Alphabetical Ist of Statutes. Review: Cox on the British Commonwealth.

present War between Russia and England by the Russian Government a Misdemeanor,

Sewers; to continue and amend the Metro-Witnesses, to enable the Courts of Law in politan Sewers' Act, c. 111.

Shipping; to amend and consolidate the Acts relating to Merchant Shipping, c. 104. Shipping; to repeal certain Acts and Parts of Acts relating to Merchant Shipping, and to continue certain Provisions in the said Acts,

Review: Cox on the British Commonwealth.

part of the vast and complicated machinery, by
which, in modern times, the laws are establish-
ed and executed, there are but few sources of
general information. After careful inquiry, I
have been unable to discover any book in
which the modern principles of the British
Constitution are systematically discussed and
elucidated by reference to the actual state and
numerous institutions of our Government.
"The need of such a work was, perhaps,
never more apparent than at the present time,
when political measures engage more general
dispassionate attention than they ever received
heretofore; and happily are discussed with a
freedom from controversial asperity, which
augurs well for their wise and impartial consi-
deration. The great object of the present work
is to show that our Government is, indeed, as
I have, by the sanction of law and history, de-
signated it a COMMONWEALTH; that the
several members of the community are bound
together by common interests; that politics,
rightly considered, are not a conflict of sepa-
rate interests, but a harmony of them; that the
Christian doctrines of peace and goodwill are
as potent in civil affairs as in religion; that in
a Christian state, as in a Christian church,
there should be no schism in the body; but

that the members should have the same care
one for another; and whether one member
suffer, all the members suffer with it; or one
member be honoured, all the members rejoice

with it."

The general scope of the volume may be thus described:-1st. The Principles of Government. 2nd. Of Domestic Government, comprising the Legislature, the Judicature, and the Administration. 3rd. International Government. 4th. Colonial Government.

69

vate wrongs defined; Sources of English Law; Courts of Law classified.

2. "The Courts of Parliament and Privy Council; Objects of Impeachment; Commencement of Impeachment: Trials of Impeachment; Court of the Lord High Steward; Court of the House of Lords; Appeal to the House of Lords; Appeal to the Judicial Committee of the Privy Council.

3. "The Court of Chancery; Real and Personal Property; Equitable Interests; Nature of Trusts; Implied Trusts; Cases of Equitable Jurisdiction; Bills in Chancery; Evidence in Chancery; Statutory Jurisdiction of Chancery; Office of the Lord Chancellor; Court of Appeal in Chancery; Master of the Rolls; the Vice-Chancellors.

4. "The Superior Courts of Common Law; Judges of Common Law; Courts of Westminster; Court of Queen's Bench; Courts of Common Pleas and Exchequer: Exchequer Chamber; Appeal in Criminal Cases.

5. "Trial of Actions at Law; Pleadings; Declaration; Plea and Issue; Trial without Pleadings; Payment into Court.

6. "Writs issued Judicially; Habeas Corpus; Suspension of Habeas Corpus; Mandamus; Prohibition; Quo Warranto; Certiorari.

7. "Criminal Trials at Common Law; Arrest and Committal; Grand Juries; Indictment and Information; Arraignment; Judgment, Reprieve, and Pardon.

8. "Trial by Jury; Constitution of Juries; Challenge; Special Juries; Evidence; Summing-up-Verdict; New Trial; Value of Trial by Jury; Excellence of the English Judicial System.

9. "Courts of Local Jurisdiction; Assizes; Nisi Prius; Central Criminal Court; Justices of the Peace; Quarter Sessions; Criminal Procedure in General Sessions; Petty Sessions; Summary Conviction; Borough SesDebtors; Court of Bankruptcy; Ecclesiastical sions; County Courts: Court of Insolvent Courts; Civil Law; Provincial and Diocesan Courts; Ecclesiastical Jurisdiction; Probate In treating of the Legislature, the subject of Wills; Ecclesiastical Procedure; Admiralty is divided into:-1. The British Legislature. | Court; Prize Court; Coroners; Irish Courts; 2. The power of the Crown. 3. The power Scotch Courts."

Under the head of the Principles of Government, Mr. Cox treats,-1. Of its Duties. 2. Its Rights. 3. The Divisions of the Offices of Government.

ments.

4. The Fiscal Admi

of the House of Lords. 4. Procedure in Parliament. 5. Passing public Bills. 6. PassThe subjects of Administrative Governing private Bills. 7. Parliamentary Docu- Prerogative. ment are thus arranged:-1. The Royal 2. Parliament, the Privy 8. Ways and Means. 9. Cabinet Council, and its Committees. 3. The Seand Political parties. 10. Purposes of Par-cretaries of State. liamentary Representation. 11. Parlia- nistrative Offices. 5. The Military and mentry Franchise. 12. Parliamentary Suf- Naval Offices. 6. Boards instituted by Act frage. 13. Elections. 14. Public Opinion. of Parliament. 7. Local Administrative 14. Public Meetings and the Press. 16. Government. Commissions of Inquiry.

