The Legal Observer.

VOL.VI. SUPPLEMENT FOR SEPTEMBER, No. CLXV.

1833.

"Quod magis ad Nos

Pertinet, et nescire malum est, agitamus."

HORAT.

THE WESTMINSTER REVIEW,
AND LAW REFORM.

the crown; and it has been usual to appoint none who were opposed to the government, or to the politics of the ruling party. His qualification is property, and local influence arising from property; not personal merit, intelli gence, or learning. He is unpaid, and therefore does his duty only when and how he pleases. His business or his pleasures may call him to the metropolis, to the county town, or to field sports, and the seat of justice is vacant. Many districts do not furnish a person who is not a clergyman; and this functionary, in accepting the office, quits his higher character of peace

maker.

The

We are always happy to hear what our colabourers in the cause of Law Reform desire and endeavour to obtain, and with this view we shall advert to an article in the Westminster Review for July last, entitled "Progress of Law Reform, which may be considered to contain the sentiments of "the extreme left" on the subject, and which professes to give an account of the various recent measures for the amendment of the Law. The "In the Petty Sessions the matter is hardly writer first declares his preference of an enbetter there may be a Court, or none. : tire alteration of all existing institutions, to suitors, who have wended their weary way to their gradual amendment; and we may ob- the hall of justice at the summons or by the serve that the law reformers may well be di- appointment of the magistrates, may find novided into two parties,-the one holding body to do the bidding of justice. At the the former, and the other the latter opinion: Quarter Sessions, a chairman is usually ap to which latter party, we need hardly say, suits as a barrister have given him some qualipointed, of sedate habits, and whose early purwe have ever belonged. The article, there-fications; but not unfrequently the voice of the fore, commences by a general exposition, of the necessity of a thorough reform, and the uselessness of attempting any partial alteration. It then points out those parts of the whole system which, in the writer's opinion, are the most faulty; and in doing this, among many mistakes and inaccuracies, we find some portion in which we agree, and we shall at any rate enable our readers to judge of the sentiments of one of the other "The coroners are charged with the duty of party for themselves. The following ac-presiding at inquests, and have some of the count of some of the smaller Courts, and the functions of the sheriff, in the absence of that system of appeal, deserves attention.

Clerk governs the Court; and in the most favourable case, the Chairman is associated with many who are unfitted for the office of judges, and whose votes will over-rule his learning. On the justices of the peace, the legislature, for want of better instruments, has devolved the administration of many laws totally unconnected with the preservation of the peace; such, for instance, as the allowance of poor

rates.

officer.

"The Sheriff is charged with the execution "The Justice of the Peace, who would be of the decrees of the Courts. It is his duty to regarded by many as presenting in his individ-serve writs, to arrest offenders, to take cogniual capacity a functionary for the administra tion of smaller matters of justice in the country, answers in a very slight degree to this supposed useful capacity. His appointment is in

NO. CLXV.

zance of the gaols; and on some occasions he presides in courts of inquiry. Thus, when a defendant suffers judgment to go by default, that is, admits the claim; but the amount of 2 E

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the damages is to be ascertained. It is his duty | instance, the Courts of King's Bench, Excheto execute the writ of inquiry with the aid of quer, and Common Pleas, form Courts of Apa jury; [which duty is always performed by peal from the decisions of each other; the two the undersheriff.] Courts whose decisions are not in question "The Courts of Conscience, Courts of Re-being the Judges of the questioned decision of quests, and Small Debt Courts, are Courts of the same description, for the adjudication of questions of small amount.

"Of the minor Ecclesiastical Courts, there are the Provincial Courts, in the jurisdiction of the bishops of the diocese and the archdea

cons.

"Manorial Courts, in which the steward of the manor presides; but these have grown into disuse.

"The fault of all these jurisdictions is the absence of unity;-the want of subordination to one pervading principle. The clashing, the limitation of jurisdictions, a gradation of appeal in some cases through many courts, and the total want of it in others. This last defect seems to have been produced in our legislature, through dread of the other, the gradation of appeals; as it is sometimes made a special provision that there shall be no appeal ;-a specimen of legislative wisdom befitting an unreformed parliament. For the manifest inference is, not that the right of appeal should be taken away, but that its costs and delay should be removed by an amendment of the machinery of the appellant jurisdiction.

the other. Every Court of Common Law may be said to be a Court of Appeal from the decisions of the juries; and the appellant jurisdiction is exercised by granting new trials.

