Vol. VII. The Legal Observer. SATURDAY, JANUARY 11, 1834. No. CLXXXIII. -"Quod magis ad NOS Pertinet, et nescire malum est, agitamus. HORAT. THE DEFENCE OF THE LORD CHANCELLOR. In a former number we gave some account of the pamphlet entitled "The Reform Ministry and the Reformed Parliament,' and also of an answer to it, which appeared in the Quarterly Review for October last; and we adverted to these works with the view of giving the character of the present Lord Chancellor, as drawn by two partizans of different factions. The Pamphleteer drew his Lordship and his labours couleur de rose; the Reviewer endeavoured to show that he was blacker than he ever was painted: we endeavoured to act as moderators, and, as we have always done, to give him credit where it was due, and censure in its proper place. It was not to be supposed that the controversy would end here; the declaration had been filed; the plea delivered; and if a replication was not forthcoming, there were no true spirit in the land! Here then we have it, although, as it is averred, by a different hand than ↑ Ante, p. 17. See also p. 33. A Refutation of the Calumnies against the Lord Chancellor, contained in the last Number of the Quarterly Review, in an Article upon the Pamphlet entitled "The Reform Ministry and the Reformed Parliament." Third Edition. Ridgway. "It is proper to state," says the author, in a note to the first page, "that I have no further knowledge of that pamphlet than is derived from the article in question;" which is rather an equivocal declaration, as it confines the knowledge to the extracts made in the review, which can hardly be meant; as if so, the author would not know what he was in part defending. Be the author of the "Refutation" NO, CLXXXIII, that which wrote the original pamphlet, whose power has either been "snuffed out by the article," and been driven to seek other assistance; or, peradventure, disdains the combat. It is a marvel to us, that instead of one we have not fifty "Refutations;" and we know not what may now be in the womb of the press: for the present, who he may, he occasionally discloses a knowledge of the private affairs of the Chancellor, which could only be obtained by one closely connected with him. Thus, in alluding to the death of Sir Albert Pell, he says, "the act to establish a Court in Bankruptcy gives authority 'from time to time to supply any vacancy in the number of the Judges and Commissioners; and a cloud of aspirants and their patrons, many of the latter labourers in the vineyard of reform during a quarter of a century, speedily reminded Lord Brougham that he possessed this power. Had then the object of the Chancellor in establishing the new Bankruptcy Court been the mere acquisition of patronage, here, it must be admitted, was an opportunity of exercising it. If he could find plausible pretexts for the creation of the office, it was not likely that he would be unable to invent some specious excuse for its continuance. The period, too, when the vacancy occurred was tempting. Not only was Parliament not sitting, but it was prorogued until January. No question therefore could be asked on the subject for four months :-and the events of those four months might produce the answer, or render it unnecessary. What then did Lord Brougham do? He adhered to the resolution that he had formed immediately on hearing of Sir Albert Pell's death, and in spite of the entreaties and remonstrances of some of his oldest and staunchest friends and adherents, he refused to appoint again a fourth Bankruptcy Judge:" and many similar proofs of the writer's being completely behind the curtain, may be found throughout the work. N 194 A Defence of the Lord Chancellor. however, we think the one published is | The Reviewer asked, Why did not Lord sufficient; at least until a rejoinder be Brougham provide against the claim of forthcoming. The author divides the charges into heads, and attacks them separately; in some instances, we think, successfully,-in others not so well; and throughout he wants the spirit and cleverness of his adversary. He may say that his facts needed no garnish; but if he wanted them to be as extensively read as the Review, he should have made them a little more palatable. The nomination of Mr. James Brougham to the offices of Clerk of the Patents and Registrar of Affidavits, is first adverted to, and is, we think, satisfactorily explained; and under present circumstances, we are every way disposed to admit the validity of the defence. We do not think that the thorough disinterestedness of the Chancellor about his own salary is so well made out. The author admits that Lord Brougham put the emoluments of the Great Seal at the average of 14,500l. (p. 9, in note,)—a low average, but of course the nearest that could be made. If, therefore, he secured a fixed salary