New Books.

The Institutions of the English Government; being an Account of the Constitution, Powers, and Procedure of its Legislative, Judicial, and Administrative Departments. By HOMERSHAM COX, M.A., Barrister-at-Law. London: H. Sweet.

THE exposition of the exisiting political, judicial, and administrative machinery of the British Government, is unquestionably one of the most important and interesting subjects which can engage the atten tion of the professional author; yet we are not aware that the ground occupied by Mr Cox in the treatise before us, has previously been brought within the range of forensic literature. Blackstone and the commentators following in his wake have touched upon it; and historians and eulogists of the British Constitution have incor porated in their works much of the information which Mr Cox has digested and systematized. But the aim of the writer we allude to is different. His object is to furnish the reader with a popular and, at the same time, a practical exposition of the subject of which he treats; and it appears to us that his design has been most ably and successfully accomplished. Without entering into the details of judicial practice, or perplexing the reader with the mere mechan ism of parliamentary and administrative government, he has presented, in a methodical and well-written treatise, a body of useful information upon the Constitution of the British Government, which must be extremely valuable not only to the lawyer, but also to that large section of the non-professional community who are more or less occupied with public affairs. On a subject which, up! to this time, has not been much studied, and on which the knowledge of even the well-informed has been chiefly derived from casual reading and newspaper reports, the most useful mode of reviewing the work will be by endeavouring to convey to the reader a general notion of the scope of the work, and the subjects which fall within its range.

The treatise, as is explained in the introductory analysis of its contents, is divided into three books, relating to legislation, judicature, and administration respectively; which correspond to the three main divisions of constitutional government, and which are concerned with the making of the laws, their interpretation, and

their execution, in so far as their execution does not require authority to interpret them. It is shown in the introductory part of the work, that these three bodies in the State are, in the English Constitution, in the main kept separate; and in the sequel of the work the author takes occasion to illustrate and enforce the proposition, that in order to secure the fulfilment of the purposes for which these departments of government are established, each of them ought, in the exercise of its own special functions, to be independent of the rest, and supreme. The author commences his expositions by an account of the nature and limits of the legislative power, as vested in Parliament, distinguishing between the interpreting functions of the courts of law, and the higher office of amendment of the institutions of the country, which can only be exercised by the three estates in concert. On the much agitated question of the origin of Parliaments, the author is of opinion, with the earlier authorities, that the Norman sovereigns of England, from the earliest times, had recognised the right of the tenants-in-chief of the Crown to assemble in order to grant aids to the Crown; and that the origin of the representation of the commons was the impossibility of securing the attendance of so large an assemblage. The separation of the Parliament into two houses was a just and natural recognition of the right of the smaller freeholders to have an equally influential voice in the representation with those who were able to attend personally; and it is to this circumstance, as every impartial student of history must admit, that the independence of the English Parliament, as compared with that of our own country, must be mainly attributed. From the 49 Henry III., when the first Parliament of which we have authentic record, and consisting of lords spiritual and temporal, and representatives of shires and boroughs sitting in a separate chamber, was assembled, the power of the representative assembly has been continually on the increase. The principle soon became settled, that taxes were not to be imposed without their concurrence, although the right of the Upper Chamber to interfere in the matter of taxation was the subject of vehement controversy. The principle that all money bills must originate with the Commons, was acknowledged as early as the times of the Tudors. Under the more arbitrary government of the Stuarts, attempts to amend such bills in the Lords were occasionally made, but without success, the Commons having uniformly resisted such amendments. The supremacy of the House of Commons in relation to

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money bills may be considered to have been finally established by the recent resolutions of the present House, consequent on the rejection of the Paper Duties Bill, in which, after asserting its exclusive privilege of regulating the manner, matter, and measure of all money supplies, the conduct of the other House in the few instances in which tax-repealing Bills had been rejected, was declared to be the subject of 'peculiar jealousy,' and a reason why the Commons should take measures to prevent the interference of that. other House in similar cases. The pledge given by the last part of the resolution has been fully redeemed by the subsequent financial policy of the House, under which the whole financial scheme of the Ministry in each department is included in a single Bill; so that the Lords must either accept the measure simpliciter, or assume the responsibility of extinguishing an entire branch of the revenue.

Having completed his survey of the legislative department of Government, under the several heads of the legislative prerogatives of the Crown, including the power assumed in extraordinary emergencies of suspending the operation of Acts of Parliament by Order in Council; the parliamentary powers of the Crown; the constitu tion of the House of Lords; the constitution of the House of Commons, and their procedure; and the right of petition and of holding public meetings; the author advances to the consideration of the complicated machinery by which the administration of the law in England is distributed amongst the different tribunals. Our readers are, in a general sense, familiar with the constitution and functions of the different judicatories of the sister kingdom; and we fear it would not be possible, within the space which our limits prescribe, to communicate much of the special, and, to the legal community especially, very interesting information which our author has brought together concerning this department of jurisprudence. As a specimen of his style of handling such subjects, we are tempted to extract the following passage, in which the author explains the means of protection which the law gives to the subject against illegal imprisonment and arrest. After quoting the author of the 'State Trials,' who particularizes three distinct remedies-viz., Indictment, Damages, and Liberation, under a writ of habeas corpus, the author proceeds :

