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The Appellate Jurisdiction Bill.
still have to resort to legislation for the purpose of making the sittings of the appellate tribunal coextensive with the legal year."
It is indeed manifest that it would be of incalculable advantage to the suitors who are dissatisfied with a decision against them, if they could readily appeal to the highest court, sitting in the months of November, December, and January, when the Parliament is not sitting, and when the law lords are not oppressed with the consideration of proposed new laws, but may give undivided attention to the adjudication of important questions on the existing law. We doubt not that many appeals are lodged for the very purpose of delay, because it is known that usually no decision can be obtained in less than two years.
A large part of the debate on the 7th inst. was occasioned by the conflicting opinions on the subject of life peerages, it being urged that, although within the power of the Crown to grant, yet it was dangerous to the constitution to break in upon the hereditary character of the Upper House. It must be remembered, however, that the due administration of justice is of the first importance to the community at large, and it may be readily conceded that, in effecting that great object, the fullest safeguards should be provided against any invasion of the rights or privileges of the hereditary peerage. The real question is, whether the bill, of which their lordships have themselves unanimously approved, does not amply secure the hereditary principle?-and whether the introduction of the limited number of four life peerages, for the express purpose of improving the judicial functions of the House and preserving that important jurisdiction, can rationally be said to involve the smallest amount of danger? It is admitted on all hands that, from various causes, the constitution of this ultimate Court of Appeal is in an unsatisfactory state, and in order to ensure the respect of the public and the profession it requires to be strengthened and improved.
That eminent statesman, Sir James Graham, exerted his powerful eloquence and great skill in debate, to oppose the bill. Passing over that part of his speech which relates to the (so-called) Constitutional, and not the Legal, question of the Queen's prerogative to create life peerages, we proceed to notice the objections to the proposed amendment of the judicial staff of the House of Lords. Sir James observed that
"The alleged evil which this bill was proposed to counteract was that there was too much representation of the law in the House of Lords, and that the sons of great lawyers who had been made peers had not sufficient means to maintain adequately the dignity of their station. The cure for this evil suggested by the bill was most curious. For the risk of having the sons of lawyers with inadequate means, it proposed to substitute the introduction of lawyers as peers for life before they had earned in their profession sufficient means of maintaining the indepen
dence and dignity of the peerage. Poverty was avowedly and for the first time made one of the ingredients in the qualifications for a life peerage. What would be the effect of this? The new creation would be a brand of dependence; it would be a mark of inferiority; it would engender a constant hope on the part of the peer for life of being enabled to work out his own independence and to obtain from the ministry of the day the more honourable station of an hereditary peerage. It would have another What was the very title of peers ?-Pares effect. those who were equal.* Here would be a degraded class, unequal in its position to the rest, looked down upon by the hereditary peers on account of their poverty and their inequality. What had the law done to deserve this indignity? He could not conceive any position more painful than that of hanging on the skirts of the minister of the day in the hope of becoming the equal of that body among which one had been introduced. If this bill passed no Chancellor would ever again obtain the hereditary peerage which was bestowed on Clarendon, on Hardwicke, on Camden, on Eldon, and others whose names it were needless to mention, but whose descendants were
among the most revered and respected persons in that House, on account of their descent from men who rose in their day to pre-eminent station by the exercise of pre-eminent talents. If this bill passed the only chance henceforth of a lawyer's obtaining an hereditary peerage would consist either in his being rich or in his being childless; he would not attain it through pre-eminence in his profession.
best cure that the Government could offer for the
Moreover, he would ask, was it possible to stop with the selection of lawyers for life peerages? The Attorney-General told them that this bill was the evil. The House of Lords, he said, would not part with its jurisdiction, and they must take this or nothing. By this bill the life peerages were limited to four in number. The deputy speakers must be men who had long occupied a prominent station; they must, therefore, soon be old men, and subject to the infirmities of age; and if, in consequence of their infirmities, it became necessary to appoint others to the same office, they would still remain peers for But would the thing stop there? He felt quite satisfied that if the precedent were established the creation of life peerages must be extended to the army and navy and to politicians. He was sorry to law was a much more lucrative profession than the say that poverty was not confined to the law. The profession of arms; for admirals and generals did not make their ten, fifteen, and twenty thousand a year. He doubted whether the leaders of the bar were not in the receipt of larger incomes than were enjoyed by the leading members of any other profession, or whether at any former period persons in their position received greater remuneration; and supposing such persons to have combined thrift with industry and learning, why should the honours which they won be limited to the short and narrow compass of their own lives ?"
