Law and Courts of Law.

The independence of the judges has so long formed a current theme of praise, that it appears almost presumptuous to call it in question. Yet the difference between them and other functionaries is not so apparent as is generally assumed. It is true, the judges hold their situations for life, unless guilty of some flagrant impropriety; but the same may be said of other appointments under the Crown, the possessors of which are seldom disturbed, so long as they correctly discharge their duties; or if they are, they invariably receive a superannuation allowance, or compensation, equivalent to the loss they have sustained. As respects, then, the tenure of office, the sages of the law cannot arrogate a great pre-eminence over other placemen: as respects those causes which ordinarily influence individual conduct—the lure of ambition—the temptation of lucre—and the seduction of indolence—they have still less to pride themselves. A judge, like a bishop, may be translated from a lower to a higher dignity—from a judgeship to a chief-justiceship, from that to a peerage or a seat in the cabinet; he may be removed from an office of £5,500 per annum to one of £10,000, and boundless patronage: he may be taken from a court where he is overwhelmed with the claims of duty, to one where the most important duty he has to discharge is to receive his salary. How then can it be alleged the judges are independent and exempt from ministerial influence, when the ministers have similar alluring temptations to hold out to the bench as other functionaries, and similar means of rewarding subserviency?

Other causes operate unfavourably on judicial appointments. Instead of the individuals elevated to the bench being a selection from the entire Bar, of men the most distinguished for ability, probity, and experience, the choice of the ministry is limited to men of their own party. A Tory minister never chooses a Whig judge; nor the contrary. This tends to lower the character of the judges in public estimation, by clearly evincing that politics, as well as legal fitness, have a share in ministerial promotions. It also instils into the minds of both expectant judges, and of men already on the bench, a party feeling fatal to strict justice on political questions. So well established is this fact, lord Brougham has remarked that it is notorious, whenever a question comes before the tribunals, whether it be upon a prosecution for libel, or upon any other matter connected with government, the council, at their meetings, take for granted that they can tell pretty accurately the leaning of the court, and predict exactly which way the consultations of the judges will terminate. It is very unfortunate the judges should be always on the ministerial side of politics; but there is no help for this, while they continue to be selected on the exclusive principle. They have their opinions on public questions as well as other men; they know they fill a certain situation, and they cannot forget by whom they were placed there, or for what reason.

With these remarks we shall leave the venerable occupiers of the Bench, on whom we had no intention of offering any observation; but in some way their situation obtruded itself on our notice, on first entering on the consideration of the important subject of this chapter. We shall now proceed briefly to notice the more prominent abuses in the laws and their administration.

The whole body of English Law is divided into two kinds—the Common and the Statute Law. The Common Law is founded entirely on custom or precedent, and the decisions in the courts of justice. It is not founded on Acts of Parliament, nor on legislative enactments; it is recorded in no public document; the only memorials of its existence are to be found in traditional maxims, records of pleas, books of reports, or the treatises of men eminent in the profession. It is evident that laws originating and preserved in this manner, must be vague, obscure, often absurd, and even contradictory. The Common Law is, in fact, a monument of the opinions, errors, knowledge, and ignorance of every period of society; it has flowed down the stream of time, accumulating like a mighty river, and carrying along vestiges of the learning and ignorance, folly and wisdom, of every age through which it has passed.

How unworthy such an incongruous mass must be of the present age; how inapplicable to the usages of society; and how difficult it is for any individual to obtain a knowledge of such an onus camelorum, it is unnecessary to describe. Unsuitable as such a system of law is, to fulfil the ends for which all laws were originally intended, it forms a very considerable part of the laws of this country. It is in virtue of the common law that the eldest son inherits from his father; that property may be purchased and transferred by writing; that a deed is void if not sealed and delivered; that money lent upon bond is recoverable by action of debt; and that a breach of the peace is punishable with fine and imprisonment. These are doctrines not established by any written statute or any legislative enactment, but depend solely upon immemorial usage.

So much for the Common or Unwritten Law; next for the Statute-Law, which exhibits a still more frightful chaos. Statute-Law consists of all those acts, edicts, and statutes, made by the king, with the consent of the lords and commons in parliament assembled. The oldest of these now extant, and printed in the statute-books, is Magna Charta, as confirmed in parliament by 9 Hen. III. There were doubtless many acts before that time, the records of which are now lost; and which most probably were the foundation of some of the maxims in the old Common Law.

No man in England professes to be acquainted with the Statute-Law—not even the Lord Chancellor nor the Lord Chief Justice. It is such a prodigious compilation, that a knowledge of it is wholly unattainable. No one knows exactly what is law in England; though every individual is presumed to be acquainted with it, and ignorance is admitted as no excuse for its violation. Any one may become a legislator for the whole country; he has nothing to do but to turn to the statute-book; he will there find laws in abundance, of which no man has any knowledge; he may adduce them as the law of the land; he cannot be contradicted, unless some subsequent statute can be found by which it is repealed, and which it would probably require a year’s labour to discover. In some respects the statute-book may be compared to the scriptures. It contains many good maxims and excellent precepts; but, as a whole, it is contradictory, obscure, and inapplicable to the age. What one part affirms, another part denies. Laws may be adduced from it, like texts from the Bible, proving any thing and every thing, adapted to all times, principles, and occasions: one affords profitable employment for one hundred thousand wrangling lawyers; the other profitable employment for as many polemical divines: one is termed the perfection of human wisdom; the other a bright emanation from the Deity!