of 14,000l., and an additional 10007. retiring salary, it cannot be said that he did very badly for himself, or that great wrong has been done him. Neither should the author take credit, as he does in p. 5, for the fact that the Chancellor's brother did not claim compensation, which is called an act of unusual moderation." It is obvious that, as a bill had been brought in for abolishing the office before Mr. James Brougham was appointed to it, no claim of compensation could have been raised. The next subject adverted to is the Chancery Regulation Act. The Pamphleteer claimed the whole merit of it for Lord Brougham; the Reviewer did the same for Lord Lyndhurst and Sir Edward Sugden. We stated in our notice that it belonged to neither of them, but to Lord Eldon and the Chancery Commission, The author of the "Refutation" agrees with us, and proves our position at length by a reference to the propositions of the Commissioners; but then he should have admitted that the Pamphleteer and Reviewer were equally incorrect, and not confined his fire to the latter. compensation on the part of the new Masters, as Lord Lyndhurst did in the appointment of Welsh Judges? To this it is answered, that the cases are not analogous; which we do not think is made out very clearly. It is said, moreover, that these clauses did not proceed from the Chancellor, which is, no doubt, very true; but of course he could have prevented their insertion in his own bill. The New Bankruptcy Court is the next point of difference, and the author of the Refutation" insists on the merits of the new Commissioners, and the savings which have been effected, and makes out a fair case for the Official Assignees. The Court of Review is less successfully defended. It must be admitted by every body, because it is admitted by the Chancellor himself,- and we have repeatedly praised him for his candour, -to be a failure; and we believe, moreover, that it will not exist, in its present form, for three years longer. The next subject is the transfer of the appointment of the Masters in Chancery from the Chancellor to the Crown. The accusation as to this was, that it was intended to secure the patronage to Lord Brougham on any separation of the political from the judicial functions of the Chancellor; but this the learned "Refuter" considers "merits no answer." p. 76. But as the plan for the separation has been repeatedly adverted to by Lord Brougham, as stated at length in the Pamphlet and Refutation, we humbly think it does merit an answer. The Country Commissioners of Bankrupt come next upon the tapis; and here we think the author of the "Refutation" is most successful. It is correctly stated that this patronage is, under the 1 & 2 W. 4. c. 56, in the hands of the Common Law Judges, not of the Chancellor, as stated by the Chancellor himself on the 23d of April last. "His Lordship might have added, that his moderation in this respect has been strongly condemned by many influential members of his party, and not without some show of reason. The nomination to these new offices presented, The next head is devoted to the comto use the words of the Quarterly, a fine pensation clauses, inserted in the Chan-opening for partizan rewards, particularly as these Local Commissioners are chiefly resident cery Regulation Act, under which the new in the newly created boroughs, and are the Masters, including Mr. William Brougham, | kind of men who have the most hold over the are to obtain compensation for the reduction in the emoluments of their offices. d Sec ante, p. 18. 107. constituency.' Now it seems that our venerable Judges are for the most part more deeply imbued with the tenets of the Tories than with those of their adversaries, and the A Defence of the Lord Chancellor.-Law of Debtor and Creditor. · As to Judgment Debts: 195 The Commissioners for the execution of result of this scrupulous non-interference of clauses which have been added by the Lord Brougham has been, that nine-tenths of Committee. these gentlemen having the most hold over the 10. constituency,' who have been appointed Country Commissioners of Bankrupts, are violent opponents of the present government. But I have nothing to do with politics; my sole aim is to vindicate those legal reforms of the Chancellor, which the critic has so violently and so unfairly assailed." The author of the "Refutation" then discusses the mode in which the Chancellor has exercised his patronage, including the appointment of Mr. Adam to the Accountant Generalship, which he asserts was repeatedly tendered to Mr Abercromby. Some less important subjects are next disposed of, and the Pamphleteer (secundus) then adverts to " the Arrears in the Lord Chancellor's Court." It is stated that there were on the 14th of December last sixty-three appeals inserted in the Lord Chancellor's paper for