Miscellanea.-Editor's Letter Box.

The Legal Observer.

Vol. VII. SATURDAY, NOVEMBER 9, 1833. No. CLXXII.

ON THE CHARACTER AND MERITS, technical information of the one, mixed up
OF THE PRESENT LORD CHAN-
CELLOR AS A LAW REFORMER.

THE character, inclination, and opinions of the Lord Chancellor for the time being, are of no slight importance to the Profession of which he is the head. They are not mere idle matters of curiosity, but demand attentive consideration. He is the legitimate guardian of our rights as lawyers; the appointed defender of our privileges; the fountain of legal honours; and the source to which we look for guidance and direction. Although we have never shrunk from opposing the present Lord Chancellor when we thought he was wrong, we have always endeavoured to give his Lordship his fair meed of praise; and we may say that the latter duty was far more pleasant than the former. We intend in the present article to state and consider the current opinion as to his merits in one important point-as a Law Reformer, and we intend to bring under our readers' notice, for this purpose, the sentiments of two partizans: the one in favour of the present ministry, and in particular of Lord Brougham; the other, opposed to both: the first being the author (or authors) of the pamphlet entitled "A Reformed Parliament and a Reformed Ministry;" the other, the Quarterly Reviewer of October last. The former, at least the author of the part of the pamphlet to which we shall refer, is understood to be one of his Lordship's Secretaries; and his opinions have therefore a semi-official character, and are worthy of attention: the latter is probably a cross of the Lawyer and the Tory Placeman; the article having the

NO. CLXXII,

with the pungency and inveterate feeling of the other. We give way to neither extreme, and are prepared, we hope, to deal impartially with both.

We shall first give an extract from the Ministerial manifesto.

"The spirit of reform has also intruded into the Court of Chancery, and shaken the prescriptive right which that Court seemed to possess, to an immunity from the improvement which time had introduced into the administration of the other branches of the law. The Lord Chancellor brought a bill for the reform of his Court into the House of Lords, early in forth the opposition, not only of all the officers, whose interests were to be affected, but also of former Lord Chancellors, who having themselves suffered the existence of the evils, with out an attempt to correct them, could not look without jealousy on a proceeding of their successor, calculated to afford to the suitors that benefit, which under the auspices of his predecessors had been so long withheld from them.

the session. Such a bill could not fail to call

"The bill was accordingly referred to a select committee, when the examination of the witnesses lasted several weeks, and would probably have been continued to the end of the session, as the only means of defeating the measure, had not the Lord Chancellor, to avoid this evil, entered into a compromise with his opponents, by postponing part of his plan to the next session. Thus mutilated, the bill descended to the Commons; and after it had undergone the ordeal of another committee there, was passed amidst the cheers of the whole for the measure, shorn as it is of its due proHouse. This approbation had been well earned; portions, is still most important. It strikes a heavy blow at the root of two of the worst evils in the proceedings of the Court-the delay and the expense. These are necessarily to be found

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On the Character of the present Lord Chancellor, as a Law Reformer.

with offices where the details of the business of the Court are carried on. The Six Clerks' office, the Registrar's office, and the Masters' office, all were comprised in the Bill as it was brought forward by the Chancellor; but the Six Clerks were wrenched from his grasp by their friends in the House of Lords, and the Bill was confined to the Registrar and the Master." 57-59.

gives the Lord Chancellor the credit he deserves for having done them away,-relieving the suitors, according to his calculation, to the extent of 63,670l. per annum, in addition to the reduction of 28,000l. by the Bankruptcy Court Act.

The Reviewer, however, enters into the merits of this statement with great eager

ness.

The changes in these offices are then recapitulated; the shortening decrees and in the House of Commons, for years pointed "Lord Brougham," he says, "had, when orders in the Registrar's Office; the abo- out these offices as proper to be abolished. He lition of copy-money and gratuities in the again did so on his mountebank examination Masters' Offices; the abolition of the Chan-(we shall be understood by those who were cery Sinecures, and the reduction of Costs to the Suitor.

