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Crown, if really there was any deep scheme of making the Commons a mere instrument for increasing regal influence under the mask of preventing an unconstitutional mode of administering appellate justice.
“ There are no subsequent occurrences with respect to the question of the jurisdiction of the House of Peers, which it is necessary to notice in this short narration. The parliamentary judicature rests nearly on the same basis as it did in the reign of Charles II. (9) The Lords had claimed an original jurisdiction in civil suits and an appellate jurisdiction over all courts and all causes; and had insisted that their judicative power was primitive and inherent in the peerage by the Constitution ; and that they had authority, as the court of last resort, to exercise parliamentary judicature singly and solely, and without the concurrence or authority of the King or Commons. The claim of original jurisdiction has been abandoned, and the right to judge appeals from the ecclesiastical and maritime courts and in prize causes, and from the colonies, (r) has been in like manner, relinquished by the Lords, although they have, with singular inconsistency, retained the jurisdiction cver appeals from Courts of Equity." (s)
The length of the preceding quotation prevents us from pursuing the subject of the appellate jurisdiction of the House of Lords through the whole chain of expedients which have, from time to time, been resorted to, for the purpose of concealing the defects, and patching up rather than expediting the operations of this most miserable piece of machinery,--the greater part of which are fresh in the recollection of all who have paid any attention to our judicial proceedings. We are by the same means precluded from entering into the consideration of another branch of appellate jurisdiction, hardly less preposterous than the former, that exercised by the Privy Council in colonial cases; and we the less
(1) The exercise of appellate jurisdiction by the Lords seems, however, to have been questioned by some as late as the reign of William and Mary. The following passage is taken from an Essay on Popular Discontents, written by Sir William Temple, probably about the year 1690 :-“ I have not heard any part of our ancient constitutions so much complained of, as the judicature of the House of Lords, as it is of late and usually exercised ; which, if carried on a little farther, and taken notice of by the Hcuse of Commons, as much as it seems to be resented by many of their members, may, for aught I know, at one time or other, occasion à breach between the two Houses : an accident that would be, at all times, pernicious, but might in some conjunctures prove fatal to the public affairs and interests of the kingdom.'
Sir William Temple's Works, vol. iii. p. 42. (Note by Mr. Cooper.) (s) It s been well observed, that it is impossible to found the original exercise of appellate jurisdiction by the Privy Council upon any principle consistent with the con. stitution, except that of a commissionary delegation of the Crown, which is the essence of the appellate jurisdiction of the Lords over the Common Law Courts under writs of error ; althought it is true, that such delegation of royal authority to the Privy Council took place in a manner less solemn than by a writ of error. (Note by Mr. Cooper.)
(s) Another inconsistency in the conduct of the Lords will not fail to strike the reader ; that claiming, as they did, the right of appellate jurisdiction, as inherent in the Peerage by the constitution, they, nevertheless, declined to exercise appellate jurisdiction over the Common Law Courts, except under the authority of writs of error. (Vote by Mr. Cooper.)
regret the want of space which deprives us of the opportunity of at present giving it all the attention which it deserves, because it formed so striking a feature of Mr. Brougham's recent speech on Law Reform, and because the exposure of its absurdity was met by almost an assurance on the part of government that it shall be made the subject of inquiry with a view to amendment.
But, in giving Mr. Cooper all the credit that we think due to his fearless censure of existing abuses and imperfections, we cannot avoid contrasting his services in this respect with what we conceive to be the great inadequacy and inefficiency of the plan which he recommends, as calculated to afford a complete and permanent remedy. For the attainment of this great object he, in the first place, proposes an additional Judge (t) in Equity, to sit simultaneously with the Master of the Rolls and ViceChancellor, every day from ten to four ;—the paper of causes to be called over at the commencement of every Term-sittings, and distributed between the three Courts in a numerical equality of proportion; the three Judges only to have the power of apportionment, and to meet regularly for that purpose ; every cause to be heard throughout, in all its stages, by the same judge to whom it is first' allotted ;-no appeal from either but to a court of dernier resort, in which the Lord Chancellor is himself to preside as the supreme judge of appeal, divested of all original jurisdiction, but retaining his political station, together with the high duties of the Woolsack, and all other privileges and burthens attached to his present character except the jurisdiction in bankruptcy, which Mr. Cooper proposes to separate altogether from the Great Seal, and to model upon some such plan as is proposed (he says) by Mr. Montagu, though we do not ourselves remember, amidst the great diversity of that learned gentleman's suggestions, that he has ever intimated such a separation to be advisable, any more than that he now considers,
(t) The proposal for the Master of the Rolls to sit regularly every morning, instead of his present inconvenient and interrupted evening sittings, almost necessarily implies an alteration in the system of hearing appeals before the Privy Council—a reason which only renders it the more advisable. It would, no doubt, impose some additional burthen on that judge, even after every allowance for the relief of his attendance being vo longer required at the cock-pit. But this increase in respect of official duties would, we are well assured, be never regarded by any individual holding the office in the light of an obstacle ; and least of all by the eminent and laborious judge who now fills it, and who, in his memorable speech on the Vice-Chancellor's bill (Feb. 13, 1813), very properly appended by Mr. Cooper to his present volume, expressly says, with reference to this very proposal-(Sir William Grant, it is to be remembered, then held the office), that “ with respect to the compensation which this additional labour would demand, there could be but one feeling and he (Mr. Leach) was confident that, if encroachment on the ease of that extraordinary and excellent person would be productive of public benefit, he would feel that to be an ample compensation.”
