MR. MILLER'S CONDITION OF THE LAW: MR. SFENCR'S STATE OF

THE COURT OF CHANCERY.

THE current of publication upon any given abuse, is not only a tolerable proof of the evil, but of the strength and depth of feel- ing upon the subject ; and the indications of the sign are augmented, if we find the persons busy in pointing out the nature of the mis- chief, and suggesting remedies, are men whose practical ac- quaintance with the matter, if it informs them of the full extent of the abuse, is likely to blunt their perceptions of it by the force of custom, and to steel them against it by the suggestions of a vulgar interest. When men of this kind come forward to complain, and call aloud for remedies, we may infer two things,— that a grievous evil exists ; and that there is deep and stern sense of it in that part of the public which is in any way brought into connexion with it. On the vast subject of legal abuses, we are not, however, left to inference : we see it stated in the publications be- fore us that there is a growing dissatisfaction with the law and its administration, or non-administration, in the minds of all who are brought into contact with it—that is, with nearly all the men of business in the country. When these feelings ripen, reformation is at hand; for a Government that cannot give effect to the wishes of the influential portion of the community, upon a matter which they look at without respect to party, will have to give place to one that can.

Upon the important " Practical Measure" of Law Reform, which must shortly become one of the great measures for execu- tive and legislative consideration, each of the publications at the head of this paper contributes useful information or valuable suggest:ons ; although Mr. MILLER takes a general view of the en- tire subject, whilst Mr SPENCE limits himself to one particular court. We will therefore consider each separately; and take the more comprehensive view first.

1. Mr. MILLER'S Essay On the Unsettled Condition of the Law. The darkest blot upon the name of BROUGHAM as a man of affairs and a Practical Reformer, or the strongest proof that he has not the slightest pretence to the character, was his conduct in reference to Law Reform whilst he filled the Chancellorship. Pledged to the question—professing to have mastered it—and possessing the power to originate, if not to carry, a complete exposition and thorough revision of our legal system—he did nothing on a large scale, but labour with abortions ; and his subordinate changes, though improvements in souse points, disturbed rather than settled. Not to mention the immense sums annually paid by suitors to their professional advisers, the local charges for local purposes, and the courts supported wholly or in part by fees, Ike. upwards of one million three hundred thousand pounds figure in the national taxation balance-sheet as the cost of "Justice." And yet justice is still denied to the poor, and delayed to the rich : in matters of appeal the inhabitants of our vast Colonial empire are dependent upon the convenience and humour of a volunteer, almost an amateur tribunal :* in resorting to their ultimate and hereditary court, the suitors of the United Kingdom have to encounter various anomalies in the professional judges, which, under the most favourable cir- cumstances, often render the unsuccessful litigant distrustful of the fairness of the decision, and lawyers of its soundness. As re- gards the hereditary judgv,:, it is notorious that they sometimes are, and always may be canvassed by suitors ; that they are not free from the suspicion of improper bias ; and that from a concurrence of tisrtuitous circumstances, originating in the constitution of the tribunal, the power of ultimate decision may be thrown into the hands of men whom the profession and the public would be the last to select as judges—no matter how they decide. To enter into the details of abuses which oppress the honest liti- gant and give bold fraud an advantage over right, in the shapes of cost and delay., of needless subtlety. and (in the Ecclesiastical Courts especially) of ridiculous cnactIncnts. would require volumes, which only a masterly hand could prevent from exhausting the patience of the reader. But whoever wishes fa. a rapid, comprehensive, and popular view of English Law, should peruse MT. MILLER'S volume. In it will be found a brief exposition of some of the leading causes which have contributed to complicate the law, and to reduce it to its present condition ; with a short re- sum6 of the various partial and incomplete, if not discordant at- tempts at reformation, which have been made from time to time, and the effects they have produced, both for good and evil. Mr. MILLER also gives a reduced but graphic coup dwil of the dif- ferent courts of justice, with their most striking anomalies and de- fects in administration ; and he presents a large, rational, and well- considered plan for a thorough and systematic examination of the law in order to its reflirm and consolidation,—suggesting himself, in several cases, the particular kind of changes he would recom- mend.

This is merely an outline of the contents of Mr. MILLER'S small volume; for, such is the author's closeness of matter and largeness of view, that it would occupy a very considerable space to enume- rate the heads of the subjects he touches upon in his rapid survey. Nor is there any thing dry (Sr repulsive in his manner ; which is equally remote from exaggerated declamation. Striking as are many passages in the following extracts, they will be found to derive their force from the weight of their facts, or the magnitude of the evil they expose.

ENGLISII LAWS AND LEGISLATION.