On this argument it may be remarked, that an elevation to the peerage would not be conferred without consulting the wishes of the eminent Judges to whom the honor was proposed. They might accept or decline the
* The members of the House are not strictly "pares;" there is a wide difference between a duke and a baron; and amongst the modern peerages Lord Cottenham's son stands a step higher than Lords Lyndhurst and Brougham!
The Appellate Jurisdiction Bill.
honor, as they thought fit. And the supposition that the four life peers would be an inferior class, or that they would be looked down upon by the hereditary members, was surely altogether unfounded. The Archbishops and Bishops are not less esteemed than any lay peer who traces his descent from some Norman baron. If such an improbable event as once occurred to Lord Thurlow, who was treated with some disrespect by a peer of ancient lineage, should be repeated, we doubt not that the nobility of nature, of worth, learning and talent would be asserted over the accident of birth! There can indeed be no fear that any of the three or five Judges of the highest Court of Appeal, members of the House of Peers, will, either by their hereditary brethren, or the legal profession, or the public, be held in any other than the highest esteem. We assume, of course, that the Government will select for this distinguished office such men as Lord Wensleydale.
In illustration of the defective state of the appellate power of the Lords, Sir James Graham adverted to several remarkable cases, somewhat recently decided, in which the profession, if not the public, was much dissatisfied. He said,
"There was the case of Mr. O'Connell. In that case the opinion was taken of nine of the common law judges. Seven were in favour of a conviction, and two against it. It came to be decided by a few law lords, and they quashed the conviction. He did not see the hon. and learned member for Suffolk in his place, but he also was counsel for Mr. O'Connell, and before the committee of the House of Lords had given it as his deliberate opinion that if that case had been the case of an ordinary man, an operative, the judgment would have been pronounced the other way. Vice-Chancellor Stuart had also in evidence given a similar opinion; and his lamented friend Sir William Follett declared that in his opinion the House of Lords impaired their jurisdiction in a manner which would not be restored, by failing on that occasion to put aside every political bias which might exist on the part of the law lords, and by the lay lords failing to do what he thought was their duty-maintain the opinion of the majority of the judges. There was another case-the case of the presbyterian marriages. That case was argued in Ireland, and was brought to the House of Lords. The English judges were called in, and they unanimously concurred with what had been done by the Irish judges. But it was by mere chance that that judgment of the English and Irish judges was sustained. There was an equality of voices, and consequently there was no judgment at all. Then there was another case-the Bridgewater case. Eleven judges were called in on an appeal. Nine out of the eleven agreed with the Lord Chancellor, but the voice of the eleven and the voice of the Lord Chancellor, the head of the law sitting in his own court, was reversed by the voice of three exchancellors.
"The Scotch cases were more remarkable still. This bill did not profess to provide any remedy for His hon. friend presumed that one of the Scotch judges was to be elevated to a
the Scotch cases.
peerage for life, and was to be one of the deputy speakers. But what would the English and Irish suitors say of one judge out of three being a judge who had been trained under a different law and a different system? But this bill did not deal with Scotch cases in the slightest manner, for what was the state of the administration of justice with regard Erskine, in his place in the House of Lords, when to Scotch appeals? It was known that Lord he held the Great Seal, declared that he knew as much of the law of Scotland as he knew of the law of Mexico. Then there was Lord Truro. He did not believe that a more honest and upright man ever filled the seat of justice. He had a quality more precious than learning, he had the strongest love of justice; and he was not ashamed even to stake. He sat by sad compulsion a whole session own his imperfect knowledge when justice was at him that when he first began to sit, there was an alone to hear Scotch appeals, and it was recorded of elementary question respecting Scotch entails, and
he asked to be allowed to take home with him an
this high court of ultimate resort.
Some remarks were then made on the
"He must touch on a point which, considering the number of members of the legal profession who were in that house, would, he feared, be unpleasant; but love of truth compelled him to introduce it. If this bill passed, it would, in his humble judgment, debauch both the bench and the bar. The practice, and the right practice, was that puisne judges were very rarely indeed permitted to become chiefs of from the bar than from the bench. Under this bill their courts, the chiefs being generally selected rather the crown would have the power of looking along the line of puisne judges and holding out the appointment to a deputy speakership of the House of Lords and a peerage for life, with the possibility of an hereditary peerage in reversion. The tendency of such a state of things would be, in his opinion, to debauch the bench of judges, while a corresponding influence might be exercised upon the leaders of the bar.
He hoped he said this without offence. No independence, the learning and the character of the man living valued more highly the honour and bar; but he deprecated the throwing in their way temptations which were inconsistent with their honour."
