« PredošláPokračovať »
them for the present exigencies of society, is the sole end and object of these summary observations."
According to this announcement as well as to the title of the work, Mr. Miller takes a comprehensive and popular view of the construction of the English code, and of its anomalies both as to origin and administration. No one but a master of such a complicated subject could have brought within such a small compass as he has done, and in such a readable and impressive manner, the monstrous defects, inequalities, and perversions of the whole system, but a man who has long deeply lamented evils of such a widespread nature as those he exposes. Two or three extracts will convey an idea of his matter. First, look at the manner of lawmaking amongst us, and at some of the results :
“ Ruffhead's edition of the Statutes, brought down to 1838, now extends to thirty-two immense quarto volumes; while the progress of original, amending, re-amending, explanatory, and consolidating acts which they contain, from the time of King Jobn to Queen Victoria, present a labyrinth of legislation which has nearly become intolerable. No man can confidently say what the Statute law is on almost any one subject. In proof of the extreme ignorance or carelessness with which acts are prepared and passed, it is only necessary to turn to the Schedule annexed to the latest Post office Act, which is 1 Vict. c. 32. It contains no fewer than six erroneous or superfluous notices on matters of a statutory nature. Ii repeals the 1 Wil. and Ma. sess. 3, c. 3. No such session is upon record. It repeals 25 Geo. III. c. 57; which was previously repealed by 3 Geo. IV. c. 126, s. l. It repeals 43 Geo. III. c. 31; which was repealed by 46 Geo. III. c. 142, s. 1. It repeals 43 Geo. III. c. 119; which was repealed by 10 Geo. IV. c. 26, s. 1. It repeals 49 Geo III. c. 45; which was repealed by 11 Geo. IV. and I Wil. IV. c. 20, s. I. And it repeals 7 and 8 Geo. IV. c. 58; which was repealed by 9 Geo. IV. c. 60, s. 1. Examples of similar and more material mistakes might be accumulated to any extent, and under every head of regulation and enactments, from the same inexhaustible storehouse."
The very constitution and practical procedure of the various courts present nothing like uniformity or intelligible system and regulation. For example,
“ The Court of Admiralty, Court of Arches, Prerogative Court, and Diocesan Court of the Bishop of London, are all beld in the same room in Doctors' Commons; and therefore, whatever the number of judges might be, only one of them could sit at one time. As in Doctors' Com. mons there are fixed judges without being accommodated with separate courts, in the Judicial Committee of the Privy Council there is a separate court without being provided with separate judges. In these respects the House of Lords is somewhat in the same condition; and neither that House nor the Committee of the Privy Council have any fixed days for the despatch of legal business. The Court of Admiralty and Ecclesiastical
Courts have four terms in the year, not corresponding with those of the Common Law and Equity Courts; and as many sittings are held out of term as in it, for the disposal of business of the same nature."
It is only by selecting a few samples of the anomalies and absurdities of English law and its manner of administration, that we can possibly afford any notion of the whole. But had we space and patience, a detail of the proceedings in a single court and in a single action, by which the technicalities, the subtleties, and the manouævres of practice might be exhibited, and which not merely create interminable demands upon the purses of the suitors, but produce bitter heart-burnings, corroding anxieties, and intense hatred of the laws, which hatred frequently reaches the legislative as well as the administrative body, the monstrosities and the ruinous nature of the law as it at present exists would come out with still more appalling force, so as to convince the reader that a frightful suicidal evil, threatening the wealth, independence, and peace of the nation exists. Let us go to the Court of Chancery, obtaining first of all our introduction at the hands of Mr. Miller:
“ A suitor in a court of equity is amongst the most helpless of all human beings. He seldom perceives clearly bimself the real source of his griev. ances, and still seldomer can give such a detail of them as to awaken the interest or compassion of others. All that they know is, that they have somehow or other been drawn within the vortex of the court either as plaintiffs or defendants, and that there they are now fixed, without seeing how they can extricate either themselves or their property. They are destroyed, not by an act of obvious violence or error, but by the simple process of exhaustion. The voluminousness of pleadings, examinatiuns, affidavits, and exhibits; the interminable references of the Court to the Master, and appeals from the conclusions of the Master to the Court; and the innumerable technical difficulties which retard and embarrass every stage of the procedure, all sit lightly on the judge, counsel, and solicitors, but are terrible to the litigants, by whom the cost of all these operations must be ultimately paid. It is because I know such things to be constantly going on, and observe the extensive distress and ruin which they entail upon the suitors, which obliges me to express a doubt whether this country, wealthy as it is, be either able or inclined to endure the present cumbrous formalities of courts of equity much longer.”