How ignorant the most eminent in the profession are on the subject we may gather from a speech of the late Lord Stanhope, on the revision of the Statute-Book. Some of the most striking facts mentioned by his lordship we will here insert. Conformably with a motion of his lordship, the judges were directed to prepare a bill, reducing into one act all the acts imposing the punishment of pillory. At the end of the bill the judges inserted some observations, stating that pillory was the punishment for some offences not merely by statute but at common law; and also they could not say whether there might not be statutes on the subject which had escaped their attention. Their surmise was just; for Lord Stanhope afterwards discovered two more statutes, passed in the reign of Geo. II. which had wholly escaped their researches. Here then was an instance of the twelve judges not being able to discover all the acts inflicting a single punishment.

The same noble lord, wishing to ascertain how far the judges were agreed as to what was the law on several particulars, put to them various questions. For instance, he asked whether a person digging the brick earth from his own field, there manufactured into bricks, and sold, thereby made himself a trader liable to the bankrupt-laws? The judges of the Common Pleas were clearly of opinion one way, the judges of the King’s Bench were as clearly of opinion another. Lord Thurlow was reputed a most admirable common lawyer; but he was worsted on one occasion, in a dispute which he had with Lord Stanhope, on the subject of a statute; Lord Stanhope proving to be right, and old Thrumbo wrong. This, says Lord Stanhope, was a great feather in my cap. One day as these noble lords were sitting together on the woolsack, Lord Thurlow said, “I should be ashamed of myself if I was not accurately acquainted with the common law; but as to your d—d statute-book it is impossible to be acquainted with it.” His lordship also related another anecdote of the celebrated Mr. Dunning, afterwards Lord Ashburton. Lord Stanhope consulted Mr. Dunning on a certain statute regulation relative to the excise, and his answer was, “Now I’ll tell you all about it; but I never do answer these general questions when applied to by others. I always tell them, shew me the statute to which you refer, and I will expound it for you, but that is all I can do.” Now this was doing about as much as we could do ourselves, or as much as any person could do who has a tolerably clear head, and not much disturbed by worldly affairs.

The fact is, the lawyers and judges, in many cases, are as ignorant of the law as their clients and suitors. When a statute is produced, they can expound it, as Mr. Dunning terms it; so perhaps may any person who can read and understand the English language; but as to knowing whether it is the law of the land, whether it has been repealed or modified by any subsequent enactment, they are frequently as ignorant as the gaping spectator who looks upon them as infallible and inspired guides. We do not, however, accuse them of wilful ignorance; we do not say that, like the Fellows of Eton College, they are willingly ignorant of the statutes; they are generally men of laborious pursuits, who spare no pains to obtain a knowledge of the law; but we accuse them of a culpable indifference to the defective state of the statute-book, of either by their silence or open hostility opposing every attempt to reduce it into an intelligible form, originating either in a rooted prejudice against the reform of any thing and every thing, or solely from a wish to maintain the pecuniary interests of a multitudinous and rapacious profession.

When a legal question is brought before the courts, deviating in any degree from the ordinary routine, it is seldom decided instanter. The counsel open the case,—they, in fact, instruct the judges,—they refer to precedents and statutes, as they have been instructed by their attorneys, who have, perhaps, been instructed by their clients; the judges then say they will take time to consider; and after going home and moleing their way through a labyrinth of reports and acts of parliament, they obtain a twinkling of light, return into court, and adjudicate the subject in dispute to the best of their ability.

Such is the immense number of law-books and their ponderous size, that it would require the age of the patriarchs to acquire a knowledge of them. They are literally Ossa piled on Pelion, a huge unformed mass, which no man can fathom. There is a little Aldine compilation, Viner’s Abridgement, comprised in twenty volumes folio, which it is considered necessary for every lawyer almost to know by heart. Gracious heaven! only think of that! Mind, too, this is a mere abridgement—bare memoranda of the great originals; and had it been continued to the present time, it would have amounted to more than one hundred folio volumes, necessary to be carried either in the head or the pocket of every English lawyer. The most condensed edition of the Statutes at Large yet given to the public, occupies thirty-nine volumes in quarto; seven volumes and a half of which comprise the acts from Magna Charta to the end of the reign of George II., the remaining thirty-one and a half being filled with those of the two last reigns. Since the Union with Ireland, a huge closely printed volume has been published every one, two, or three years, and the average number of public acts passed in each of the last twenty-eight years amounts to one hundred and forty. It is calculated that at the end of the present century, the statutes will occupy one hundred ponderous quarto volumes, and the number of public acts will amount to fourteen thousand. The present generation complain of being overwhelmed with law, but what will be the situation of posterity?