In considering the best remedy for the evil which was admitted, Sir James said :
"It was quite competent to the House of Lords to amend their jurisdiction without the intervention of the other branches of the legislature. He believed they had the power of summoning to their assistance not only the common law judges, but the equity judges, and also the members of the Judicial Committee of the Privy Council. Why should they not at the commencement of a session classify the appeals, assigning the common law appeals to be heard before
New Statutes Effectiny Alterations in the Law.
the common law judges, the equity cases before the equity judges and members of the Judicial Committee of the Privy Council, and the Scotch appeals to be heard before the Lord Justice General, the Lord Justice Clerk, and one or two more of the Privy Council ?"
The Solicitor-General, after noticing several of the grounds of opposition to the bill, which had been urged in the course of the debate, remarked:
"That the appeals to the House of Lords arose upon every variety of subject, and from every court of jurisdiction, and it was doubtful how far any Lord Chancellor could be properly trusted to pronounce a sentence upon questions referring to the function of courts, and upon a state of law of which he had had no experience, and whose judgment must, like the laws of the Medes and Persians, remain in force unless altered by special act of Parliament. The Courts of Queen's Bench, Common Pleas, and Exchequer had each four judges sitting in banco, and in all plurality of voices was recognised as the leading characteristic. Now it was proposed to adopt the same rule with regard to the court of appellate jurisdiction. When Lord Lyndhurst, Lord Brougham, Lord Truro, and Lord Campbell, sat together in the House of Lords to hear appeals, there was no fear but that the decision would be always satisfactory.
"The necessity of some change was obvious. But were they to alter the system by pulling down the authority of the House of Lords, or were they not rather to endeavour to provide a remedy for the defect which had been pointed out? Deputy speakers had been appointed in former times, and it was now only asked to make that perpetual which formerly was only resorted to occasionally. The Judicial Committee of the Council (to which some were inclined to transfer the appellate jurisdiction) was exposed to the same objection as the House of Lords; it was composed of judges gathered from the other courts. For the last eight or nine days the appeal court in Chancery had been shut up because the judges were engaged in the Judicial Committee of Privy Council. By transferring to that body the appellate jurisdiction of the House of Lords, the evil would only be augmented. They would be pulling down the ancient tribunal in favour of a court of yesterday; and it would then be necessary to create a number of additional things. Surely it was better to improve than to destroy-to restore than to pull down."
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
INSURANCE ON LIVES (ABATEMENT OF INCOME TAX)
19 & 20 Vict. c. 33.
The preamble recites 16 & 17 Vict. c. 91; 18 & 19 Vict. c. 35; and the 16 & 17 Vict. c. 91, is continued until 5th July, 1857.
The following are the title, preamble, and section of the Act:
An Act to continue the Act for Extending for a Limited Time the Provision for Abatement of Income Tax in respect of Insurance on Lives.
June 30, 1856. Whereas an act was passed in the session of Par
liament holden in the sixteenth and seventeenth years of her Majesty's reign, chapter ninety-one, intituled "An Act to Extend for a Limited Time the Provision for Abatement of Income Tax in respect of Insurance on Lives," and was limited to continue in force until the fifth day of July, one thousand eight hundred and fifty-four: And whereas, by certain other acts subsequently passed, and more especially by an act passed in the last session of Parliament, chapter thirty-five, the said first-mentioned act has been amended and extended, and now stands limited to continue in force until the fifth day of July, one thousand eight hundred and fifty-six, and it is expedient further to continue the same so amended for such period as hereinafter mentioned: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. The said first-mentioned act so amended as aforesaid shall be, and the same is hereby continued in force until and upon the fifth day of July, one thousand eight hundred and fifty-seven.
The preamble recites the 2 & 3 W. 4, c. 125; 5 & 6 W. 4, c. 51; 3 & 4 Vict. c. 40; 7 Vict. c. 17; 8 & 9 Vict. c. 50; 11 & 12 Vict. c. 38. Commissioners may grant extension of time on certain conditions; applications for extension to be made within two years; on payment of interest due, commissioners to forbear compelling payment of principal, upon certain conditions; extension of time not to prejudice existing securities.
The following are the title, preamble, and sections of the Act:
An Act to authorise the West India Relief Commissioners to grant further Time for the Repayment of Monies advanced by them in certain Cases. June 30, 1856.
