Summary of Legal Abuses and Defects.

In the preceding exposition our principal objects have been to give a general idea of the laws of England; secondly, of the number and gains of the individuals engaged in their administration; thirdly, of the abuses and defects in those laws especially intended for the benefit of trade; and, lastly, we have brought together a multitude of facts, to exemplify the emoluments and salaries of judges and the fees of lawyers and attorneys, in order to show the mass of interest-begotten prejudices that must interfere with, if not be absolutely arrayed against efficient reform in the judicial system. After proceeding thus far, we still despair of bringing the remainder of our subject within reasonable limits. Lord Brougham, after an extraordinary speech of six hours’ duration, was compelled to leave various departments of legal delinquency unexplored, though equally claiming the attention of his powerful mind. All that our circumscribed space will permit is an indication or digest of the more prominent defects, and this we shall endeavour to comprise in the present section. Abuses often exist only because they are concealed, and the first step to their reform is general publicity.

Justices of the Peace.—These are virtually appointed by lords lieutenant of counties; for, though the lord chancellor issues the commission, it is the lord lieutenant who designates the persons comprehended in it. Hence an important source of aristocratic influence; which is exerted in raising to the magisterial bench gentlemen who have distinguished themselves by their political opinions or activity in local contests. The tenure of office is fully as secure as that of the judges; whatever be the conduct of a justice, he is seldom removed; and lord Eldon laid it down as an inflexible rule never to strike a magistrate off the list, either for private misconduct or party feeling, until he had been convicted of some offence by the verdict of a court of record, and such conviction, it is notorious, is almost unattainable. Hence these petty judges may be considered as so many irremoveable and irresponsible functionaries, and the great power confided to them in the administration of the game laws, the punishment of theft and assaults, and the granting of licenses is very liable to be abused. Numerous instances of abuse were cited by lord Brougham, in his great speech of the 7th of February, 1828. Still we do not agree with this eminent personage in thinking, as he seems to incline, that a stipendiary magistracy, consisting of lawyers, would, in lieu of the unpaid magistracy, afford the best security for a pure and independent administration of justice. Costly justice, no doubt, is better than cheap injustice. But lawyers have their prejudices as well as sporting parsons and sporting squires; and we think justice would be quite as corrupt when paid for as when administered gratuitously, unless there were responsibility. This would be best obtained by the entire publicity of justiciary proceedings;—here is the best guarantee against abuse in all functionaries of whatever rank or degree. Clergymen might be disqualified for the magisterial office as for other lay functions, and greater facilities afforded for removing from the commission of the peace justices guilty of misconduct. With these reforms the magistracy would be made a much less objectionable branch of domestic judicature, especially as a material source of their misdoings has been curtailed by the opening of the beer trade and the improvement of the game laws.

Different Laws in different Places.—Nothing can be more inconsistent that the different modes of inheritance and tenure in the different districts of the country. In the county of Middlesex the eldest son succeeds to the estate; cross over the Thames, into Kent, and all the sons succeed to the ancestor’s inheritance in equal shares; proceed a little to the westward, and another law prevails, the youngest son inheriting the land to the exclusion of the other children. What can be the motive for perpetuating these divers usages—the relics of a barbarous age—in a country subject to the same general government? But even the customs of gavelkind and borough-English are not so inconvenient as those which regulate the customary tenures in a thousand different manors. In one manor copyhold property is not devisable by will; in another it may be so conveyed. In one manor a devise is not valid, if made longer than two years before the testator’s decease; so that it is necessary for wills to be renewed every two years; in another one year; in a third three years are the period; while in many there are no such restrictions. In some manors the eldest daughter succeeds to the exclusion of her sisters, as the eldest daughter (in default of male heirs) succeeds to the crown of England; in other manors all the daughters succeed jointly, as co-parceners, after the manner of the common law. In some manors a wife has for dower one-third of the tenement, as in case of freehold. In others she has, for her free bench, one half; and again, in some, she takes the whole for life, to the exclusion of the heir. The fines on death or alienation vary; the power and manner of entailing or cutting off entails vary; the taking of heriots and lords’ services varies. There are as many or more of these local laws than in France, in the Pays de Coutûme, of which four hundred have been enumerated, so as to make it the chief opprobrium of the old French law, that it differed in every village. Is it right that such varieties of custom should be allowed to have force in particular districts, contrary to the general law of the land? Is it right that, in London, Bristol, and some other places, the debts due to a man should be subject to execution for what he owes himself, while in all the rest of England there is no such resource; although in Scotland, as in France, this most rational and equitable law is universal?