We have said nothing yet of Reports of Cases. These form an indispensable part of a lawyer’s knowledge. It is well known that decisions in courts of justice become a part of the law; and when a point has once been decided, it must be determined in the same way again, unless the precedent can be proved clearly erroneous. Reports of these decisions are published annually; they already amount to upwards of two hundred and eighty volumes, exclusive of those which relate to election, admiralty, and ecclesiastical law. But this is not all: they are going on increasing amazingly; every year adds eight more to the original stock; so that in twenty years there will be one hundred and sixty, and within the century seven hundred and twenty additional volumes, making one thousand volumes of reports, which, with one hundred quarto volumes of statutes, will form a lawyer’s library, that it is not only necessary he should read, but digest, and, if possible, understand.

This is English law, the perfection of human wisdom! Let us, however, pause a moment, to reflect on this mass of legal lumber, this grossly absurd system of legislation. It is considered a settled maxim in jurisprudence, that every state within the limits of its own territory ought to exact, and its subjects to yield, obedience to all its laws. The foundation of the obligation on the part of the people is that the legislative authority on its part is presumed to have made the laws so clear, that every member of the community either knows them or must be culpably inattentive if he do not. This principle is undeniable. It would never do to allow ignorance to be an excuse for the violation of laws. But how can any person be acquainted with English law? How can the legislature have gone on for centuries legislating on such an absurd presumption, and presuming that every individual in the empire was acquainted with their enactments? How can men of business read, digest, and understand one thousand volumes of reports, and one hundred quarto volumes of statutes? How can the people understand the law, when even the judges, whose whole lives are devoted to the subject, are in the most pitiable state of perplexity, uncertainty, and contradiction? Can any thing in the whole world be imagined more completely absurd and ridiculous? Had the whole system been blindly scraped together from every age, nation, and tribe in the universe, from the farthest extremity of Siberia to the remotest deserts of Garamantes, it could hardly have presented a more confused and hideous jumble than the Statute and Common Law of England.

One cause of this profuse, headlong, and inconsistent course of legislation has been the reckless facility with which parliament has multiplied laws on a given subject, when a general enactment might have been framed adequate to the several occasions. Since the beginning of last century 4000 bills for enclosures of wastes in as many parishes have been passed, proving to demonstration the want of a general law on the subject; while, in the whole of that time, not a step has been taken towards enacting such a law, and so saving the community the prodigious waste of private funds and public time consumed in the passing of so many different statutes. The same observation applies to the innumerable acts passed for lighting towns with gas, and for the purposes of police and local improvements. Upwards of fifty acts have passed relative to game; forty-eight relative to parliamentary elections; and seventy-six indemnifying Dissenters for not qualifying themselves for offices and employments. There are many acts of a temporary and local nature. No fewer than sixty acts have passed for the recovery of small debts in different parts of the country, and fifty of them during the last two reigns. There are some acts relative to the baking of bread, and prohibiting the bakers from selling it unless it has been baked twenty-four hours. About the packing of butter there are somewhere about a dozen different acts; as though it were necessary to instruct people to pack butter by act of parliament. One act on this subject relates to the packing of butter at Malton, in Yorkshire; another to the packing of butter in the city of York, a few miles distant; and another on the same subject for Ireland. Innumerable laws have been enacted relative to the woollen, linen, and cotton manufactures; the whale, cod, herring, and pilchard fisheries; cheese, lace, sugar, glass, and almost every article of wear or consumption has been the object of parliamentary regulation. The whole of the statutes on wool amount to 987; on the subject of gold and silver 290; on tobacco 460; on the fisheries 970; and on a variety of other subjects in proportion. Relative to the poor there are 350 public acts; besides 135 local acts. By some of these acts the poor are farmed out, by others flogged. Of these local acts five passed in the reign of George II.; the remaining 130 in the reigns of George III. and George IV. Besides the number of acts, other causes of the confusion and perplexity of the Statute-Book arise from the immense number repealed and re-enacted, and then partly repealed again, with a “so far as,” and “so forth;” also from the mass of altering, amending, and explaining acts; of acts, for instance, for “removing doubts,” for “rectifying mistakes,” for “relieving from the provisions,” for “deferring the commencement,” for “facilitating the execution,”—to say nothing of acts of total repeal. No fewer than 1874 acts were repealed in the reigns of George II. and III.; 419 in the former; and 1455 in the reign of the latter; which made Lord Stanhope remark, “they had been passing bills by waggon loads, and repealing them by cart loads.”

Some efforts were made during the reign of George IV., under the auspices of Sir Robert Peel and the Marquis of Lansdowne, to reduce the Statute-Law within more reasonable limits. The parliament, dissolved in 1826, repealed, modified, or consolidated upwards of 1000 statutes. One act, the 3 Geo. IV. c. 41, repeals upwards of 200 statutes, or parts of statutes, relative to the export and import of merchandize; the commerce of aliens and denizens, the guaging of wine, and other mereantile regulations. The Custom Act consolidated 450 acts of parliament into one; the Jury Act 30; the Bankrupt Act 20; and the acts on larceny, malicious mischief, and forgery, have effected a considerable compression. From a table of repealed acts prefixed to Evan’s Collection of Statutes, it appears that during the short interval from the 4th to the 10th of George IV., 1,126 acts of parliament were wholly, and 443 partly, repealed, making a total of 1569: of these 1344 related to the empire at large, and 225 solely to Ireland. Still the evil is of such magnitude that there is scarcely perceptible diminution in its amount; nor do we anticipate—for reasons we shall hereafter explain—any decided improvements in jurisprudence, either from the consolidatory acts, or from the other projects of legal reform now in progress.