The present “ State of the Court of Chancery” is indeed a sufficiently broad and complicated subject for the handling, in the way of exposing its enormities, of any man. It is to this limited branch that Mr. Spence has applied his searching pages, w
wherein he produces a puwerful and graphic picture, that will astonish and alarm every person who has not been a victim before the tribunal in question.
Mr. Spence's first object is to communicate a summary view of the present state of the court, its great arrears,-its great delay,
-and to show that an immediate and decisive remedy is called for. The following is part of his opening sketch ; viz., of the business of the court at the last period to which it can be made out from the printed cause books, which are delivered at the commencement of each term, that is, the 11th of January, 1839 :
“There were then five hundred and fifty-six causes and other matters, including twenty demurrers, waiting to be heard by the Lord Chancellor and Vice-Chancellor. The causes at the head of the list, excluding those which had been delayed by accidental circumstances, had been set down and ready for hearing for about three years.
“ There were at the same time three hundred and three causes, andot her matters, including three demurrers. waiting to be heard before the Master of the Rolls. The causes at the head of this list had been set down and ready for hearing about a year and a half.
“ The total amount of the matters to be heard, therefore, was eight hundred and fifty nine. A greater arrear than this probably will never appear in the printed lists, for with such an arrear it becomes almost useless to set down a cause, unless it can be brought on out of its turn to be heard as a short cause, or to take a decree by consent."
Then as to the delays at the Rolls and in the Master's Of. fices :
“At the Rolls, according to the rate of proceeding during the year 1838, it would appear that about a year and a half elapsed between the time when the causes were ready for hearing, and the time when they were heard. Two years may, I think, without risk of exaggeration, be taken as the average space of time during which causes have waited for a hearing at each stage in the Court of Chancery during the last year. A delay of one year, nay of six months, if on the increase, would surely be quite sufficient to call for a remedy.
“Each cause in the list, on an average, comes before the Court twice at the least.
“ It is necessary, in order that the amount of the evils arising from the delay in hearing causes, may be properly estimated, to explain what these several hearings are.— I will take for illustration one of the most common suits, namely, for payment of a legacy. When such a suit is first heard, the court, being satisfied that the legacy claimed is due, makes a decree which only directs one of the Masters to ascertain what property the testator left, and what debts he owed. When the Master has made his report, stating these particulars, the cause is set down to be heard on further directions ; it is on this hearing that the creditors in the first place, and then the legatee, obtain payment of their demands. There must be two hearings in the simplest case; in some cases it becomes necessary to have a third or even a fourth hearing before any payment can be obtained. It is this hearing, therefore, which is the effective heuring for the suitor. In every such suit, then, according to the last year's rate of proceeding, four years at the least must be wasted in absolute inactivity. This is over and above the delays which must
occur, some necessarily, others unnecessarily, in the office of the Master, and in the other offices.
Mr. Spence remarks that nothing short of necessity could make it advisable for any one to resort to a court so circumstanced, to prosecute a contested claim ; and Lord Langdale has said, such a state of things as has now been indicated “ discourages bona fide litigation, and encourages its opposite; for parties are teinpted to resist just demands, calculating upon the chances of delay and the weight of heavy expenditure, and to enter upon and persevere in unjust actions. But there are other evils that result from delays.