All these varieties of tenure and diversities of liability are only so many traps to the ignorant and unwary, and so many impediments to the transmission and circulation of property. They embarrass commerce, by making it difficult—in some cases impossible—for a man to get the full value of his property, or dispose of it at all. For copyhold property is not liable even for specialty debts, nor can it be extended by elegit; and thus, absurd and unjust as is the law which prevents freehold property from being charged with simple contract debts, it goes further in this instance, and exempts the copyhold from liability, even to those of the highest nature, a judgment itself not giving the creditor any right of execution against it. The obvious remedy to be adopted in this case is to give all parts of the country the same rules touching property; and, therefore, lord Brougham, in his memorable speech, proposed an assimilation of the laws, affecting real estates, all over the kingdom, to take place after the elapse of a fixed period.

Different Laws for different Persons.—Sir Wm. Blackstone was very fond of asserting that the Crown and people were, in law, on an equal footing, and that the King, in a court of justice, was no more considered than a subject. This is not correct. It is true a person injured, in his property, by the Crown, may proceed by a petition of right, having first obtained the consent of the attorney-general; but the attorney-general may refuse his fiat, and then the subject is without remedy, except the hopeless resource of an impeachment of the officer of the Crown. Again, in cases where the Crown is interested, the Crown has a right, at the mere suggestion of the attorney-general, to call for a trial at bar; and thus the subject be obliged to bring all the witnesses up, from Cornwall, perhaps, or some other remote county. After all this expense is incurred, by reason of the Crown demanding a trial in London, where the other party is not known, and not in Cornwall, where both parties are known, the Crown may withdraw the case from the consideration of the jury, after the examination of all the witnesses, even at the moment that the jury are, with their backs turned, deliberating about their verdict.

But it is said the Crown pays expenses; the subject, however, has his own expenses to pay. As the Crown is above receiving costs, so it is exempt from paying them. The reason of this practice it is not easy to discover. One cannot see how the dignity of the Crown is exalted by not receiving costs, when they reflect that, by the Crown, is meant the revenue raised from the people for the public service, and that, consequently, the non-payment of costs to the Crown is an increase of the people’s burthens. But, even if we admit the propriety of the Crown’s receiving none, it would by no means follow that it should pay none to the subject, who is in a widely different predicament. All this, however, arises out of notions derived from the feudal times, when the Crown was in a situation the very reverse of that in which it stands at present, its income then arising almost entirely from a land-revenue. There is now no reason why it should be exempt from paying, or disabled from receiving, in all cases where costs would be due between common persons. Indeed, there has been of late years an exception made in the crown-law on this head, but so as to augment the inequality complained of. In all stamp prosecutions, the costs of the Crown are paid by the unsuccessful defendants; so far does it stoop from its former dignity; but not so low as to pay the defendant a farthing of his costs, should he be acquitted.