Nothing has tended so much to swell the Statute-Book as the enormous increase in taxation, and the consequent increase in the number of Revenue-Laws. During each of the last twenty-eight years, the number of acts passed, which relate strictly to the revenue, has amounted to forty; and those which are connected with them indirectly, and but for them would never have existed, to nearly twenty more; which comprises about half the whole number of laws annually enacted. The acts lately in force with regard to spirits alone amounted to 140; an attempt has been made to consolidate them, but as new acts are yearly being added, both as regards spirits and custom duties, the merchant and trader will soon be involved in as great a labyrinth as ever. The stamp-acts amount to more than 150, and they still remain unconsolidated. So do the innumerable acts relative to the coin. Soap, candles, and the distilleries are under excise lock and key; and, in many instances of exciseable manufacture, it is impossible to carry on the different steps of the process with advantage, from the delay and interruption from the visits of the excise. What a bungling piece of legislation have been the attempts to regulate the malt-duties, hackney-coaches, and the vend of coals!

On the middling classes these laws are peculiarly oppressive;—and yet they have been unceasingly told, that a reform in parliament would do no good! Would it not, we ask, relieve them from the vexatious inquisition and endless interruption and restraint on the operations of trade under which they now labour? Would it not, in short, cause an entire revision of that cumbersome and absurd system of jurisprudence which we have attempted to describe;—reduce the Statute-Book to one-hundredth part of its present bulk; consolidate the almost innumerable local acts into more general laws; and abolish all those unjust and impolitic enactments which interfere with industry and commerce. Such numerous laws are no doubt useful to the profession; they afford a fruitful and endless source of litigation; they are glorious things, as Lord Stanhope remarked, for attorneys, conveyancers, special pleaders, barristers, and so forth, but most inglorious and calamitous for the people.

We shall only make one or two more remarks on Statute-Law, and these refer to the language and manner in which acts of parliament are drawn up. It is evident that all laws ought to be intelligible to those on whom they are intended to operate; otherwise, it is wilfully creating an ignorance which will not be admitted as any excuse for their violation. It is difficult to see why laws could not be so clearly and simply worded as to be intelligible to ordinary capacities, without the assistance of either attorney or lawyer. They involve no abstract theorem of science; they are a mere statement of facts, requiring something to be done or not to be done; which, really one would think, might be made intelligible without the continual assistance of interpreters, at an enormous expense. The obscurity and perplexity of statutes arise principally from a perverse deviation from the ordinary language of civil life, an overwhelming verbosity and endless repetition of “he, she, they,” “him, her, it, and them,” the “aforesaid,” and “so far as,” the “so forths,” &c. which render the whole so involved and perplexed, that one would suppose the legislature, instead of endeavouring to render the laws as lucid as possible, had purposely involved them in the greatest possible darkness. From the habitual indulgence of fiction and tautology the minds of lawyers—for they are lawyers who draw up acts of parliament—become so inveterately alien to truth and simplicity that they cannot be otherwise if they would; and, accordingly, we find in those cases, when their intention has really been to be intelligible, that their language involves so much complexity—there are so many crochets and puzzles—that they entirely fail in their purpose, and defy comprehension by ordinary minds. We shall give an instance of this from one of Sir Robert Peel’s consolidatory acts, the 7 & 8 Geo. IV. c. 28; which is the more remarkable, because the express object of it is to obviate obscurity and misapprehension, by giving a simple and general rule for the interpretation of criminal statutes. The clause to which we allude is the 14th, and expressed as follows:—“Whenever this or any other statute relating to any offence, whether punishable upon indictment or summary conviction, in describing or referring to the offence, or the subject matter on or with respect to which it shall be committed, or the offender or the party affected or intended to be affected by the offence, hath used, or shall use words importing the singular number or the masculine gender only, yet the statute shall be understood to include several matters as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction; and wherever any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where such body shall be the party aggrieved.”

An unlearned person might possibly guess at the intended meaning of this explanatory rule, and a lawyer no doubt—and this would be deemed by him its chief excellence—would be able to draw from it a dozen different interpretations, according as they best suited the purposes of his client.