On this the Quarterly Reviewer says:

"This last statement is far from being true; and as we happen to observe, it is tardily cor rected in the (nominally) sixth edition of the pamphlet. As to the rest of the matter, the Government know that the attack which Lord Brougham made on his predecessor is unjust. Lord Lyndhurst, when Chancellor, carried through the House of Lords a well-weighed measure, preparatory to the general reform of the Court, which was defeated in the House of Commons mainly by the Whigs, with Mr. Brougham at their head. The Duke of Wellington's government had undertaken to revise the whole system. Sir Edward Sugden, the then solicitor-general, after Easter 1830, gave notice in the House of Commons that he should, early next session, introduce a bill to amend the administration of justice in the Court of Chancery. When the duke's government ceased to exist, Sir Edward took occasion to state the improvements which had been contemplated. We have a copy of his speech before us, published in January 1831; it was delivered on the 16th of December 1830. Now we there find all the boasted devices since made by Lord Brougham: the shortening of decrees-the placing the masters' offices on a better footing -the lowering of their salaries—the abolishing of copy money and gratuities to the clerks aye, even the abolition of sinecure or overpaid offices of the Court, and regulation of the six clerks, besides many other improvements not yet adopted."

present a) in the committee of salaries, after he had become Lord Chancellor, and the recommendation of the committee in favour of his large salary was grounded upon the giving up of these offices, and an excellent bargain, as things stood, he made: so that in good truth he sold his right to the offices, and sold it well. There was a general consent of the ministers to accept of reduced salaries; but the Chancellor contrived to escape present reduction, and to have his retiring salary increased, because he relinquished offices which, as matters stood, neither he nor any other man could have retained. His friend Lord Plunkett was cut down from 10,000l. to 80007. a-year, and his other friend, Sir Thomas Denman, was also fain to be content with 80007., instead of his predecessors' 10,000l. a year. In the result, Lord Brougham gets, not what his friends-of course as they failed he disowned them-asked for him, but only 14,000l. a year clear, payable by the public, and not collected as heretofore, in driblets, and 50007. a year retiring pension. His predecessor, who had only a twentieth part of his patronage, got hardly, after paying the Vice Chancellor, more salary, and his retiring pension was only 4000. Lord Brougham had besides the benefit of daily taking credit with the public for his great pecuniary sacrifices.”

The alterations in the Privy Council are next alluded to; but as the Lord Chancellor is not responsible either for the good or the evil of the measure, we need not here dis

cuss it.

The Reviewer then goes into the Bankruptcy Bill, and restates some of the objecThe Reviewer might also have said, that tions to it which were urged by our contribunearly all the improvements were recomtor" A Barrister," at the time it passed, and mended by the Chancery Commission ap- of which, certainly, quite enough has been pointed in the time of Lord Eldon, as ap-been appointed by Lord Brougham, and then said. He glances at the Masters who have pears by our Commentaries" on the Chancery Regulation Act; so that a great share goes to the Local Courts and the Registry of the merit is due neither to Lord Brougham's nor Lord Lyndhurst's administration, but to Lord Eldon's. The praise of having carried the measure through the Commons is due to the present Chancellor.

The author of the pamphlet then enumerates at length the offices abolished, and

Bills.

a Subsequently, it is said, "Lord Brougham. talked over the salaries' committee delightfully. He told them of his additional housedrunken coachmen, the embroidery of his bag, maids, expensive liveries, two carriages and and such small deer,' and not unavailingly.'

On the Character of the present Lord Chancellor as a Law Reformer.

