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Having thus provided, and in a constitutional manner, for the reform of the preliminary proceedings of the Court of
of the Exchequer, one of the Masters in precedent to which we have referred, Chancery, and one eminent barrister, or they should, although acted upon interany five of them (the Lord Chancellor mediately, be laid before parliament withbeing always one), the power of altering in a limited time, which should be as all proceedings in the courts of equity, short as possible; and if either House, and of directing new modes of pleading by resolution, dissented from all or any and taking evidence if necessary, so as to of them, the whole, or that part dissented shorten and simplify, and render less ex- from, should thenceforward be void. The pensive the proceedings in those courts. veto of the crown, in like manner, should This is a power which parliament cannot be preserved, by not allowing them to be exercise in person. The nimbleness of acted upon at all till published in the litigant parties and their acute advisers Gazette by order of the Privy Council. is such that it is almost always able to evade the slow pursuit of an act of parliament, and can only be held in check, if at all, by a discretionary power vested Chancery, we naturally come to the conof skilful persons constantly sideration of the better means of deciding superintending and watching them. This the causes when brought for hearing becan only be either by the body we sug- fore the court. And we are fully satisgest, or by a commission consisting en- fied that any rational person, who will tirely of barristers of eminence. The calmly consider the question, must see latter, if out of practice, would soon be- that the first step to be taken is to income unfit for such duties, or, if in prac- crease the establishments provided for tice, would not be able to devote more that purpose. Indeed, there is reason to time to them than the judges. Besides, believe that, by the improvement of the there would be a great jealousy of such preliminary proceedings, the number of a body on the part of the judges, who causes to be heard will rather be increasafter all, would have to carry into effect ed than diminished, and at the present their recommendations. Every lawyer time their number far exceeds the powers knows how easy it is for persons who of the present judges (if taxed to the uthave the exposition of the laws to thwart most) to decide within any reasonable effectually the most carefully-drawn regu- time. For even if the Lord Chancellor lations. Even in the working of the 'new were confined to the proper business of rules,' as they are called, in the courts of the Court of Chancery, this would be the common law, it is easy to observe the case. The arrears are increasing in the difference when they are carried into ef- court of the Master of the Rolls, as well fect by judges who did not originally in- as in those of the Chancellor and Viceterfere in making them, and when by Chancellor. Some additional assistance those who did so, and who are in some must therefore be provided, and two plans sort responsible for them. And it would seem to have been presented to the attenscarcely appear seemly that the Lord tion of the legislature; one being to esChancellor and the other judges of the tablish a new judge in the Court of Chansupreme courts should be instructed and cery, and the other to increase the effi(so to speak) schooled by a body of bar- ciency of the Equity Court in the Exristers who were in the habit of practising chequer. We are inclined to think that before them, or subjected to have their both plans should be carried into effect, decisions overruled by a new rule on the and that the addition even of these two part of the commissioners made from time judges would rather fall short of than exto time. We think, therefore, that the ceed the necessity of the case. public good would in the end be best at- The advantage of the former plan, in tained by the arrangement we propose,case one only be persevered in, is, no and it has at least one merit, that it would doubt, the uniformity which would be cost but little; for of course all those preserved, both in questions of practice eminent persons who are already in office and in the ultimate decision of the causes, would not have any increase of salary, by the general superintendence on appeal but would consider this as only a part of which the Lord Chancellor would exertheir judicial duties. These regulations cise over the whole of his court. On the should have the effect of laws enacted by other hand, the economy of the latter parliament; but in order that there may plan is a powerful reason for adopting it. be reserved to each branch of the legisla- At present, we have, in the Exchequer, a ture a complete veto, according to the court, complete, or nearly so, as to all its
officers and only requiring a judge con- | doubt that it will be found necessary to carry both plans into effect and we are clearly of opinion, with Lord Langdale, that any expense incurred for that purpose will be found to be the truest economy.