We shall only mention one more case to illustrate the legal disparity between the King and the people. Whenever a special jury is summoned in a Crown case, and all the twelve jurors do not attend, a tales cannot be prayed to let the cause proceed, without a warrant from the attorney-general; so that it is in the power of your adversary to refuse this at the time it may be most for his advantage so to do; while you have no option whatever, in case it should be for his interest to proceed, and for yours to delay. A singular instance of oppression, under this usage, was related by Lord Brougham, in the celebrated speech to which we have referred. A person named Lowe, with four smugglers, was prosecuted in the Court of Exchequer. The accused were acquitted on the second trial, and Meade, one of the witnesses against them, and others connected with him, were prosecuted for perjury; eighteen indictments were found at the sessions, and the Crown at once removed the whole, by certiorari, into the Court of King’s Bench. There they were all to be tried. Meade was the first tried, and clearly convicted. The other seventeen were then to be tried, and Mr. Sergeant Jones called them on; but the Crown had made the whole eighteen special jury causes; a sufficient number of jurymen did not attend; Mr. Sergeant Jones wanted to pray a tales, and the Crown refused a warrant. “Thus,” says lord Brougham, “an expense of £10,000 was incurred, and a hundred witnesses were brought to London, all for nothing, except, after the vexation, trouble, and delay already endured, to work the ruin of the prosecutor, who had been first harassed upon the testimony of the perjured witnesses. The poor Yorkshire farmer, whom the villain had so vexed, had no more money to spend in law; all the other prosecutions dropped; Meade obtained a rule for a new trial, but funds were wanting to meet him again, and he escaped. So that public justice was utterly frustrated, as well as the most grievous wrong inflicted upon an individual. Nor did it end here; the poor farmer was fated to lose his life by the transaction. Meade, the false witness, and Lowe, the farmer, whom he had informed against, and who was become the witness against him upon the approaching trial, lived in the same village; and one evening, in consequence, as was alleged, of some song, or madrigal, sung by him in the street, this man (Meade) seized a gun, and shot Lowe, from his house, dead upon the spot. He was acquitted of the murder, on the ground of something like provocation, but he was found guilty of manslaughter, and such was the impression of his guilt upon the mind of the court, that he was sentenced to two years’ imprisonment. A case of more complicated injustice—one fraught with more cruel injustice to the parties, I never knew in this country, nor do I conceive that worse can be found in any other. We may talk of our excellent institutions, and excellent some of them certainly are, though I could wish we were not given to so much Pharisaical praising of them; but if, while others, who do more and talk less, go on improving their laws, we stand still, and suffer all our worst abuses to continue, we shall soon cease to be respected by our neighbours, or to receive any praises, save those we are so ready to lavish upon ourselves.”—pp. 50-1. So much for the even-handed justice, lauded by Mr. Justice Blackstone, between the Crown and the people!

Fines and Recoveries.—It is well known if a person has an estate in fee, that is, the absolute and unconditional possession of it, he can sell or devise it as he thinks proper; but, if he has an estate in tail, he cannot deal with it in this manner. He must first go through certain forms, in order to make himself absolute master of his estate: he must levy a fine, as it is called, which destroys the expectant rights of the issue in tail; or he must, by means of a recovery, get rid of those rights and of all remainders over. But this must be done through the Court of Common Pleas, at certain seasons of the year;—and why, it may be asked, should there exist a necessity for going there? Why force tenants-in-tail into court for mere form’s sake? In case of bankruptcy the necessity for these forms is not felt. A trader, who is tenant-in-tail, commits an act of bankruptcy, and, by the assignment under the commission, not only the interest vested in him is conveyed, but all the remainders expectant upon it are destroyed for the benefit of his creditors, and the estate passes to the assignees, free of all restriction. Why, then, may not the possessor of an estate do that for himself which the law permits to be done for an insolvent tradesman and his creditors? So, too, a man and his wife cannot convey an estate of the wife without a fine or a recovery; neither can the wife be barred of her dower without a similar proceeding. There is certainly nothing very real in a fine, and, as to recoveries, they proceed upon a mere fiction. They go upon the ground of compensation in value being made to the remainder claimants, whose right they cut off, and who, but for this fictitious suit, would have a right to take the estate after the decease of the tenant-in-tail. They are said to recover compensation in value; and from whom do they recover it? Why the common vouchee, who is the crier of the court of Common Pleas, and who, like the man at the Custom-House, obliged to take all the oaths other people do not like, lies groaning under the weight of all the liabilities he has incurred to all the claimants in tail since he became crier, and answerable for the millions of property, the rights to which, in remainder, have been barred, he not being worth a shilling!

The abolition of these ridiculous forms was recommended upwards of one hundred and fifty years since, and still remained to be enforced by the eloquence of lord Brougham. They have no earthly use but to raise money by way of fees; and which, besides creating expense and delay, and oftentimes preventing tenants-in-tail from passing their property by will, which they cannot do if they die before suffering the recovery, they give rise to questions in law, often puzzling, always dilatory and expensive. The mere forms of fines and recoveries cost £70,000 per annum over and above what deeds, operating in the same manner, would cost; and a round sum must be allowed for the litigation which doubts on these assurances are yearly occasioning. Mr. Campbell introduced a bill for abolishing fines and recoveries, which has been hanging on the tenter-hooks during the two last sessions of parliament, owing to the rejection of the Reform Bill by the Lords.

