Sidebilder
PDF
ePub

House, and giving them not merely the power of addressing, but of joining in the decision of causes. We conceive that this will meet with little countenance, unless all other schemes are found either to be impossible, or to fail. Another course has been suggested, in debate, of giving the Crown a power to create a limited number of life peers, as four or five, and requiring that these should have previously filled judicial stations. A third proposition has been made for transferring the jurisdiction to the Judicial Committee of the Privy Council, either wholly (to which there are the greatest objections) or partially, as provided in Lord Brougham’s Bill of 1834, cited by Mr. Macqueen (p. 13). But the reason which probably has hitherto prevented such a measure from being prosecuted further, seems irresistible, that although the Lords would only in certain cases take the benefit of the Judicial Committee's assistance, and even in those would be able to decide for itself, yet the result would in all probability be to hamper the whole appellate jurisdiction, just as the extension of patent rights vested in the Committee, and without excluding the old proceeding by bill, has been found, after twenty years' experience, to have entirely superseded that course of proceeding. A fourth view of the subject has been taken by those who would more considerably extend the number of law lords, so as to make that body combine judges from all departments of Law and Equity, Common and Civil, and Ecclesiastical. Grounding their opinion upon the admitted success of the Judicial Committee, which is thus constituted, they conceive that the House of Lords, thus aided in its legal branch, should be the great court of appeal and error in all cases, and that the whole jurisdiction of the Privy Council should be transferred to it. This part of the plan, we conceive, is liable to serious objection, because it abolishes a Court which by universal consent is allowed to have worked as well as possible ; and because the only reason assigned, is the desire of more symmetry in our appellate judicature, and the prevention of what may no doubt be deemed an anomaly, but which never has been found to create in practice the least inconvenience, or anything like a conflict, the existence, at the same time, of two Courts of supreme jurisdiction. Some difficulty has been raised by the consideration of the Scotch causes, forming, as they have generally done, the great majority of those which come before the House of Lords. An incautious, and it is believed wholly incorrect, expression used in the debate which led to the appointing the Committee now inquiring into this subject, that the manner of dealing with these cases has been most unsatisfactory to the people of Scotland, has given rise to much discussion in that country; and however groundless the statement may be found to prove, it cannot be denied that an arrangement would be an improvement of the procedure, which gave the Lords the power of calling in the assistance of the Scotch Judges, as they now do those at Westminster Hall ; and in all probability it will be deemed expedient to give the same power as to the Judges in the Courts of Equity, perhaps also as to those in the Civil and Ecclesiastical Courts.

We have deemed it our duty to describe the various plans, without being prepared to pronounce an opinion upon them. It is certainly much to be wished that the smallest possible change should be effected in the constitution of the House of Lords. This is most desirable, whether we regard the interests of the constitution, or of the law. The most absurd and even wild notions have gone abroad, in consequence of the inquiry now proceeding before the Lords' Select Committee. Zealous patriots in Scotland have avowedly patronized a recurrence to the old contention which, soon after the Union, prevailed against all right of appeal to a foreign country, as they regarded England in those days; while a more temperate class of projectors are for reviving the plan of 1806 for creating a Scotch Chancellor, and Scotch Court of Appeal, though that scheme was limited to an intermediate appeal only, and did not at all contemplate the extinction of the Lords appellate functions. While the inquiry and the Committee have produced this agitation among our northern neighbours, in which we doubt not the Bar of the sister kingdom in the west will join, pro interesse suo, we observe that more erroneous notions prevail in foreign countries of the position in which the House of Lords has now been placed. The French jurists as well as politicians regard the process as already commenced of what used to be called peerage reform, and which the Irish demagogues so often threatened and so constantly avoided touching. It is fancied that the judicial structure of the Lords already nods to its fall; and critics not friendly to England and her institutions give this as a proof that they are no sooner found defective than they are amended. We believe it will soon be seen that nothing can be more groundless than the views, however well meant, which these friendly critics have been misled to form, by casual expressions in debate, and by the cautious and prudent care taken of not turning a deaf ear to any complaint of grievance or abuse, without giving it a full examination."

