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Topic: The Rights of Women

SMITH ON LAW REFORM 1841 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXI - Essays on Equality, Law, and Education [1825]

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The Collected Works of John Stuart Mill, Volume XXI - Essays on Equality, Law, and Education, ed. John M. Robson, Introduction by Stefan Collini (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1984).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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SMITH ON LAW REFORM

1841

EDITOR’S NOTE

Westminster Review, XXXV (Jan., 1841), 239-40. In the Miscellaneous Notices section, under “Law,” headed. “Remarks on Law Reform; addressed more particularly to the general reader. By William Smith, Esq., of the Middle Temple, barrister at law. [London:] Maxwell: 1840.” Running title to section, not to article. Signed “A.” Not republished. Identified in Mill’s bibliography as “A short notice of a pamphlet on Law Reform by William Smith, in the Miscellaneous Notices of the Westminster Review for January 1841. (No. 68.)” (MacMinn, 53.) There is no copy in the Somerville College Library. For comment, see xli and lxi above.

Smith on Law Reform

this is such a pamphlet as we have long wished to see. The question of Law Reform has usually either been treated bit by bit, on the principle of suggesting no more at once than could be carried at once, or it has been kept so completely in generalibus that although the existing system might be shown to be bad, it seemed as if nothing could be done to amend it except by beginning from the foundations and reconstructing the whole fabric. There was wanted a writer who, with the requisite knowledge of the existing law, but with the capacity also of distinguishing principles of universal legislation from the technicalities of a conventional system, should review the whole of our jurisprudence, and examine how much of the absurdity which disfigures, and the complication which embarrasses it, is capable of being removed in that piecemeal mode in which parliament legislates, and in a country like ours, or, at least, in the present state of general opinion, must legislate.

Mr. Smith has attempted a portion of this task, and has executed it with a high degree of merit. He thoroughly understands his subject, he has the art of popular and lively exposition, and on the whole we know not any work where in so small a compass so great a number of important law reforms, practicable at the present moment, are pointed out, and the expediency of them so briefly and forcibly, and at the same time popularly demonstrated. The defects upon which he chiefly animadverts are some of the peculiarities of the system of pleading; some of the exclusionary rules of evidence; the doctrine of feudal tenures, which, although now a mere mass of fiction, still continues to encumber, by the technical consequences which it involves, the whole of our law of real property, and the fact that three different and conflicting systems of law, administered by three sets of courts, (common law, equity, and ecclesiastical,) co-exist, insomuch that the very same property would often be assigned by these different systems to different persons; and the unseemly spectacle is exhibited of one court giving relief, as it is called, from the disposition of property which would be lawfully and regularly made by another. The practical mischiefs of a most serious kind, arising from these defects in our legal system, are pointed out in a masterly manner by Mr. Smith. The following passage may convey an idea of his style:

If any one expects, by a revision of our laws, to prepare a system so simple that every man may acquire sufficient knowledge of it, that he who runs may read,[*] that no body of professed lawyers will be requisite to conduct litigation or frame legal instruments, he is merely manifesting his total ignorance upon the subject. Jurisprudence, when it advances beyond those simple rules which are dictated by the general sense of what is just or unjust, becomes in some measure arbitrary, and inevitably complicate. Rules are then to be laid down, which must be the result of a nice balance of opposite expediencies, and when these, or, indeed, any other rules, are determined, innumerable cases arise, of which again it is difficult to decide whether they are included in the rules. But because jurisprudence must of necessity present to our view a vast and complex system, because it must admit many distinctions, the value and importance of which cannot without much previous study be appreciated, is it therefore to be loaded with any foreign matter whatsoever? Is this a reason for admitting and perpetuating a mass of erudition quite alien to the science itself of jurisprudence? Is it not rather a reason, since law must be difficult, for avoiding every needless cause of difficulty? Again and again I protest against the admixture, still too frequent, of feudalism and antiquarian lore with English jurisprudence. Why am I to be incessantly presented with an historical account of its origin as a sufficient reason for the actual existence of the law which governs me? Doubtless, the antiquarian will be shocked, and denounce me as a man of rude, uncultured taste, if I dispute the necessity of recording by existing laws the ancient feudalism of Europe. What! no trace left of past times? no pride of ancestry increased by the very framework of our jurisprudence? all to be new and scientific? Our laws, he exclaims, will no longer be English, they might as well be French, or Russian, or Chinese; they will not belong to us and to our history. Let him go and study history, and providentially endowed as he is with the love of what is dark and little, connect with it what antiquities he thinks fit; I will listen and will learn of him with pleasure. But why must I meet, to my confusion and dismay, in the real business of life, and at the hazard of my property, these relics, these spectral remains of the maxims and manners of my forefathers? I can read with interest of the struggle maintained by our courts of law against the subtle contrivances of land-loving monks. Must I, therefore, desire that this struggle be recorded in the deed which conveys my property? Think you that law, which is the most ancient matter in this world, and has dealt with the nearest interests of living men through the remotest generations of the earth, needs to be set off with this antique and Gothic tracery? Or is it true that jurisprudence has ends of its own so idle and unimportant to mankind, that it must stand indebted to such sources of interest as an antiquarian society can supply?[†]

[[*] ]William Cowper, “Tirocinium,” in The Task, a Poem, in Six Books, to Which Are Added by the Same Author, an Epistle to Joseph Hill, Esq., Tirocinium, or a Review of Schools, and the History of John Gilpin (London: Johnson, 1785), p. 297 (l, 80).

[[†] ]Smith, pp. 8-9.