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Peerages for Life.—Review: Macqueen on the House of Lords.
There have also been Peerages granted for Life to Females, as for instance to the Duchess of Norfolk, in 1397, and some recently.
It is urged, that an ambitious or even a popular minister, might for political purposes, where the House of Lords was in conflict with the Commons, gain a majority by a large creation of Life-Peerages. Doubtless, it is essential to the first principles of the British Constitution, that there should be an hereditary Peerage, composed, as it is, of the descendants of the heads of ancient Houses, and for the most part possessed of large domains and great wealth, and consequently forming a powerful and independent body, the "Second Estate" of the Realm, the majority of whom would be uninfluenced by Ministerial favour.
We have to consider, however, whether occasions may not arise in which the creation of a limited number of Life-Peers would be beneficial?
an eminent Judge, no selection could be better made than that of Lord Wensleydale; and we gladly take this occasion to record in our pages the career of the noble lord, abridged from a contemporary:—
His lordship is the youngest son of Mr. Thomas Parke, of Highfield, near Liverpool, an eminent merchant. He was born in 1782, and in 1817 married Cecilia, daughter of Samuel F. Barlow, Esq., of, Middlethorpe, Yorkshire. He was educated at Trinity College, Cambridge, of which he was elected a Scholar in 1800, and graduated B.A. in 1803 as 5th Wrangler and Senior Chancellor's Medallist.
He was called to the Bar in 1813. In 1828 he was promoted to the Bench as one of the Puisne Judges of the King's Bench, on the death of Sir George S. Holroyd, from which he was transferred to the Court of Exchequer in 1834. Lord Wensleydale did not pass through the intermediate steps of King's Serjeant, or "one of her Majesty's On this disputed question of Life Peerages, Counsel learned in the Law." He never On this disputed question of Life-Peerages, held the office of Attorney-General or Sowhich some of our friends suppose is the "beginning of the end" of a great and in- licitor-General, and never occupied a seat in jurious change, in the Constitution, we Parliament; but his great merit as a sound should readily join the zealous opponents of and learned lawyer overcame the absence of the measure bnt for two considerations, these political recommendations. namely, the due administration of Justice His lordship has long been the oldest and the preservation of the House of Lords Judge upon the Bench, from which he as the ultimate Court of Appeal. Unless might have retired many years ago with the the number of Law Lords can be increased, usual pension, had he been less actively and so as to constitute a sufficient number to laboriously inclined.. As it is, he has the form a satisfactory Court of Appeal, there experience of 28 years on the Judicial is danger that the House of Lords will be Bench to carry with him to the assistance deprived of its judicial powers and a new of the Law Lords in the Upper House, who Court of Appeal be established in its stead. are now only five in number-viz., Lords We are aware that some would prefer such Lyndhurst, Brougham, Campbell, Crana result; but this, we think, a far more worth, and St. Leonards-and to whom objectional inroad on the dignity of the his assistance will be peculiarly valuable. House, than the introduction of some of the Judges of the Superior Courts as Peers for life.
NOTICES OF NEW BOOKS.
The House of Lords as it was and as it is.
These creations might be limited to the three Chiefs of the Common Law Courts, the two Lords Justices, and the Master of the Rolls. Such Peerages would resemble (though limited to a much smaller number) the Bench of Bishops; and we confess we A PAMPHLET on this subject by Mr. cannot see the danger of having six Judges Macqueen, and just published, is exceedof the highest eminence occupying a legal ingly well timed. The learned: Author Bench in the House of Lords, and ensuring, has hitherto been known to the Profeswith the present and the retired Chancellors, sion for his works on the Law of Husa sufficient attendance of seven or not less band and Wife, his treatise on the than five Law Lords finally to decide the great questions brought on Appeal before them.