"In Chancery, appeals are carried from the Vice Chancellor or Master of the Rolls to the Lord Chancellor. The origin of this is, that as the Lord Chancellor was the secretary of the King, the Master of the Rolls was the secretary to the Chancellor; and the matters first referred to the Chancellor by the Lords for his decision, came, as the custom ever has been, to be transferred by the great man to his great man. In the Court of Chancery there is an inferior class of functionaries, who were a species of underclerks under the Master of the Rolls. To these men many matters came to be referred, and by long usage are referred, and from them appeals are given to the Courts; thus, a Master decides upon a matter referred; this is carried by appeal to the Rolls or the Vice Chancellor, and from them to the Chancellor.

The writer then alludes to a subject, to which we have repeatedly called attention, the want of concert in the Law Commis"The superintending or appellate jurisdiction sioners, and the uselessness of bringing in of these Courts rests in the House of Lords bills for the reform of the law, and not carabove all; in the Court of King's Bench over the judicial acts of the magistracy; and in the rying them through. He also admits "the Home Secretary over the police. The Lord absurdity of the numerous Bench of Judges Chancellor has the appointment of the provin- [in Bankruptcy] to do nothing," and apcial magistracy. The story is an old one; proves of the Chancery Reform Bills. So that the House of Lords practically surrenders far we nearly entirely agree with him. He its powers to the Chancellor and one or two then proceeds to consider the Local Court Law Lords, who take an interest in the busi-Bill brought in by the Chancellor; and alness, and are amenable to no control, being though in favour of the success of some irremoveable by any manner of means. In this respect they differ from the Judges, who may scheme of this kind, objects to that proposed be removed on an address from both Houses by his Lordship, and closes his remarks on of Parliament. To this Court all the discus- this subject in the following strain. We sions of the learned Judges of the Courts of are a little amused at his quiet mode of Westminster, of Edinburgh, and of Dublin, are settling the affairs of all future law suits. It brought in the last resort, and submitted to the is too obvious that the learned writer (learnfinal determination of men, who are ignoranted, perhaps, "by courtesy," as the Lord of the very principles of their decision.

"The Privy Council is the Court of Appeal, Chancellor would say), knows nothing of the to which are brought the decisions of the Co-practice of the matter on which he discourses lonial Courts. This, too, is a nondescript with the voice of an oracle. We shall, howCourt, composed of all and sundry legal and ever, give him fair play by quoting his opilaymen, who for political or any purpose may nions. be constituted members of the Council. Irresponsible like the Lords, their works are of the same likelihood. By the bill now before Parliament, very important ameliorations in the working of the judicial functions of the Privy Council will be introduced. This regards our foreign possessions, and not the home judica

ture.

"There are inferior Courts of Appeal: for

"At the very moment that Lord Brougham is introducing his Local Courts Bill, he is bringing in a Bill for the further amendment of the law, and the better advancement of justice,' which, though it contains many excellent bits of reform, sanctions and perpetuates many of the existing absurdities of the Common Law Courts. If the procedure of these Local Courts be adequate to the objects of their jurisdiction, it would require all Lord Brougham's skill in

a This bill has passed into law. See Ab-explaining a compromise, to shew why the same stracts, p. 337. ED.

