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Court of Session. It was the happiness, and the peculiar happiness of the people of England, that they had a system of law, no matter how it had been constructed, and an administration of justice, superior to that of any other country. The division of the courts of law from the courts of equity, was so admirable, and, at the same time, so necessary to the administration of speedy justice, that until something like it were established in Scotland, it would be impossible for their Lordships to do enough, whatever alterations they might make in their appellate jurisdiction. In making this observation, he did not mean to reflect either upon the learning or the judgment of the members of the Court of Session-by no means it was the system of which he complained, not of those who administered it. So involved and complicated was it, that it was almost impossible for any man who perused the different papers in a Scotch appeal, to discover what the point was about which the parties were quarrelling. It was a fact that was undeniable, that appeals were often made from Scotland to their Lordships, in order to discover the reasons on which the judgment rested in the courts be low. He believed that one noble Lord had suggested, that it might be expedient to take away from their Lordships all Scotch appeals. If that could be done constitutionally, it might be well; but he was afraid that it could not be done, especially when he recollected what had passed in the Scotch Parliament, respecting the remedy of law. He had now been conversant in Scotch causes for forty years; whilst at the bar, he had been counsel in many of the most important of them; whilst he was Chief Justice of the Comf mon Pleas, he had attended regularly when they came before the House; and he thought, that since he had been Chancellor, nobody could justly charge

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him with treating them with negligence. Experienced as he was in them, he would say that they occupied his attention, not only while hearing them in that House, not only during the intervals when he was enabled to detach his thoughts from the cases he had heard elsewhere, but also during many a night which their Lordships had devoted to much more interesting pursuits. Although it was urgent to relieve the office of Chancellor from some of the load of business now devolved upon it, there was extreme difficulty in fixing on the branch upon which relief could be given. The plan now proposed, appeared to him as good as any that it was possible to devise; and though apprehensive that it would fail, he thought it was well deserving of a trial.

The Earl of Aberdeen sought to vindicate the law of Scotland from the reflections which the learned lord had cast upon it. It was not a rude and barbarous system of law, but a system founded on the wisdom of the most civilized nation of antiquity-a system received by most of the nations of Europe, and one which required quite as much research, talent, and ingenuity, as that perfection of human reason, the law of England. He could not wonder at the increase of appeals, when he looked at a late case, where the House had reversed an unanimous decision given, at two different times, by the Scottish Court. His Lordship conceived, that the House had the right, if they pleased, of removing from themselves the duty of hearing these appeals. There was no mention of the right of appeal in the act of union.-Lord Melville, on the contrary, maintained, that this right did exist, and had given general satisfaction to all parties.-Lord Holland protested, both against the taking away the right of appeal, and also against his Lordship's allowing a com

moner to preside in their House. Could none of the peerage be found qualified for the office?

Lord Redesdale dwelt chiefly on the defects of the law of Scotland. He was convinced, that it was the bad amalgamation of the Scotch feudal law with the forms of the Roman civil law, that had led to so many appeals coming to their Lordships from Scotland. That unnatural amalgamation had given rise to a protracted form of action, and to a mass of papers, that had been well described on a former evening by his noble and learned friend on the woolsack. Indeed, the Lord President of the Court of Session had stated, that he was completely embarrassed by the accumulation of papers which came before him; and had complained, that, after hearing cases during the day, he had to read, during the evening, a mass of documents which amounted in the year to 26,000 or 27,000 closely written pages. He was of opinion, that the trial by jury ought to be administered by the Court of Session, and not by a separate Court as it was at present. There would have been no arrear of appeals, if only the due proportion had come from Scotland; and, therefore, if any method could be devised to prevent Scotch appeals from being brought before their Lordships on points of fact instead of on points of law, no arrear would in future take place.

Lord Ellenborough thought, there were many objections to the plan; particularly to that part which went to make a commoner their speaker.