whatever ideas he may have once entertained on that subject, that it would be expedient to abolish the commissioners.
On this great subject of Bankruptcy, we have no room to dilate at present; nor are we disposed to offer any other remark than that the establishment of permanent district courts would offer great facilities for an improved system of administration in that branch of the law. It is obvious, also, that the legislature has but to determine on abolishing the sinecure office of patentee, and giving the Lord Chancellor an additional salary in substitution for his fees on commissions, in order to effect a considerable reduction of expence in the system. But when Mr. Cooper, and other gentlemen who, like him, never (as he says) condescended to hold a brief before the Court of Commissioners, think proper to speak contemptuously of the practical merits of a system with which (by their own confession) they are not practically conversant, we must take the liberty of saying that their censures are, upon their own showing, of little actual value. They have still to be taught, that the proceedings before commissioners, defective in many particulars as the system may be, possess the great recommendation of cheapness and dispatch, unparalleled, perhaps, in any other of our judicial establishments; and that, though many of the present commissioners have expressed an opinion, in which probably all join, that the system admits of improvement, yet others may, without any impeachment either of their sense or honesty, assert that which is really commendable in its institution.(u)
(u) One of the most frequent and popular grounds of censure of the proceedings before the Court of Commissioners is the multiplication of meetings appointed to be beld, by the same list, at the same hour; a practice which, though in some measure restrained by a regulation of Lord Eldon's (never attempted, however, to be enforced by way of general order), is affirmed to be still subsisting, and to be productive of great inconvenience, irregularity, and injustice. Now, that occasional inconvenience occurs under the present system, it would be as absurd to dispute as that it may and will also occur under any possible modification of the system ; but that the practice (which is after all by no means so prevalent as the censors allege) operates any serious injustice, we, to the extent of our experience and information, confidently deny ; and, always supposing certain reasonable limits (which we believe ought to be left to the discretion of the Commissioners), the practice itself is by no means so indefensible as its impugners would have us imagine. The public meetings appointed to take place in bankruptcy are of the following different descriptions :-the first, which is for the proving of debts only; the second, for the choice of assignees ; the third, for what is called the bankrupt's last examination (his having passed which examination is necessary to his obtaining his certificate), to which is added (by the new act) the audit of the assignees' accounts; and, lastly, those fixed for the declaration of dividends, each of which may, and regularly ought, in like manner to be preceded by audits. It should be added, that, at each of these public meetings, creditors may come in and prove, although the first only is prescribed for that single purpose. Now, although it is impossible previously to ascertain what matters of importance may arise for discussion upon any one of these public occasions, yet experience teaches that upon the occasion
Mr. Cooper is very wroth against a certain writer in the Foreign Quarterly Review, who, not content with questioning the grounds on which, in a former publication, now acknowledged by him, entitled “Lettres sur la Chancellerie," &c. he declared himself “ Anti-Tribonien," proceeds to attack him on a point to which he is evidently far more sensitive—the correctness of his French idiom ; and we must say that, in point of taste, we think the critic extremely reprehensible on the latter score; since, as to the great political question of law reform, with which alone the reviewer has to deal, it matters not a rush whether Mr. Cooper's French is that of a Parisian or of a Londoner, so long as he has contrived to make himself intelligible; and, as to his disguising his English thoughts in a foreign idiom, we really think the amusement perfectly harmless, and one in which Mr. Cooper had every right on earth to indulge to the full extent of his fancy.
