The Legal Observer. SATURDAY, FEBRUARY 20, 1836. Quod magis ad NOS HORAT. ON THE PROJECTED ALTERATIONS, We have lately devoted a considerable portion of our space to the consideration of the projected reforms in the Court of Chancery, and in the House of Lords. These are, perhaps, the most prominent subjects of interest at present before the public, and they most certainly are of the greatest consequence to the profession. We propose, therefore, to do our utmost to assist the progress of the bills to be introduced, by collecting the opinions of all persons qualified to give them, and by devoting ourselves to the consideration of their bearing on the interests of the profession and the community. We may begin by stating that it seems admitted on all sides, that things cannot remain in their present state. Some reform is absolutely necessary; and there seem to be three plans for remedying the present defects in the administration of justice in the Equity Courts, each of which has its partisans. tempted in Lord Lyndhurst's first chancellorship. It is the creation of an additional Equity Judge, for the relief of the present Judges, and the further dispatch of business. This plan is favoured by Sir Edward Sugden.a The third plan is, to separate the present duties of the Lord Chancellor into two parts, and give them to two persons instead of one to perform. This last is understood to be supported by the present Ministers, and will soon be brought forward in a substantive shape. We have already given the testimony in its favour of Mr. Lynch, and his reasons for the support of the proposed alteration; and we shall now make some extracts from a small tract, also in its favour, by Mr. Montagu. We shall first, however, mention the opinions of a person whose sentiments have always been listened to with great deference on all points connected with Chancery Reform. We mean the late Mr. Bell. We do not class him as an adviser of the separation of the duties of the chancellorship; but he was certainly opposed to the second plan-the appointment of an additional Judge. In 1830, on the bringing in a bill for The first is the remodeling the Equity this purpose in the House of Commons, his Exchequer, creating a Baron, who should be opinion was adverted to, and he printed his exempted from all duty as a Common Law" Thoughts on the proposed Alteration in Judge, and who should devote himself to the Court of Chancery," in which he exEquity business alone; and assimilating the pressed himself against the appointment of "If ever," he says, practice of the Court to that of the Courts of an additional judge. Chancery, with power to transfer a portion of the arrears of those Courts to the Equity Exchequer. One of the great advantages of this plan is, that all the machinery and officers of the Court are already in existence, and ready to act. The second plan is, that which was at- a See ante, p. 153. с "A Letter to the Right Honorable Lord "the old machine, by the addition of anoth e equity, politics, and law, the cares and anxiewheel, or any other clumsy contrivance, is ties of his lordship's life were exceedingly inenabled to roll on, I fear the aid of the go-too much upon any one man, who cordially and creased; for either of these provinces brought verning powers to a more effectual reform, would be lost." Mr. Montagu, however, states his opinion much more distinctly. He is decidedly in favour of the separation of the judicial from the political functions of the Lord Chancellor, and examines the reasons which have been advanced for and against the separation. conscientiously espouseth the duty required of him, to be easily borne. The greatest pain he endured moved from a sense he had of the torment the suitors underwent by the excessive charges and delays of the Court: and the truth is, a Court, as that is, with officers and fees proper for a little business, such as the judiciary part anciently was, coming to possess almost all the justice of the nation, must needs appear troubled. The business of his office was too great for one, who thought he was bound to do it all well.' "These evils are not of one time or of one His first reason for the separation is, that the "business of the Courts of Equity is now so extensive as to require the whole and undivided attention of the Judge;" and country. Who can forget the words of the he adduces the following facts to supporting by the public of his delays attendant upon Chancellor D'Aguesseau when the general feel this conclusion: "The evils attendant upon this pressure of business were felt by Lord Egerton, as is thus explained by Lord Bacon in his address to the bar, upon taking his seat as Chancellor: I am resolved that my decree shall come speedily; for it hath been a manner much used of late in my last lord's time, of whom I learn much to imitate, and somewhat to avoid, that upon the solemn and full hearing of a cause nothing is pronounced in Court, but breviates are required to be made, which I do not dislike in itself in causes perplexed, for I confess I have somewhat of the cunctative in me; and I am of opinion, that whosoever is not wiser upon advice than upon the sudden, the same man was no wiser at fifty than he was at thirty. And it was my father's ordinary word, You must give me time.' But yet I find when such breviates were taken, the cause was sometimes forgotten a term or two, and then set down for a new hearing three or four terms after. And in the meantime the subject's pulse beats swift, though the Chancery pace be slow.' So, too, it was felt by Lord Bacon, who, with the usual ardour of genius in surmounting any evil to which it is opposed, was so indefatigable in his exertions as judge, as