ART. VI.-CHANCERY REFORM.

1. On the Present Unsettled Condition of the Law and its Administration. By John Miller, Esq., of Lincoln's Inn. London, 1839.

2. An Address to the Public, &c., on the Present Unsatisfactory State of the Court of Chancery, &c. By George Spence, Esq. Q. C. London. 1839.

MR. MILLER was the first English lawyer in modern times who took a comprehensive view of the constitution and administration of the entire body of our law, and his “ Inquiry into the (then) Present State of the Civil Law of England," published in 1825, bears about the same relation to Lord Brougham's great speech in 1828, that James Taylor's services in promoting steam-navigation bear to Fulton's in the same department of discovery. Mr. Spence has distinguished himself for many years, both in and out of parliament, as one of the most active and zealous reformers of the Courts of Equity. We place their works in immediate juxta position, because a large part of Mr. Miller's relates to the Courts in question, and we cannot afford space in this number to discuss any other of the important questions suggested by him. Moreover, it would be altogether hopeless at the present moment to endeavour to draw attention to the condition of the common-law courts, which for some reason or other have always possessed compa-. ratively little interest for politicians; and it may even be doubted whether the cry of Chancery Reform, so long and so often a favourite party topic with the Whigs in the good old times of Tory chancellors, will exercise the same spirit-stirring influence now that there is no longer an Eldon to be assailed. Were Mr. Pemberton to ask again, as he asked in 1825, whether the government had any measure in contemplation, Lord John Russell would probably reply, as he replied then, that the government would prefer waiting for an opening. Yet if this depended at all on the amount of the evil, there never was a fairer opening than now. On the 11th of January, 1839, as Mr. Spence informs' us, the business of the Court of Chancery stood thus:-There were 556 causes and other matters, including 20 demurrers, waiting to be heard before the chancellor and vice chancellor; the causes at the

head of the list having been set down and ready for hearing for about three years. There were 303 causes and other matters, including three demurrers, waiting to be heard before the Master of the Rolls; the causes at the head of the list having been set down and ready about a year and a half. Total, 859; as large a number as is ever likely to appear upon the list, since in the teeth of such an arrear nothing but imperative necessity could induce a party to set down a cause. Striking the average between the courts, Mr. Spence states that two years may be taken as the average time of waiting for a hearing. But each cause, on an average, comes before the court twice. In each cause, then, according to the last year's rate of proceeding, four years must be wasted in absolute inactivity. But during this time, the parties may die, or marry, or some other change in their (or one of their) circumstances may take place; a supplemental suit becomes necessary; a hearing "on further directions" must be had; and the period of waiting may be doubled or tripled. "No man, therefore," concludes Mr.Spence," can enter into a Chancery suit with any reasonable hope of being alive at its termination if he have a determined adversary."

Mr. Miller arrives at nearly the same conclusion, but expatiates more on other causes of delay. Speaking of litigants in courts of equity, he says:—

They are destroyed, not by any act of obvious violence or error, but by the simple process of exhaustion. The voluminousness of pleadings, examinations, 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. There must be an attempt made to find out a shorter road to truth and justice. Various circumstances render the present a very fit time to set about it. Should this opportunity be neglected, and the noiseless but just and general wishes of the pub

lic continue to be disappointed, the whole system may upon some emergency give way before a storm of popular discontent, which timely and judicious amendment would have effectually prevented."

When a man of Mr. Miller's frame of mind talks in this manner, things must be getting serious. We hasten, therefore, to call attention to the most feasible of the proposed measures of reform. Of these Mr. Spence enumerates three, all based on the assumption that the existing tribunals are unequal to the business.

1. Lord Cottenham's plan was to create a permanent chief justice, on whom the judicial duties of the Lord Chancellor as chief judge of the Court of Chancery were to devolve; the Lord Chancellor to preside in the House of Lords and the judicial committee of the privy council, and discharge the same political functions as at present.

2. Lord Langdale proposed to transfer all the political functions of the great seal to a Lord Keeper, who was to fill much the same post as the minister of justice in France; and to render the Lord Chancellor exclusively and permanently a judge. A supreme general Court of Appeal was to be constituted with a permanent president.

3. Lord Lyndhurst proposed merely to appoint another Vice-Chancellor, who was also to preside in the judicial com

mittee.