Things the most heterogeneous are frequently jumbled together in the same act of parliament, and the title is often as remote as possible from the subject matter of the statute. These are called “Hodge-podge Acts,” and are very numerous. Who, for instance, would expect to find the regulations under which petitions may be forwarded to members of parliament, in an act for laying an additional duty upon tea and sugar? The commencing clause of the statute, under which Vauxhall and other theatres and places of entertainment are licensed, is as follows:—“Whereas, the advertising a reward with no questions asked, for the return of things lost or stolen, is one great cause and encouragement of robberies, be it enacted,” &c. Many may recollect that Sir R. Peel, on introducing to parliament his bill for amending the larceny-laws (March 9th, 1826), cited the title of one single act, which embraces no fewer than the following bizarre miscellany:—the continuing several laws therein mentioned; the carrying of sugars in British-built vessels; the encouraging the importation of naval stores; preventing frauds in the admeasurement of coals in the city of Westminster; and preventing the stealing or destroying of madder roots. Another act he referred to forms a still more whimsical olio, and is intituled “An Act for better securing the duties of customs on certain goods removed to London; for regulating the fees of officers in His Majesty’s customs in the province of Segambia, in Africa; for allowing the Receiver-General of Fees in Scotland proper compensation; for the better preservation of hollies, thorns, and quick-sets in private grounds, and trees and underwood; and authorising the exportation of a limited quantity of barley from the Port of Kirkgrow.” Such acts run very much like cross-readings in a newspaper, and those who wish for further amusement of the sort will find it in Mr. Wickens’s publication on the Division of Labour in Civil Life, where the subject is pursued to a greater extent than our limits will admit.

Notwithstanding the laborious and tiresome precision of statutes, they frequently comprise the most egregious blunders. There is a singular instance of one in the 53d George III.: by the 18th section, one half the penalty is to go to the king and the other half to the informer; but the penalty happened in this case not to be a fine, but fourteen years’ transportation; so that fourteen years’ transportation were to be equally divided between Messrs. Byers and Co. and his Majesty!

Perhaps our readers may deem this too old a blunder to illustrate the deliberative wisdom of the law-makers of the reign of William IV. If so, we shall give them an example of legislative aptitude from one of the most important acts of the session of 1830—that for Consolidating and Amending the Laws on Forgery. This statute was drawn, we believe, by Messrs. Hobhouse and Gregson, and was some years in preparation, under the auspices of Sir R. Peel; it received the tinkering of Sir James Scarlett, between whom and the gentlemen by whom it was framed, some difference of opinion respecting its provisions arose, which could only be terminated by an appeal to Lord Tenterden, who felt himself bound to decide, notwithstanding his well-known partiality, against Sir James. Well, this act so patronised, elaborated, revised, quarrelled about, and arbitrated, is at length brought forth, passed, and is now the law of the land; and we will venture to say a more defective and bungling piece of legislation is not to be found in the great book of conundrums and absurdities itself. What the public expected was an act that would comprise the entire statute-law of forgery; unless this was attained, little benefit could result from adding one more statute to the 400 previously existing. Instead of consolidating the law, it merely embodies the whole or part of the provisions of twenty-seven statutes out of the mass; all the acts relative to the forging of stamps, seamen’s warrants, plate-marks, and on the post-office, remain scattered, as heretofore, through the boundless waste of the Statutes at Large, to be applied or not, as it may happen, by judges and lawyers. Incompleteness is not the worst defect in this statute; some of its provisions are obviously incompatible, and the commencing part of the act seems to have been entirely lost sight of when the concluding part was agreed upon. For proof of this compare the following sections, nearly the first and last, in the statute.

“§ II. And be it enacted, That if any person shall forge or counterfeit, or shall utter, knowing the same to be forged or counterfeited, the great seal of the United Kingdom, his Majesty’s privy seal, any privy signet of his Majesty, his Majesty’s royal sign manual, any of his Majesty’s seals appointed by the twenty-fourth article of the Union to be kept, used, and continued in Scotland, the great seal of Ireland, or the privy seal of Ireland, every such offender shall be guilty of high treason, and shall suffer death accordingly.”

§ XXIX. And be it enacted, That this act shall not extend to any offence committed in Scotland or Ireland.”

Here we see in the second section a specific punishment assigned for the commission of an offence in Scotland; and in a subsequent section it is expressly declared the act shall not extend to any offence committed in Scotland or Ireland. What the judges will make of this inconsistency, when it comes before them, it is impossible to foresee: we suppose we shall have another act or two to “explain” or “amend,” &c.; and so our legislature proceeds, heaping one act upon another, making delightful work for lawyers, and “raining,” as Mr. Bentham expresses it, “snares among the people.”

Sir James Scarlett, to be sure, is not a paragon of legislators any more than of attorney-generals. The act for Improving the Administration of Justice will not be soon forgotten by the profession: this act, among other changes, altered the period of commencement of the terms. But no sooner was the act in force than it was discovered to be pregnant with the most ludicrous errors; the framer of the statute was clearly ignorant of the changes of the moon—of that common astronomical knowledge which is contained in every almanack; the consequence was that the courts would have been involved in the greatest confusion, had not another statute been precipitately brought in to remedy the blunders of the first.