to have endangered his life. In a letter to Buckingham, he says: This day I have made even with the business of the kingdom for common justice; not one cause unheard; the lawyers drawn dry of all the motions they were to make; not one petition unanswered. And this, I think, could not be said in our age before. This I speak, not out of ostentation, but out of gladness when I have done my duty. I know men think I cannot continue if I should thus oppress myself with business but that account is made. The duties of life are more than life; and if I die now, I shall die before the world be weary of me, which in our times is somewhat rare.' the administration of Equity was respectfully communicated to him by his son: My child,' said the Chancellor, when you have read what I have read, seen what I have seen, and heard what I have heard; you will feel that, if on any subject you know much, there may be also much that you do not know, and that something even of what you know, may not in the moment be at your recollection: you will then be too sensible of the mischievous and often ruinous consequences of even a small error in a decision: and conscience, I trust, will then make you as doubtful, as timid, and consequently as dilatory as I am.' "Lord Eldon's unavailing exertions to subdue the causes, which, to use the words of one of our equity-judges, who, upon being asked whether the business of equity could be subdued by three judges, answered, No, nor by three angels,' will never be forgotten. Who that had the good fortune to practise in the Court of Chancery, when this venerable judge presided in the Court, can forget his anxiety to decide justly? Who can think but with the greatest respect of his extensive knowledge and extraordinary judicial powers, dilating his sight so as to view the whole of every subject, and contracting it so as not to suffer the most minute object to escape him; of his patience to hear, his charity to hope, and his anxiety to do justice to every suitor? but yet, with the vast pressure of business upon the court, it was impossible for him to subdue it; he could not decide both expeditiously and justly. "What lawyer can think of Lord Lyndhurst as a judge, of his impartiality, his urbanity, his clear and luminous view of the merits of the most intricate case, without regretting that his mind should be distracted by politics? What politician can have witnessed his exertions in parliament without lamenting that his undisturbed attention should not have been given to the principles of legislation ? "The indefatigable exertions of Lord Brougham proclaim the same truth, that it is impossible for any living being to discharge the arduous duties both of judicial and political Chancellor. Can any man so mistake his powers as to imagine that he has the ability to surmount Chancery Reform.-On the Right to recover Pin-Money. difficulties which were insurmountable by his predecessors, which did not yield to the legal knowledge of Lord Eldon, or the unwearied exertions of Lord Brougham? "Attempts have been made by Dispatch, as it is called, to subdue the business. By this reckless expedient popularity may for a time be gained; the mob may throw up their caps; it is alway at the expense of the suitor and the public sentiment of justice." His second reason is, that the union is injurious to the suitor; and as to this, he brings together pretty much the same instances of hardship as were given by Mr. Lynch, and which we have already transferred to our pages. His third reason is, that the union is injurious to the general sentiment of justice. On this subject Mr. Montagu breathes the true spirit of eloquence. "The administration of justice must be injured by the attempt to blend the irreconcileable characters of judge and politician; the judge unbending as the oak; the politician pliant as the osier; the judge of a retired nature and unconnected with politics, firm and constant, the same to all men; the politician ever varying, "Orpheus in sylvis, inter delphinas Arion." He then discusses the reasons which have been brought forward against the union; but to these we shall call the attention of our readers in our next number. 283 duced in settlements, allowing the wife to recover two years' arrears. But there are exceptions to this rule; as where the parties have lived separate, and the wife has received no distinct support from the husband, the arrears of pinmoney may be recovered, for the presumption does not arise: or perhaps, as in Ridout v. Lewis, where the husband and wife lived together, and she was paid only a part of her pin-money, but her husband promised she should have the whole at last; it would be held, as it was held by Lord Hardwicke, C., to amount to an undertaking to pay the arrears. It was also considered well settled, that where the wife is of unsound mind, all the› arrears of her pin-money are recoverable, because her malady incapacitates her from waiving her right-even although no commission has issued. This was so decided And of course the by Lord Eldon, C.d case would be stronger where a commission had issued. Thus where F., upon her marriage with C., under the trusts of a marriage settlement executed in 1771, became entitled to annuities charged on land by way of pin-money; amounting to 10007. per annum. C., who afterwards became Duke of Norfolk, died in 1815. In 1816, upon a commission of lunacy, F. was found a lunatic without lucid intervals from Dec. 1782. During all this time she had lived with her husband, and in general society, according to her rank. In 1820, F. died intestate. Upon a bill filed by the administrator of F. against the executor of C., claiming arrears of pin-money from Dec. 