stantly presiding there-and, if we mistake not, (and we have no doubt that our information is correct), even the salary of an additional baron might be provided for out of the suitors' fund of the Court of Exchequer, without costing the country a single farthing. The present annual surplus of the interest on that fund (after providing for certain salaries of the officers of Court, amounting to 2,1007. per annum) exceeds 7,000Z., and it is accumulating now to no very useful purpose. If, however, this fund were thus applied, the government might perhaps be called upon to undertake to guarantee the suitors against any possible risk. We do not apprehend that, if this were done, the danger to the revenue would be very imminent. In truth, no guarantee is requisite, for this fund is the produce of the investment in the stocks of a portion of the sums paid in for temporary purposes, and which the suitors do not wish to be invested at interest for their benefit. These sums had, till lately, been paid this important purpose, and that in the into the Bank of England, and the aver-present dubious state of political warfare, age balance, bearing no interest, was very the ex-chancellor for the time being great-productive, in fact, of benefit on- would be, on his return to office, infinitely to the Bank. A power, therefore, was ly better qualified for his situation by his given to invest a part of it in the funds, intermediate judicial duties? We should leaving a sufficient balance to answer all not then hear, as we did in Lady Hew. current demands. The increase of the ley's charity, the just complaints of parbusiness of the court would probably in- ties, that their case, having been fully arcrease this fund, in like manner as the gued before one chancellor, required to surplus of deposits at a bank increases be re-argued before another in consewith the increase of the business of the quence of a change of ministry-and the firm. sorrow which even his political opponents, we believe, very sincerely felt at the expected retirement last year of Lord Cottenham from the Court of Chancery would have been changed into joy on their part that that noble lord, in quitting office and becoming wholly a judge in Equity, would be at once politically and judicially rendering a service to the state.
Supposing, however, that the objections of economy should be thought of sufficient weight to prevent the appointment of a new judge in Equity, as well as of a new baron in the Exchequer, there is an obvious (though only temporary) arrangement, which, in the present situation of things, may be adopted without any material expense. If parliament were to enact that it should be competent for her Majesty to appoint any person having held the Great Seal to sit as Equity Judge in the Court of Chancery, annexing to such appointment a salary of 7,000. a-year, who does not see that, at an additional expense of 2,000. a-year, during the joint lives of Lords Cottenham, Lyndhurst, and Brougham, an additional judge in Equity will be provided for
We, therefore, if we were to choose between the two plans in the present state of the finances of the country, would prefer the latter-and in order to obtain that uniformity of decision which we agree cannot be too highly valued, we think it worthy of consideration, whether the immediate appeal from the Court of Exchequer in Equity might not be well transferred from the House of Lords to the Lord Chancellor-limiting, perhaps, the ultimate appeal to the House of Lords, to those cases where the decision of the court below. is reversed by the
In addition to this, the practice should be made uniform-in the same manner as was done in the three courts of common law-by orders from the body before alluded to, consisting of all the judges of the courts of Equity.* But we have no
One important difference between the Equity Court in the Exchequer and the Court of Chance.
ry exists, which we should have thought needed only to be mentioned in order that it might be corrected. There are fees payable, in name to the Queen's Remembrancer but in reality to the Treathose payable, as in the Court of Chancery, to the sury, which are levied on the suitors in addition to officers of the court. For these additional fees no business is done-yet though, as we are informed, both Lord Abinger and Mr. Baron Alderson have repeatedly brought this shameful anomaly be. fore the proper authorities, they have as yet done so without obtaining redress for the suitors.
*The unlearned, perhaps, need to be informed that all ex-chancellors receive a pension of 5,0002. a-year, without any duties annexed to it. We propose to increase the salary and to add the du. ties.
These then are our suggestions for the proper decision. This ought not to be improvement of the preliminary proceed- the case. Why are not all such cases ings, and for the increase of judicial pow- referred to a master especially appointed er in the court. We come now to the for his knowledge of them, who by that third stage, the Masters' Offices. Here very knowledge, and the devotion of his also additional help is possibly needed; understanding to one subject, would not but before it is applied for, the public only decide with greater despatch, but ought to be fully satisfied that all is done with incomparably greater satisfaction to which can be by the present staff. In all the parties? and in like manner as to order to accomplish this purpose, we are other subjects. As to accounts, which clearly of opinion that it is necessary occupy a great portion of the time, and that the Masters should do their busi- cause much of the expense, why are these ness in public, and should take their not taken from the Masters in Chancery, cases in orderly rotation if possible. and referred to Accountants specially apEvery one who is behind the curtain pointed to take them, under the superinknows how great facilities for delay the tendence of the Masters ?-mercantile want of publicity affords. The Master men, or attornies, or the like, might then sitting in public becomes a judge-if he be appointed with great advantage for is not punctual to his time, if he is un- these purposes. Again, why is one Mascertain in his decisions, or if he allows ter constantly employed in signing affifrivolous reasons for postponement, he davits, and others mere routine details, loses reputation-and, besides, the priva- when the business is in fact done before cy of a court allows of the holding of of his clerk, who might just as well act in fice by inferior persons. These appoint- person, and who, if he did so, would set ments are now no longer in the gift of one more Master at liberty, who might the Lord Chancellor, but have been then be employed to do important work (without any good reason, we think) for the real benefit of the suitors? These, transferred to the prime minister; and and we doubt not many other arrangewe have an old-fashioned constitutional ments, might be made, and if made, might jealousy, in which we believe the public increase the power in the Masters' Offito participate, lest they should be given ces. If then their number still remained to brawling politicians rather than to ac- insufficient to keep up with the increased complished lawyers. speed of the court, more Masters must be appointed. But we own we think that the division of labour we have suggested, and the sending of accounts to accountants appointed by the court, who should act under the superintendence of the Masters, would probably be found sufficient. These arrangements also we would leave to the legislative body whom we have before alluded to.