Lord Langdale's plan, though so comprehensive in its objects, is in reality founded on a much narrower estimate of the general bearings of the question than the other two. In reviewing Sir Edward Sugden's letter to Lord Melbourne in 1835, we took occasion to dwell at some length on the probable effects of separating the judicial and political functions of the Chancellor. We then demonstrated the utility of a first-rate lawyer in the cabinet, where accurate legal knowledge must be almost hourly in request, the advantage in a constitutional point of view of keeping open the only remaining avenue by which unaided talent can work its way to nobility, and the lustre thrown over the whole profession by the proud position of its chief; urging particularly in illustration of this last topic what can never be too frequently impressed upon the legislature, that the evils of litigation will always be found augmenting or decreasing in exact proportion to the degradation or elevation

of lawyers as a class. Now, since Lord Langdale's minister of justice would undoubtedly be appointed with reference to much the same considerations as the Home Secretary, and his plan avowedly proceeds on the assumption of the utter incompatibility of the judicial and political functions, it strikes us to be utterly inadmissible, and fortunately its speculative character is quite sufficient to insure its rejection in either house.

Lord Cottenham's has been deemed open to the same sort of objection. Deprived, it is contended, of his original jurisdiction in equity, the Lord Chancellor will insensibly deteriorate and come in time to be regarded as an inefficient judge of appeal—

"Now then," says Sir Edward Sugden, "arises the danger, that the office of Lord Chancellor may hereafter be filled more with reference to his political than his legal abilities. One thing is clear, that he would exercise no original jurisdiction, for none would be left for him; and unless he was daily sitting in a court of justice, not simply reviewing the decisions of others, but bringing his own mind and principles to bear originally upon cases as they arise, he would not be competent to decide with advantage on appeals. He will as it were be a stranger to the family of the law, under whose roof he ought to dwell. He will find it difficult to gain the respect of the bar, or to win he confidence of the suitors."Letter on the Appellate Jurisdiction, p. 19.

"And what (exclaimed Lord Lyndhurst) will be the character of the Judge of Appeal? He also will be selected from the highest rank of the legal profession; he doubtless will be a man of the same capacity, the same powers of mind: but every member of the profession must know that the intricacies, the subtleties of equity, are difficulties not depending on statutes. And is it to be supposed that such a man can have his intellects kept alive, his faculties sharpened, his mind invigorated by having to decide fourteen or fifteen appeals in this house in a-year-and one or two appeals before the Committee of the Privy Council? And what will be the result of such an arrangement? Why that the Appellate Judge will become inferior to those whose judgments he is called upon to overturn. Can any thing be more dangerous in practice? Will suitors be satisfied? Will the profession have confidence in him? No. The evils will be as great in reality, as they are supposed to be."

1 See 15 L. M. p. 128-145, where these several topics are expanded and confirmed by authority.

With the highest possible respect for these authorities, we cannot say we are quite convinced by their reasonings. We do not believe that a first-rate lawyer would require this constant and peculiar sharpening of the faculties,—for example, Lord Lyndhurst himself has been several years out of actual practice, yet no one doubts that, were he to be replaced in the Exchequer or the Court of Chancery to-morrow, he would make one of the best judges that ever sat upon the benchand admitting that a judge daily occupied with original causes in equity would be more at home in appeals from the equity courts, he would be less fit for Scotch and common law cases, and would moreover be often called upon to confirm or reverse decisions of his own. Mr. Miller makes some excellent observations on this subject:

"When Lord Lyndhurst speaks of the decision of fourteen or fifteen appeals in the House of Lords, and one or two appeals in the Privy Council as the whole of the judicial duty which the Chancellor would have had annually to perform, he must have forgotten for the moment the amount of business then actually transacted in those places, and also that increase of it which under any possible arrangements would almost inevitably have accrued. And if it can be shown that a permanent appeal court would have sufficient appeal business, it surely ought not to be taken for granted, without proof, that lower professional attainments or a less vigorous exertion of them, are required for the full discharge of the duties of a judge who merely reviews the decisions of others, than of one who exercises original jurisdiction. In the former case, the application of the faculties of the mind is considerably different from what it is in the latter, but it does not follow that the legal attainments required are of a less judicial or laborious character. There would not be the same occasion for that mechanical dexterity and readiness which subordinate judges sometimes shew in the disposal of mere matters of practice, but there would be a much larger demand for an exact and extensive knowledge of the rules of law and equity, in affirming, reversing, or varying the decrees of the inferior courts which came before them. The modification of decrees, and the directions with which they are sent back, are always points of the utmost nicety and difficulty. That a permanent court of ultimate appeal would not afford sufficient opportunities for the display of legal acuteness and legal learning, is one of the last objections I should have expected to find urged against it.

"If the objection be well founded, it amounts to a condemnation