26 ART. II.-RESISTANCE TO THE GRADUAL IMPROVEMENT OF THE LAW. Est modus in rebus; sunt certi denique fines, Παν το περιττον ακαιρον. HORAT. Gr. Anth. It is assuredly no part of our object in this paper to dwell upon the praise of moderation, the golden mean; a topic quite as threadbare as it is fertile. But inasmuch as there is no one department of human exertion in which a neglect of it is more fatal than in the political, and more especially in efforts for amending the law, and improving the legislation of any country advanced in civility and refinement, we deem that it will not be foreign to the purposes of this work nor useless in tendency, if we expatiate a little upon the peculiar necessity of moderation, and the dangers of unreflecting haste and extravagant attempts in the great work of law improve ment. It may safely be asserted that as the circle of the sciences presents no one subject of speculation or of study which demands more sound, practical judgment than Jurisprudence, so there is none upon which more temperance is required to guide the conduct of those who would alter the established system with a view to its improvement. In truth Jurisprudence is eminently a practical science; its subject is all that men do, or suffer, or contrive; Quicquid agunt homines. It is also a subject to which a vast number of men are continually directing their attention, in which the community at large always feels a deep interest. Two consequences follow from hence; both the too long delay of needful reforms excites general and very great discontent in the country, and any error committed in the alteration of the law becomes at once generally known, because generally felt, and leads to a distrust of all improvement. Nor is it of any use to explain the causes and to point out the risks and the obstacles attending an im provement refused, or the accidental and temporary nature of the circumstances accompanying the operation of an improvement granted. The public mind is closed against all such arguments and appeals; and the clamour continues strong and general for a change in the one case, and against it in the other. If any one would form to himself an adequate notion of the effects, so contrary to the design, produced by pertinacity in refusing needful improvements, he has only to recollect the constant opposition made to all change in the law by Lord Eldon during his long reign over the department of justice and jurisprudence in this country. His repugnance to any improvement of the system was quite general and quite inflexible. No new measure proposed was so insignificant as not to fill him with alarm, rouse all his opposition, and call forth all his resources for resisting it. There seemed no proportion ever kept between the importance of the proposition and his hostility to it. Action and re-action were here not at all equal, and opposite; for the reaction was always in truth great though the momentum and force of the moving body were ever so small. It seemed as if he regarded the whole system as an arch, so that each stone was as material to its support as the key stone. It was as if he believed the whole existing institutions to be connected like important portions of the same fabric, which must crumble to pieces if any one fragment were moved from its place. He appeared to consider all existing laws as finally established like the laws of nature, and that whoever would counteract or attempt to alter them committed a sacrilege and deserved the fate of Salmoneus. Demens! qui nimbos et non imitabile fulmen Ære cornipedum et pulsu simularet equorum. How often has he bemoaned the necessity of making some change to suit the political exigences of the times! But also how much more bitterly has he bewailed his cruel fate when compelled to yield to numerical force without any such necessity! On a pernicious and costly excrescence being lopped off the trunk of the legal tree, and the sap obtaining only the freer scope as well as the life of the great plant itself being preserved from decay, he advised the Lords, with all solemnity and in a pathetic strain, to hasten home with their counsel and solicitors and protect their titles if they could, for there was a rude shock given to them all, and it might prove fatal. Yet the change thus demanded directly and inevitably tended to make all titles much more clear and much more secure. Now the consequence of this was the delay of all improvement in our laws during the long incumbency of this great lawyer and powerful minister of justice. How the system should ever have attained its present dimensions, which it had only done through ages of continual change, he never stopped to inquire. As he found it, so was he resolved to leave it; and all improvement was stopped, all removal of the most glaring and pernicious abuses was suspended, all getting rid not only of ancient mischiefs, the growth of a barbarous age, and of things which, being fitted for those times that gave them birth, had become for that very reason wholly unsuited to our wholly different times; but also all the abuses which had crept in by departure from the better policy of older days, and which disfigured the system, were now to be regarded with veneration, and perpetuated with a preserving and a pious care. But meanwhile the world was not standing still like the Chancellor: while he continued moored to the rock of his faith, and plunged into the deep stream of legal learning, the tide was flowing on even the tide of legal notions and learning in jurisprudence was flowing on-and while he remained