Lastly,-As to the taxation of costs, the most scandalous part of the whole system. It is of the essence that this should be done by officers paid by the public, and receiving no fees for that purpose from the parties litigant. Will it
There is another arrangement also which we should wish to see adopted. The references to these officers are on various subjects. Sometimes they are called upon to determine whether a complete title to landed property can be made by a vendor to a purchaser; sometimes to wind up a long and intricate mercantile account under a partnership; some- be credited in this century, that a party times to trace out a fraud. These and has been known to pay more in fees for various other matters obviously require taxing a bill than is taken from the bill ittalents and information of wholly differ- self, even when that bill has been redurent kinds. Why is the division of labour ced by the amount of some hundreds of not resorted to? The causes, we believe, pounds by taxation ?* This is an abomiare referred to each Master in a sort of nation of which it is impossible to speak rotation; and the consequence is, that in too strong terms. We blame not the when, for instance, a conveyancing ques-officers-it is the system which is in fault. tion goes to a non conveyancing Master, The remedy is obvious: let competent the unhappy parties have often to lay a case before some eminent conveyancer, in order that the Master may come to a
We would therefore wish them to sit in public at given times and in given places, and to hear the matters referred to them, not as they do now by many and short instalments, at long intervals, but in orderly rotation, and, if possible, to an end in one or two hearings.
The effect of this in increasing the improper charges of disreputable practitioners is obvious to any one.
taxing officers be appointed and paid by That of Mr. Miller-the fruit of long and the public, and all official fees on taxation candid observation and reflection-will, abolished; and the sooner this is done however, be found to contain many very the more creditable will it be to those valuable suggestions for such a body to who are at the head of the courts where consider when they proceed to frame regusuch a practice is allowed to exist. If lations for the improvement of the courts they really wish for details as to the of equity. There are also some shrewd facts, we beg to refer them to the second suggestions in Mr. Garratt's; and we of Mr. Spence's pamphlets. think the public are much indebted to the labours of both these gentlemen, as well as to Mr. Spence.
ART. X.-1. Sketches of Popular Tumults,
We have now laid, to the best of our ability, the case before the public. It may be that we are over-sanguine as to the success of our own plan; be it so: but still we think it will be found better than the present system. That many faults and omissions may be pointed out in it we do not doubt. We shall be glad if they are pointed out, for we are much more desirous that the system should be improved than that we should have the credit of having suggested the improvements. We do indeed sincerely hope that some one, whose leisure and knowledge of the subject may qualify him to do so, will take up the question in parliament. Let him, however, be well assured that he will have to struggle with much difficulty and be thwarted by many conflicting interests; and that if he really intends to do any good, he must use with vigour the trident of reform, even though it should produce as remarkable an effect. as that of Neptune in Homer, when he so startled the courts below as to make Lord Chancellor Pluto and his attendant Masters jump up alarmed, as well they might, TROUBLED water is the natural element of μή οἱ ύπερθεν Whigs, as quieta ne movere is the guiding Γαῖαν ἀναῤῥήξειε Ποσειδίων ἐνοσίχθων, maxim of Tories; and these two princiΟἰκίᾳ δὲ θνητοῖσι καὶ ἀθανάτοισι φανείῃ ples-which may be called the antagonist Σμερδαλέ' εὑρώεντα τά τε στυγέουσι θεοί περ. muscles of the political body-render it But let him at the same time bear this in almost equally impossible that there mind, that if by his force of talent and should be an effective Whig Government, character he grapples with and overcomes or an effective Tory Opposition. It may the difficulties which surround this ques- happen, as we have seen for the last few tion, and should be enabled by his dili- years, that Whigs may be in place, but gence and sagacity to mature a plan of they are not a government-and Tories good and effectual reform in our courts out of power, but they cannot form an of Equity, he will be entitled to take rank opposition-in the sense, at least, of the as one of the real benefactors of his coun- words government and opposition in our try, and will be gratefully remembered ordinary political vocabulary. This is so when the strifes of party ascendancy and true, that, whenever the Whigs have atthe warfare of political adversaries shall tempted to govern the country, they have have passed away and been forgotten. invariably become unpopular from the gross inconsistency between their official practices and their opposition professions; while, on the other hand, the Tories-never endeavouring to thwart the essential measures of the Executive, and acting rather as critics than assailantshave had no difficulty in returning to the management of affairs without any com
In the meanwhile we cordially recommend the pamphlets at the head of this article to the public attention. We have not particularly adverted to their contents, only because they very properly go into many details which, according to the view we take, we should leave to the legislative body we wish to see created.