Lord Rosslyn defended the propositions; and both he and Lord Liverpool observed, that, in the very best times of the constitution, commoners had presided in their Lordships' House. The resolutions were carried without any division, except on the third, which proposed the compulsory attendance on members. On this resolution

Lord Holland divided the house, when it was carried by a majority of 26 to

11.

When the bill appointing the law commission, recommended in these resolutions, came down to the House of Commons, a somewhat warm debate took place, on the 10th July.

Mr Brougham hesitated not to introduce matter personally affecting the illustrious person whose functions were under consideration. He believed the forms of process in Scotland were not more prolix or objectionable than those of the English Court of Chancery. When the noble and learned Lord at the head of that Court did, in the other House, in carrying the resolutions on the appellate jurisdiction, evince a great anxiety to facilitate the proceedings of Scotch law, he ought not to have forgotten, that the process of the Court over which he presided was as fit an object for inquiry, as that to which those resolutions referred. But perhaps the noble and learned Lord would not agree with him, that inquiry, like charity, ought to begin at home. Yet he ought surely to have kept in view the Christian maxim, and before he proceeded to remove the beam out of the eyes of our Scotch brethren, he should have taken the mote out of his own. While Lord Eldon continued to direct the cabinet, and regulate the decisions of the other House, it was impossible that his abilities and learning could be so available, as the due administration of justice required in the duties of the Court of Chancery. Under the present_system it could not be said that Lord Liverpool was prime minister; he was rather inclined to look on that noble lord as a part of the opposition. He had sometimes co-operated with that noble lord, and instead of regarding him as the head of the administration, he should rather designate him as a noble lord in another place, with whom

he had sometimes acted. No, Lord Liverpool was not prime minister; the real prime minister was Lord Eldon, because he stood forward sua mente, and carried what he pleased. Mr Brougham maintained, that the Lords, in passing these important resolutions after one or two debates, and without the concurrence of the Lower House, had acted legally indeed, but not constitutionally; they had exercised an extreme right, which, in practice, became a real wrong. The proposed reform was founded on the Chancellor's allegation, that the duties he had to perform were too much for one man. In 1813 he stated, that he was so much worked in the Court of Chancery, that he wanted a journeyman Chancellor; and now, in 1823, he stated, that he was so much worked in the House of Lords, that he wanted a journeyman Speaker. This would be leaving it optional to him to exercise any of his high legal functions. By doing so, Parliament would be doing that which would make it unnecessary to have a great and enlightened lawyer at the head of the courts of equity; and, when that was done, a royal favourite, totally destitute of the qualifications of a judge, might be appointed. For the purpose of receiving the emoluments and giving away the vast patronage of the office, the monarch might make a person a Lord Chancellor who knew no more law than the man in the moon. Such would be the consequence of having a Deputy-chancellor and a Deputy-speaker, along with the Master of the Rolls. Perhaps, in ten or twelve years, the curtain might be completely drawn up, and exhibit a fine gentleman in a silk dress, (as Roger North had described such a phenomenon,) presiding in the Court of Chancery, and, by the gaiety of his habiliments, astonishing all the practition ers in Westminster Hall. Yes, they might see such a judge, who would

think only of the court of our Sovereign Lord the King at St James's, and care nothing at all for any other court. As long as the Lord Chancellor had to grapple, day by day, with a learned and intelligent bar, and was under the necessity of coming, evening after evening, in the House of Lords, in contact with counsel on appeals, the King would be under the necessity of appointing a Chancellor, who would not be far inferior in ability or learning to his competitors. There was no part of the administration of justice in the country with which the Scotch were more heartily satisfied than with the mode in which appeals were decided. The professional men of Scotland had the highest confidence in the learning, skill, and integrity, of Lord Chancellor Eldon in the House of Lords. They were even satisfied with his decisions when he differed from a large portion of them, as he sometimes did, on the law of Scotland, as affecting certain descriptions of property. Nay, some of them had gone round to that noble and learned lord's opinions on those points; and he (Mr B.) believed, that if the lawyers of Scotland were polled, the majority would be in favour of the learned lord's opinions on those points. The same sentiments were entertained with respect to Lord Redesdale, whose attention to subjects of appeal was unremitting. Nothing, therefore, could be less satisfactory to the Scotch, than to be deprived of the advantage of having their causes determined by individuals of such high station and character. They thus derived confidence, that no gross injustice could be committed in the courts below; and there were instances, where the Chancellor had given no light castigation to the Scotch judges, who, he thought, merited it. Among the instructions given to the Commissioners was one, to inquire into the practicability of any intermediate court of appeal for Scot.