fixed, its stream dashing and breaking against him, his stationary position served to measure the rapidity of its course, which, had he moved on with it, would have been less perceptible. What has been the consequence? It has, since he ceased to reign, carried all before it, borne away many barriers which more timely and judicious yielding to its force would have saved, by giving these obstacles a more slanting position. In a word, the progress of legal change has been beyond all dispute accelerated prodigiously since his time, and has become much more swift than it ever could have been, had he betimes bent to its power. What might have been only a stream, now wears the aspect of a torrent, when the waters pent up by Lord Eldon were, on his removal from office, suffered to burst forth. We take it to be extremely probable that no such vast and sweeping changes would ever have been contemplated, and hold it quite certain that they never could have been effected, but for the impatience, the ungovernable impatience excited by Lord Eldon's strenuous and uniform resistance to all improvement continued for so many long years. Only let us look back to Sir Samuel Romilly's modest and cautious attempts to amend the law in the earlier part of Lord Eldon's reign. A bill to make freehold estates liable to the payment of simple contract debts, to make every man do what every man of common honesty does as a matter of course, to prevent a country banker from buying 100,000l. worth of land with his customers' money, and then die and leave it to his children, or his mistress, or his bastards, was opposed by Lord Eldon and his party so stoutly, so vehemently, even so sentimentally, that it was on this occasion they brought forward (Mr. Canning, that great master of jurisprudence, and grave authority in matters of legislation, being their mouthpiece) the celebrated phrase, soon made the anti-reform watchword "the Wisdom of our Ancestors." Yet a person about as correct as Mr. Canning, or any of his Anti-Jacobin associates, though perhaps less ready at a squib and a parody, a certain Lord Chancellor Bacon, had long ago treated this topic as the very grossest of all blunders, as a practical bull, so to speak, a confounding the age of the world with the age of men, and ascribing to those who were our juniors that wisdom which we only can possess who have gleaned it from an experience much larger because much longer than theirs. Well; Sir S. Romilly was all his life unable to carry that one scanty measure. He was equally unable to obtain a relaxation of the law which punished with death the stealing of five shillings in a shop and the robbing of a bleach-ground. He passed from the scene of his useful labours, though it was also the scene of his fruitless attempts to amend the criminal law, which he left as he did the civil, in the state he found it in. Lord Eldon survived him twenty years; but these are to be divided into two periods, his official life and his retirement from power. During the nine former, he kept the law as Sir S. Romilly had in vain endeavoured to improve it; and like him he left it as he had found it. But on quitting the world he left it as completely changed as if some great moral wave had come over the whole, and left a new world of jurisprudence in the place of the old which it had overwhelmed. That freehold estates should have been, and without even a single remark in either House of Parliament, subjected to legal process for payment of simple contract debts, was little indeed, though it was the change which some twenty years before had made those enlightened statesmen, the Cannings, and Percivals, and Liverpools, stand aghast the men whose glory it was to live a century or two behind their age. Not only this was carried through all its stages without the Cannings having found any successor in raising the cry of danger to the many, and appealing to ancestral wisdom-appealing from reform and experience and knowledge, to rudeness and ignorance and childhood but in two or three years time, and long before Lord Eldon descended to the tomb, resting from his labours to retard all improvement, the whole law of real property was so changed, that it is nothing like an exaggeration to say, had Mr. Fearne, or Lord Mansfield, or even Lord Kenyon been permitted to revisit the scene of their former glories, they would have believed they were in a country newly planted, and fresh peopled, living under an unknown law. But not only was such a reverse experienced by all attempts to uphold the ancient law of property; all that related to pleadings, and to actions, and much of the Law of Evidence, was within the same eleven years wholly swept away. The Mercantile Law had kept pace with the other branches of our system in its advances; Bankruptcy was placed upon an entirely new footing; and arrest on mesne process being wholly abolished, it was plain that imprisonment for debt was doomed to a certain and speedy destruction. Nor had the Criminal Law fared better than the Civil. Instead of it being any longer found possible to resist the abrogation of capital punishment for the petty offences of stealing to a small amount, or robbing certain much exposed articles of commerce, the punishment of death had ceased to disfigure the Statute Book in any but two or three excepted cases, and the more sanguinary species of inflictions had wholly vanished from our laws. So large a change had never been effected upon the jurisprudence of any country in a century as had now in the course of seven or eight years been effected on the |