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"Sad is the prospect of the law of England! The head is no longer to be amongst the nobles of the land, and the nobles of the land are doomed to have torn from them the shining ornaments of both the church and the law. Lord Brougham never ranked as an accomplished lawyer. Of equity-now his proper province-he knows scarcely anything, and he has not a judicial mind. His real "arrière pensée is, we do not doubt, to be Prime Minister; but at all events, he is to becoine altogether a political Chancellor an office new in England, but well known as one of the most monstrous abuses of the old regime of France is to be created, the passport to which will be politics, and not legal knowledge. The law will be at the feet of the political judge; not presiding daily over the bar, and fearing neither its power nor its censures, he will in his judicial patronage forward his own views, which will be purely political. The law in every stage will be overrun with political adventurers. The Lord Chancellor will no longer be at the head of the great legal family upon whose honour, courage, and ability, our lives and fortunes, even our liberties, must always in some measure depend. The Court of Appeal, with such a political officer at its head, will lose its legitimate influence, for the Judge will never be a sound first-rate lawyer. It is easy to predict that we shall not be long without a violent convulsion, when the law ceases to be duly administered. Some time will, no doubt, elapse before this is discovered; for although an incompetent Judge is sure to expose his ignorance in deciding original causes, yet an appellant Judge may easily disguise his want of knowledge in the individual case, until it is discovered in the result that every rule has been destroyed, and the practical lawyer has no compass by which he can steer."

"This," he says, "is not the time and place to examine these measures in detail; they will both, if established, lead to great expense and patronage; the latter measure, indeed, to an extent of patronage far beyond any thing ever vested in any individual. The Chancellor may well struggle for it. Invest him with the patronage to be created by that bill, in addition to the partizans whom he daily secures by his appointments under the commissions constantly issuing, and he would be unconstitutionally powerful. His colleagues appear to us scarcely to be aware of the power he evidently grasps at, and is daily centering in his own person. The Local Courts Bill is an attempt to throw us back from where we started. Local Courts were abandoned because they were found not to answer. Welsh-Judgeships, though open to some only of the objections which apply to resident local judges, were abolished with Mr. Brougham's warm approbation, as a great evil, and provision was made for administering the law to the Welsh in like manner as to the rest of the empire. The pamphleteer impudently says, that the measure was recommended by the united voices of the common law commissioners. Now this is not true. They recommended a very different measure, and do not, we understand, support the Lord Chancellor's bill. If patronage is not the object, why not introduce into the existing Courts the proposed amendment for shortening the process? Mr. Cobbett, who has seen the drift of the measure, has truly described it as a curse to the poor maa. Indeed, it places him directly in the power of the rich; for the appeal which is given would, wherever the rich were defeated below, lead to a new litigation before the Judges in town, and thus the alleged boon to the poor man would be destroyed. We are inclined to believe that there never was a greater curse to a country than cheap law brought to every man's door-litigation made easy. It would plunge the lower classes into endless wretchedMuch of this is certainly overcharged, ness and misery. The country would swarm and written with the pen of a political opwith political barristers without principle and ponent. That, however, there may be some without law, and needy attorneys; and every foundation for the idea, is shewn by the two trifling dispute would be fomented into a re-following passages in the pamphlet, written gular suit, for otherwise the barristers and at, torneys must starve, and the judges become

sinecurists."

by semi-official authority, if not, as it is said by the Reviewer, by the very person who should best know the future intentions

66

Thus far the Reviewer. We shall pos-of the Lord Chancellor. sibly next week give our answer to the parts of the pamphlet which advocate the Local Courts Bill and the Registry Bill, which we shall then quote verbatim. We have now only room for the summing up which the Reviewer gives of the noble Lord's character as a Law Reformer, and of his presumed intentions. Far be it from us to agree to it. If it were true, we know what would be the duty of every man in the country; never-poned to next year. p. 63. theless we give it, because the bare probability of its being correct should put us all on our guard.

The last of the Lord Chancellor's legal reforms this session, was a bill for the separation of the judicial from the political function of the Great Seal, for the appointment of a of Appeal in Chancery. The salary of the Chief Judge, and the establishment of a Court Lord Chancellor was proposed to be reduced from 14,000l. to 80007. a year. The great pressure of business caused the bill to be post

"But there is another and a far more important question concerned with this subject; viz. the promise which the reform (the Privy Council Act) holds out, that ere long, the conSee the difference pointed out, 6 L. O. stitution of the highest Court of Appeal will P. 129.—ED.