It will be admitted on all hands, that if a Life-Peerage is proper to be conferred on
Practice" of the House of Lords, one or two quasi-antiquarian pamphlets, displaying considerable research, and his Reports of Scotch Appeal Cases. In these last editorial labours, Mr. Macqueen has shown his
Review: Prideaux's Precedents in Conveyancing.
perfect familiarity, not only with the juris- application at all. Many phrases which, prudence of his native country, but with from alterations in the law have ceased to that of the land of his adoption, whether have any meaning or use, are still commonly Common Law or Equity; and Mr. Macqueen's Reports are likely to be of great value, now that the consolidation of the two systems of Law is looked upon by many, as not only feasible in itself, but as merely a question of time.
retained. For instance, in the covenant for further assurance it is not unusual for the vendor to be made to covenant to make, do, acknowledge, execute and suffer all and every such further lawful and reasonable acts, deeds, &c., where the words "acknowledge" and "suffer" were originally intended, we presume, to apply to fines and recoveries, and are now become purposeless by the abolition of these modes of assurance.
In the present brochure, which owes its existence to the solicitation of the distinguished lawyer and statesman to whom it is addressed, Mr. Macqueen clearly demonstrates, that the existing jurisdiction of the It is a curious illustration of the inveteHouse of Lords, in Appeals from the Court rate force of habit that an instance of this of Chancery and the Courts of Scotland, has crept into the carefully considered was originally an assumption, unauthorised volume before us, and the case is the more by the Constitution, and an encroachment remarkable as we find this form introduced on the supreme appellate jurisdiction of the into a precedent of an assignment of a share Crown. It follows that the Crown is not of residuary personalty, to which the two only right in calling to its assistance, by Life-Peerages, the distinguished lawyers of the day, but that such a course is entirely consistent with the original constitution of the tribunal of last resort, the High Court of Parliament. This Court is in truth, at Common Law and as exemplified in the proceedings on writs of error, the Crown assisted by its chosen counsellors, and not the "House of Lords."
Mr. Macqueen has contributed a few valuable facts to the discussion which Mr.
Baron Parke's well-merited elevation has
excited; and to the learned Author, the lawyers, in common with the public, are
therefore much indebted.
Precedents in Conveyancing, with Dissertations on its Law and Practice. By FREDERICK PRIDEAUX, Esq., Barrister-at-Law. Wildy (2nd Ed.)
words in question could not, we conceive, under any circumstances have been applicable. For the most part Mr. Prideaux appears to have steered clear of superfluous verbiage, and the forms which he gives will be found to be sound and to the purpose, without, at the same time, scandalising the practitioner of the old school by startling brevity.
We may instance, however, as another illustration of the tendency of a form or clause which has once been engrafted into a precedent to stick there long after the
reason which dictated its first introduction
MUCH has been done within the last 20 years to simplify and shorten conveyances. It is the prevailing opinion that much still remains to be done. The uninitiated cannot comprehend why the transfer of a field from 4. to B. should require to be accompanied by three or four skins full of dreary jargon. This is perhaps natural enough; but even the initiated, those who have been trained in the craft and mystery of the law, would find it difficult to explain and impossible to defend much that finds its It is true that the Stamp Act does seem way into the commonest conveyances. This to contemplate that a clause, limiting the has arisen partly from the indiscriminate amount of money recoverable, may still in and unintelligent application of precedents. some cases be retained, and when such Expressions that have been introduced into limitation exists, the duty imposed is the particular instruments with some special same as on a mortgage for such limited purpose have been religiously retained and sum. But there appears to be no object in transferred to others in which they have no introducing a limitation expressly, when the
Review.-Consolidation of the Statute Law.
