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mised that the effect will be that these two will for a great part of the year have to perform all the appeal business usually done. by the Lord Chancellor, although the Bill affects carefully to provide that either of these new judges sitting with the Lord Chancellor, or the Lord Chancellor sitting alone, may hear any such appeals.1 So long as the Lord Chancellor has all the other multifarious, onerous duties of his office to perform, he will be compelled, at all events from January to August, or during three-fourths of the judicial year, to avail himself of every legal means of relief. In order conscientiously to discharge those functions which he alone can discharge, he must abstain from taking up any business for which the legislature has already provided a substitute. We think that the decisions of the new Court of Chancery, two judges sitting as contemplated, will be no whit superior in weight, in consistence, or in expedition. The multiplication of judges by no means multiplies the authority of the decision, even if unanimous. The decisions of the Court of Queen's Bench, of Common Pleas, or Exchequer sitting in Banco are not, even when unanimous, of higher authority than those of the Lord Chancellor sitting alone. And introducing a plurality of judges introduces also the possibility of a division. in opinion. If the judges of the proposed court of appeal be equally divided in opinion, it is provided that the decree, &c. appealed from shall be affirmed; but it is unnecessary to point out how much more encouragement there is under such circumstances for prosecuting a further appeal to the House of Lords, than if the first appeal, thus dubiously affirmed, had never taken place at all. Neither is a tribunal with many judges more rapid in its decisions than a tribunal which consists but of one single judge. The responsibility thrown upon a single judge may, it is true, in many cases, and especially while
It shall be lawful for her majesty from time to time, by letters-patent under the Great Seal of the United Kingdom, to appoint two persons, being or having been respectively barristers-at-law of fifteen years' standing, to be and be styled Judges of the Court of Appeal in Chancery; and the Lord Chancellor, together with such two judges for the time being appointed as aforesaid, shall form the Court of Appeal in Chancery (s. 1).
All the jurisdiction, powers and authorities of the said Court of Appeal may be exercised either by one only of the judges for the time being appointed under this act and the Lord Chancellor sitting together as such Court of Appeal, or by both of the judges so appointed sitting as such court apart from the Lord Chancellor, either in his absence from the said Court of Chancery or during the same time as he is sitting in such court: provided always, that the Lord Chancellor shall and may also while sitting alone or apart from such two judges have and exercise the like jurisdiction, powers and authorities, as well as all such other jurisdiction, powers and authorities as might have been exercised by the Lord Chancellor if this act had not been passed (s. 10).
the judge is yet new to the bench, induce delay by the anxiety of deliberation. But the habit of exercising such a responsibility continually, augments the self-reliance and readiness of the judge; so that in general a judge is rapid in proportion to his experience. And judgment, sometimes reserved, is in many instances given immediately after the reply. On the other hand, where many judges have to give the decision, it is almost in every case necessary that they should consult, if they agree to ascertain whether the agreement proceeds upon like grounds,—if they differ, to ascertain whether consultation may not remove the disagreement.2
In our view then, the proposed alteration is no great improvement. The decisions of the new court will not be more rapid (probably not so rapid), will not command more respect, and will tend more to encourage appeals to the House of Lords than the decisions of the Lord Chancellor sitting alone as heretofore. There is, indeed, one very important advantage which this court will have, in being enabled to hold its sittings from day to day during the whole year; and having thus a great deal more time at its disposal than the Lord Chancellor has under the existing arrangement, it may be expected, although working somewhat slower than the Lord Chancellor, to get through a great deal more work in the course of the year. And it is also but fair to admit that a very numerous and respectable party of law reformers are in favour of having a plurality of judges even in the intermediate Court of Appeal in Chancery. But while some may prefer a single judge for these appeals, and others may think a court of four judges not too numerous, all will allow that a court of two judges sitting from day to day throughout the year is much better than no court at all, or a court sitting only twice or thrice a week, as is the case at present.
The effect of the proposed measure upon the next order of courts, however, viz., those of the Vice-Chancellors' and Master
1 Even Lord Eldon, with all his habits of procrastination, which endured to the very close of his life, is scarcely an exception to the rule above laid down. Lord Brougham in 1826, P. D. 18th May, expressed in very eulogistic terms, the almost intuitive facility with which "his extraordinary subtle and nimble fancy could bring his faculties, which were great, at the smallest period of time to bear on the largest and most difficult questions. The Lord Chancellor
made up his mind soon, but the infirmity under which he laboured led him into those subtle speculations which so long held back his opinions. He could see through the greatest difficulties at a glance. But of what avail was it to the suitors of his court that he made up his mind quickly? It was no benefit to them, as he would not express it."
