213

POSTSCRIPT.

THE last three months have been neither uninteresting nor uneventful in the history of Law Reform. Parliament opened auspiciously. The speech from the throne admitted to the fullest extent the evils in the administration of Law and Equity, the necessity for their remedy, and implied a promise by Government to bring in the necessary measures. The subject of Registration of Titles was also mentioned by Her Majesty. On the last subject the pledge has been fulfilled, and we have already alluded to Lord Campbell's bill on this subject, but in the other great departments little or nothing is to be reported. The whole subject has been handed over to two Commissions, the defective constitution of which we pointed out in the Postcript to our last Number; and the bill announced, but not yet introduced, by Lord John Russell, for the Reform of the Court of Chancery, is certainly the most homœopathic dose of reform ever attempted to be administered. It is useless to speak further of what will never see the light; which was disowned forthwith, both by the Attorney-General of the day (Sir J. Romilly) and the Lord Chancellor. The gulf, then, still remains open, and it will remain unclosed until something effectual is done. We turn with pleasure to those acts of the Government to which we are happy to render our humble tribute of praise. We highly approve of the filling up the Vice Chancellorship vacant by the retirement of Sir James Wigram, and the selection of his successor is highly honourable to all parties. Sir George Turner will, if we mistake not, fully sustain the reputation acquired at the Bar on the Bench. We also heartily rejoice at the promotion of many tried and useful Law Reformers to the eminent places in the State. That Government cannot be said to be averse to the judicious but thorough reform of the law, which makes such appointments as the following:

Sir John Romilly, Master of the Rolls;

Sir Alex. Cockburn, Attorney-General;

Sir W. P. Wood, Solicitor-General;

nor are we less pleased to find the merits of other friends of the good cause thus admitted by the Government :

Mr. M. D. Hill, Commissioner of Bankruptcy;

Mr. Headlam, Vice-Chancellor of the Duchy of Lancaster.

Nor have the Law-amenders been forgotten in Scotland:

Mr. Rutherford, Lord of Session;

Mr. Macniel, Lord of Session;

Mr. Moncrieff, Lord Advocate.

The promotion of these gentlemen (all of whom have given in their adhesion to the cause of Law Amendment, their zeal for which they have proved by many deeds,) shows that a steady adherence to Law Reform is no longer a reason for exclusion from, but rather an introduction to, office. At the same time we cannot but regret to find the Lord Chancellor frequently ranged among the adversaries of Law Amendment. Perhaps more is made of this by those "who love darkness rather than light," than is necessary, but there is enough to give pain to

his friends and admirers, among whom we have always been proud to range ourselves. Lord Truro will, however, do well to consider whether he has increased his influence in the House over which he presides by the course which he has taken on some recent occasions. He has nobly and most eloquently defended the cause of progress on many occasions, and he is doubtless surrounded by men who would separate him from this portion of it; but if he only applies his own manly and vigorous mind to the subject, he will find that it is impossible to resist the onward march now demanded by the country; that it may be guided but cannot be averted, and that the legal institutions of the country can only be preserved by timely but extensive measures of improvement. The real griefs of the suitor must be redressed, and the country is determined that this shall be done; and although the remedy may be deferred for a time, yet the day of triumph is not far distant. No cause, indeed, has been so losing a one as resistance to Law Reform-the enemy have lost every point; they have been driven step by step out of every one of their defences, until they have not a word to say but vague denials and empty generalities. To all the propositions of the Law Reformers they can only oppose reasoning now exploded in all other arguments: this might be sufficient, as it was in the days of Lords Eldon and Ellenborough, when majorities were ever ready to support such arguments; but this is no longer so, and in both Houses of Parliament "Law Reform " is a watchword under which governments are beaten and ministers may be overturned. We have no fear, then, for the success of the cause which can only be for a moment delayed; but we should deeply regret to find persons whom we for so many reasons esteem and venerate, led even temporarily to allow themselves to be ranged in the failing cause of opposition to those changes which time 'and altered circumstances have rendered necessary in our juridical institutions.

The fact is, the doom of our existing legal precedure is already pronounced. When the County Courts Act of 1849 was passed, the battle was won, and the rest is a mere question of time. The public are now admitted into the enchanter's circle, and begin to feel interested in and to understand the question. If the Superior Courts are not reformed, they will be set aside. They may still incumber the country, but the suitor will not resort to them. The next proposition will be to extend these courts to actions of 100%.; and, this point once gained, the central system for the administering justice is at an end. There will be, then, no sound reason for imposing any limit on the County Court: the judges may be inferior; may be in fact all that the Lord Chancellor has said that they are; but the public prefer them, with all their faults, to the judges of the Superior Courts: the suitors know what suits them best, and they have a right to choose, especially as they pay for them. It has been a point disputed by casuists whether good laws administered by bad men are better than bad laws administered by good men, and the public are disposed to decide this question. They like the procedure of the County Courts, which throws over the technicalities and delay of the Superior Courts; and they care very little who it is that administers cheap and untechnical law. In the one set of Courts the causes go off on points they cannot understand; in the other, even if the judge is against them, they can understand what he means to say. The public have, in fact, already decided the question: and, as these Courts are practically supeseding the Superior Courts of Common Law, so they are destined shortly to

supersede the Superior Courts of Equity. There is, indeed, only one thing that can save the Superior Courts, that is, timely and effectual reform. We believe that the profession begins to perceive this great truth; and we hope that the last man who admits it will not be the Lord Chancellor.