stamp itself operates as a limitation of the five years before the date of the conveyance, amount recoverable; and supposing a sum mortgage, &c., although such judgments to be expressly limited, and by inadvertence may not afterwards be re-registered. The the stamp affixed does not correspond with contrary of this had been previously dethe sum so limited, might not an objection cided by the Master of the Rolls in Shaw be raised that the instrument was not pro- v. Heal (3 W. Rep. 350), as referred to in perly stamped according to the Act? On the text of Mr. Prideaux's work, p. 77, every ground, we think that the omission where we may observe that by a slip of the of this clause is desirable. Author's pen, the word "after" occurs in While calling attention to these matters, line 10 from the bottom of the page instead however, we gladly acknowledge the general of "before," rendering the passage someexcellence of the collection of precedents what obscure. The decision in Beavan v. before us. "In their preparation," writes The Earl of Oxford, appears to us a most the Author, "care has been taken to render intelligible and satisfactory one, but it is each as simple, and at the same time, as said that the matter will not be suffered to complete as possible. A precedent is often rest at its present stage, and that the quesrendered almost useless, either by being so tion will once more be agitated before the meagre as to oblige the draftsman to refer highest tribunal. perpetually to other forms in order to produce any complete instrument, or else by embracing so much that is contingent and CONSOLIDATION OF THE STATUTE particular, as to make it a difficult task to separate what may be actually required, from matter irrelevant to the case in hand." We have often noticed the important As far as we have looked into the work, subject of the Consolidation of the Statute we think that these imperfections have Law, and have made copious extracts from been successfully avoided, and that the the several Reports of the Commissioners book is one which will be found convenient appointed to inquire and report thereon. The commencement of a new Session inThe "Dissertations" which accompany duces us to resume the consideration of the the precedents are purely of a practical plans for carrying into effect the proposed kind. They do not enter into the theory improvements in our system of Legislation. and more recondite mysteries of conveyanc- It must be admitted that great confusion ing. The reader is supposed to have suffi- and uncertainty prevail in many importciently got up his "uses," and to know the ant branches of our Law, owing to the meaning of a "trustee to bar dower." Mr. numerous Acts relating thereto, followed Prideaux's observations are directed to by altered and amended Acts, in which the those points which will generally come up- will of the Legislature is declared or expermost in actual practice, and as to which plained, and that the researches of our the practitioner will find it most useful to ablest lawyers on questions of litigation, be provided with a ready reference. On depending on Statute Law, are attended the vexed question of judgments and in- with infinite labour and difficulty. The cumbrances, the Author launches out at a right construction even of a single Statute little greater length. Some important de- of a complicated kind, from the ambiguity cisions have lately been given on this fluc- of language, may be doubtful, but when tuating subject, one of them so recently that numerous and sometimes conflicting enactit only finds its way into Mr. Prideaux's ments are to be consulted, the danger of a volume by way of addendum. This is the mistaken conclusion is greatly increased. case of Beavan v. The Earl of Oxford It is universally desirable that these evils, (Weekly R. 112), in which the Lord affecting both the Public and the Profession, Chancellor (Lord Justice Turner concur- should be removed. ring, but Lord Justice Knight Bruce dis- We presume it will not be attempted to senting), decided that a registered judg- construct a Code, like the "Code Nament does not require to be re-registered poleon ;" and that the only practicable in order to maintain its priority, as against work is that of Consolidation. purchasers, mortgagees, or creditors, who and most ambitious plan is to bring into have become such within five years from Parliament the whole of the Statutes conthe last registration,-or in other words, solidated under proper divisions and subthat purchasers, &c., are bound by judg- divisions according to the several branches ments which have been registered within of Law to which they relate, but the pre
Consolidation of the Statute Law.
sent generation could not hope to witness the end of such an undertaking.
The 2nd course of proceeding would be to select some general division or departments, such as the Mercantile or Commercial Law, and to introduce a group of Bills comprising all the Statutes in those departments; followed by other general divisions of the same kind.
After referring to the Commissioners' Report in July last, and to Mr. Coode's papers appended thereto, Mr. Ryland thus proceeds :
"The suggestion which I desire to raise is this-Whether the immediate adoption by Parliament of the scheme, as stated by Mr. Coode, is not desirable.