. Says Mr. Spencer :
"In these successive intervals of delay, it necessarily happens that by reason of the death or marriage of some of the parties to the cause, or the birth of children, or from settlements of the property being made, or the like, the cause, even when called on, cannot be heard without a new or supplemental suit to bring before the Court the new parties who have become interested, or the new rights which have accrued; hence fresh delay, and with it fresh expense. Each of these new suits, according to a calculation which may be depended upon as not being too high, causes an expense of fifty pounds at the least. Eight per cent. per annum has been ascertained to be the number of causes which become abated by death alone. There are many instances of three, four, five, or even a greater number of such additional suits becoming necessary in the progress of a cause. This evil, of course, increases with the arrears. In the Vice-Chancellor's court, the number of causes marked as abated, or to stand over in January, 1838, was eighty-four; in 1839, it was a hundred and five."
"The ViceChancellor, owing to the pressure of other urgent business, has not heard any portion of a cause in the regular list since the 24th day of July last. It is a very much longer time since a cause in the regular list was heard through and disposed of. The cause of Toms against Toms stood No. 131 in the list of January, 1838; it stands No. 71 in the list of January, 1839, where it remnins to this day, (20th of March.) Striking off the ineffective causes which preceded it in both lists, the numbers would be 61 and 3; it has therefore advanced about sixty only in the list during one whole year. Now, at this rate, in case we should have a Chancellor whu could do no more than keep down his appeals, which past experience teaches us is not at all impossible, it would be six years at the least before the last causes in the list of Jan. uary, 1839, could be heard for the first time, giving them the benefit of the usual chances. If a hearing on furthur directions should be required, that second hearing could not come on until thirteen years from this time,-possibly fifteen or even twenty years, if any of the parties should die. From this time, therefore, unless some effectual remedy be adopted,
VOL. 11. (1839). NO. II.
all the evils and delay and expense which I have above adverted to, may be tripled. No man, as things now stand, can enter into a Chancery suit with any reasonable hope of being alive at its termination if he have a determined adversary.
The learned author asserts a truth of which the country is perfectly and ought to be gratefully aware, when he says, that every possible exertion is made on the part of the judges to expedite the business of the courts of equity. But the system of the law, the cumbersome forms, the intricate, or contradictory enactments, place it beyond their administrative authority, and their mental as well as physical powers, to do more than they have done. The remedy must come from the legislature and be upon a thorough and complete scale.
Were we to enter upon the oppression that arises from the fees of office, and which fees in certain cases are concomitant on delays, and when no advance whatever is made, the picture would become still more disheartening. For example, Mr. Spence says, " there is a fee of six shillings and eightpence, called a term fee, due to each clerk in court, in a cause for every term after it has been set down for hearing, until it is heard,” inflicting upon the suitors “ a tax of about seven thousand pounds a year, for which they receive no services, no consideration—it is a positive loss."
What a picture is this ; and what are the remedies which have lately been proposed by some of the highest legal authorities and leading men in parliament, for amendment and reform? Lord Cottenham, Lord Langdale, and Lord Lyndhurst have each proposed plans. The principal features in the two first, are the separation of the political and judicial functions of the Lord Chancellor, and the creation of a new court of appeal in the stead of that of the House of Lords. Lord Lyndhurst does not go so far, for he only insists on the appointment of one judge more, in addition to those already existing; a singularly deficient reform, we should think, seeing the number of causes that are set down year after year, that are always accumulating, and waiting to be heard, and the many years of delay that have long been the subject of the deepest lament. And yet, considering the prejudical influence of faction and party spirit which is in existence, this last proposal is the only one that Mr. Spence has at present any hopes of seeing introduced ; and accordingly his “ suggestions” embrace only the means of carrying it into effect.
Really we cannot see anything but the certainty of an indefinite protraction of efficient reform, even in the case of Lords Cottenham and Langdale's plans, much less in the paltry creation of Lord Lyndhurst, believing, as we do, that the entire frame of our laws, legislatively and administratively speaking, calls loudly for complete reconstruction. Upon this subject, and the mischief of insignificant alterations, as well as the dangers arising from party opposition, we