Agreements for Leases and Conveyances.—A pregnant source of legal suits is the law with respect to sales, leases, and other conveyances. Thus, if you agree with a person to give him a lease, though he, under the agreement, becomes your tenant, he is your equitable tenant only, but not your legal tenant. He may be possessed of a written agreement, signed and sealed, for a lease of ten years, and may occupy under it, but he has no lease which a court of law can take notice of; and, if an ejectment is brought, he must go out. He may go into a court of equity on his agreement, if that is any comfort to him; he may apply for a decree against you to perform your agreement; but till then his claims are not recognized in a court of common law. If an injunction be brought, the expenses are further multiplied. Why, it may be asked, should not the agreement, such as here described, be as good as a lease; when, in substance, it is the very same thing, and only wants a word added or left out to make it the same in legal effect? A case, illustrative of this subject, happened to lord Brougham, on the York circuit. An agreement had been entered into, and possession given; but, because it did not contain words of present demise, it was no lease, and therefore the tenant could not stand a moment against the ejectment that was brought, but was driven into the Court of Chancery, where the other party could just as little stand against him. How much inconvenience, expense, and delay, then, might be saved, if such an agreement were pronounced equivalent to a lease!

Again, on the same principle of avoiding multiplicity of suits, why, in ejectments, should two processes be requisite to give the plaintiff his remedy? As things now stand, after a man has succeeded in one action, and established his title to the possession, he must have recourse to another, to recover that which he ought to have obtained by one and the same verdict that established his title—the mesne profits. Why could not the same jury settle the matter at once? Why is an individual driven to maintain two actions for the purpose of obtaining one and the same remedy? Or why should not the jury that tries the right also assess the damage? Mr. Tennyson’s bill, which was intended to remedy some part of this evil, is only permissive; it ought to have been compulsory. It is partial, and it is only recommendatory, and its recommendations are not always attended to, because the lawyers, having the choice, do not think fit to pursue that which is the least profitable; they choose the two actions, when one would suffice for the interests of justice—for the interests of the plaintiff and defendant—for all interests, except those of the practitioners.

Arrest for Debt.—Unless in cases of grossly improvident conduct, or fraudulent concealment of property from the just claims of creditors, imprisonment of the person for debt, either on mesne process or in execution, seems not defensible. In practice, the power of arrest is often perverted to purposes foreign to its ostensible object. It has been resorted to as a means not of recovering a just claim, but to prevent a just claim being preferred; and the same artifice of a false allegation of debt has been frequently employed to remove a person out of the way who happened to be troublesome, or that some criminal intention might be effected during his incarceration. But, however wicked or spiteful the motives of any one in so employing the process of the law, there being a probable cause of detention, and the process not being abused, no action lies against the wrong doer. If he have no accomplices, so as to fall within the charge of conspiracy, he is safe. To the wealthy all these inconveniences are trivial; but how does such a proceeding operate on a poor man, or a tradesman in moderate circumstances? He has no facilities for obtaining bail; if he has, he pays one way or another afterwards for the favour; and, if he cannot procure it, he must go to prison. And on what ground of common sense does the law in this matter rest? Why should it be supposed that a man, owing twenty pounds, will leave his house, his wife, his children, his country, his pursuits, and incur, voluntarily, the punishment awarded for great crimes, by banishing himself for life? Yet the law always proceeds on the supposition that a man will run away the moment he has notice given him of an action for debt. Some men might possibly act thus, but their conduct forms the exception, not the rule; and it is neither wisdom nor humanity to denounce a penalty against all men in order to meet a case not likely to occur once in a thousand times. Non-payment of debt, if a crime at all, is a crime against property only: and, perhaps, it would be enough to allow property to answer for it: and there is this peculiarity between it and other crimes against property, that it is committed with the mutual consent of the parties. Goods sold on credit are mostly charged extra; this extra charge is the premium exacted by the creditor on account of the risk of repayment; and, having thus fixed the equivalent for his chance of loss, it seems supererogatory in the law to grant him, in addition, the power of ex post facto punishment, of the amount of which he is the sole judge, merely because he has failed in a voluntary adventure, into which he had been tempted to embark, from the prospect of reaping a greater profit than is charged by the ready-money tradesman. Creditors rarely derive any advantage from imprisonment beyond the indulgence of vindictive feeling, which it is inconsistent with the true ends of public law to encourage. Those who do benefit by it are usually the most unfair and ungenerous, who, by a sudden arrest, often embarrass and prejudice all the other parties interested. To the debtor, the consequences are peculiarly hurtful—personal degradation—augmented incapacity and diminished inclination to satisfy his prosecutor—and the contraction of habits inconsistent with future intregrity and industry.