of what are called first meetings, as well as of the audits and declaring of dividends, there is comparatively little business to claim the undivided attention of one, much less to require the actual interference of the whole quorum, of the Commissioners. On the other hand, occasions of disputes may occur, and those of a nature impossible to be foreseen, in which not only the entire attention of all the three is to be solicited, but in which the limits of a single hour are insufficient for its adjustment. The question then is, whether, allowing three hours for the duration of the Court's sitting, it is not more for the interest of the public that nine different meetings should be appointed to take place all at the same—that is, at the earliest hour, by which means opportunity is given for the Commissioners more effectually to apportion their time and attention according to the importance of the subject before them, than, by fixing three for the first hour, three for the second, and three for the third, to subject them to the risk of having little or nothing to occupy their attention during two thirds of the day, while into the remaining third is crammed perhaps far more business than it is possible for them properly to discharge; and thus dilatory and expensive adjournments are rendered unvoid. able. But it may very easily happen that out of all the nine meetings together not a single question will arise of sufficient importance to claim the attention of the assenbled Commissioners, or even of any one of them, for more than the space of a very few minutes, and that the whole business for which three hours are provisionally assigned may be conveniently, fully, and satisfactorily dispatched in one, or in one and a half at the utmost. Is such a saving of time to be denied either to the Commissioners or to the parties interested? If so, why, and on what conceivable principle of public utility is it to be prohibited them more than in the case of any other judicial institution, where, if the business appointed for the day happens to be got through in an hour, the Court is freely allowed the benefit of its promptitude? This appears to us to be a sufficient argument against enforcing too rigid a compliance with the regulation prescribing three meetings only to be fixed for a single hour. That the Court may be sometimes inconveniently crowded in consequence of a plurality of meetings beyond the limited number, is no more than takes place occasionally in all courts of justice. The Commissioners, either by themselves or through their messenger, ought to have sufficient authority so to regulate the priority of claims to be heard, as to occasion the least possible annoyance either to themselves or to those in attendance; and a practice which, we are convinced, is far more justly chargeable with the evils coinplained of than that to which we have now adverted, we mean (pace tanti viri as Mr. Montagu be it spoken) that of Commissioners acting as advocates in the Court of which they are the constituted judges, ought to be, nt length, peremptorily prohibited. If any one defect more than another calls for abolition, and that not only in the Court of Commis. sioners, it is the vice of talking.
On the other and more material head of censure, while we quite agree with Mr. Cooper in thinking, as he phrases it, that “i de mauvaises lois bien administrées sont préférables à de bonnes lorsquelles le sont mal,” we cannot, at the same time, help being of opinion, that good laws well administered are still to be preferred before either; and that one step, at least, to the possession of good laws is to acquire some knowledge of the laws really existing. Under this persuasion, vague and utopian as it may be thought, we must confess that a lex scripta is somewhat better, especially for a nation pretending to a certain degree of refinement and civilization, than a lex non scripta, as more likely to be understood by the governed, and less liable to have its use perverted by the forced constructions or subtle distinctions of those whose duty it is to administer it. (x)
“ There is only one way,” observes Bentham, “ in which censure, cast upon the laws, has a greater tendency to do harm than good; and that is when it sets itself to contest their validity ; I mean, when, abandoning the question of expediency, it sets itself to contest the right. But this is an attack to which oldestablished laws are not so liable," &c. And he adds," I speak of what are called written laws; for as to unwritten institutions, as there is no such thing as any certain symbol by which their
(x) There is much good sense in the following observations :
“The charge made by Mr. Sugden the other day on the judges, of being the promoters of litigation, by encouraging ingenious and far-fetched constructions of wills, contracts, and other written instruments, instead of adhering to the plain and obvious meaning of words, comes with great weight from a professional man of his ability and experienee. There can he no doubt that the English courts of law are too much in the habit of favouring quirks and subtleties at the expense of common sense. This is a practice which costs individuals and the public very dear. It seems as if, in the interpretation of documents, they took a pride in departing from the vulgar and ordinary meaning of language; as if it were worthy of the judicial power to obtain the fame of being ingenious rather than deserve the reputation of being just. It is not difficult to be accounted for why members of the bar should endeavour to twist the meaning of words as may suit their purpose, and substitute refined absurdity for plain sense. To make the language of written instruments doubtful-to render the most ordinary terms capable of an abstruse meaning—is a fruitful source of litigation. It is the cause of endless disputes respecting the titles of property, and makes it necessary, on all occasions, to call in the lawyers to solve the riddles of the law. Thus it is the interest of the members of the profession so to interpret documents as to make the rule of interpretation as uncertain as possible, and to make their own recondite notions of more importance than the obvious intention of the parties; but we cannot as readily perceive that it is the interest of the judges to countenance the practice. It is probably the habit of the bar, which too often accompanies them to the bench. But, as judges are placed where they are, not to obtain the reputation of being subtle advocates, but to serve the country in the capacity of just and sound administrators of the law, the more they regulate their legal acumen by the dictates of common sense, the better for the interests of justice and their own character. It would be of little advantage to the public to have a reform in the letter of our laws, if their spirit should be obscured by an ingenuity of construction that delights in perverting the signification of words.” Morning Herald, April 1828.