procedure should not be extended to what are

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facetiously termed the Superior Courts, where | jurisdiction? A court of justice should be enjustice is placed so high as to be beyond the abled to entertain every class of case; and if reach of the poor man, and not easily obtained it have not been shewn already, there would by the rich. To a mind conversant with the not be much difficulty in the task of shewing, subject, and bent on the attainment of good, that it is not possible to instance the subjectand having withal the power, it would not be matter for adjudication, which is not capable difficult to settle the procedure in a cheap and of, and does not require, the same method of practical form. The simple plan would be to investigation. Even matters of account,-the consider what is the process for trying any case, bugbears of our clumsy jury system,―might or every class of cases; and having determined be mastered, if lawyers would bethink themupon that, then to fix upon a district, and esta- selves of the means most fit for an end; which blish there a Court, and, simultaneously, in an- cannot be expected, if they will not or cannot other district, another; and so throughout the understand the end. In these cases, the jury country. The plan sufficing in one place, would might, by taking the proof on each item senot be of less efficacy elsewhere. Having esta parately, go regularly forward, as a man of blished in all districts the same species of business would do; but this would not be Courts, governed by the same rules, proceed- lawyers' method. All the proofs of all and ing in the same forms, restricted only in the sundry the items must be produced by the local limits of jurisdiction, and even acting, plaintiff; and then all the proofs by the dewhen the case should require, as the agent of fendant against all and sundry the items, gone other jurisdictions; there would remain to through; mass of proof against mass of proof; establish the superintending jurisdiction,-the confusion against confusion. There is not a Court of Appeal. This should be one over- question which comes before a Master in Chanriding the whole; to which all subordinate ju- cery which might not be disposed of in the risdictions should conform in rule, in form, in same way; the work of months in one or two principle. It is manifest that the first condi- days. Besides the judicial functions given to tion is not difficult to be complied with. There the Judges of the Local Courts by this Bill, is a party complaining, a party complained they are constituted ministerial officers of the against; there is the matter of complaint-a Courts of Equity, and of the Bankruptcy Court. thing done, or not done; there is the place at This is probably the great defect of the Bill. which it was done, or ought to have been It should be its object to establish a practice as done; and there is the time. All these things simple as may be; but these new functionaries, should be stated, as the facts were, in the de- will be burthened with the different systems of claration; and the plaintiff should be bound practice of those different Courts. Moreover, by it substantially and in terms, that is, the the district must be very small, or the amount Court should read it as the language employed of business very inconsiderable, which shall in it ought to be read, according to the com- permit these Judges to perform such minor mon usages of society, and the plain meaning ministerial duties; requiring as they will, to of the words. The plaintiff, whether sworn or be promptly executed, and with very close not, should be examined and cross-examined. and continued attention. This arrangement is His declaration should be his testimony. The a jumble of a better idea. What is wanted is, defendant would deny all these matters:-the that each district should be supplied with its thing done, the place, time, and every parti- Commissioners of Justice, acting under the cular; and he, too, should be bound substan-orders of the Courts, to whom all persons tially and in terms by his plea, and if not sworn, should be examined and cross-examined; and his plea should be his testimony. So of the reply and rejoinder. Then comes the evidence; all this is plain. Every sort of witness should be admitted without restriction. The jury should have all the opportunity of forming their opinion, which the circumstances will admit; and to promote this, should have a copy of the pleadings in the box, and should consider the evidence in reference to the allegations in the pleadings. Such a procedure would be applicable to all cases,―actions for debt, for breach of promise, for trespass, for recovery of pro-when statistical returns are required, they perty wrongfully withheld,-to libel, to divorce cases. The after process, this being accomplished, is simple, and such as has been described.

"Does the plan adopted in the proposed Local Courts Bill answer to this description? Will it have more simplicity than the other Courts, or even as much? In some respects it will; in others it will have all the vices of the present motley jurisdictions. What can be more absurd than the endless discussions about

might resort to perform legal acts, of which the law, as in the hands of justices of the peace, furnishes abundant instances. These officers might execute examinations, perform the duties of Commissioners, receive oaths, and authenticate, as used to be the practice with notaries, public and private acts. They might supersede the coroner, who travels at great expense from one end of the country to the other; and they might be the keepers of the registers of births, baptisms, marriages, deaths, and other legal records. Moreover, they should perform the duties of public prosecutor; and

would be the intelligent parties to whom to apply for returns, having some chance of accuracy. These are only a small portion of the duties which such officers might be entrusted with. Almost every act of parliament connected either with the local administration of justice or local government, evidences the necessity of the presence of some legal functionary, competent to put in execution its machinery without such subordinate machinery. Lord Brougham's Bill will create an unma

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nageable, overcrowded, and unsatisfactory set | talent; not of the mere vivacity of a lively

of Courts, vying, after a little while, with their superiors, in all the inconveniences of delay, and its consequent irregularity, and cost, and obstruction to justice."

intellect; but of that talent which implies research and great personal labour. Now, the gentry who throng the bar begin with habits not the best fitted for studious exertion. Their talent is not of a high order; it is the common Thus it appears that the Lord Chancel-average talent of men educated at the great lor's project is as little likely to give satis-schools and the universities. The deficiency faction to the radical reformer as to the moderate reformer, to say nothing of the

no-reformer-at-all.