"Mr. Coode introduces the subject by some prefatory observations, justifying his breadth of view in dealing with current and future legislation, and giving his reasons for preferring
consolidatiou to codification. He divides his subject into four parts :
"1. On the collection of materials for legisor consolidation.
"2. On their digestion.
"3. On consolidation.
"4. On subsequent legislation, with the view to preserve the order and consistency of the law after consolidation.
The 3rd mode,-more humble and practicable,—is to select from the Statute-Book the various Statutes which are in frequent operation upon some one branch of the Law of public importance and general applicability, and consolidate those enact-lation ments; and thus proceed step by step. If these subdivisions of the Statute Law could be speedily grouped into one general division, it would of course be preferable; but we apprehend there will be great delay in making the attempt; and we would ask, by way of example,-why should not the Stamp Laws be first consolidated ;next the Law of Landlord and Tenant then Bills of Exchange and Promissory Notes; and such other branches of extensive utility as may be deemed expedient? We avail ourselves on this subject of the valuable suggestions of Mr. Arthur Ryland of Birmingham, contained in a paper read at the last Annual Provincial Meeting of the Metropolitan and Provincial Law As
Mr. Ryland observes, that to have only one Statute on each subject of legislation is a consummation so devoutly to be wished, its importance, nay, almost its necessity, is now so generally acknowledged, that any plan which proposes to accelerate its accomplishment will receive a patient and indulgent hearing. In preparing for the press a little work on the Assay Laws, he found more than 50 Statutes upon this simple subject; presenting, of course, many incongruities, and occasioning much difficulty to the trades affected by them, and he proposes that Parliament should not permit any Bill to be passed, unless it repealed all pre-existing Acts on the subject to which it relates, re-enacting so much of the old Law as it may be intended to retain, with the additions or variations which it may be the object of the new Bill to effect.
By the adoption of such a rule, he contends, that a Consolidation of our present Statutes would be accomplished in the course of a reasonably short period, and by a mode simple, inexpensive, and, what is most important, self-adapting to growing legislation.
"It is with the fourth only with which we have now to do. He commences with the observation, that consolidation would be a serious evil if its operation were to diminish in any degree the plastic quality of the law under the hand of the Legislature,' and shows that Consolidation of the Law of England is inadmissible but on conditions consistent with the utmost liberty of alteration.
"He then proceeds to consider how we may retain with certainty the whole benefit involved in consolidation, and still, at the same time, realize the utmost facility of amendment at the changing pleasure of the Legislature.' And he observes, upon the strong tendency, shown in the history of all our partial consolidations, to dissolidate the Law by amendments and to create anew the confusion and disorder, to escape from which was the object of the consolidation.'
"His proposal he thus states :
"The course which will be here recommended, is one which has a more general application, applying with as much effect to all amendments of the law at all times, as those which are to be undertaken after consolidation. It is simply this :—
"1. Never to amend the law by distinct and isolated amendments, but always to re-enact whatever law is to be amended with the amendments included in their proper place in the law.
"2. In every such case of re-enactment, to repeal by explicit reference so much of the previous law as is thus re-enacted.
"3. To keep in distinct clauses—
"The third recommendation is not an essential part of the plan I desire to advocate, but it is due to Mr. Coode to state it.
"He observes:-'That a disregard of the first rule has led to the present confusion of our Statute Law. If such a rule had been ob
served, it is manifest that we could not have
Consolidation of the Statute Law.
had more than one Statute in force at one certainly be a grand improvement upon our time on the same matter.' Amongst the good present condition; but should we not also results of the adoption of the proposals, he an- have the growing legislation of the ten years ticipates correct legal composition as to order outside of these consolidated Statutes? and at and matter, and agreement of expression. The the close of the present century, would there prevention of accumulation of incongruous not have accumulated ample materials for anlaws of different ages. The getting rid of re- other Commission? citals and references to co-existent laws.