The remedies for illegal imprisonment first mentioned, are by indictment, or by action for false imprisonment. False imprisonment is a misdemeanour at common law, punishable upon indictment, with fine or imprisonment, or both. All that the prosecutor of such an indictment has to prove is the imprisonment :

it is for the defendant to show that the imprisonment was legal, and he may justify it on one or other of these grounds-that the prosecutor was arrested ularly under civil process out of a superior Court, or other Court having risdiction, or under a warrant from a magistrate, to answer a criminal charge which the magistrate has cognizance; or without warrant in certain cases where the person arrested commits, or threatens to commit, or is suspected of haring committed, an indictable offence. . . . The satisfactory remedy for the Ejury of false imprisonment is by an action of false imprisonment, which is generally and almost unavoidably accompanied by a charge of assault and attery also; and in such action, the party injured may recover damages

led by a jury for the injury he has received. Some of the most important principles of the law respecting the liberty of the subject have been established by means of such actions, which have been repeatedly prosecuted with success ainst great officers of the Crown, and others of inferior authority, and also against private persons.

'The writ of habeas corpus is an ancient common law writ; but its efficacy has been greatly increased by legislation in the time of Charles I. and Charles II. In both these reigns, the judges in several instances delayed or refused the benefit of this process to persons illegally imprisoned.

'We have already referred to the famous debates on this subject, 3 Car. II., and the consequent Petition of Right, which recites cases in which the King's Bench had illegally refused to deliver on Labeas corpus persons committed by the King's command, without y cause assigned; and enacts that no freeman hereafter shall be 50 imprisoned or detained. This provision was, however, evaded by the judges; and a farther remedy was provided by the statute 16 Car. I., c. 10, sec. 8, which enacts, that a person committed by the King or Privy Council, or any of its members, shall have a writ of abeas corpus in the King's Bench or Common Pleas ; and the Court shall, within three Court days after the return, examine the legality f the return, and do what to justice shall appertain, in delivering, bailing, or remanding the prisoner. Yet in the case of a prisoner ho, in 1676, was committed by the King (Car. II.) in Council

for

a speech at the Guildhall, the Chief Justice, as well as the Chancellor, refused the writ, on the ground that the writ could not issue in Vacation. Other defects in the process of habeas corpus Existed; the imprisoning party might delay obedience to the first writ, and wait till a second and a third, called an alias and a pluries, were issued before he produced the prisoner. This, and other evasions, gave birth to the statute 31 Ĉar. II., c. 2, entituled an Act for the better securing the Liberty of the Subject, and for PreTeation of Imprisonments beyond the Seas, which is frequently considered another Magna Charta of the kingdom.

(To be continued in our next number.)

Correspondence.

COURT OF SESSION PROCEDURE.

(To the Editor of the Journal of Jurisprudence.)

SIR,-Having had the advantage of observation, during another year, of the Judicial Calendar, I propose to redeem my pledge to you by resuming the subject of my former letter. I there ventured to express an opinion,-now, I believe, generally entertained,-that notwithstanding what has of late years been done, successfully, I admit, towards extinguishing arrears and accelerating the progress of causes in the Court of Session, more might yet be done in the same direction, and considerable saving be effected in the costs of litigation. I also expressed an opinion, that these desirable results could be attained by means that are under the control of those who have to deal with causes in their progress through Court. The existing rules and forms of procedure are, for the most part, good in principle. They were carefully considered, revised, and in some respects remodelled, under a Royal Commission in 1825, and further amended by statute in 1850. If they were fully and fairly carried out, there would not be much ground for complaint. I do not say that further legislation may not yet be desirable to some extent; but no legislation, great or small, will have the effect of eradicating evils which are attributable not to defects in the machinery, but to the habits and dispositions of those to whom the working of it is necessarily committed. Rules of procedure, however good in themselves, must fail to accomplish their purpose, if they are habitually disregarded by those whose duty it is to observe them, or neglected by those whose duty it is to enforce them. The first step to improvement is to rouse these parties to a full sense of the duty that rests upon them to avert the evils attending laxity of procedure. It is true that the functions of the agents, the counsel, and the judges, are different, and that each of them has special duties which demand, and to a great extent engross, his immediate attention; but they have also interests in common, which ought not to be lost sight of, and in which the public participate. They have a common interest, both immediate and ultimate, in maintaining the character and reputation, the utility and title to public confidence, of the establishment with which they are professionally or officially connected. In the sense in which I now write, the character of a court of justice—that is to say, its title to public confidence and respect-depends on the character and conduct of those who are the actors in it, and whose services are necessary to the attainment of the object for which the Court has been instituted,-namely, the adjudication of rights. It is the interest of every honest litigant, that his rights should be adjudicated upon with as much economy and celerity as is compatible with full expiscation and due consideration. It is the duty of those to whom his interests are committed, professionally or officially, to use their honest endeavours to promote that end. It ought never to be forgotten by practitioners, that the monopoly they enjoy has been conferred on them for the public interest; and, consequently, that