Mr. Desmarest came over to London at the beginning of winter, and attended our meetings with Mr. Berryer. It is needless to say that their reception was most cordial; but, indeed, Berryer, alike eminent at the bar and in the Senate, had in all quarters, from the ministers, as well as from the people, a reception worthy of his great celebrity, and which gave the highest satisfaction to all parties in the country of that illustrious man. We last year testified our great respect for Mr. Peabody by electing him an honorary member, the only one on our list. His great and wise munificence is the theme of universal admiration. But the East affords an example of generosity of a like, we need not say an equal extent in the great Hindoo of Bombay, Sir Jamsetjee Jeejeebhoy. If the princely wealth of such men is to be envied, a far greater subject of envy is the extraordinary wisdom and generosity by which its application is guided.

The kindred Association which was founded at Brussels in 1862 held this year its Congress at Berne, and was attended by Mr. Hastings on our part. He will doubtless report what there passed. Neither he nor any other of our body took any share in those Alpine ascents which have this autumn been attended with so much loss of life, and without the possibility of any good, by mere displays of hardihood in climbing to heights from whence nothing was to be seen. The promoter of Social Science deeply laments the loss to families in such displays of useless courage and perseverance, but his contemplations are directed elsewhere. We are pleased to contemplate the flowers in their raiment surpassing all the glories of Solomon. To examine the animal creation in its endless variety of instincts, each adapted wondrously to accomplishing its purpose; to observe the members of the human family, the capacity of individuals to unfold the order of the universe and subdue to our use the elements, and light, and electricity. But the social aptitudes of man are yet more worthy of our study, and the communities which he forms, and which are the especial objects of the Divine care. Social Science, then, has pre-eminently claims to our regard, and promoting it is our highest duty to our Heavenly Father. That duty we delight to perform, rejoicing to be the instruments of His justice and mercy, and devoutly thankful to His goodness, which makes what he commands a pleasure to obey.

Nihil est enim illi principi Deo qui omnem hunc mundum regit, quod quidem in terris fiat, acceptius, quam concilia, cætusque hominum, jure sociati, quæ civitates appellantur; horum rectores, et conservatores hine profecti, huc revertunter.—(Cic. Som. Scip.)

17

Address

BY

SIR ROBERT J. PHILLIMORE, D.C.L.,

HER MAJESTY'S ADVOCATE GENERAL,

ON JURISPRUDENCE AND AMENDMENT OF THE LAW.

THE title of the Department over which I have the honour on this occasion to preside, seems to have been chosen with care. The province of Jurisprudence alone has been a subject of much dispute among institutional writers. Writers of eminence have confined it to the consideration how the existing law of a particular state may be brought into most effectual operation; but without entering into the inquiry whether this opinion be even etymologically correct, at all events the title, "Jurisprudence and Amendment of Law," presents to the jurist a subject of deeper thought and wider grasp, extending his office beyond the investigation of the historical fact of mere instituted law, to the further inquiry as to the relation which such law bears to the whole system of which it is a part, to the consideration not only of what is, but what ought to be law, to the examination of the legum leges leading him to contemplate the law not as an isolated subject of a special science, but as one appertaining to the domain of philosophy.

Philosophy, worthy of the name, requires for its operation the facts which Jurisprudence supplies. Jurisprudence requires the aid of philosophy to marshal and generalise the materials so supplied. For law must be in a state of continual progress and development, adapting itself to the varying and manifold necessities of civilised man. No line of demarcation ought to be drawn between the theoretical and practical jurist.

Theory, without a treasury of facts, is an idle pastime. Practice, without a knowledge of principles, is a blind mechanism. It is because law must be in a state of progress that it continually presents two aspects to the jurist, accord

C

ingly as he considers it as a history of facts or as a system of principles. In the latter point of view, the relation of each part to the whole is to be considered, and it is then seen that law is not a mere aggregate of legal propositions, but an orderly distribution of them, in proper subordination to a central principle.

Among the prominent advantages of meetings like the present are-First: The opportunity which they afford for free discussion, undisturbed by any political elements, attended at the same time by a recollection of the severe scrutiny to which the opinions expressed during its sittings are certain to be exposed; not only at the time, by those who take part in their discussion, but hereafter, and generally by competent persons, whose attention to the subject is more attracted than it otherwise would be by the publicity of these proceedings. Secondly: The international character of the meeting, having for its immediate object to obtain, by comparison of the laws of foreign countries, and by the experience of foreign jurists, information upon the deficiencies of English law, and on the possibility of applying remedies to them; having for its more distant object, perhaps, the hastening of that day foretold by the great orator and statesman of antiquity-when a general observance of the same principles of law upon the chief subjects affecting the wants and interests of humanity shall help to bind together the nations of the earth in the bonds of unbroken peace.