hearing, of which none appears to have been set down more than eighteen months, and ten have been entered since the commencement of the present Sittings; and that on Lord Brougham's taking his seat on the Chancery Bench there were 103, of which many had been set down two years and a half. The author concludes by advocating the separation of the judicial from the political functions of the Chancellor; and declares that his opinion on the subject is known to many. (p. 112). We have now endeavoured to give an impartial account of this part of the controversy, and regret only that our space has not allowed us to insert some extracts, which we had marked for the purpose. the act are to be empowered to assign the defendant's property to a trustee for the payment of the judgment debt. Clause A. The trustee is to dispose of the property in discharge of the plaintiff's judgment, and to pay over the surplus, if any, to the defendant. Clause B. The property assigned to the trustee, in case of death, removal, or resignation, is to vest in his successor. Clause C. As to Petitioning Debtors: The person appointed by the Commissioner to be empowered to break open petitioning debtor's house, shop, &c. and seize property. Clause D. Commissioners for executing the Act: The Commissioners of Bankrupt are to be Commissioners for executing the act in the districts for which such Commissioners are appointed, and any two of them are to constitute a Court for hearing and determining all matters under the act. Clause E. Abolishing Arrest: Prisoners in custody on mesne process to be entitled to their discharge, subject to the provisions of the act as to arrest for fraud. Clause F. Prisoners in custody in execution on judgments to be also entitled to their discharge, subject to the other provisions of the act. Clause G. But prisoners charged in execution are not to be discharged from the debt or ALTERATIONS IN THE LAW OF damages, but such debtor and his property DEBTOR AND CREDITOR, AND ABOLISHING IMPRISONMENT FOR DEBT. A reprint has just been made of the Solicitor-General's Bill, as amended in the Committee of the House of Commons, for facilitating the Recovery of Debts, the Prevention of Frauds by Debtors, the Relief of Debtors willing to make Cession 'of their Property for the Payment of their Debts, and abolishing Imprisonment for Debt, except in Cases of Fraud." a This is giving note of preparation" for the approaching Session; and we proceed to lay before our readers the substance of the new a See the former Bill, vol. 6, p. 148. are to be liable to the proceedings provided by the act. Clause H. The Judges of the Superior Courts of Common Law are authorized to make rules and regulations of the Courts for carrying. the act into execution. Clause I. PAROCHIAL REGISTRATION. HISTORY AND PRESENT STATE OF THE LAW. OUR readers are aware that a Select Committee was appointed by the House of Commons, on the motion of Mr. Wilks, to consider and report on the general state of parochial registries and the laws relating to them, and on a general | the subject; but in 1652 a law reform comregistration of births, baptisms, marriages, mittee was appointed. It included the most eminent lawyers and statesmen, and they predeaths, and burials. A Report of this Com-pared a draught of a bill, which, in 1653, was mittee has just been printed, and the import-adopted by the Parliament. That act was enance of the subject induces us to lay the sub-titled "An Act how Marriages shall be solemstance of it before our readers. We shall for the present take the first part of the Report, which comprises the history and present state of the law of parochial registration. In September 1538 (30 Henry VIII.), an inJunction was issued by Thomas Lord Cromwell, Lord Privy Seal and Vicegerent to the King. It directed a book and coffer, with two locks, to be provided in each parish, and ordered the parson, weekly, before the wardens, to write and record in the book all the weddings, christenings, and burials made the week before, and subjected him for neglect to a fine of 3s. 4d., to be employed in the repairs of the church. In 1547 a similar injunction was issued by Edward VI., only directing the penalty to be employed towards the poor man's box of the parish. In 1559 (1 Elizabeth) a nearly similar injunction was issued, only that the penalty was directed to be equally divided between the poor-box and the repair of the church. In 1562-3 Parliament first interfered. Then a bill was introduced into the House of Commons, and read, "To erect an office of registership, to be kept in every diocess;" but, through the interposition of the clergy, did not eventually pass. In 1590 Lord Treasurer Burghley perceived the importance of an office for a general register of all the christenings, marriages, and burials, within England and Wales. Among