One cause of such blundering legislation is to be found in the vicious mode of transacting business in the House of Commons. It is well known law-making is a sort of after-dinner amusement, which commences when gentlemen have taken their wine—when the theatres have closed—and the night-houses are thrown open for the reception of customers. It cannot be matter of surprise if, under such unfavourable circumstances, the nocturnal occupations of the Collective Wisdom exhibit strange examples of forgetfulness, haste, and confusion. We, indeed, are often astonished things are not worse, when we reflect on the course of parliamentary proceedings—no division of labour, or exclusive devotion to legislative duty—all chance medley, helter skelter, volunteer and amateur exertion—the chief manager straining every nerve to get through public business before the setting in of the Dogdays—stratagems to steal a march to avoid some economical proposition for a reduction of the estimates—packing a house for a job or private bill—jaded ministers dropping in late from their offices or a protracted cabinet-council—country gentlemen from a tedious morning-waiting at the Treasury for places and appointments—lawyers from the courts—and the sons of riot reel in at midnight, from the saloons and club-houses, in quest of divertisement—and thus business goes on, and a house is formed of men distracted with their individual avocations, or suffering from lassitude and over-excitement. They talk and talk, it is true, without end, as people mostly do when not fully master of their subject; but their ideas are crude—there has been no preparation or concentration of thought—and all their doings bear evident marks of the intellectual chaos from which they spring. We had a ludicrous illustration of what we are stating in the session of 1830: the House was in a committee, and had been hotly debating, as usual, to no purpose, for the space of six hours, when the chairman got up, and with great gravity said, “he should be extremely obliged by any honourable member informing him what they had all been talking about!”

Such mode of legislation has striking results: it impoverishes the people by litigation, and multiplies and augments the emoluments of a mercenary profession. In the number and magnitude of inns of court, law institutions, and other public buildings the legal classes rival the ancient religious houses; and their unavoidable and constant intervention in all the affairs and transactions of civil life gives them an influence equal to that of the priesthood in the ages of superstition. In the metropolis are nine superior courts, four ecclesiastical courts, twenty courts for recovery of small debts, besides courts of oyer and terminer, courts of general and quarter sessions, coroner-courts, and courts of petty sessions for the purposes of police. Attached to these courts are eight hundred officers, exclusive of judicial functionaries. To these may be added 500 barristers-at-law, 3000 certificated attorneys, 130 conveyancers and equity draftsmen, 67 special pleaders, 84 proctors, 40 public notaries, 6000 clerks and assistants, besides doctors-at-law, serjeants-at-law, and king’s counsel, making a legal phalanx, in the metropolis, of nearly 10,000. In the country they are not so concentrated, but more numerous. From “Clarke’s Law List” it appears there are, in the country, including England and Wales, 4500 attorneys and conveyancers who have taken out certificates. The number of clerks and assistants cannot be estimated at less than 9000; so that the number of persons in the country, in the legal department, is 13,500; and if we add 10,000 for persons of a similar description in the metropolis, we have a total of 23,500 persons, whose sole employment is to render the laws intelligible, and justice attainable to the people of England and Wales.

This estimate, we are persuaded, is a great deal below the truth: many attorneys in town employ more than twenty clerks, and the majority of them employ three or four. Perhaps it would not be too much to estimate the total number of counsel, attorneys, clerks, assistants, &c. in England and Wales, at thirty thousand. In this enumeration are not included the justices of peace, amounting to 4,500, nor the judges in the different courts, the sheriffs, nor any portion of the magistracy, whose office it is to administer justice, and who employ an innumerable number of clerks and assistants. The classes we have mentioned form only that branch of the profession who owe their origin, in a great measure, to defects and obscurities in our judicial administration. It is the duty of the legislature to render the laws so clear, and the form of proceeding so simple, that persons of ordinary comprehension would generally be able to understand the one and pursue the other, without the aid, in every case, of a legal adviser.

The adage says—Many hands make light work; but the maxim is reversed in law; and the swarm of practitioners is a principal cause of the multiplication of suits, their protracted duration, and consequent pressure of business in the courts.

Dr. Colquhoun estimated the total income of the legal classes, when the amount of property and professional practice was greatly less than at present, at £7,600,000 per annum; and two-thirds, probably, of this sum are absorbed by legalists resident in London.

However, this can be only considered a vague approximation. In our list of places we shall give an account of the emoluments and incomes of the chief justices, the lord chancellor, the judges, and several other well-known individuals; but the incomes of the profession generally, of counsellors, special pleaders, conveyancers, and attorneys, are so various, that it is impossible to fix on any average amount. Sir Samuel Romilly, it is credibly reported, netted £15,000 annually from his professional avocations. There are other counsel who, probably, make ten or twelve thousand a-year; others, a half, a third, a fourth, or twentieth part of that sum; and others, again, who make nothing. Sir James Scarlett has received as much as £400 with a brief on the northern circuit; and Sir E. Sugden, we believe, received £3000 with his brief, in the case of Small v. Atwood. In the incomes of attorneys are great diversities. Some few, in London, make ten or eleven thousand pounds a-year; a great many more about three or four thousand pounds; and some obscure practitioners do not clear more than £100 a-year. Their clerks experience similar variety of fortune. Some are starving on a paltry £50; others living comfortably on £200; and others sumptuously on a £500 salary.