promise of their principles, and conse-ed with a folly only to be equalled by that quently without any of the imputations of of the ministry, whose weak and mischieinconsistency to which Whig ministers vous proceedings have tended to inflame, have been invariably exposed. if they did not help to create, the popular audacity.
The present state of parties elucidates and corroborates these propositions, But can we flatter ourselves that, though though the modern Whigs, grown-like the disturbance was local, the spirit that the great old Whig of all-wiser than of prompted it is confined to a narrow disyore' have tried the experiment of keep- trict of South Wales? And can we ing their places by abandoning all pre- hope that spirit will be always directed tence at governing; and not only do they by men so incompetent to their treasonshrink from the exercise of the natural able task as Frost and Williams? It is duties of ministers of the crown, but they with great regret that we confess our have avowed principles, and allied them-apprehensions that the mischief is more selves to persons utterly and notoriously deeply seated, and more widely spread, hostile to, and irreconcilable with, the and that there may be abler heads, as abstract idea of monarchical government. well as more formidable hands, ready to Whenever they have been forced by cir- take advantage of the disorganizing princumstances into some accidental perfor- ciples which have been so widely, and mance of their duty to the constitution, from such high authority, promulgated they have endeavoured to apologize to through the country. their anarchical followers for any such unavoidable deviation into rectitude, by language and by acts of supererogative democracy. Bankrupts, in fact, and unable to redeem their outstanding engage ments, they strive to maintain a fictitious credit by exchanging a present difficulty for a greater but distant liability, till at natural regret which they must feel in length the accumulation of these fraudu- common with every humane and intellilent shifts grows to such a head as com- gent man at witnessing such calamities, pletely to overpower them, and to exhib- it has mortified and alarmed them in an it these political traders in-as they now especial degree-mortified them by a appear a state of utter and disgraceful practical exposure of the danger of their insolvency. doctrines; and alarmed them by a nearer prospect of dismissal from their places.
Do we mean to say, or even to insinuate, that the ministers have designedly encouraged this rebellion? God forbid. We sincerely believe that nothing was further from their thoughts, and for this reason, amongst others, that nothing was further from their interest. In addition to the
Mr. Wilberforce, one of the honestest and certainly the most impartial of modern statesmen, said of the Whigs when in opposition, that 'they wished for just so much public calamity as should bring them into power.' On the same principle, the Whigs in government wish for just so much popular agitation-to call it by the softest name-as may keep them in office. They ought to have been taught by the Bristol and Nottingham riots, and the march of the Birmingham mob on London to carry the reform bill, that popular agitation is a perilous experiment: but when did a Whig pause between a party purpose and a public in
And so it must ever be: a ministry that is, we will not say so base, but so mad, as to think of keeping itself in power by pandering to popular passions, will find that indeed
Increase of appetite doth grow
until at length, whether by criminal connivance, or still more criminal encouragement, the disorder becomes so extensive and extravagant that it can be cured only by the sword and the scaffold : deplorable remedies, of which the awful responsibility belongs, in the second degree only, to the unhappy and misguided creatures who are to receive the first degree of punishment.
When Lord John Russell made Mr. Frost a magistrate, his lordship undoubtedly little thought that he was confer
Lamentable as is the late 'outrage,' as it is leniently styled, in South Wales, we have to thank Divine Providence alone that the lesson-the, as we trust, salutary ring upon a notorious incendiary such lesson-which it has given the country countenance and consideration in his has not been on a larger and still more own district as would exalt him to the frightful scale. The actual outbreak was station of leader of a rebellion. All Lord local, and appears to have been conduct. John meant was to favour a virulent