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the body to a smaller number, permanently sitting, and armed with more authority as members of a court; taking good heed, however, not to increase expence, and defeat justice, by requiring or encouraging too strict forms of proceeding, so as to convert what is primarily an instrument for the amicable division of assets into an arena for litigation. It was also good to abolish the huge patent places connected with this or any other department of the Law; and to make every practicable reduction in the expence and machinery of practice. It might have been afterwards considered whether a separate judge of weight and experience should or should not be assigned to transact the judicial business, instead of committing it to the Vice Chancellor. But all that really goes to the redress of the prominent mischiefs, is perfectly distinct from the creation of four judges, ten registrars, and thirty official assignees; at a cost absorbing all the gain derivable from the other reductions.
As to these four judges, the wonder is, what they can find to do. And why should there be four ?--four second or third-rate judges instead of one good one (if one was necessary), on the principle apparently of four black rabbits making one black horse! It was said that they were a Court of Review; a Court of Appeal: and that courts of appeal should have more than one judge. I think so too, and that nothing is more wanted than a real bench of appeal from the equity courts, which might include the real appeals in bankruptcy. But the word is here a misnomer; the judge in bankruptcy has not one case in ten which is a case of appeal. His is an original jurisdiction : and for most of their business, therefore, the new judges will be a primary court, with appeal to the very tribunal deprecated; namely, to one judge, the Lord Chancellor. At this moment the state of business in the Court of Chancery renders any precipitate plan of removal of part of its burthen less necessary than ever; and one is surprised to see a project for relieving it of a few weeks' work in the year by the creation of four judges, patronized by the very parties who exclaimed loudest against Lord Lyndhurst's project of one additional judge to share all the work. A large proportion of the bankrupt petitions, moreover, are either matters almost of course, or of so easy a character, that one judge of the most ordinary capacity can readily dispatch them.
And why, it may be asked, should this vast machine have been created (the second now in operation in the metropolis alone, for we have an “ Insolvent Court,” which ought to be at work on the same matter), for the administration of only a portion of one department of the insolvent law of this country—that branch of the law which requires more consideration than any other, and which must soon receive it? In fact, it appears that the Common Law Commissioners were, at the very moment, considering the whole system, and endeavouring to mould a cheaper, more equal, and just plan, of rendering debtors' estates available.
The second session of the present parliament commenced in November, and, as yet, all that has been announced is the “Real Property” budget of the two preceding sessions. The opposition to the registration bill clearly gains ground, as I expected it would; and I fear that its promoters will find that in trying to administer too strong food, they have lost opportunities for carrying less ambitious measures. Mr. Campbell's tactics have not improved his chance of success. He has been much too fond of attributing unworthy motives to all practitioners who differ from him, when a little inquiry would have shown that none have been more active in other plans of reform by which they will lose much more. The administration, who have so long had before them the report on which this measure is founded, have not yet declared their views on the subject. The bill may probably reach a select committee and there we shall witness one of the anomalies of British legislation.' Committees sit in the morning, when lawyers have something to do which suits their interests better than to attend; and the discussion must therefore be given up to those who can know nothing about it.
We hear nothing now of any plans as to the reform of the Court of Chancery. This is rather surprising, considering that the Chancellor, and his brother (now one of the masters), must have incessantly before them some of its worst abuses. After all that has been said, the system remains precisely as it was in 1825. The judicial business of the court is, however, in a much lighter state. The Chancellor's vast energies and powers of endurance have worked through the dense mass of his paper," and the arrears are nearly all disposed of. As, even in the worst times, arrears did not materially vary in their average amount, there is no reason why (after removing the current stock of a year or two's consumption, which used to be kept in hand) the court should not regularly keep down its business as it arises, and devote more attention than has usually been afforded to doing it satisfactorily.
There is, however, clearly, no superfluous judicial force; and if a bench were to be constituted (as some think it highly desirable there should), for hearing certain classes of business, more judges might still be wanted. Accidental circumstances contribute somewhat to the present state of the business. The Lord Chancellor, like other new chancellors, began by discouraging “ motions." These used, before such a practised equity judge as Lord Eldon, to absorb great portion of his time, and often very beneficially. The present Vice Chancellor's judicial character, also, is not such as to promote this class of business in his department.
Meantime, the increased judicial despatch and the sitting of the Master of the Rolls in the morning, which renders it necessary that three registrars should be constantly all day in court, have made the delays in their offices worse than ever.
I ought, perhaps, to notice the additional difficulties which the subject of patronage throws in the way of reform, especially when that reform is conducted by the dispenser of it. If à less monopolizing system could be devised than that which entrusts it all to one individual, many practical objections to sundry reforms would be removed. New institutions require new officers. The appointment must be somewhere ; and on the one hand the reformer hesitates about increasing the overgrown influence of the political head of the law, and on the other he cannot feel satisfied at letting such distrust (which the anti-reformers take care to foster) operate to defeat obvious plans of improvement.