The emoluments and salaries of the masters, registrars, and clerks in Chancery; of the judges in the Admiralty, and ecclesiastical courts, and of the law-officers of the Crown, have been more than doubled since the commencement of the revolutionary war. In 1792 the salary of the chief justice of the King’s Bench was £4,000; of the Common Pleas £3,500; of the chief baron of the Exchequer, £3,500; all these have been respectively augmented to £10,000, £8,000, and £7,000 per annum; and the salaries of the puisne judges and barons of the three superior courts have been raised from £2,400 to £5,500 per annum each. All the judges have patronage—that of the chief justice very valuable; they have, also, some fees remaining, though the principal portion has been commuted. It has been related of these exalted personages, that, at the time sixteen journeymen boot-closers were committed to Newgate for a conspiracy to raise their wages, they were sitting in their chambers in Serjeant’s Inn conspiring to raise their own salaries, in consequence of the rise of the necessaries of life. This anecdote reminds us of the fable of the Wolf and the Shepherd. A wolf, says Plutarch, happening to put his head into a hut, where some shepherds were regaling on a leg of mutton, exclaimed—Ah! what a clamour you would have raised had you caught me at such a banquet! The demeanour of the sages of the law would be something similar; they would declaim eloquently on the evils of conspiring when committed by workmen, though it might be done by themselves with impunity.

An important fact connected with legalists is, the enormous increase in their number within the last ten years. In 1820 we were engaged in an inquiry similar to the present; and we find, in the interval, the number of attorneys in the metropolis has augmented fifty per cent. There has, no doubt, been a corresponding increase in the country, and in other branches of the profession; and far exceeds the contemporary increment in property and population. It arises, we presume, from the increasing number and perplexities of the laws, which have rendered additional guides, commentators, expounders, and interpreters indispensable; or, it may have arisen from the large fortunes suddenly amassed by dealers in legal subtleties, which have tempted more than a fair proportion of the community to embark in so lucrative a calling. Whatever may be the cause, it is not creditable to our judicial administration; nor is it a flattering symptom of social happiness and improvement.

The increase of litigation, and, consequently, of profit to the profession, is demonstrated by the increase of business in the superior courts, as is shown by the following statement of the number of causes entered for trial:—

The vast number of bankruptcies and insolvencies of late years must have tended enormously to the emolument of the legal profession, and have rendered them the richest class in the community. The number of persons who took the benefit of the Insolvent Act, amounted in 1820, to 2482; in 1825, to 3665; and in 1830, to 4379. The number of bankrupts, in 1814, was 1612; in 1820, 1381; in 1826, 2582; in 1829, 1654. All these breakings up yield an abundant harvest of spoil to the gentlemen of the long robe. In most bankruptcies the solicitors, the bar, the commissioners, the accountants, and auctioneers divide the assets. Very few estates pay any thing worth a man’s while going after. Under the late administration of the bankrupt-laws, a man had nothing to do but to get into credit to as large an amount as possible—buy goods in every place—turn merchant—ship off such goods to every quarter of the world—fly kites in every possible way—keep no books, or those so confusedly that no man, called in by the name of an accountant, could make head or tail of them—carry this system of buying, and exporting, and kite-flying to its utmost extent—purchase goods on credit at any price, and for the greatest length of time—declare his insolvency—go into the Gazette; the solicitors, the bar, the commissioners, the accountants, and the auctioneers would set to work; the larger the amount of the man’s debts so much the better for the legal, accounting, and auctioneering agents. In such case, the professional men called it a good fat bankruptcy: and, if they could get it into chancery, so much the better; and, in general, it was contrived that a good fat bankruptcy should get into chancery. The result, in general was—ten or twelve years’ meetings of commissioners, actions, bills in chancery; and at length, when the legalists had absorbed the estate, they tired, and the creditors were told, “Here, gentlemen, are the accounts!”

Mr. Montague justly characterised a commission of bankruptcy “a tribunal in which the minimum of justice was administered at the maximum of expense.” All the commissioners were either very old or very young men, whose only pretensions were the friendship of the chancellor, or the friendship of some friend of the chancellor, or others connected with the government. They were all either counsel or solicitors, whose sole object was to gain as much money in as little time as possible. Some of them understood the art of accomplishing this so well as to have been known to boast of pocketing thirty guineas a day. These, however, were only ignoble quarry, compared with the great fee-gatherer himself. It appears, from a parliamentary return, that the several sums sacked by the purse-bearer to the lord chancellor, in the year ending 30th April, 1830, amounted to £4081. In the same year, the sealing of 4861 writs, at 3s. 3d. each, produced £789, which was shared between his lordship, chaff-wax, sealer, and porter. From returns in the same year, the masters in chancery appear to net £4000 per annum, their chief clerk upwards of £1000, and the copying clerk £500 and more. Mr. Wellesley, in a book lately published by him, on the court of chancery, states that the litigation into which he had been forced had cost him £20,000 in four years, and a sum of equal amount had been paid out of the estates of his children. Mr. Davies, the late tea-dealer, of Philpot-lane, was put to an expense of £32,000 by a chancery commission, appointed to ascertain whether he was in a sound state of mind. Sir E. Sugden stated, not long since, that the equity proceedings, under the will of Mr. Thelluson, had been as productive to lawyers as many principalities to their sovereigns. The cause of Small v. Attwood, it is calculated, will swamp £100,000 in law expenses. But we must return to the subject from which we have digressed.