land. That would never do. Let them take men of the highest rank at the bar, or on the bench-let them take men of all parties-let them take even Clerk and Cranstoun, men not less illustrious for their firm integrity and punctilious honour, than for their splendid talents-Mr Clerk, especially; who, during a long life, had invariably exhibited a degree of chivalrous honour, and who enjoyed, on the part of his clients, as well as of his professional brethren, a confidence richly deserved by his singular sagacity, by his extraordinary ingenuity, and by that profundity of legal learning, in which he was equalled by no man but the noble and learned lord on the woolsack; or Mr Cranstoun, who had been repeatedly heard by many members of that House with an admiration continually increasing, and whose integrity was as unimpeached, as his powers of mind were unexcelled. Let them take those men, and let them add any others they pleased, and he defied them to constitute a board of appeal that would be satisfactory to the people of Scotland. What the latter wanted was an ultimate court, removed from Scotland, unconnected with Scotland. What they wanted was that which they at present enjoyed-the

House of Lords, with the Lord Chancellor at its head. He approved, however, of the appointment of the com. mission.

The Attorney-General complained of the personal attacks in which the last speaker had indulged. He defended the measure in general, and conceived the House of Lords fully justified in making for themselves regulations, as to the mode and times of sitting and conducting business.

Mr Canning and Mr Peel said a few words on the same side.

Mr Abercromby and Mr Williams objected to the measure.

Mr Denman joined with Mr Brougham in approving the inquiry, and hoped it would supersede the necessity of appointing the ignoble officer proposed. In the course of his speech, he animadverted on the partiality with which the distinction of a silk gown was withheld from his friends, Mr Brougham and Mr Williams, who were most fully entitled to it. The consequence is, that, in the northern circuit, considerable inconvenience resulted to themselves and their clients.

The propriety of the inquiry being generally admitted, no division took place.

AMONG the miscellaneous proceedings of Parliament, those seem primarily entitled to attention which related to the amendment of the law passed in the last session relative to marriage. This was a subject ranking in public interest immediately under the great political concerns of the nation. The act of last session had been intended to remedy manifest and glaring evils in the old marriage law; particularly that by which the dissolute could entrap unwary females, by a form of marriage which, in consequence of the omission of some of the burdensome and complicated observances demanded by the law, proved afterwards to be of no validity. In pursuing this laudable object, however, the framers of the act had made a number of inconsiderate regulations. It had thrown up previous obstructions, and demanded public forms and declarations, felt as revolting to the delicacy naturally felt by the parties on such an occasion. Never was there a more serious clamour; the public complained that their condition was worse than ever, and that their entrance into this happy state was by statute rendered nearly impossible. The

VOL. XVI. PART I.

voice of the nation had been most distinctly heard; and immediately on the opening of Parliament, it was expressed by crowds of petitions. Even the framers themselves could not deny that they had fallen into some oversights, and that a new act, or some serious amendment of that passed last session, was a matter of indispensable necessity.

On the 5th February, Dr Phillimore, in the Commons, though one of the chief promoters of the bill, felt it his duty to propose some alterations upon it. Indeed, the principal inconveniences had arisen, he said, from the alterations made in the other House; which, from the period of the session, the Commons were obliged either to accept, or to lose the bill altogether for the present. As the bill stood, his first and chief objection was to the introduction of so many oaths. The duties imposed upon clergymen were needlessly increased; and the difficulties with regard to licences fell particularly heavy on the residents in large and populous districts. He proposed, therefore, to bring in a bill which should remedy the above objections.