1782, to the death of C., the present Vice Chancellor (Sir L. Shadwell) held, that the arrears were recoverable.e The executor of C., however, appealed to the House of AR-Lords; and Lord Brougham, C. there re We sincerely hope that the public and the profession may have the advantage of the further contributions of Mr. Montagu on this subject. He gives us the result of much experience and sagacity, in language which is music itself to a lawyer's ear, and worthy of his own immortal favourites. ON THE RIGHT TO RECOVER REARS OF PIN-MONEY. WHERE an annuity is granted to a married woman by way of pin-money, it has been settled, that where she and her husband have lived together during the marriage, the arrears of such annuity can only be recovered for one year, unless it be otherwise provided by the deed or will limiting the annuity; because she will be presumed either to have waived it, or to have had it satisfied. And a clause is usually intro a Thomas v. Bennet, 2 P. Wms. 341; Offley v. Offley, Prec. Cha. 26; Powell v. Hankey, 2 P. Wins. 82; 2 Ves. jun. 190. versed the decree in the Court below, and held that the claim, under the circumstances, was not sustainable.f b Thomas v. Bennet, 2 P. Wms. 341; and see d Brodie v. Barry, 2 Ves. & B. 36-39. 284 Notices of New Books Shee on the Trial of Prince Polignac. NOTICES OF NEW BOOKS. Reflections on the Trial of the Prince de Polignac and his Colleagues, the last Ministers of Charles the Tenth; before the Chamber of Peers of France in 1830. With some notice of the Law of Treason in France, England, and the United States, and of English State Trials and Impeachments in Parliament. In a Letter addressed to an Advocate of the Cour Royale at Paris. By William Shee, Esq., of Lincoln's Inn, Barrister at Law. London: Hatchard & Son. 1836. THIS publication is not one of that practical class to which we principally confine our attention: but the extraordinary nature of the trial, and the eloquence of Mr. Shee's animadversions, justify our submitting the following extract to the notice of our readers. It contains the sentence of the Chamber of Peers, with sufficient of Mr. Shee's remarks to enable them to form a judgment,-if not on the whole transaction,- at least of the merit of the author's labors, and his zeal and boldness as a constitutional advocate. popular excitement, all the rules which govern the administration of criminal justice were scrupulously observed. The witnesses should have been confined to facts, to facts affecting the prisoners, and not allowed to wander over the wide field of speculation and conjecture in the hope that they might stumble upon something to prejudice the accused. On the lawyers, therefore, is the guilt of this griev ous crime, and theirs is the duty to repair it. which on this evidence was pronounced by the "Before I proceed to state the judgment Chamber of Peers, I think it right to call your attention to certain articles of your criminal code, which, if I am not mistaken, apply as strongly to the proceedings of the Court of Peers, as to those of any other tribunal in the tem of criminal procedure is, that the grounds kingdom. A remarkable feature in your sysand reasons of the judgment pronounced, invariably appear upon record, so that if legal error should occur, the accused may have the means of obtaining a revision of his sentence. of an inferior tribunal, compliance with certain In the case of a mistake in law by the judges formalities would entitle the convicted person to apply to a Court of Cassation to have the error corrected. Whether any Court of Cassation has power to review the decision of the Chamber of Peers on an impeachment by the Chamber of Deputies, is a point which I apprehend has not yet been considered, as I believe "I have gone through all this evidence the trial of the Prince de Polignac and his colwith patience and with attention. If I were leagues is the only example of a proceeding in a situation to be heard I would make no of the kind. The Chamber of Peers seems to prayer for mercy. I would demand justice. have been exceedingly careful to adhere to the Never did I feel more respect than I do now, outward formalities observed in criminal judgfor the great repuplic, which even in the ments, and by giving their reasons for the sengristle of its infancy and not yet hardened into tence which they pronounced, have, as no the bone of manhood,' forgetting the minis- doubt they who first introduced this admirable terial misconduct which provoked the war of system intended, exposed to the contempt and independence, stood nobly forward to vindi- scorn of every lawyer in Europe, the irregucate the approved principles of British juris-larity, illegality, and injustice of the whole prudence and protect conscientious but mis-proceeding. We have already had occasion to taken statesmen from the factious fury of political hostility. How vain and mean a thing it is to vapour about liberty before you have learnt to do justice! I know nothing of the managers of the impeachment, nothing of any of the witnesses who were allowed to glorify themselves by recounting their exploits during the three days of July. I find no trace of any unworthy conduct on the part of the King or the Princes of his family-none on the part of the distinguished leaders of the revolution of July-but the impression with which I rise from the perusal of the mass of interrogatories, depositions, speeches, and evidence on the trial is that the Prince de Polignac and his colleagues were deemed past hope of mercy, and that the struggle was, who should establish the best claim upon the gratitude, by assisting to execute the vengeance of the Sovereign People. 