A long chapter is then devoted to InterRegarding Judicature,-which is more national Government, and another to Copeculiarly within our province,-the topics lonial Government. considered are as follow:

1. "Divisions of Law; Blackstone's distinction between Civil and Criminal wrongs; Jus Publicum and Jus Privatum; Public and Pri

The Author contends, that a representative assembly ought not to possess judicial powers, and under this head he treats of the objectional mode of passing private

70

Review: Cox on the British Commonwealth.

Bills. There are very few disinterested the communitiy ought to contribute. But with

persons who will not agree in the following statement and observations:

"The enormous number of Bills, relating to the construction and management of railways and other works, engages so large a part of the labours of the House of Commons, that comparatively little time and strength are left for the discharge of its more general duties. If the question be asked, how it comes to pass that year after year measures of the most apparent utility are postponed, the explanation seems to depend, in a great measure, on the fact, that the House of Commons is overwhelmed with business, extra-legislative, that measures within its proper province cannot obtain a due share of its attention.

respect to the power usually given to railway and similar companies, it is quite conceivable that general laws might be devised, of which the application to the individual cases might be left advantageously to a branch of the Executive. The application of certain general Acts is already thus intrusted with advantage to Government Boards, subject to parlia mentary revision and control; and the small number and responsibility of the persons who constitute such boards render them, when acting in a strictly judicial capacity, as inaccessible to private importunity as the Judges themselves.

"In order to prevent surprise of persons affected by private Bills for the execution of railways, and other purposes, the Standing "It is an ungracious observation, but one Orders require the issue of notices of the intenwhich the due consideration of the subject re- tion to apply for the enactment of such Bills. quires, that improper influences operate on the The Standing Orders require, further, in order passing of private bills, and that the results of to check undue speculation, a deposit of a porlegislation, especially with regard to public tion of the money requisite for carrying out incompanies, are regarded with very general dis- tended works; and the first step towards passsatisfaction. It is, I believe, undeniable that ing such Bills is to ascertain that the Standing the practice is common of canvassing for the Orders with respect to them have been comvotes of members of the House of Commons, plied with. The Bills are then usually_referred on many occasions where private interests are to select parliamentary committees. Formerly affected. A practice more subversive of the the number of members on these committees integrity and efficiency of the legislature was too great to allow due responsibility to be more detrimental to its dignity-more destruc- attached to the members. The practice of tive of the national respect and confidence canvassing them for their votes prevailed very which it ought to possess, can hardly be con- extensively, and it frequently occurred that at ceived. Members of Parliament, happily, are the conclusion of an elaborate and expensive rarely charged in modern times with receiving inquiry, members who had taken no part in it bribes, and no such case of direct pecuniary-who had heard neither evidence nor argucorruption has been publicly known for many ments as to the merits of the Bill-crowded years. But, on the other hand, it is almost into the committee-room, and by their votes certain that private persuasion and the opera- entirely neutralized the effect of the prelimition of arguments, urged not in the assembly nary investigations. The practice, however, but in the closet, affect the divisions of the with respect to committees on private Bills is House, where large vested interests are con- now amended. The method of appointing the cerned. The dealings of public companies committees is entirely altered, the number of with their rivals are believed to be very much each being reduced generally to five members influenced by estimates of the number of par- in railway Bills, and the members being chosen liamentary votes, which they are severally by a general committee of selection in such a able to secure by the means in question. Even manner as to secure, as far as possible, freeCourts of Law have recognised contracts be- dom from local influences. Before the select tween railway companies and landed proprie- committee on each opposed private Bill, a tors, in which "parliamentary influence' was the principal consideration.

دو

"Incidental to the prevailing methods of carrying contested private Bills through Parliament are enormous pecuniary expenses which contribute to render the tolls and rates authorised by those Bills either exorbitant or unre. munerative, or both.

"The canvassing for parliamentry votes is not confined to persons interested in public works and monopolies. The practice is adopted, also, in aid of efforts to remove taxes affecting powerful classes, and on similar occasions. For these cases it is not easy to devise a complete remedy. In the present state of financial science a general system of taxation could not be prescribed which would relieve Parliament of the necessity of investigating separately the shares which different bodies of

severe examination takes place, in which counsel may be employed, and minute evidence of engineers and other witnesses taken. The decision of the committee as to the merits and nature of a private Bill is reported to the House. An adverse decision of the committee ie generally fatal to the further progress of the Bill; Parliament, however, by no means delegates to the committee the absolute power of rejecting or authorising the proposed measure.