2 These observations apply merely to a Court, like the Lord Chancellor's, of intermediate appeal. The court of ultimate appeal ought certainly to consist of several members.
of the Rolls, is wholly beneficial. The state of matters at this period last year must be fresh in the minds of our readers, when Sir J. Knight Bruce was the whole effective Court of Chancery, and Lord Brougham was the whole effective House of Lords. In order to prevent the recurrence of any such confusion from a similar coincidence of sickness among our equity judges, the present measure provides, that in case the court of the Master of the Rolls, or any Vice-Chancellor, shall be closed by illness or otherwise, the Lord Chancellor may authorize one of the judges of the said court of appeal to sit in lieu of the Master of the Rolls or such Vice-Chancellor, and the judge sitting under such authority may, for the purpose of disposing of any cause or matter which has been partly heard by him, continue such his sittings, notwithstanding the Master of the Rolls or ViceChancellor, in whose stead he has partly heard such cause or matter, may also be sitting for the hearing of other causes or matters (s. 13). This is a very judicious provision, since experience has shown us how it is very possible that occasion may arise when it may be required; and by preserving a familiarity with judicial proceedings in the superior courts, these judges will preserve themselves from that stiffness which might mar their utility if they were reserved entirely for the more solemn duties of appeal practice.
If it were but for this single provision, therefore, we think the present measure worthy of support. But it might have been very beneficially extended to meet other obvious cases. An accumulation of causes, &c., may easily arise before the Master of the Rolls, or one of the Vice-Chancellors, notwithstanding these judges continue in full health and activity. Such an accumulation has in fact already taken place more than once, and has generally been cleared away by removing a certain number of the causes, &c. set down before the overburthened judge, and placing them on the cause list of some other judge whose list was not so full. But this may not always be convenient: one judge may be overburthened, when the others have all as much as they can do. It would have been a simple matter to have extended the provisions of the 13th section already quoted, by giving the Lord Chancellor authority in such a juncture to appoint one of the additional judges of the said court of appeal to sit and hear some of the accumulations in the same manner as the judge before whom they are set down.
We hope that now, when the Court of Chancery will not necessarily follow the person of the Lord Chancellor, that other petty nuisance (which operates, however, as a great and continual obstruction to business), viz., the sittings of the Court of Chan
cery at Westminster, even during the terms which fall within the sessions of parliament, will be abandoned. It is destructive of the time both of counsel and solicitors, and tells most against those who have most to do, i. e., against those whose time is of the greatest value to the public, that during those terms all court business should be transacted a mile and a half from their chambers and from the Masters' offices. While the Lord Chancellor was sitting now in Chancery, now in the House of Lords, there was some ground for argument in favour of this state of things. It has been abandoned as to those terms which do not fall within the period when parliament is usually sitting; which shows that the inconvenience to the suitors is only retained out of respect and necessary attention to the double avocations of the Chancellor. But now that the Lord Chancellor may be expected rarely to sit in Chancery during those two terms, it is to be hoped that the wandering propensities of the court may be checked, and that it may take up its permanent residence in the old hall of Lincoln's Inn.
On the whole, we are disposed to take the same view of this measure as was taken by Lord Brougham in the House of Lords, in a speech, which we regret to perceive, from the concluding observations, to be the last from his lips, at least for a time, in that place. We do not mean the view in his opening observations, where he seemed to give his unqualified approbation, but rather the view he took when, in the course of his speech, he had recalled the melancholy shortcomings of this measure beneath the magnificent promise in the queen's speech at the opening of parliament; when, with his own peculiar force of expression, he described this measure as a step,—not a long step, not a stride,—but still a step in the right direction; and when his lordship emphatically warned the House, lest any dreamer should for one moment imagine that this or any other structural alteration of the Court of Chancery could for an instant maintain the character of such a total reform as was necessary. We can only add the expression of our sincerest wishes, that his lordship may recover sufficient strength,energy and intellectual vigour beyond his we do not ask,-but sufficiently bodily strength to see and take that prominent part which he alone is worthy to take in the glory of a reconstruction of the whole system worthy of himself and of the intellectual. advancement of the age.
ART. VIII.-COMMON LAW REFORM.
Copy of the First Report of Her Majesty's Commissioners for inquiring into the
Law, &c. Presented to both Houses of Parliament by command of Her
Letter to Lord Campbell, Lord Chief Justice of England, on Reforms in the
THE Commissioners who were entrusted last year with the duty of inquiring into the procedure of the Superior Courts of Common Law have presented to the Crown the first instalment of their investigations. This Report bears date the 30th of June, 1851, being somewhat more than a twelvemonth from the time when the commission issued; and considering the extent of their labours, and the various opinions between which they have had to decide, we cannot say that the interval which has elapsed has been too great, especially when we consider that those engaged in the compilation of the Report have been closely occupied during a great portion of the year with the business of their profession. This may be looked upon as the first positive step taken at the present juncture by those connected with the administration of the law, to reform their own system; the first effort towards internal reconstruction; and we therefore feel that its appearance should receive notice in a Magazine dedicated peculiarly to legal subjects. The very brief period prior to our own quarterly publication, during which this Report has been in our hands, obliges us to confine our remarks upon it to narrower limits than we should have otherwise wished. Its contents will, we may venture to say, be well worth the careful perusal of all who are interested in the maintenance or establishment of a sound system of legal procedure. Various opinions may be, and we know are, entertained upon the extent of alteration which is required. While some persons conceive that the existing method of raising questions for the determination of a jury or a court should be entirely abolished, others incline strongly to the maintenance in its integrity of a system which has been in operation for so long a period. Our own opinion is that neither of these extreme views should be adopted. A judicious lopping away of idle and mischievous forms, combined with a prudent preservation of those parts which are founded in sound reason, appears to us to be the most proper course. Our present object is to direct attention to the leading contents of this Report, pointing out those instances