Ruffherul's edition of the Statutes, brought down to 1838, now extends to thirty-two immense quarto volumes; while the progress of original, amending,

• The Privy Council. reamending, explanatory, and consolidating acts which they contain, from the time of King John 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 care- lessness 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 Viet. e. 32. It contains no fewer than six errondoue or superfluous notices on matters of a statutory nature. It repeals the 1 Wil. and Ma. sess. 3, c. 3. No such seseion is upon record. It repeals 25 Geo. ILL c. 57 ; which was previously repealed by 3 Geo. IV. c. 126, s. I. It repeals 43 Geo. HI. c. 31 ' • which was repealed by 46 Geo. III. c. 142, a. 1. It repeals 43 Geo. III. c. 119; which was repealed by 10 Geo. IV. c. 26, s. I. It repeals 49 Geo. III c. 45; which was repealed

by 11 Geo. 1Y. and I Wil. IV. c. 20, s. 1. And it repeals 7 and 8 Geo. IV. C. 58 ; which was repealed by 9 Geo. IV. c. 60, s. I. Examples of similar and more material mistakes might be accumulated to any extent, and under every bead of regulation and enactments, from the same inexhaustible storehouse.

LAW OF REAL PROPERTY.

The law of real property has at last assumed a shape infinitely more subtle and intricate than any system which has ever before been allowed to have a place in the practical 'business of mankind. Let a private gentleman of the best education and understanding peruse part of any treatise on conveyancing with the greatest patience and attention, and he will scarcely comprehend the drift of a single page of what he has been reading. A foreign jurist, though well acquainted with the English language, will find himself in the same con- dition. It is a branch of the law which is comparatively unknown to a large part of our own barristers, and is underatood but imperfectly by many even of the Masters in Chancery. and Judges of the realm, whose duty it frequently becomes to decide upon it.

The inherent and undeniable defects of the system have to a considerable degree been obviated by the honour and integrity which has so long distin- guished the most eminent members of that branch of the profession to whom .the business of conveyancing is intrusted. So little are they disposed to pro- -mote litigation or create unnecessary and merely technical difficulties, that they serve in fact as a domestic forum, for the amicable settlement of the interests of the parties for whom they severally act; and in most cases, no delay or ex- pense is caused which as the law now stands could easily be avoided.

ANOMALIES OF THE COURTS.

The Court of Admiralty, Court of Arches, Prerogative Court, and Diocesan Court of the Bishop of London, are all held 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' Commons there are fixed judges without being accommodated with separate courts, in the Judicial Committee of the Privy Councilthere 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 cor- responding 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. * In none of the courts, so far .as I know, are any hours prescribed by act of Parliament or other competent authority, for the commencement or termina- tion of the sittings. In all of them business is understood to begin a little acr ten o'clock in the forenoon. None of them usually sit after four, and at times some not after three ; but this is arbitrary, depending on the judge's own notions of what he himself can or ought to accomplish. '1 he same may he said of the length of the holydays which are allowed at Christmas, Easter, Whit- suntide, and during the autumn:

EFFECTS or A PARTIAL REFORM.

The saving to the public in purse as well as pain of mind, which good reme- dial provisions effect, far exceeds the estimate of them usually formed. I have heard from authority on which I think I can rely, that the saving in the trans- fer of real property, effected by the acts recommended by the Real Property Commissioners, most likely exceeds 100,0001. a year; and that the saving ef- fected by the late Wills Act will be at least equal to as much more. The single clause in the Wills Act which declares that the words without leaving issue, shall be held to refer to the death of the testator, unless a contrary in- tention shall be made to appear, will completely supersede not less than one or two hundred cases; and the tenth section of the same act will altogether su- persede about forty pages of the last edition of Sir Edward Sugden's "Treatise on Powers."

A SUITOR IN EQUITY.

A suitor in a court of equity is amongst the moat helpless of all human

beings. Ile seldom perceives clearly himself the real source of his grievances, 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 defen- dants, and that there they are now fixed, without seeing how they can extri- cate either themselves or their property. 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 inter- minable references of the Court to the Master, and appeals from the conclu- sions 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 arc 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.

STATE OF THE LEGISLATURE—TAKE HEED.

It is peculiarly unfortunate, that at a conjuncture when the number and magnitude of the affairs which press upon the consideration of the Legislature require its members to display more comprehensive views and greater resolution and activity than at any antecedent period of our history, both Houses of Par- liament, and especially the House of Commons, should debate so much and Settle so little. Instead of displaying the energy and foresight which charac- terizes statesmen, or the despatch which belongs to men of business, nothing i 'whatever is done which can by possibility be deferred ; and what is done, s done in haste, and done badly. In this state of the great council of the nation, it can hardly be expected that the law or the administration of justice should meet with more close or continuous attention than other affairs of equal mo- ment. Some relief is given, more is promised, and with this the executive servants of the Crown think the country ought to be contented. Bat the ex- tent of public patience may be overrated. Those official persons who think that the safest course for them is to remain as passive and quiescent as they can, who calculate that with some amendments and additions the same system of law and judicature which has already lasted so long will last their time or for ever, take a very imperfect survey of the scene which lies before them. Their position and that of their predecessors is essentially different. As the mass of' the people become more intelligent, law and legal proceedings are scanned by greater numbers and with greater keenness; as litigants become more poor and leas submissive, costs of suit are paid with greater difficulty, and of equity, unhappily become more .slow at the very. m hose of every 1:177tmeespnecit reluctance ; while the movements of courts of justice, b ally of cons% other branch of business are becoming more expeditious. These concurring causes sufficiently point out the propriety of setting seriously and systemati- cally about a revision of every branch of the jurisprudence of the co'untry be.

fore it be too late.