Thus stand the progress and prospects of legal renovation under our Whig administration. I should have observed, however, that during these parliamentary campaigns, a third report has issued from the Common Law Commissioners. It is eminently practical in its character, as being directed towards several topics which are of considerable importance, though of less ambitious pretensions than the projects of which the world hears more. When we ask why the law officers of the crown do not take care that such suggestions are properly brought at once before parliament, before they are forgotten, or before Lord Tenterden, as a legislator, or the fifteen judges, in their corporate character, have castrated them, I know that the plea will be (and a very common one it has become), that the pendency of some one great measure absorbs attention, and must excuse the neglect of everything else. This year it has been the Reform Bill-next year it will be something else. The excuse, if it be founded on truth, would only show that the legislative apparatus of this country is in a sadly deranged state. Why should attention to one matter of business incapacitate men of sense from attending to their other concerns ? or why should they not divide their labour? The truth is, that every minister rubs on as well as he can ; pushing forward what is essential to himself, or what his government has committed itself to; and getting rid of every thing else in the best way he can. He finds the House of Commons unwieldly in its number; active only under strong excitement; totally unfit for the consideration of many of the subjects before it, and yet submitting itself to no system of advice or arrangement. Laws passed under such circumstances may be good, but are more likely to be bad; and are certain to be very imperfect. Indeed, it would seem that the more showy and equivocal a project is, the more it is trumpetted forth by the press, which, after all, so little understands the subjects of its
eloquence, that almost every speech reported on these topics becomes unintelligible nonsense ;-the more confidently do some of our complacent well-meaning politicians in the house extol it as the one thing needful ;—the more vehemently do its patrons denounce all demur or opposition to it as selfish and interested.
Farewell. Give us your good wishes. You will, I know, rejoice as much as I shall do if my prognostications turn out to have been too gloomy.
Believe me, yours, &c.
J. W. D. P.S.-While closing this long letter, a fresh importation of judges' rules has reached me. They comprise more than 100 regulations for the assimilation of the present practice in the three courts, and a few minor innovations. One of the latter is directed to remedying the blunder in the last code of rules, by which, as I before observed, the evils of “Terms” was increased by the adoption of part of a plan of alleviation. The plaintiff is now to be allowed in return four days after the two issuable terms to “declare" in. By reform, therefore, he now loses only two days in these two Terms; in the others he will still lose six. The principal other innovations go to deprive a party of his costs of proving an instrument set out on the record, unless he has previously called for and been refused an admission. This is a narrow corner of one of the Commissioners' plans. No relief is provided for the old abuse of remanet fees.
I continue of opinion that this patching system is altogether ineffectual, and for the most part mischievous. If we are to consider its adoption as notice to us that the Commissioners' plans are not to be carried into effect at all; or at least that the judges have attained that conviction from duly estimating the character of the government and its law officers, the discovery is a mortifying one, and we must draw the best consolation we can from Lord Tenterden's cautious bits of legislation and the judges' tender appliances. But if there be any chance of an honest termination of the labour on which the country is still expending thousands (which are, to say the least of it, improvidently applied, if it be fixed that nothing is to come from them), then I must assert that it is childish and useless to annoy practitioners and the public by continually emitting little schemes of assimilation and regulation, in matters, most of which must be wholly recast if real good is to be done ; -schemes which “want the essential requisites of head and tail"of well arranged purpose, or final adaptation.
ART. V. -THE BARRISTER.*-No. 2.
HIS DUTY TO HIS CLIENT.
1. In considering his duty to his client, he reflects propriety of his acting ; upon the person for whom he should act; and his mode of acting.
2. He considers the principle upon which the profession of an advocate is founded. From our tendency to err, the utmost caution is requisite in the discovery of truth, both in the natural and moral world. “ If," says, Lord Bacon, “you infer that the rays of celestial bodies are hot, because the rays of the sun excite heat, remember that the rays of the moon are cola. If you infer that the blood of animals is warm, because human blood is warm, remember that the blood of fish is cold. Examine, therefore, before you decide. Try all things; weigh all things. When the different sons of Jesse were brought before Samuel in the house, he asked for David, who was absent in the field.”
If this caution ought, in general, to be observed in the discover of truth, what vigilance must be requisite when deciding upon human conduct ? Who can tell all the windings and turnings, all the hollownesses and dark corners of the mind ? It is a wilderness in which a man may wander more than forty years, and through which few have passed to the promised land. Wisdom, therefore, is always anxious to assist its own judgment by the opinions of others :' “ Lord Bacon lit his torch at every man's candle.”
Requisite as caution is, in forming a correct judgment upon human conduct in general, what difficulties attend the discovery of truth in a court of justice, amidst a conflict of passions endeavouring to mislead, and where sensibility is often least able to do justice to itself. When the general feeling of the public respecting the dilatoriness of the Chancellor D’Aguessau was respectfully communicated to him by his son, “My child," said the Chancellor,
you shall have read what I have read, seen what I have seen, and heard what I have heard, you will feel that if on any subject you know much, there may be also much that you do not know; and that something even of that you know may not, at the moment, be in your recollection. You will then, too, be sensible of the mischievous and often ruinous consequences of even a small error in a decision, and conscience, I trust, will then make you as
• Continued from vol. ii, p. 367.