"The modern method of dealing with private Bills is, doubtless, a great improvement on that which formerly existed. But the expense, the strife and intrigues which attend the investigation of opposed railway Bills, and the enormous price at which lands required by them are purchased from the proprietors, whose parliamentary opposition is feared, are clear evidences that the system is still unsatisfactory."

Review: Cox on the British Commonwealth.

71

From the judicial department of the taken down in writing and read over to the work, it may be useful to extract Mr. Cox's witness, who signs them in the presence of the remarks on Equitable Jurisdiction, a sub-parties attending. In addition to or in lieu of ject now peculiarly under the consideration, witnesses, or as to particular facts, may be oral evidence, written affidavits by particular

both of the Public and the Profession.

used in the hearing of the cause. An affidavit "Perhaps the simplest view of the general is a statement in writing made without official distinctions between the functions of a Court examination, and verified by the oath and sigof Equity and a Court of Common Law, may said that an affidavit does not blush,' and cernature of the person making it. It has been be derived from the consideration that the latter pronounce judgment for the plaintiff or tainly grave objections may be often alleged defendant simply, whereas a Court of Equity against testimony given, not orally, but in arranges the differences of litigating parties. writing. By such testimony, though it has A Bill praying for relief in Equity, after specifying the special relief which the plaintiff's require, prays also for such further or other relief as to the Court may seem fit.

"The distinctions between the functions of the Courts may be further illustrated, by consideration of the different natures of the machinery (so to speak), by which they severally act. The most usual form of 'pleading' in Equity is by Bill and Answer. The bill, which is now printed, sets forth the nature of the plaintiff's case, and is required to contain, as concisely as may be, a narrative of the material facts, matters, and circumstances, on which the plaintiff relies. On the principle of doing complete justice, which is said to be the peculiar office of Courts of Equity, all the persons who have interests in the suit are usually necessary parties to it; but by the Act to amend the practice and procedure in Chancery, 15 & 16 Vict. c. 86, it is lawful for the Court to adjudicate on questions arising between parties, notwithstanding that they may be some only of the parties interested in the property respecting which the question may have arisen.

statements material to his own case.

In a suit

frequently the advantages of convenience and economy, truth is, in some cases, far less effectually elicited than by oral examination. Affidavits and answers frequently embrace statements so complicated and technical, that even a conscientious person is made by them to give false testimony.

usually read from answers, affidavits, and de"On the hearing of a cause the testimony is positions, but occasionally witnesses are examined orally in the Court, which usually deWhere, however, the former appear doubtful termines questions both of fact and law.

on the evidence, the Court will, for its own
information, direct an issue to determine par-
ticular facts to be tried at Common Law.

Chancery is that derived from Acts of Parlia-
"The statutory jurisdiction of the Court of
ment. Thus the Court has a power of direct-
ing the winding-up' the affairs of joint-stock
companies, unable to meet their pecuniary en-
gagements. The Court of Chancery has also
a jurisdiction by statute with respect to the ap-
otherwise remain vacant; and the moneys,
pointment of trustees where trusteeships would
stocks, and securities of trusts may, upon ap-
plication of a majority of the trustees or exe-
cutors, be ordered to be paid or transferred to
the Court of Chancery, which makes orders on
petition (without bill) for the application of
Court of Chancery has also statutory powers
the property so paid or transferred.
with respect to the investment of the purchase-

The

"The next proceeding, if an answer to the bill be required, is to deliver to the defendant interrogatories or questions concerning the matters of complaint. Unless the defendant can show sufficient reason (by plea, demurrer, or disclaimer) for not answering, he will be required to answer all the interrogatories addressed to him, and his answers may contain money where lands in settlement or to which the title is defective are purchased for the purcommenced by claim or bill, which the defend-poses of railways, canals, &c.,-the taxation of ant is required to answer, he may, after having tecting and controlling equitable powers of the solicitors' bills, &c. In other cases the prosufficiently answered, file interrogatories which the plaintiff may be required to answer. swers must generally be put in upon oath.' "Where a bill is for discovery only, and in some other cases, a sufficient answer by the defendant puts an end to the suit. Where, however, a decree of the Court is necessary, the cause must come on to be heard upon the evidence. If the Court or any of the parties to the bill require it, evidence must be taken orally. Depositions upon oral examination before the Examiners of the Court are to be

An

"Answers in Equity combine the characters of evidence and pleading. The Common Law process has the advantage of keeping pleading and evidence separate.'