And here I cannot help adverting with great satisfaction to one feature in the American civil war now happily closed.

The belligerent rights of the United States came into frequent conflict, or, I would rather say, frequent contact with the neutral rights of other States, especially those of Great Britain. But a code of international law existed which England had enforced when belligerent, and to which she cheerfully and at once submitted when neutral.

The United States Prize Court has applied-I speak generally-with good faith and much judicial ability, the principles of the jus inter gentes to the particular cases which were brought before it, and the peace of the world has been preserved, which, had no such law been recognised, would have been probably exchanged for a long and bloody war.

The excellent papers of Sir James Wilde and Mr. Reilly are in truth both due to this Association, and most valuable contributions they are, not only to our juridical literature, butto the real progress of legal reform. They deal with the very important questions of a digest and a code. The more these subjects are examined the better. Through discussion, written

and oral, true principles, upon this as upon other departments of science, will fight their way through the many difficulties which obstruct their progress. I venture, therefore, at the risk of being censured for travelling again over ground already so ably trodden, to take advantage of this occasion to express the reasons which have had weight with my mind upon these subjects. I suppose that the number who think the present system of jurisprudence and legislation in England incapable of great improvement is very limited. There cannot surely be many educated persons who think that it is an à priori desirable state of things, that the law of a country, teeming with wealth and population, should be scattered over thousands of volumes of reports and more thousands of statutes; or that a fiction of the continual existence of an unwritten law, applicable to all our wants, ought to conceal the fact that no such law ever did exist.

Mr. Maine, indeed, points out, in his admirable work on ancient law, the good service such fiction has done in its time, in fact, that by recourse to it English judges were enabled to avoid administering injustice. The same remark applies to the separate system of equity-both have practically been the means, however circuitous, of giving reality and life to the moral conceptions of the people. It cannot surely be reasonably contended that a proposition of law which can be clearly stated in a judgment of court or a statute, cannot be as clearly stated in a clause of a code. Great accuracy and precision of language are requisite certainly, but equally for both-both will be equally subject to criticism and investigation in whatever case requires their application. The objection, therefore, that a code would deprive us of the advantage we derive from the application of principles supposed to be in gremio judicis ready for all circumstances, is really good for nothing.

We know that this is not the fact; we know that the judge, in the absence of a direct precedent recorded in a judgment, or stated in some work of received authority, has recourse to reasoning from the analogy of decided cases, and not to any repository of jurisprudence; and that if the reasoning from analogy fail, the judge cannot supply the want, which he acknowledges and deplores, but must have recourse to the legislature. In such cases, therefore, until the remedial statutes be enacted, justice cannot be done.

In a very recent case, worthy of attention upon many grounds, the question being whether the prosecutor might call witnesses to rebut the evidence of good character given by the prisoner-a point, most strange to say, never before decided-one of the judges is reported to have expressed him

self to the following effect:-" The doubt on my mind is this: the law of England is the law of practice and precedent; what has been the practice for years constitutes the law; and when precedent or practice is found to be wrong, the legislature sets it right."

I venture to think that a code is the goal to the ultimate attainment of which our exertions should be directed. A digest, indeed, must necessarily precede, but it cannot be a substitute for a code. A digest is the collection of materials out of which the house is to be built; but it is from their subservience to this end that they are really valuable. A digest of English law alone is truly an arduous task, but the contributions to it are already many and rich, though they are widely scattered and leave much unprepared.

A digest of cases, both at common law and equity, under proper heads-and such we have-lightens the labour of the jurist who prepares the digest of principles; his labour is still further aided by the publication of leading cases, round which are grouped what ought to be legitimate children of the parent principles enunciated in the first case; still further by treatises of acknowledged merit upon particular branches of the law, such as Abbot on shipping, or the treatises of Lord St. Leonards, which always exhaust their subject. The separate jurisdictions of law and equity in this kingdom are often said to present an insuperable obstacle to a code. But if this separation be proved by discussion and reasoning to be evil on this as well as on other accounts; if that enlightened public opinion which is naturally and invariably in advance of existing law demands the fusion of the two systems, who can doubt that this fusion is only a question of time-that it is as certain as the triumph of any other sound principle relating to social progress in this free country? Meanwhile a proper digest at the present time would show how the principles and practice of common law are checked, or modified, or aided by the Court of Equity, and the road would be paved for amalgamation.

Then, as to the digest of the statute law. Every Act which on a particular subject repeals all existing enactments, and embodies in itself whatever has been found useful in them, supplying whatever defects judicial decisions or the course of events have exposed in them, and adding whatever social necessities seem now to require, or whatever is good in foreign jurisprudence upon the same subject-such a statute as the Merchant Shipping Act, for instance-is a little code in itself on the particular subject.

The same course-Mr. Greaves points out in his intro