The whole machinery for the administration of justice requires to be revised, with the view of rendering it at all available for the public service, and connecting it more closely together. When this is done, it will be found that, at the time that some members of the great family of the law are overburdened with work, others have little or nothing to do. If all were properly employed, little addition to the judicial strength would be required. If the judges were not embarrassed by technical distinctions between Law and Equity, and the judge worked out his own decrees, we should not hear so much of unoccupied judges and ruined suitors. There is no circumstance so satisfactory to us as that of the public now taking an evident interest in these subjects.

It is very unfortunate that the House of Lords rejected, at least caused to be withdrawn, the arbitration clauses from the County Courts Extension Bill. These are intimately connected with the great system of un-technical, or natural, as contra-distinguished from technical judicature, to recommend which was one of the great objects of Mr. Bentham's labours, and which is daily finding more favour in the eyes of reflecting and enlightened lawyers, as it is daily more and more recommended to the community at large, by the severe inflictions upon suitors, from the excess rather than the abuse of the technical plan. The institution of Chambers of Commerce, however, is the great triumph of the rational system; and it is certain that incalculable benefits have been conferred by that institution wherever it has found a place. In the debate upon the County Courts Bill, Lord Brougham described the nature of those tribunals, of which, both in France and Belgium, he could speak from positive knowledge, confirmed by the testimony which he had of eminent lawyers in both countries, though he did not consider that in this country the introduction of such a Court should be attended with a law making it compulsory to begin there.

Generally speaking, the course is for lists of merchants and tradesmen of respectability to be recommended by their body at large, and chosen by the Government out of three lists, to act for a year or other limited period. The Court (Tribunal de Commerce) consists of three, who all act without a salary, or any emolument whatever. A clerk alone (greffier) is paid by the State, and he alone is a professional man. Before this Court all mercantile causes, with few exceptions, are brought in the first instance; and an appeal lies to the Superior Courts, unless in some few excepted cases. On matters of law or of form, an ultimate reference is had to the Court of Error (Cassation).

It is very satisfactory to find that before any mention was made in Parliament of this Institute, mercantile men in the city had been alive to its great value. An association, the formation of which we owe to the exertion of Mr. Lyne, has been for some time in active operation; and we wish his labours, and that of the body, all manner of success.

The President of this body is Lord Wharncliffe, who, with Lord Beaumont, are most efficient friends of the cause of Law Amendment in the House of Lords.

In the House of Commons we hail a great accession to the cause in the person of Mr. Bethell, the new member for Aylesbury, who has already shown,

as our own pages will bear witness, that on the subjects of Legal Education and Law and Equity Procedure, he is capable of taking views at once comprehensive and practical. From him we are sure that the cause of Law Amendment will derive the greatest benefit.

As it

In mentioning the useful and judicious friends of this cause, it is proper to notice the death of Lord Langdale, who did not long enjoy his retirement. The particulars of his life have been given in the newspapers. We may probably notice, on some future occasion, his career as a Law Reformer. This would have been more distinguished if he had had more energy of character. was, considering how much was expected of him, and how much he really could have performed, he has left but little to remind posterity that he was a most distinguished Law Reformer. A few months before his death he avowed his conviction in the House of Lords, that "Nothing could be considered to be effected until the Laws of England were cODIFIED. There can be no doubt that had he been in the House of Lords on the 11th of April last, he would have given in his willing adhesion to the Bill for admitting the Evidence of Parties. Lord Brougham's Speech on this occasion has now been printed, and is published by Ridgway. As the debate was very imperfectly reported, we shall add a note of what passed, which we have ascertained to be correct.

The Lord Chancellor objected to the second reading, the main part of the bill, approving of the other parts. He chiefly relied on the examination of wives against their husbands, which he considered as now for the first time proposed to be introduced into the practice of the law.

Lord Brougham showed, by reading the 83rd section of the statute of 1846, under which all County Courts now act, that a wife may in every case now be examined against her husband, and that this is notoriously the daily practice.

Lord Campbell (Chief Justice) expressed his opinion in favour of the proposed improvement in the law, and argued strongly against having one rule for causes above 50l. and another for causes under 501. His lordship reserved the power of modifying his opinion, should he on further consideration deem it right.

Lord Cranworth (Vice-Chancellor) expressed his decided opinion in favour of the measure, and argued in that sense.

Both he and the Lord Chief Justice expressed an opinion that it might be well to consider whether the testimony of the wife as against the husband, should not, by a change in the Act of 1846, be excluded; both these learned Judges agreeing that it would be improper to prevent her from being called to support the husband's case.

April 28. 1851.

ART. I.— FIRST REPORT OF THE COMMON LAW COMMISSIONERS.

Copy of the First Report of Her Majesty's Commissioners for inquiring into the Process Practice and System of Pleading in the Superior Courts of Common Law. 1851.

THE Report of the Common Law Commissioners has at length been presented. Considering the great ability of the gentlemen to whom this duty has been intrusted, and the great pains which they have bestowed on its performance, it is vexatious to think that so much labour should have been expended in devising an elaborate scheme which is never likely to become the law of the land. Isolated suggestions of a very valuable nature there undoubtedly are, but these are mostly of a negative character. The Report commands our assent so long as it is concerned with sweeping away abuses, but fails in the task of reconstructing that which it has demolished. This arises from various causes, some of which were, while others were not, in the power of the Commissioners. The plan of the Commission itself was too narrow. Instead of appointing two separate commissions to inquire into the separate procedures of Law and Equity, and thus begging the question as to their permanent separation, it would have been better to have appointed a single commission to examine into them both, with the view of ascertaining whether it be necessary to perpetuate the distinction. This clearly is no fault of the Commissioners. But they are fairly responsible for the manner in which they have conducted their inquiry and for the erroneous principles, by VOL. XIV.-August, 1851.

Q