Inconsistent Liabilities of Property for Debts.—In proportion as, before the debt has been proved, the person and property of the party charged should be free from all process not necessary to prevent evasion; so, after judgment, ought the utmost latitude be given to obtain satisfaction from all the defendant’s property whatever—land, goods, money, and debts—for to himself they no longer belong. To allow any distinction between one kind of property and another seems the height of injustice. Yet this is of hourly occurrence in the frustration of a creditor after he has obtained judgment, and taken out execution. His debtor has a landed estate; if it be copyhold, the creditor cannot touch it in any way whatever; if it be freehold, he may take half by elegit, and receive the rents and profits, but no more, in the lifetime of his debtor. The debt for which he has received judgment may be such that the rent of the land will not even keep down the interest; still he can take nothing more; he cannot turn the land into money: so that, when a man sues for a thing detained unlawfully, (a horse, for instance,) you give him money which he does not ask; and when he asks for money by suing for a debt, you give him land which he does not want. But if his debtor die before judgment can be obtained, unless the debt is on bond, he has no remedy at all against any kind of real property of any tenure; nay, though his money, borrowed on note or bill, has been laid out in buying land, the debtor’s heir takes that land wholly discharged of the debt!

But not only is land thus sacred from all effectual process of creditors, unless the debtor be a trader, the great bulk of most men’s personal property is equally beyond reach of the law. Stock in the public funds—debts due in any manner of way—nay, bank-notes, and even money—are alike protected. A man may owe a hundred thousand pounds in any way, and judgment may have passed against him over and over again; if he have privilege of parliament, live in a furnished house or hotel, and use hired carriages and horses, he may have an income from stock or money lent, of twenty thousand a-year, and defy the utmost efforts of the law; or if he have not privilege, he may live abroad, or within the Rules, and laugh at all the courts and all the creditors in the country. So absurd are the laws in this respect, that if a person borrow a thousand pounds, and the creditor has obtained judgment, the sheriff’s officer appointed to levy upon his personalty may come into his room, and take a table or a desk; but if he sees the identical thousand pounds lying there, he must leave it—he touches it at his peril:—“For this quaint reason,” says Lord Mansfield, “because money cannot be sold, and you are required, by the writ, to take your debt out of the produce of goods sold.”

Lord Brougham, in concluding his observations on these barbarous, absurd, and aristocratic laws, eloquently apostrophises—“who is the innovator—he who would adhere to such rules in violation of the manifest intent and spirit of our old law, or he who would re-adjust them so as to give it effect? In ancient times there were none of those masses of property in existence which are exempt from legal process. When the law, therefore, said, “Let all a man’s goods and chattels be answerable for his debts,” it meant to include his whole personalty at the least. Things have now changed in the progress of society; trade has grown up; credit has followed in its train; money, formerly only used as counters, has become abundant; bankers’ accounts have been invented; paper currency and the funds have been created. Three-fourths of the debtor’s personalty, perhaps nine-tenths, now consist of stock, money, and credit; and the rule of law, which leaves those out of all execution, no longer can mean as before—“Let all his personalty be liable”—but, “Let a tenth-part of it only be taken.” Can there be a greater change made upon, or greater violence done to, the old law itself, than you thus do by affecting to preserve its letter? The great stream of time is perpetually flowing on; all things around us are in ceaseless motion; and we vainly imagine to preserve our relative position among them, by getting out of the current and standing stock still on the margin. The stately vessel we belong to glides down; our bark is attached to it; we might “pursue the triumph, and partake the gale;” but, worse than the fool who stares, expecting the current to flow down and run out, we exclaim—Stop the boat!—and would tear it away to strand it, for the sake of preserving its connexion with the vessel. All the changes that are hourly and gently going on in spite of us, and all those which we ought to make, that violent severances of settled relations may not be effected, far from exciting murmurs of discontent, ought to be gladly hailed as dispensations of a bountiful Providence, instead of filling us with a thoughtless and preposterous alarm.”—Speech on the present State of the Law, p. 109.