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Changes in the Law made during the last Session of Parliament.

anomaly, and was particularly pointed out as such by Mr. Phillips, in his work on Evidence, vol. 1. p. 24. On that gentletleman becoming Secretary of State for the Home Department, he prepared a bill for remedying this admitted defect. This was brought in by the Marquis of Lansdowne, then Secretary of State, and was passed into law, being the 9 G. 4. c 32, under which their affirmation is received as well in criminal as civil cases.

receive that consideration, and undergo that power of giving evidence in criminal matimprovement, which its present constitution ters, which had been long considered an so urgently demands. It is but reasonable to suppose, that the same views, and the same spirit, which induced the present ministry to propose and perfect this amendment, will not be backward in giving efficiency and perfection to the Court which is the highest known to the constitution; and that the reform of the appellate jurisdiction of the Privy Council will lead to the establishment of a well organized and efficient Court of Appeal, instead of that now existing; which is in fact, in nine cases out of ten, an appeal to a single Judge, (and not seldom from his own decisions) assisted only by a bishop and a lay lord, attending under penalty, and according to a rota." p. 65.

By the 3 & 4 W. 4. c. 49. § 1, it is enacted, that every person of the persuasion of the people called Quakers, and every Here, for the present, we leave the sub- Moravian, be permitted to make his or her ject. Backed as he is, and powerful above solemn affirmation or declaration, instead all existing statesmen; clothed with the of taking an oath, in all places and for all highest judicial authority in the realm; gift-purposes whatsoever where an oath is or ed with surpassing talents, if not to conceive, at least to enforce, and execute, the Lord Chancellor may be a blessing to his country: if otherwise, he will be the bitterest curse that ever was inflicted on it. Let us hope the best.

shall be required either by the common law or by any act of parliament already made or hereafter to be made, which said affirmation or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form; and if any such person making such solemn affirmation or declaration shall be lawfully convicted wilfully, CHANGES MADE IN THE LAW IN declared any matter or thing, which if the falsely, and corruptly to have affirmed or

THE LAST SESSION OF PARLIA-
MENT, 1833.

No. XIV.

THE QUAKERS, MORAVIANS, AND SEPARATISTS'

ACTS.

same had been in the usual form would have amounted to wilful and corrupt perjury, he or she shall incur the same penalties and forfeitures as by the laws and statutes of this realm are enacted against persons convicted of wilful and corrupt perjury, any law, statute, or custom to the contrary notwithstanding: Provided always, that every such affirmation or declaration shall be in the words following; (that is to say,)

I, A. B., being one of the people called Quakers [or one of the persuasion of the people called Quakers, or of the United Brethren called Moravians, as the case may be,] do solemnly, sincerely, truly declare and affirm.'

and

3 & 4 W. 4. c. 49. 3 & 4 W. 4. c. 82. On the assembling of the present Parliament, one of the first questions which arose was whether Mr. Pease, a Quaker, who had been elected a member, could sit, inasmuch as he could not take the required oaths. We then discussed the question," and were of opinion that he could do so; and of that opinion were a Committee of the House of Commons, who reported in his favour. However, the Legislature has thought proper to put the matter completely at rest, and to pass a general act which gives the affirmation of a Quaker, in all respects and in all places and matters, the virtue of an oath. By the 1 W. & M. c. 18. § 15, their declaration of fidelity was sub-granting the People called Quakers such stituted for the oath of allegiance; and ever Forms of Affirmation or Declaration as may since the 7 & 8 W. 3. c. 34, their affirma- remove the Difficulties which many of them tion has been received in all civil matters lie under," and instead of the form of the They had, however, until very lately, no oath of abjuration prescribed by an act of the sixth year of the reign of his late Majesty King George the Third, intituled "An Act for altering the Oath of Abjuration and

a See 5 L. O. p. 60, 294.
b See the Report, 5 L. O. p. 331.

And it is further enacted, that instead of the form of affirmation prescribed in lieu of the abjuration oath by an act of the eighth year of the reign of his late Majesty King George the First, intituled An Act for