Whereas it is expedient that the commissioners for the carrying into execution the above-mentioned acts should have such further powers as are hereinafter mentioned: Be it therefore enacted:
I. It shall be lawful for the commissioners for the time being acting in the execution of the said recited acts and this Act, or any three of them, to grant any extension of the time limited for the repayment of any loan which shall have been made under the authority of the aforesaid acts, or any part of any such loan, so as such extension of time shall be made in every case on condition that the whole amount of such loan shall be secured, to be paid by instalments of such amount as the said commissioners shall think fit, and so as in every case of extension of time under the powers of this act, such further security be given as the said commissioners shall think proper; and any such extension of time may be made upon such other terms and conditions (if any) as the said commissioners may require: And every such further security shall be made in such form and to such person or persons as the said commissioners shall direct: Provided, nevertheless, that no such extension of time shall be granted in pursuance of the powers of this act, except with the consent in writing of the Lord High Treasurer for the time being, or of any two or more of the com
Law of Partnership Bill as amended in Committee-Evidence in Foreign Suits Bill.
missioners of her Majesty's Treasury for the time being; provided also, that every application for such extension of time be made in writing within two years from the passing of this act.
2. From and after payment (if made within six calendar months from the passing of this act) of all interest which may be due at the time of the passing thereof in respect of any such loan, the said commissioners for the time being, acting in the execution of the said recited acts and this act, shall forbear from compelling payment of the principal monies due in respect of such loan as long as a sum equal to onetwentieth part of the principal monies which may be due or owing in respect of any such loan at the passing of this act, together with interest thereon, or on so much thereof as may from time to time remain unpaid, be paid annually, the first of such annual payments to begin and be paid at the expiration of one year from the passing of this act; and for the purposes of this provision no grant of extension of time shall be necessary; but if default shall be made in payment of any instalment or any interest contrary to this provision, the principal and interest remaining unpaid at the passing of this act, or at the time of such default, as the case may be, shall become immediately due and payable, and be recoverable in the same manner as if this act had not been passed.
3. No such extension of time to be granted as aforesaid shall in anywise alter or prejudice the existing security for any loan, either originally made or under any extension of time already made, and the same, except as the same may be agreed to be altered by the said commissioners under the powers of this act, shall be and remain in full force in every respect as if no extension of time had been granted under the powers of this act.
LAW OF PARTNERSHIP BILL AS
[The Clauses marked A., B., and C. were added in Committee.]
1. This act shall not apply to the business of a banker.
2. The term "trader" shall include any person, partnership, company, or body corporate carrying on any trade, business, or undertaking.
3. No person making a loan to any trader shall be deemed to be a partner of, or to be subject to any liabilities incurred by, such trader by reason only that he receives as a compensation for such loan a portion of the profits made in any business carried on by such trader; but in case of the insolvency or bankruptcy of such trader no portion of such loan as aforesaid shall be recoverable until after all other creditors shall have been fully satisfied as to their lawful claims on the said business.
4. No person, being an agent or servant or person in the employ of any trader, shall be deemed to be a partner of or to be subject to any liabilities incurred by such trader, by reason only that he receives as a remuneration for his services as such agent or servant a portion of the profits made in any business carried on by such trader.
5. No person receiving by way of annuity or otherwise any portion of the profits made by any trader in his business shall by reason only of such receipt be deemed to be a partner of or to be subject to any liabilities incurred by such trader.
6. A. In cases where any lender, agent, or servant,
or any annuitant, has contracted with a trader to receive a portion of the profits made by such trader in his business, and as part of such contract has agreed that the amount of profits made by such contract, is, in case of dispute, to be settled by arbitrader, and any other matter arising out of such tration, such provision as to the settlement of the parties to the contract; and no court of law or of dispute by arbitration shall be imperative upon the equity shall, as between the parties to such contract, or any persons claiming through them, take any account of such profits or cognizance of any matter within the scope of such arbitration.
7. B. In cases where the parties themselves have made provision as to the manner in which the arbitration is to be conducted, the arbitration shall be provision has been made, arbitrations shall be conconducted accordingly; but in cases where no such ducted in manner directed by the Railways Clauses Consolidation Act, 1845; and all the Provisions of such last-mentioned Act, with respect to the settlement of disputes by arbitration, except the sections porated with this act. numbered 129 and 134 respectively, shall be incor
8. C. In cases where the arbitrators appointed under this act refuse, or for seven days after the request of either party to the arbitration neglect to appoint an umpire, any judge of her majesty's superior courts sitting in chambers, or the judge of the county court which has jurisdiction over the district where the trade is carried on in respect of which the dispute has arisen, may appoint an umpire.
EVIDENCE IN FOREIGN SUITS BILL.