"And he truly says, 'If these recommendations be justified by any prospective utility, they are quite as applicable to every measure, to every amendment, proposed before consolidation, as to any amendment subsequent to consolidation.
"Indeed, this process would be a sure and gradual process of consolidation, more certain of attaining the ultimate result of one consistent body of Law, than any more extensive consolidation professedly and formally prepared
"At all events, the re-enactment of many isolated portions of the old Law, with their amendments interpolated, would certainly prepare the way for the combination of many such fragments under more comprehensive heads. They would inevitably coalesce, when brought to sufficient consistency and conformity, into more extensive codifications, and with this great advantage, that the partial consolidations would each have undergone the test of practical experience, and perhaps of successive amendments, before it came to be incorporated into a body of more extensive consolidation.'
"Such are the recommendations and views of Mr. Coode; and is it not obvious that this mode of procedure has a capital advantage over the plan recommended by the Statute Law Commission? Let us compare the probable results of the two modes of procedure. The Commission is engaged in the preparation of Bills consolidating the present Statute Law on certain subjects selected, not in accordance with the demands of the public wants, but according to the tastes or judgment of the gentlemen employed; and no pre-arranged plan has been adopted. In their Report, the Commissioners say:-'We felt that if the task was not commenced until a comprehensive plan had been matured in all its details, there was a considerable risk that it would never be commenced at all.' Nor, as I have already remarked, do they propose any plan for preventing the accumulation of future Statutes.
"When may we expect that this Commission will complete the consolidation of our present Statutes? Granted that its members shall be united in their plan of procedure; persevering and industrious in carrying it out; and that Parliament shall not get impatient, but shall continue, or even increase, the grant of money for its expenses; what period would it be reasonable to assign for the completion of its work? Do you think it would be done in less than ten years?
"According to the Commissioners' mode of procedure we should have, during that period, from time to time, Acts passed which would
"Take the nine subjects on which we find, from their Report, that the Commissioners have had Bills prepared, and which are now under their consideration.
"The subjects are-the National Debt; Masters and Servants: Criminal Law; Stamp Laws; Bills of Exchange; Prisons; Landlord and Tenant; Ecclesiastical Leases; Copyhold Commissioners, Supposing all these pass in the Session of 1856, without the provision as to future legislation which I am advocating, in less than 10 years we should have several new Acts passed probably upon each, but certainly upon at least five of the nine subjects-and then where is consolidation?
"Now, supposing Mr. Coode's recommendations had been sanctioned by Mr. Bellenden Ker in 1853, and adopted by Parliament during the last two Sessions, what would have been the result? what would have been our present position, and what our prospects for the future?
"Turn to the Index of the Statutes for the Sessions 1854 and 1855, and you will see that the Commission, or some analogous body, would have had a more useful direction given to their labours, and the public would have possessed consolidated Statutes on many subjects of daily application and practical value, on which the public need had required legislation. On each of these subjects, instead of, as now, having to refer to I know not how many Acts, some of them inconsistent with each other, and lying in scattered volumes, and under improbable_titles, we should have had the whole Statute Law in one chapter.
"And what would have been our prospect for the future? Nothing less than this, that in a period of 10 years, at most, we should have a complete consolidation of our Statutes, or, at least, of such of them as affect our constantly-recurring mutual relations and transactions; and, moreover, we should have had the assurance that never again should we have at any one time more than one Statute on one subject.
"And it is very important to remark, that whilst, according to the mode of proceeding adopted by the present Commission, the order of the subjects selected for consolidation is dependant upon the peculiar views, convenience, or tastes of the gentlemen employed, it would, under Mr. Coode's plan, be necessarily regulated by the wants and conveniences of the community.
"If any one should doubt whether 10 years would suffice for the chief subjects of legislation to be brought under the review of Parliament, let him consult the Index of the Statutes for any period of 10 years, and his doubt will cease.'