Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/524

 510 IV. THE NINETEENTH CENTURY 1825 and 1827 ; but it produced no immediate effect on the professional mind. It was generally regarded as the specu- lations of a visionary. As I write I have before me Starkie's Evidence, the third edition of which appeared in 1842, and the wisdom of the exclusionary rules of evidence is not so much as criticised or questioned. But Bentham had set a few men thinking. He had scat- tered the seeds of truth. Though they fell on stony ground they did not all perish. But verily reform is a plant of slow growth in the sterile gardens of the practising and prac- tical lawyer. Bentham lived till 1832, and these exclusion- ary rules still held sway. But in 1843, by Lord Denman's Act, interest in actions at common law ceased, as a rule, to disquahfy; and in 1846 and 1851, by Lord Brougham's Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say that changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amaze- ment, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years. Let us be just. The credit of originating this great im- provement is due not to Denman and Brougham, but it essen- tially belongs to Bentham, although he was in his grave before it was actually effected.^ Lord Justice Stephen for- cibly remarks of Bentham's assault on the system of judicial evidence that " it was like the bursting of a shell in the " powder magazine of a fortress, the fragments of the shell " being lost in the ruin which it has wrought." ^ The moral is obvious. The philosophic student of our laws may often have a keener and juster insight into their vices and imper- fections than the practising lawyer, whose life and studies are exclusively confined to the ascertainment and application of the law as it is, and who rarely vexes himself with the question of what it ought to be, or makes any serious effort •"General View of the Criminal Law of England," p. 206; also In- troduction to his Digest of Evidence.
 * See post Lecture XIII.