By this Bill, which has been introduced by the Lord Chancellor to provide for taking evidence in her Majesty's dominions in relation to civil and commercial matters pending before foreign tribunals, it is proposed to enact :
1. Where, upon an application for this purpose, it
minister, or other diplomatic agent of any foreign
Grand Juries Bill-Memoir of the late William Seymour, Esq.
general or consul of any such foreign power at London, received and admitted as such by her Majesty, that any matter in relation to which an application is made under this act is a civil or commercial matter pending before a court or tribunal in the country of which he is the diplomatic agent or consul having jurisdiction in the matter so pending, and that such court or tribunal is desirous of obtaining the testimony of the witness or witnesses to whom the application relates, shall be evidence of the matters so certified; but where no such certificate is produced, other evidence to that effect shall be admissible.
3. It shall be lawful for every person authorised to take the examination of witnesses by any order made in pursuance of this act to take all such examinations upon the oath of the witnesses, or affirmation in cases where affirmation is allowed by law instead of oath, to be administered by the person so authorised; and if upon such oath or affirmation any person making the same wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury.
4. Provided that every person whose attendance shall be so required shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial.
5. Provided also, that every person examined under any order made under this act shall have the like right to refuse to answer questions tending to criminate himself, and other questions, which a witness in any cause pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made would be entitled to; and that no person shall be compelled to produce under any such order as aforesaid any writing or other document that he would not be compellable to produce at a trial of such a cause.
6. Her Majesty's superior courts of common law at Westminster and in Dublin respectively, the court of session in Scotland, and any supreme court in any of her Majesty's colonies or possessions abroad, and any judge of any such court, and every judge in any such colony or possession who by any order of her Majesty in council may be appointed for this purpose, shall respectively be courts and judges having authority under this act.
GRAND JURIES BILL AS AMENDED
THIS Bill provides that witnesses attending before the grand jury may be sworn by the foreman, or any member of the grand jury, to give evidence in support of any bill of indictment, and the witnesses may be examined by the grand jury touching the matters in question, and the name of every witness examined, or intended to be examined, is to be indorsed on the bill of indictment, the foreman writing his initials against the name of each witness.
After the passing of the act persons need not be sworn in court to qualify them to give evidence before the grand jury.
The act is not to affect the fees of any officer of court for swearing witnesses, but such fees are to remain payable.
MEMOIR OF THE LATE WILLIAM SEYMOUR, ESQ.
MR. SEYMOUR practised as a solicitor in the metropolis for thirty years. He was one of the earliest promoters of the Law Institution, and was elected on the first committee of management. He contributed the liberal sum of £300 towards the fund with which the site of the institution was purchased, but retired to Brighton before the building was completed. Soon after he took up his abode there, he devoted his unceasingly active mind in devising or promoting means for the prosperity and welfare both of the town and county, more particularly in prison discipline. In 1829 he was placed in the commission of the peace for Sussex by the late Earl of Egremont, then Lord-Lieutenant of the county, and later in the same year was made a Deputy-Lieutenant. In 1834, on the retirement of Mr. Courthope, Mr. Seymour was appointed assistant chairman of quarter sessions by the Earl of Chichester, from which office he retired upon the passing of the Prisoners' Counsel Bill, having an objection to act as counsel against the prisoner. He continued to perform his duties as a magistrate, and for some years as chairman of the Brighton bench until 1840, when he retired at the age of seventy, in accordance with a determination previously expressed by himself to the Lord-Lieu
On his retirement, the thanks of the Court were given to Mr. Seymour for his conduct during the time he had acted as a magistrate. Captain Shiffner, in moving the resolution, said there were some occasions when he had differed from Mr. Seymour; but at the same time he could not but express the sense which he entertained of Mr. Seymour's services and unwearied attention, and also of his arrangement of business to be brought under the consideration of the Court. Formerly the magistrates had felt great inconvenience in consequence of not knowing till they came into Court what business was to be transacted; but this inconvenience was removed by an arrangement introduced by Mr. Seymour, who had also rendered great service by presiding as chairman at the quarter sessions. Captain Shiffner then of this Court be offered to Mr. Seymour for the zeal moved the following resolution :-"That the thanks and ability with which he discharged the duties of a magistrate of this division of the county, and especially for the indefatigable attention which he has so constantly and beneficially applied to our House of Correction."
Mr. Gear, in seconding the motion, said it had been his good fortune to act in conjunction with Mr. Seymour as a visiting magistrate, and there could be only one opinion of the value of Mr. Seymour's services in that capacity. His great object was to promote public justice, and to promote it in connection with the improvement of the persons who had offended against the laws. He did this by the measure, which on his proposition was carried, for making separate cells; and he (Mr. Gear) thought that there was no one measure which the magistrates had adopted so much to the advantage of the public as that. But for this they would have had much more crime; and the county must of course have been put to much greater expenses. In an economical point of view Mr. Seymour's services had been invaluable; but there was a principle involved in the measure which was of much greater consequence --the principle of morality. The separation of pri