We feel disposed to reciprocate (as our good neighbours phrase it) this friendly feeling, and to mark the wide difference between the position of our tribunals and theirs. The inquiry and the comments which have given rise to this error as to peerage reform have all proceeded upon the assumption that no human judicature can be perfect, and upon the fact of even our highest Courts submitting to the free discussion of their whole proceedings, and to the censure which, as the result of such discussion, they may probably be found to deserve. In all times, since our free constitution was established, this liberty has been allowed to the people out of doors and to the press. Remarks, however strong, if couched in language that is commonly decorous, have been permitted, and the force of public opinion suffered to bear upon our judicial proceedings, as much as upon any other part of our system. The Courts have profited by this, as well as the country, and the judges themselves are the last persons ever to raise their voice against the free discussion of all their proceedings. But it is unhappily not so in France; and of this we have a late very remarkable instance. The Court of Montpelier had decided that the entering a candidate's name on a card, and sending it to a voter, the election being by ballot, and the voter possibly unable to write himself, was a political writing, and required the authority of the judicial or government officers; which would manifestly operate the disfranchisement of whole classes of voters. An appeal to the Cour Impériale at Aix occasioned the

See, inter alia, Revue des Deux Mondes, 15 Mars, 1856.

1

reversal of the sentence; and the Government functionary being defeated, appealed to the Cour de Cassation, which, to the no little astonishment of the public, and especially of lawyers, reversed the Aix sentence, and restored that of Montpelier. It may be recollected that M. Troplong is both President of the Senate and of the Cour de Cassation ; and his zeal for the existing order of things is matter of notoriety and of no little remark. A daily paper (Assemblée Nationale) made some remarks on the point of law and the judgment, stated to be erroneous, of the Cour de Cassation; whereupon it received a warning, being the second, for it had previously been under a first warning; and the ground stated was that it had made remarks against the sentence of a Supreme Court. Thus Supreme Courts are held to be infallible, and whoever differs with them on a point of law is liable to have his property, and that of the other owners of the paper, destroyed summarily; for a third warning leads to the suspension of the paper. No more need be said to show that in France there exists not even the shadow of a free press. That among the judicial reforms contemplated by the Government, the relaxation of the existing rigour against the press may be one, we confess we rather wish than venture to hope; but how M. Troplong and his brethren can submit to be so protected, we own does pass our comprehension.

ART. IV.--COUNTY COURTS.

THE

THE very great and daily increasing importance of local

judicature makes whatever concerns it peculiarly interesting to the community, but more especially to the members of the Legal Profession; and we deeply regret to record, along with a measure of great benefit to the County Courts, a most ill-judged, and in every point of view most mischievous, proceeding, adopted by the Government with respect to them.

We find in Hansard (House of Lords' Debates, March 14, 1856), that when Lord Brougham urged upon the Ministers, and especially upon the Lord Chancellor, what he had for years been repeating, his complaint of the great sums levied as taxes upon the suitors in those Courts, amounting to 150,0001. a year, and expressed a hope that he might at length be pressing this intolerable grievance for the last time upon the attention of the Ministers and of the House, the Lord Chancellor answered that he not only once more promised the relief demanded, but could announce that it had already been granted, as he had two days ago presented a Bill, which now waited for a second reading, and which took off those taxes to the amount of about 100,0001., and transferred the payment of the County Court expenses from the suitor to the Consolidated Fund. Lord Brougham, as might be expected, intimated his great satisfaction at having, after so many fruitless efforts, at last been able to congratulate their Lordships on the cessation of this Law Tax, sinning as it did against all principle, and being more oppressive and more impolitic in County Courts than in any other. But he could not have been aware of the whole provisions of the Bill, which, according to the usual course of proceedings, had not been opened to the House on being presented, a first reading being understood to be granted as a matter of courtesy, if not of privilege, to any Peer's proposal; for this Bill, when it is now printed and examined, is found to contain the very provisions against which we find by his speech on judicial statistics, as reported in the same volume of Hansard, as well as in the Journal of the Law Amendment Society, he had a few days before so strongly protested, representing the rumour as incredible which charged the Government with a design to reduce the salaries of the County Court Judges. The history of this most unaccountable error into which the Government have allowed themselves to be betrayed, must now be given.

In order to improve the constitution of these Courts,—which now carry on by far the greatest part of the judicial business of the country, trying not only an immense number of causes, in which the Superior Courts have really in practice no jurisdiction, but a larger proportion of those in which the jurisdiction is concurrent,---and in order to extend the great benefits of local

« ForrigeFortsett »