But the imperfect recourse against the debtor’s estate, although the grand opprobrium of the debtor-laws, is by no means its only vice: the unequal distribution, in case of insolvency, is scarcely a less notable defect. Only traders, or those who voluntarily take the benefit of the act, are compelled, when insolvent, to make an impartial division of their property. All others may easily, and with impunity, pay one creditor twenty shillings in the pound, and the others sixpence, or nothing. So, when a man dies insolvent, his representatives may, by acknowledging judgments, secure one creditor his full payment at the expense of all the rest. Thus, lax and impotent as the law is against property, wide as are its loop-holes for fraud and extravagance to escape by, utterly powerless as is its grasp to seize the great bulk of the debtor’s possessions, against his useless person it is powerful and unrelenting. The argument used is, that the concealed property may thus be wrung from him: the principle, however, of the law, and on which all its provisions are built, is, that the seizure of the body works a satisfaction of the claim; and this satisfaction is given alike in all cases—alike where there is innocent misfortune, culpable extravagance, and guilty embezzlement. “Surely,” says the great Advocate, whose words we are copying, “for all these evils the remedy is easy. Let the whole of every man’s property, real and personal—his real, of what kind soever, copyhold, leasehold, freehold; his personal, of whatever nature, debts, money, stock, chattels—be taken for the payment of all his debts equally, and, in case of insolvency, let all be distributed rateably; let all he possesses be sifted, bolted from him unsparingly, until all his creditors are satisfied by payment or composition; but let his person only be taken when he conceals his goods, or has merited punishment by extravagance or fraud. This line of distinction is already recognised by the practice of the Insolvent Courts; but the privilege of the Rules is inconsistent with every principle, and ought at once to be abrogated as soon as arrest on mesne process is abolished.”

Insecurity of Property.—Our aristocratic legislators have always manifested the greatest repugnance to admit the slightest change in existing institutions, under an alleged apprehension it might endanger the security of individual possessions. Nothing, however, can be imagined less secure than the condition of real property, as explained by the Law Commissioners, in their report to Parliament. It staggers one to comprehend how the law of any country could get into such a state, or how it has worked or been so long tolerated. The deeds, it seems, are endless, countless, and exceedingly complex, and, after all, do not give a legal title to the subject. A lord chancellor has been heard declare that there was scarcely a legal title to an estate in England. This defect appears to be remedied by a system of trusts, under which every thing, if not actually in the stomach, is at least within the jaws of the great Leviathan of Chancery. Then there seems to be no way in which the exact tenure of any piece of property can be ascertained, except by getting and studying all the deeds which may have ever been executed respecting it. And, after all, a flaw may be overlooked, and a flaw once is a flaw for ever: for time cures little or nothing in a legal title.

Laws of Marriage.—The contract of marriage can only be lawfully entered into by strictly complying with certain religious ceremonies. Unless a special license has been obtained, banns must be previously published, and the nuptials must be solemnized in a church or chapel of the establishment, and by a minister of the establishment. These obligations sometimes entail great hardship on parties by whom they have been unintentionally violated. Parents may rear families, and honour them as legitimate, and afterwards discover they have been living in concubinage, and nourishing a spurious offspring, merely from having been mistaken in supposing a priest to have been ordained, or a chapel to have been licensed. No allowance is made even for Dissenters, though their faith is tolerated; they must join in the ritual of the privileged worship, however repugnant to their conscience, on pain of their marriages being invalid. But mark the inconsistency of the law: parties have only to cross the border to Scotland, where marriages may, with impunity, be contracted in contempt of English ceremonies—without publication of banns—or the payment of surplice-fees, and such marriages are recognized as lawful in an English court of justice.

