ON THE SEPARATION OF THE, seat as Chancellor, richly dressed, and surDUTIES OF THE CHANCELLOR- rounded by the noblest and the highest in the SHIP. a We now resume our notice of Mr. Montagu's argument for the "Separation of the Judicial and Political Functions of the Lord Chancellor," and turn to his discussion of the reasons in favour of the union. The first he conceives to be, "that it gives such weight, and confers such splendour, upon the character of the chief judicial magistrate, as to be beneficial to the administration of justice." We shall give his answer to this, verbatim. land, was a tribute to the Law, not to incite the ambition of the law student. But supposing for a moment that such motives operate upon our dull and lazy youth, our stocks and stubs, as Milton calls them, can it be ima gined that they actuate the high-minded, full of towardness and hope, Aurora Filii,' of aspiring, and that they ought to enter their profession, not as a shop for profit and sale, but a rich storehouse for the glory of the Creator and the relief of man's estate?" sons of the morning, as they are called by Lord Bacon? Can it be supposed that such men are, in these enlightened times, to be deluded by any disguise or puppetry of honour? Will they not in the present advanced state of society in which we live, consider not what man appears to be, but what he is, and, looking through the ermine to the common failings and infirmities of our nature, know that "That splendour in religious and judicial ce-Power to do good is the true and lawful end remonies is to a certain degree beneficial, will not be doubted, except by men cold and unimaginative, whose minds, to use the quaint words of Fuller, are made of one bone without joint. When we think of the nature of uncivilized man and the blessings of society, it is indeed glorious to remember Jerusalem, her temple, the order of her services, the beauty of her buildings, the sweetness of her songs, the daily sacrifice, and that eternal fire of devotion, that went not out by day nor by night. It is beautiful to think of the Christian temple, of the order and decency of our ministrations, of the pure white surplice, that simple pastoral garment, the crook to guide or to draw back the erring flock, meet emblems of the good shepherd; but was it ever supposed, that these ceremonies and splendours were adopted to form the character of a young divine, or that he was best fitted for his office by a daily contemplation of Lambeth Palace and a Mitre? Such motives ought not to have precedence in our thoughts, but to follow in the train of our duty. "It is the same in the profession of the law; The pomp with which Lord Bacon took his a See ante, 281. VOL. XI. NO. 321. The second reason against the separation is, that thereby the Crown would be deprived of its prerogative of elevating men from an inferior situation in life, to the highest honours of the kingdom. This has been frequently urged, and recently by Sir Edward Sugden. Its answer is glanced at by Mr. Montagu. How the Crown would be deprived of this prerogative is not stated." And this, we must think, is a sufficient answer. The Lord Chancellor will still be the first temporal peer, with nearly the same patronage, and probably all the same influence. He will always have quite enough to do; he will not be a mere lounging placeman, who may go to his office, consult his chief clerk, receive visits, and dress for a cabinet dinner. Neither will the Chief Judgeship in Equity be a despicable object for any man's ambition. Instead of one, the wheel will con 2 A 346 Separation of the Duties of the Chancellorship.—Notes on Law and Lawyers. 1835. We take the following dicta at random, on miscellaneous points. tain two prizes, each of them worthy of the | ker adds, in a note, was fond of boasting first talents and the most arduous exertions. that he had been a sailor and a soldier and We cannot see, then, how this prerogative a lawyer and a parson. Vol. 3, 207, edit. will be diminished by the separation of the duties of the Chancellorship; and we cannot pay any attention to such hollow expressions as essence of the monarchy," "bulwarks of the constitution," and "prerogative of the Crown," let them come from what mouths they may however well calculated to round a sentence, or satisfy those who will not be at the trouble to think on the subject, they are at present never used, except when sound is desired to be substituted for sense. Mr. Montagu concludes with his own plan, which is this: 66 Let a regular court be appointed; let the Lord Chancellor or one Judge sit one or more days in each week upon bankruptcy and lunacy, and abolish the Court of Review; upon which it is my belief that there are not ten dissenting voices in the kingdom. The commercial law of this country is not in such a deplorable state as to require four judges to rectify the errors of one branch of it: and there are no issues to try. "All equity will thus be administered by perinanent equity judges; the Courts of Bankruptcy will not lose their caste; and, deprived of the assistance of the highest professional ability, sink into mere Insolvent Courts." "We got into an argument, whether the Judges who went to India might with propriety engage in trade. Johnson warmly maintained that they might. For why,' urged he, should not judges get riches as well as those who deserve them less?' I said, they should have sufficient salaries, and have nothing to take off their attention from the affairs of the public. Johnson.