'Dum jacet in ripâ, calcemus Cæsaris hostem.' This could not have been the case if Persil, Pasquier, de Bastard-the lawyers-had done their duty. It was their business to see that in a case of life or death, at a period of great observe the amiable readiness evinced by MM. Pasquier, de Bastard, de Pontécoulant, and Séguier, to get rid of all legal difficulties and effect the object of the Deputies, by enacting a law which in one breath might ascertain the nature of the offence, determine the punishment, and apply it to the accused ministers. We have seen that against this summary mode of proceeding the managers of the impeachment energetically protested, demanding that the ministers should be punished according to law. The Peers, in fact, agreed with the Deputies, as to the end, but differed as to the cle in their way was the 4th article of the means of arriving at it. The first great obstaPenal Code. 'No punishment shall be inflicted for any crime or any infraction of the law which has not been enacted by law before the commission of the crime.' sacred inviolable principle by the Managers of "This article we have seen was deemed a the Chamber of Deputies, who no doubt felt that departure from it would introduce into the practice of the French Legislature, the Notices of New Books: Shee on the Trial of Prince Polignac. 285 odious novelty of Bills of Attainder and ex possible. The Sovereign People was at the post facto laws, and they accordingly inserted door-the King bareheaded before it. Cries in the Act of Accusation certain articles from of Justice'! Vengeance!' mingled with the Penal Code, which they alleged to contemp- ferocious yells of à bas la Pairie héréditaire!' late the crime, and provide a punishment for Mort à Polignac!' Mort aux ex-Ministhe commission of treason. The Peers seem tres!' were heard in the vestibule of the to have been thoroughly convinced that these Court, and shook the stoutest heart of the articles contemplated nothing of the kind, and doomed and terror-stricken Peerage. There not being quite able to screw up their courage was no time for parley: the debates were to pronounce a sentence of Death upon such closed-the sentence was expected-the moforced and violent constructions, it occurred mentous and ere long irrevocable judgment to them that the precedents of Laud and of the Revolution of July. Strafford were better than no precedents at all, and that the difficulty might be avoided by the use, as Mr. St. John has it, of the legislative power, that is, by enacting the law and pronouncing the condemnation at one and the same time. This device seems to have had the further advantage,a that without imbruing their hands in the blood of the ministers, the Cham-cused in their defence, ber of Peers might contrive to humour the caprice of the Sovereign People. "The course finally adopted was one of compromise. The Peers consented to call the crime treason, but persisted, notwithstanding M. Persil's assurance, that they had no power to make laws without the concurrence of the Chamber of Deputies, and of the King, in claiming the right of enacting of their own authority a law for its punishment. "They had no sooner determined upon this, than the humiliating position to which their want of spirit and independence had brought them, presented itself in all its difficulty and disgrace. They had not the courage to depart from the ordinary forms which learned lawyers had invented for the express purpose of detecting judicial iniquity, and could not reconcile themselves to utter disregard of all the practice and- experience of their lives, sanctioned and enacted by an express article of the Penal Code. "Article 195 'Every sentence of condemnation shall con tain a statement of the facts of which the accused persons shall have been found guilty, and of the punishment to be inflicted for it. The text of the law of which application is made shall be openly read in Court by the President; and the fact of its having been so read shall be stated on the record, and the text of the law shall be inserted therein.' "What were the President and M. de Bastard to do? ""Peers of France' said M. Beranger, our task is done. Yours is about to commence. The impeachment of the Chamber of Deputies is before you. The book of the law is open, and therein you may read your duty. The country waits in the firm hope and confidence of obtaining good and signal justice. b' "Thus spoke the Manager of the Impeachment. Reinonstrance was vain, retreat im “At ten o'clock at night the Court of Peers resumed their sitting, and Baron Pasquier read the arrêt which they pronounced upon the Ministers. It was as follows: "The Court of Peers having heard the Managers of the Chamber of Deputies, their speeches, and conclusions, and also the ac 'Considering, that, by the Ordinances of the 25th of July, the Constitutional Charter of 1814, the Electoral Laws, and those which secured the Liberty of the Press, have been manifestly infringed, and that the Royal Power has usurped the Legislative authority: 'Considering,-That if the personal exigence of the King, Charles the Tenth, were the ruling influence of the conduct of his Ministers, that circumstance cannot exempt them from legal responsibility: "Considering,-That it has been proved on the trial that "The Prince de Polignac, as Minister, Secretary of State for Foreign Affairs, Minister of War ad interim, and Président of the Council of Ministers : The Count de Peyronnet as Minister, 'Monsieur de Chantelauze, as Keeper of the "That they have endeavoured to obtain the 'Considering, That these acts constitute the crime of Treason prévu by article 56 of the Charter of 1814, 'Declares the Prince de Polignac, Count de 'Having read |