of power is sought to be supplied by technical ledge of mere English law. Imagination, vigour skill, and the acquirement of a tolerable knowof intellect, eloquence, large views of jurisprudence, or bare knowledge of civil law and the laws of other countries,-even the customs of their own country, and the laws of Scotland and Ireland,—are a dead letter to the greater number of English lawyers. They are mere technical hacks. Whence is this? The youth who has passed from the great schools to the universities, proceeds at once to the chambers of a pleader or a draftsman, and there drudges for a year or two, and is called to the bar. His time and talents are then devoted to patient listening to the discussions of the Courts, until the time comes when a friendly attorney shall risk his client's case, by entrusting it to a man whose powers have rusted by want of employment, or been warped by disappointment, or by dissipation, or by misdirected studies. The courses of the Inns of Court provide no means of calling out and exhibiting the powers of the student. He may be learned amongst the learned, eloquent and skilled in all the powers of an advocate, yet he is unknown to the public because he knows no attorney; his father is not, it may be, a rich landed proprietor, who has a country steward to speak his merits to his town agent, and try his young efforts at the assizes or the sessions. Hence it is unsafe for the man of talent to put himself, under the present system, to the bar. Hence mediocrity of talent finds its way there on the strength of its connexions."

The writer then urges the advantage of breaking up the monopoly of the Inns of Court, and allowing law degrees to be conferred upon any one. We, however, are

"At this day, when all monopolies are arraigned, on what pretence is the monopoly of the Inns of Court continued? The public derives no benefit from the perpetuated abuse of these societies. They have no regard to the instruction or discipline of their members; and nobody pretends that they are of service to them, except as they preserve the gentility of the profession. It is a sort of rank, which men seek after in order to gain a position above their fellows. But how is it attained? By study? By scholarship? By eating mutton? Not even by that, but by the mere payment of fees. Anciently, the dinner was the refection of the wearied spirit after study in the schools, and preluded a lecture by a reader. Now, a man may reach the honour of a membership of an Inn, by keeping so many terins, that is, paying 407. or 501. a year for three or five years, besides depositing 1007. as security, for which he receives no interest. Much outery used deservedly to be raised against the granting of the diplomas of the Scottish University of St. Andrews; but was that worse than this cherished system of buy-only for reforming these Societies, and ing admission to the bar? A man who receives high rents, or a high salary, or shares in the contributions the nation makes to keep up slavery, or divides the profits of the China trade, or any other man who is well to do, may ask what is the importance of 40%. or 501. for three years or even five, with the addition of 1007. besides; the whole does not amount at most to 4007. But to this must be added the cost of a man's living for the same period, which will be 600l. or 10007. more, with perhaps premiums to men at the bar to teach what the Inn neglects to teach, though it keeps the fee. This is not the whole grievance. The bar is thronged; but not by men of the right sort. This will be understood by considering that the bar is, as regards those already admitted, an open competition of

calling them back to the original purposes of their institution. (The writer, by the way, is incorrect in stating that there are five Inns of Court having the power of conferring degrees; there being, as our readers know, only four.) The making an open trade in law, and allowing every one to set up for himself, is obviously absurd, and would be much worse for the public than the profession. With this specimen of the writer's powers we therefore close our

notice.

Original Letters of Mr. Justice Blackstone, No. II.

Having dwelt thus long upon a Subject, now ye uppermost in my Thoughts, I have less Room to enlarge upon ye Scenes of social Delight & connubial Happiness wch [We were enabled, in our First Volume, are just ready to open in our Family. The p. 11, to publish a letter of no small in- swelling Hoops, ye majestic Sacques, yo terest, written in 1745, by Mr. Justice Silks, ye Laces, & ye Holland Sheets that Blackstone, to his relation Seymour Rich- have been bought upon this Occasion, I mond, Esq., a solicitor residing at Spar-leave Miss B. to describe to Miss R. but to sholt, in Berkshire. We are now favored with another letter, of the date 7th Dec., I must talk rather in ye legal Strain. I you (my Guide, my Counsellor, & Friend) 1751, which we give verbatim et liter-found it necessary a little to alter ye proatim.]