It must not be inferred from these extracts, or from any thing we have said, that the author is either raw or rash. Fourteen years ago Mr. MILLER preceded Sir ROBERT PEEL as a law reformer; and he exhibits thioughout the caution of a practitioner, averse to unnecessary changes, though circumstances and a native habit of mind may have induced him to examine with more freedom and to decide with less prejudice than generally characterize the re- forming lawyer. How little he falls into the sweeping plans of many suggesters of law reforms, may be gathered front his closing words. " The symptoms which are presenting themselves from day t6 day, leave little doubt that the delay or denial of it (law reform) will lead, at no distant date, to a loud and impatient call for a new and entire code, and a scheme for tlw cheap and speedy administration of justice. To avert all chance of so alarming lc proposal, and to prompt those public servants upon whom the task devolves to lose no time in enlarging, shortening, and purifying the channels of law and equity, so as to fit them for the present exi- gencies of society, is the sole end and object of these summary observations."

2. SPENCE'S Unsatisfactory State of the Cowl of Chancery. The inquiry of Mr. SPENCE is limited to the Court in which he practises, and even there his ground is somewhat narrow ; the learned gentleman confining himself to the present accumulation of ar- rears and the impossibility of getting rid of them with the present number of Judges ; but he avoids discussing the question of how far these arrears may have been caused by the state of the law, by the practices of Courts of Equity, and by the delays in those subor- dinate tribunals the Masters' Offices. His exposition of the present state of business in Chancery is, however, of a most thorough, complete, and appalling kind. We have quoted from Mr. MILLER the character of a Chancery suitor. Here, as a pendant, is a pie. ture of his state and prospects.

CHANCERY BUSINESS IN JANUARY 1839.

There were then five hundred and fifty-six causes and other matters, in. eluding twenty demurrers, waiting to be heard by the Lord Chancellor and Vice-Chancellor. The causes at the head of the list, excluding those which haa 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, and other mat- ters, 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 tend amount of the matters to be heard, therefore, was eight hundred and Afty-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.

The "law's delay" is not, however, the only evil—with each post- ponement heavy expenses are incurred ; one item, a term fee to clerks in court, amounting to about 7,000/. a year, besides a cor- rellative charge from the solicitor. In addition to mere charges, however, the peculiar forms of the Chancery Courts create very considerable further expenses by complicating the suits.

In these Successive intowals of delay, it necessaeily happens, that by reason of the death or marriage of sonic 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 culled on, cannot be heard without it new or supplemental snit, to bring balm 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 it calculation which may be depended upon es 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 one hundred and five.

Is, there any prospect of extrication for the Chancery suitor? any chance that 1839 will be better than its predecessors ? Let Mr. SPENCE answer- " TlieVice-Chancellor, 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 Jnly 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 18:18; it stands No. 1•1 in the list of January 1839, where it renutins to this day (20th of March.) Striking off the ineffective MRS 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 ■,'ear. Now, at this rate, in case we should have a Chancellor who 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 January 1839 could be heard. for the first time, giving them the benefit of the usual chances. If a hearing on further directions should be required, that second hearing could not come on until thirteen genre from this thne,—possiblyMeen or even twenty years, if any of the parties should die. From this time, therefore, unless some effectual remedy be adopted, all the evils of 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 terminatiou, if he have a determined adversary."

After this tremendous picture of the state of the Chancery Courts, we cannot but think that the reforms which Mr. SPENCE discusses are unequal to the magnitude of the evil, and the one he recommends quite inefficient. The plans of Lords COTTENHAM and LANGDALE merely involve a change in the nature of the judges; the principal one being to separate the political from the judicial functions of the Chancellor, and to constitute a more effi- cient court of appeal than the House of Lords is at present. Lord tuielimin's project only proposes an additional judge. Con- sidering that three judges cannot get through the existing causes underffieen years, any of the remedies suggested by these noble- men seems merely tampering with an evil, instead of even attempt- isea Palliation. But it is passing strange that Mr. SPENCE, whose calculations have just shown that it would take nine additional judges three years at least to clear off arrears, should recommend Lord LYNDHURST'S paltering scheme, whichi Iv:theta remedying a gagla evil, would merely furnish excuses for staving off' further inquiry. It may be true that his plan, as that of an Opposition Lord—what a satire upon Government !—stands the best chance of being carried ; but it is not for a philosophical improver to suggest an obviously in- adequate project on any such plea. Looking at the failures of mode- rate men, from the mu of the Reformation to the days of the pre- sent Government, it is questionable whether this trimming and evasive conduct does any thing more than play the game of adver- saries, and retard the eventual progress of the cause it professes to forward. But the most moderate man breathing, charged with the responsibility of action, would be justified in rejecting a plan which is inefficient in the arithmetical ratio of about 5 to 1, and whose Practical operation would be to enable a new Government to say "wait and see how it works."