Another hardship may be mentioned, though it cannot be ascribed to the ecclesiastical monopoly of marriages by the established clergy, but to the decisions of the courts on the law of settlement. The hardship to which we allude is the fact that an English woman, marrying a native of Scotland or Ireland, loses all claim to parochial relief in England, and may be passed, like an Irish or Scotch vagrant, to the birth-place of the husband.—7 Barnw. & Cress. 615.

Now, too, that religious disabilities are abrogated, measures ought to be adopted to mitigate the severity of the law in regard to marriages celebrated by Roman Catholic priests; and, in certain cases, to render valid marriages solemnized by ministers of that persuasion. In Ireland, by the law as it now stands, a Catholic priest, in celebrating marriage between a Protestant and Catholic, commits a capital felony, punishable with death. By another statute, for the same offence, he is subject to a penalty of £500: so that, agreeably to the observation of a distinguished Irishman, a Catholic priest may be first hanged, and called upon after to pay a fine of £500. The poor Irish, who flock over to this country, from early habit mostly prefer being married by a Catholic priest. Such marriage is invalid, even between two Catholics. The consequence is, the husband may desert his wife when he pleases, and leave his children utterly destitute; for they have no claim on parochial aid in England, not even if they have an English mother.

Costs of Law-suits.—It is related by Swift, of Captain Lemuel Gulliver, that his father was ruined by gaining a law-suit. Notwithstanding the imputed selfishness of mankind, their addiction to litigation is a strong proof of disinterestedness, or at least shows they care less for money than the indulgence of vindictive feeling, or the acknowledgement of an unprofitable right. The doors of courts of justice are armed with terrors, threatening destruction to all who enter therein, yet they are beset with applicants for admission. Law, proverbially uncertain, is morally certain of inflicting loss on all parties; for, victor or vanquished, we are sure to be out of pocket. This singular issue results from the rule which allows no more than taxed costs to a successful litigant, leaving him to pay the difference between them and the law-charges of his legal adviser. It often happens that a person who sues for a debt of £10 or £15—and the majority of suits are for such diminutive sums—and gains the day, with costs—is minus three or fourfold as much for his own share of the expenses. But on this point we shall extract a passage, the first sentence of which we are sure—coming as it does from such high authority—is well worth the ordinary fee of 6s. 8d. to every one with the least disposition to unnecessary litigation. Speaking of the excess of costs which a suitor is obliged to pay his attorney, over and above what he can recover from his antagonist, Lord Brougham says,—

“This is so certain, and so considerable, that a man shall in vain expect me to recommend him either to bring forward a rightful claim, or to resist an unjust demand for any such sum as twenty, or even thirty pounds—at least, upon a calculation of his interest, I should presently declare to him he had much better say nothing in one case, and pay the money a second time in the other, even if he had a stamped receipt in his pocket, provided his adversary were a rich and oppressive man, resolved to take all the advantages the law gives him. I have here before me some samples of taxed bills of costs, taken quite at random, and far from being peculiar cases in any one respect. There is one of £428, made out by a very respectable attorney, and from which the master deducted £202; of this sum £147 were taken off, which had been paid for bringing witnesses. In this other, amounting to £217, £76 were taxed off; and, in a third, of £63, there were nearly £15 disallowed; it was an undefended cause, to recover £50: had the defendant been obstinate and oppressively inclined, he would have made the extra costs a good deal more than the whole debt, although the suit was in the Exchequer, where the taxation is known to be more liberal. We had lately, in the King’s Bench, a bill of above £100, to recover £19, and probably, of that £100 not above £60 would be allowed. As things now stand, a part of this master evil is inevitable; for if practitioners were sure of receiving all their bills, they would run up a heavy charge wherever they knew the case to be a clear one. But, as the fundamental principle for which I contend is to alter no part of the law by itself, or without considering all the other parts, there can be no difficulty, consistently with this doctrine, to enlarge the allowance of costs as soon as other amendments have prevented the abuse of litigation by professional men. Some erroneous rules of taxation may, even in a partial or insulated reform, be altered. Whatever is fairly allowed, as between attorney and client, should be allowed between party and party, except only such needless charges as have been ordered expressly by the client himself. There can surely be no reason for disallowing, as a general rule, all consultations, often absolutely necessary for the conduct of a cause, generally more beneficial than much that is allowed; nor can it be right that so little of the expense of bringing evidence should be given, and that the cost of preparing the case, by inquiries, journeys, &c. should be refused altogether. The necessary consequence of not suffering an attorney to charge what he ought to receive for certain things, is that he is driven to do a number of needless things, which he knows are always allowed as a matter of course, and the expense is thus increased to the client far beyond the mere gain which the attorney derives from it.”