the objects and advantages of the establishment, he enumerated" that there should be yearly delivered a summary of the whole, whereby it should appear how many christenings, weddings, and burials were every year within England and Wales, and every county particularly by itself, and how many men-children and women-children were born in either of them, severally set down by themselves." He accordingly recommended the measure to the Queen, and propounded it to the Archbishop of Canterbury, by whom its progress appears to have been estopped. for Births and Burials." It first introduced nized and registered, and also for a Register the registers, not of baptisms, but of births. It treated marriage as a civil contract, to be solemnized before a justice of the peace. It directed that for the entry of all marriages, and "of all births of children, and burials of all sorts of people, within every parish," the inhabitants of every parish chargeable to the poor should choose" an able and honest person, to be called the Parish Register," sworn before and approved by a neighbouring magistrate. This officer, it provided, should have the keeping of the register book for three years, and longer, unless removed by the parish; and that he should be paid 12d. for every entry of marriage, and 4d. for every entry of birth and of death. it also enacted, that small parishes, or places not within any parish, might be united or added to other parishes by the justices at their general sessions, and that they should then be accounted one parish as to the matters only of the act; and that for such parishes and places so united one register should serve; and also provided, that all subsisting register-books should be delivered, to be kept as records by the registers appointed under that act. Until after the Restoration, the provisions of this act were found perfectly practicable, and were carried into useful effect; and in very many parishes, notwithstanding all the prejudices against the measure, the books continue to be fairly preserved. In the reign of William III. several acts were passed to enforce, not a registry of baptisms but of births, and also of marriages and burials, as a source of revenue to the state; for by an act 6 & 7 W. 3, c. 6 (1694), an act granting his Majesty certain rates and duties on marriages, births, and burials, the clergy were compelled, under a penalty of 1007. for neglect, to take an exact and true account, and keep a register of all persons married, buried, christened, or born in their respective parishes, and the collectors, and all persons concerned, were to have free access to them without fee or reIn 1597 (39 Elizabeth) a constitution was ward. Under this act, it will be perceived made by the archbishop, bishops, and clergy of that the clergy were compelled to act gratuithe province of Canterbury, and approved by tously, as civil officers, and to collect inforthe Queen, declaring the importance and uti-mation of the births of all children born within lity of parochial registers (quorum permagnus usus est), and enjoining their more careful preservation, directing a copy to be sent yearly within a month after Easter to the register of each diocess, to be received without fee, and faithfully kept; and threatening punishment to all by whom the precept was infringed. In 1603 (I James 1) another and somewhat similar mandate was issued, and endeavoured to insure accuracy in the entries, and their careful preservation. During the civil commotions in the reign of Charles I, no special attention was directed to their parishes, to whatever religious denomination the parents might belong, and quite irrespective of any baptismal right performed by them, or by any ininisters dissenting from their church. This duty having been found too onerous, and information as to births being unattainable by clergymen, since the parents by concealment eluded payment of the tax, the act 7 & 8 W 3. c. 35, (1695) provided that the parents of every child should, within five days after birth, give notice to the clergyman of the day of the birth of such child, under a penalty of 40s.; and the clergyman should, under à Parochial Registration.