Court are extended by Statutes.

"The delegated jurisdiction of the Court of nistration of the estates of idiots and lunatics. Chancery is that which concerns the admiThis power of administration is conferred by a to some great officer of state--usually the warrant under the Royal sign manual, directed Lord Chancellor, in consideration of its being his duty to issue commissions of lunacy and idiotcy.

of Chancery relates chiefly to the nomination, "The Common Law jurisdiction of the Court &c., of its own officers, pleas to repeal letters patent, the issuing of certain writs, and other matters which are too technical to require notice here. Among the writs issued by the Court of Chancery are original writs, writs of

72

Review.-Business of the Court of Chancery.-Law of Attorneys.

peerages, writs for elections of members of the House of Commons, issued by a Royal command for a general election; by the House itself for supply of vacancies."

The Attorney-General v. Queen Elizabeth's
College, cause.

Partridge v. Ives, motion for decree.
Williams v. Williams, claim.
Lady Glamis v. Cumberland, cause.
Symes v. Magnay, motion for decree.
Watson v. Cleaver, motion for decree.
Warick v. Richards, cause.
Wilkes v. Swann, claim.
Desborough v. Harris, cause.
Wynne v. Ogilvie, motion for decree.
Phipps v. Kelson, claim.

Pilkington v. Belton, motion for decree.
Jebb v. Tugwell, motion for decree.
Elam v Stead, motion for decree.
Brady v. Morgan, motion for decree.
Beere v. Beere, cause.

Turnley v. Biron, motion for decree.
Maddock v. Aked, motion for decree.
Robinson v. Anderson, cause.
Poole v. Poole, motion for decree.
Penfold v. Crossland, claim.
Shaw v. Neale, cause.
Harford v. Lloyd, cause.
Child v. Child, cause.
Jefferies v. Michell, cause.

Bell v. Whitbourne, motion for decree.
Austin v. Rickwood, claim.

Hollinsworth v. Woodhead, cause.
Pullen v. Fairthorne, motion for decree.
Rogers v. Rogers, cause.

Caledonian Railway Co. v. Woodrow, cause.
Thorp v. Thorp, cause.
Arkell u. Henly, cause.
Henly v. Henly, cause.

Capell v. Hyatt, motion for decree.
Davies v. Hallett, motion for decree.
Bensley v. Riches, motion for decree.
Collinson v. Lister, cause.
(Signed)

CRANWORTH, C.

LAW OF ATTORNEYS.

WHEREAS from the present state of the business before the Lord Chancellor and the Master of the Rolls respectively, it is expedient that a portion of the Causes and Claims set down before the said Lord Chancellor to be heard before the ViceChancellor Sir William Page Wood, should be transferred to the Master of the Rolls' Book of Causes for Hearing. Now I do hereby order that the several Causes and Claims set forth in the Schedule hereunto subjoined, be accordingly transferred from the Book of Causes of the Vice-Chancellor Sir William Page Wood to that of the Master of the Rolls. And I do further order, that all Causes and Claims so to be transferred (although the Bills in such Causes and the Claims may have been marked for the Vice-Chancellor Sir William Page Wood, under the Orders of the Court of the 5th May, 1837, and notwithstanding any orders therein made by the Vice-Chancellor Sir William Page Wood, or his predecessors), AFFIDAVIT OF INCREASE.-PAYMENT OF shall hereafter be considered and taken as Causes and Claims originally marked for the Master of the Rolls, and be subject to the same regulations as all Causes and torney, to refund to the lessor of the plainClaims marked for the Master of the Rolls, tiff in this action of ejectment, the moneys are subject to by the same Orders; provid- appearing to have been overpaid, it appeared ed, nevertheless, that no Order made by the that the attorney had made an affidavit of Vice-Chancellor Sir William Page Wood increase, on the taxation of the defendant's his predecessors in any such Causes or costs in July, 1849, and that on the plainClaims shall be varied or reversed otherwise tiff reading the decision of the Court of than by the Lord Chancellor or the Lords Queen's Bench, In re Flewker (June 9, Justices. And this order is to be drawn 1851), had been induced to look into the He thereupon up by the Registrar and set up in the matters of the affidavit. found that the affidavit was incorrect in various particulars, inter alia, it mentioned certain maps or plans as made by three of the witnesses, and produced at the trial, whereas no map or plan made by either of them was produced, and two of the witnesses were not called, and the third pro

several offices of this Court. (Signed)

CRANWORTH, С.

SCHEDULE.

From Vice-Chancellor Wood's Cause Book.
Yarington v. Barker, motion for decree.
Waugh v. Waddell, cause.

or

WITNESSES.

On this motion for a rule nisi, on an at