Thus it appears attorneys are placed in a similar predicament to what medical men were, prior to Lord Tenterden’s decision in their favour, when they were compelled to seek a remuneration for attendance on their patients, through the medium of unnecessary draughts, or exorbitant charges for drugs. It is due, indeed, to the respectable part of the legal profession to say that they are not entirely to blame for the monstrous bills they deliver to their clients. A shameful system of extortion prevails in the courts, and many of the fees exacted by the officers, during the see-saw of a cause, can be considered nothing but legalized robbery of the suitor. In the Common Pleas, the prothonotaries charge 8d. per folio of seventy-two words, on all pleadings entered; and if the declaration and issue, or declaration and judgment, be of different terms, the 8d. is doubled. In the King’s Bench 4d. per folio is charged. The entry, by them so called, is, in fact, nothing more than imprinting a stamp by a clerk in the office; the attorney performing the drudgery of engrossing or entering the proceedings on the roll. The charges for passing records and setting down causes are a grievous burthen. They are passed by an officer, whose clerk charges from 30s. and upwards. If the cause is not tried on the day on which it is set down, the marshal must be paid for his deputy marking the cause as a remanet; for the first of which he charges 6s. and for all after the first 4s. After the holidays, a fee of 10s. 6d., 6s. 8d., or 3s. 4d., according to usage, is extorted, at each office, for opening them. All these court-fees tend to swell an attorney’s bill, though he has advanced the money for them, as well as the lawyer’s fee, out of his own pocket.

Law of Debtor and Creditor.—If there was any country in which a man, in order to recover a debt of £6 or £7, must begin by expending £60 or £70—where, at the outset, he had to run the risk of throwing so much good money after bad—it would at once be said that, whatever other benefits or advantages that country enjoyed, at least it was not fortunate in its system of law. But if it were added that, in addition to spending £60 or £70, a man must endure great difficulties, anxiety and uncertainty, infinite bandying to and fro, and moving about from province to province, and from court to court, before he could obtain judgment, then our envy of the country where such administration of the law existed, would be further diminished. And if, in addition to all this, after expending £60 or £70 in looking after the recovery of £6 or £7, a man’s adversary should have the power of keeping his property out of the way, and beyond reach, so that, after all, the plaintiff should not receive some part of his debt, the case would be still worse. And further, in addition to this, if, in the same country, in cases where a man was so circumstanced as to be able to recover and receive his debt, and where the debtor was solvent, and prepared to pay, the individual should receive, it was true, his £6 or £7, but should not receive the whole £60 or £70, which he had spent in costs, although there was judgment in his favour, but should receive the amount wanting £20, so that he should have spent £13 or £14 out of his pocket, over and above the amount of the debt which he recovered, after being exposed to a variety of plagues, and the annoyances of these proceedings; if he were told of such a case, would not the natural inquiry be, “Whether it was possible that such a country existed?”—We should immediately pronounce that, if so, it must be in a most barbarous state; that it must be a poor country, for no commercial country, having interests extensive and important, would endure such a state of things. Nevertheless, the country where this state of things exists is that in which we now live!—England!

This pointed and forcible delineation of the working of the debtor-laws—indisputably the worst in Europe—will be readily comprehended from our previous illustrations. It is the substance—the bare bone and muscle—of a splendid passage in Lord Brougham’s second great philippic on legal abuses. The abilities of this extraordinary man have raised him to the head of the judicial administration, and few have profited more than he has done by existing defects; yet it is to him, next to Bentham and Romilly—posterior in time, but hardly in power—the country is mainly indebted for the reforms in progress, and the improvements which must, ere long, be introduced through the entire legal system of the empire.