The fraud, impoverishment, and desolation resulting from the administration of the Debtor-Laws are almost incredible. In the processes issued against the person, lawyers and attorneys are the parties who chiefly profit. From returns of affidavits of debts, it appears, in two years and a half, 70,000 persons were arrested in and about London, the law-expenses of which could not be less than half a million. In the year 1827, in the metropolis and two adjoining counties, 23,515 warrants to arrest were granted, and 11,317 bailable processes executed. Thus were eleven thousand persons deprived of their liberty on the mere declarations of others, before any trial or proof that they owed a farthing! So gainful is the trade to attorneys, that they frequently buy up small bills for the purpose of suing the endorsers, and bring nine or ten actions on each. One house alone has brought five hundred actions in this way, and most of them for sums under £20.

The sum on which arrest is allowed has been gradually augmented to £20; but this is too small, and the consequence is, the prisons are crowded with debtors for the most paltry amounts. The number of persons committed to the five principal prisons of the metropolis, exclusive of crown debtors, and those imprisoned for contempt, averages 5000 per annum. Of these more than one-third are for sums under £20. In the years 1826-27, the Court of Requests for the city of London imprisoned 753 persons for various terms, from twenty to one hundred days, for sums under £5. In the same year, the Court of Requests for Southwark ordered 9758 executions, and 1893 persons were actually imprisoned for debts amounting only to £16,442. From 1823 to 1831 the Southwark Request Court committed to the Borough compter and county gaol 8096 persons; of these 3139 were for debts not exceeding twenty shillings.

The minor tribunals for facilitating the recovery of small debts we do not think entitled to the praise usually awarded them. They foment domestic animosities, promote law-suits, and encourage a trumpery system of credit, which is ultimately ruinous both to the retail tradesman and his customers. Neither are they so economical a resource as is generally imagined; the costs of proceedings in them usually amounting to a tax of twenty-five per cent. payable either by creditor or debtor. A debt can seldom be recovered in the Marshalsea or Palace Court for less than £8, even if no resistance is offered. In the several courts of request for the city of London, Middlesex, Westminster, and the Borough, the expenses of recovering a debt of 40s. or under, is at least 11s.; above that sum, twice as much. Such a system can be no advantage to trade; it only tends to fill the coffers of attorneys and clerks of courts, by the ruin of the industrious classes. Only think of the fees received in the request court of Southwark amounting, in one year, to £4255, of which £2475 arose from debts of 40s. or under. In four years, the fees received, in the request court of the City, amounted to £7322. Our legal institutions are chiefly beneficial to those under whose auspices their rules and modes of procedure have been framed and regulated. Hence the circuity and expense of law-suits. No prudent man ever thinks it for his interest to sue for a debt below £15; the costs in prosecuting for a small debt being equal to a large one, owing to the proceedings being the same, and the pleadings as voluminous for the recovery of a few shillings as £100. In the King’s Bench, the expenses of recovering a debt under £5, even if no defence is made, and judgment goes by default, are not less than £15; if defendant appear, and, as is not uncommonly the case, puts in a dilatory plea, they are increased to £20; and, by taking out a writ of error, they are still further augmented. The following receipt has been often given to debtors, who wish to be troublesome, and to weary out their creditors by an expensive process:—

When arrested and held to bail, and after being served with a declaration, you may plead the general issue, which puts you on for trial sooner than any other plea; but, if you wish to vex your plaintiff, and put him about, put in a special plea; if you are in custody, order your attorney to plead in person, this will cost you £1 : 1, and run your plaintiff to £30 expense. If you do not intend to try the cause, you have no occasion to do any thing more till the plaintiff gets judgment against you, which he must do the term after you have put in a special plea. The plaintiff is obliged to send you a paper book, which you must return to his attorney with 7s 6d. otherwise you will not put him to more than half the expense. When he proceeds and gets judgment against you, then order your attorney to search the Final Judgment Office, in the Temple; when searched, and found they have got final judgment signed against you, then give plaintiff’s attorney notice for him and your attorney to be present with the master at the time the plaintiff taxes the costs; at which time your attorney must have a writ of error with him to give to the plaintiff’s attorney before the master, at the time the master taxes the costs; it will put the plaintiff to great expense, which he will have to pay, or go the ground over again. The writ of error will cost you £4 : 4 by a London attorney; but, if you wish to be more troublesome, make the writ returnable in parliament, which will cost you £1 : 1 more, and your plaintiff £100. If he has the courage to follow you further, you may then file a bill in Chancery or Exchequer; if he does not then give his answer, your bill will get an injunction against him: you may then get an attachment from the court where your bill was filed, and take his body for contempt of court. The costs incurred by plaintiff and defendant, respectively, will then be as follow:—

This is a fine exemplification of law, and shows how much greater are the advantages offered to finesse and knavery than to integrity and plain dealing. Some restraints are laid on frivolous writs of error by 6 Geo. IV. c. 96, but in other respects the above outline is a substantially correct exposition of the legal resources available to the unprincipled debtor for harassing his creditor.