—Commentaries on the New Chancery Orders. like penalty, take an account of and keep a distinct register of every child born and not christened, for doing which the parents were to pay 6d. to him. Ultimately this tax was discontinued; but in 1783 (23 G. 3. c. 67) a stamp duty of 3d. was imposed on every entry of burials, marriages, births, or christenings, to be demanded by each clergyman from the undertaker or parties married, or the parents of a child whose birth or christening was registered: and by the 25 G. 3. c. 75, the act was extended to dissenting ministers, whose registrations of births or baptisms or burials were so recognized by law. In 1794, however, this act was also repealed, and at present the parochial registries for baptisms and burials are regulated by the act 52 G. 3. c. 146, passed in 1812, and commonly called Sir George Rose's Act. 197 (Sec. 18.) One half the penalties levied under the act to go to the informer, and the remainder either to the poor of the parish or to such charitable purposes as the Bishops direct. (Sec. 19.) List of all extant register-books to be transmitted by officiating minister before the Ist of June, 1813, to diocesan registrar. And (Sec. 20) the provisions to extend to cathedrals and collegiate churches, and to extraparochial chapels. On this extraordinary statute the whole system of parochial registration at present depends: and that it is extraordinary will appear, if reference be made to the title, which includes a register of births, for which no provision was framed, and which cannot legally be kept; to the clauses directing the labours of receiving and arranging and indexing all the copies of registers, and making reports to the bishops by the diocesan registrars, for which no compensation is awarded; and to the clause for appropriating penalties which are not imposed, and of which the only one directed is transportation, which no informer | would desire to share, nor any charity to partake. This act is entitled, "An Act for better regulating and preserving Parish and other Registers of Births, Baptisms, Marriages, and Burials in England." "It directs (sec. 1), officiating ministers to keep registers of public and private baptisms, of inarriages, and of burials. (Sec. 2.) King's printer to transmit to each parish a printed copy and register books, Connected with the statute law, are cases adapted to forms prescribed. (Sec. 3.) Regis- which should not be unknown. Those cases ters to be kept in separate books, and signed have decided-1st, that entries of births made within seven days after each ceremony was by clergymen, on the representation of parents, performed. (Sec. 4.) Certain forms to be ob- in registers of baptisms, are not evidence of served where the ceremony was not performed birth, and that, as evidence, the entries cannot in the parochial church or church-yard. (Sec. be read; 2d, that entries in register-books oc5.) Register books to be kept by officiating casionally made up from memoranda and from minister in an iron chest, provided at the pa- day or rough books, used in many parishes, rochial expense, and whence they may not be cannot be received in evidence; and 3d, that removed. (Sec. 6.) Annual copies to be while copies from parish registers may be evimade, and by the officiating minister verified dence without the production of the originals, and signed, and by the churchwardens attested. as the books are in the nature of public docu(Sec. 7.) Such copies to be yearly transmitted ments and records, yet copies of Dissenters' to the registrars of each diocese by the church-registers of birth or baptism are not evidence, wardens, by post. (Sec. 8.) Diocesan regis- and that their registers of burials are no evitrars to report to the Bishops yearly thereon. dence of deaths. (Sect. 9.) In case of neglect by officiating minister to verify and sign, churchwardens to certify his default. (Sec. 10.) Where there are no churches, a memorandum of each baptism and burial to be delivered to the officiating minister of an adjoining parish. (Sec. 11.) Letters containing annual copies to go by the post, and free from postage. (Sec. 12.) Annual copies transmitted to registrars to be safely deposited and secured from damage or destruction by fire, and carefully arranged for reference; and the registrars to cause alphabetical lists of all persons and places to be made, and kept, and to be open for search. (Sec. 13.) A report to be made before the 1st March, 1813, to the Privy Council, of the state of every place where copies of parochial registers and wills are preserved, and their protection from damp and safety from fire. (Sec. 14.) Persons making false entries or wilfully defacing or destroying register books, to be guilty of felony, and transported for fourteen years. (Sec. 15.) But punishment not to attach for accidental errors. (Sec. 16.) Accustomed fees to continue. (Sec. 17.) Annual copies not to be subject to any stamp duty. Such being the present state of the law, it was evidently full time, amongst other reforms (many of them of but little pressing or general importance), that the Legislature should turn their attention to a subject which concerns, more or less, all classes of society, and on which a material branch of the due administration of justice depends. We shall advert to the other parts of the Report at the first opportunity. A PRACTITIONER'S To the Editor of the Legal Observer. You kindly imparted to me a portion of your sphere of Observation," on the No |