is not so in other branches of the same subject. The number of private crimes for which persons have been tried during the last twenty years, may, perhaps, not have been greater than in former periods of similar duration, but the magnitude of many of them, and the patience with which their circumstances have been investigated, have far exceeded the experience of former times. In the last century it hardly ever occurred that trials even for political offences lasted for more than a single day; but, of late years, their length has been enormously increased ; and
, several instances have recently occurred in which trials for mere private offences have occupied as much as twelve days.
That cases in which liberty or life is involved should receive such careful and protracted attention, cannot be a subject for regret; but it is a circumstance which, in connection with others of a similar character, can hardly fail to suggest very serious doubts as to the fitness of tribunals, constituted with a view to a very different state of things, for such novel and arduous functions as these monster trials imply.
The whole system and principle of trial by jury has recently been made the subject of very spirited criticism, and the trials now referred to would seem well calculated to give additional weight to the arguments adduced against it. Few spectacles, it might be said, can be more absurd and incongruous than that of a jury composed of twelve persons who, without any previous scientific knowledge or training, are suddenly
called upon to adjudicate in controversies in which the most eminent scientific men flatly contradict each other's assertions. How, it might be asked, can ordinary tradesmen and farmers, who have never been accustomed to give sustained attention to any subject whatever for an hour together, be expected to weigh evidence, the delivery of which occupies many days, and which bears upon subjects which can only be described in language altogether new and foreign to their understandings ? The conclusion usually drawn from such considerations is, that some modification ought to be introduced into our present system, if not with regard to its fundamental principle, at least with respect to scientific evidence, and that we ought to take security that when scientific questions are involved in a criminal trial, the verdicts upon which courts of justice pronounce judgment, should represent the settled opinions of men who have made a special study of the subject, and not the loose impressions of unscientific jurors.
The remarkable trials which have so lately occupied the public attention, have brought these questions into considerable prominence, and, certainly, it would be almost impossible to overrate their importance. The general question of the advantages and disadvantages of trial by jury, have been so recently discussed in this society, that it would be improper to enter on the subject on the present occasion, and I shall therefore confine myself to the following point
Whether it would be desirable to withdraw from the jury the consideration of scientific evidence, and to constitute some other tribunal, whose decisions upon scientific points should be binding on them; or otherwise to modify their constitution?
Those who maintain the affirmative usually put their suggestions in some such form as the following :—That, in the place of that unlimited power of calling witnesses either for the crown or for the prisoner which at present exists in criminal cases, a power should be given to the court of referring scientific questions, material to the issue which they are to try, to a sort of subsidiary jury of experts, who should certify their answers to the court, which answers should be made the basis of the subsequent proceedings. A variation upon this pro