— No judge, Sir, can give his whole attention to his office; and it is very proper that he should employ what time he has to himself to his own advantage, in the most profitable manner.' Then, Sir,' said Davies, who enlivened the dispute by making it somewhat dramatic, he may become an insurer, and when he is going to the bench he may be stopped: "Your lordship cannot go yet; here is a bunch of invoices; several ships are about to sail." Johnson. Sir, you may as well say a judge should not have a house; for they may come and tell him, “Your lordship's house is on fire;" and so, instead of minding the business of his Court, he is to be occupied in getting the engine with the greatest speed. There is no end of this. Every judge who has land, trades to a certain extent in corn or NOTES ON LAW AND LAWYERS. in cattle, and in the land itself: undoubt No. III. We shall devote one more article to the notices which occur in the lives of Dr. Johnson, as to our Profession; and first, let us cite the mention of one, in the recollection of nearly all of us. "On Monday, April 6th," says Boswell, "I dined with him [Johnson] at Sir Alexander Macdonald's, where there was a young officer in the regimentals of the Scots Royal, who talked with a vivacity, fluency, and precision, so uncommon, that he attracted particular attention. He proved to be the Honourable Thomas Erskine, youngest brother to the Earl of Buchan, who has risen with such brilliant reputation at the bar in Westminster Hall;" and then a conversation, of considerable length, in which Erskine bore a part, follows: among other things, Mr. Erskine said, that "when he was in the island of Minorca, he not only read prayers, but preached two sermons to the regiment." Lord Erskine, Mr. Cro edly his steward acts for him; and so do Vol. 5, pp. Notes on Law and Lawyers.—Examination of Attorneys. 347 It is proper that we should let the author state his proposition in his own words :— 46 Johnson's opinions as to the private life | of a judge were various. At one time he censured Lord Monboddo for wearing a My purpose is, to suggest that the new round hat in the country. Vol. 4, p. 114. system of examination of candidates for adAt another, he would not allow that the mission upon the Roll of Attorneys, ought private life of a judge in England was renot to be applied to those persons who were quired to be so strictly decorous as I actually under articles of clerkship before the posed. Why then, Šir,' said I, 'accord-new Act of Parliament passed. These clerks," he says, "were bound on the faith of the exing to your account, an English judge may isting practice; they paid a heavy stamp tax, just live like a gentleman.' Johnson.-exceeding 120%., on the faith of that practice; 'Yes, Sir, if he can."" Vol. 5, p. 148. The following remark is, we conceive, good law. sup "He said our judges had not gone deep in the question concerning literary property. I mentioned Lord Monboddo's opinion, that if a man could get a work by heart, he might print it, as by such an act the mind is exercised. Johnson.-'No, Sir, a man's repeating it no more makes it his own property, than a man may sell a cow which he drives home.' I said, printing an abridgment of a work was allowed, which was only cutting the horns and tail off the cow. Johnson. No, Sir, 'tis making the cow have a calf.' Vol. 4, p. 70. and, on the same faith, they incurred all the other heavy sacrifices of money and years, necessary to qualify them to be admitted in the had been admitted before them. They had no same way in which their masters and all others notice of any intended change, and, therefore, no option of considering whether that change would so alter their views as to deter them from adopting the profession of an Attorney. And," he adds, “ that, for the reasons here assigned, these clerks have a claim of right and justice to be exempted from the operation to all who were bound before the actual proof the new system; and that the right extends mulgation of the Rule of Court made under the new law; for there exist few, if any of them, who were in any degree aware of the new law until that Rule was made public." The writer then says, "he may possibly be founded on an Act of Parliament, as he dein error in understanding that the new system rives his intelligence from nothing but the newspapers. But his arguments do not depend on that fact, and therefore cannot be affected by it." Let us conclude with Dr. Johnson's tes-is timony in favour of the law, recorded by Mrs. Piozzi, when an acquaintance was one day exclaiming against the tediousness of the law, and its partiality. Let us hear, Sir," said Johnson, no general abuse: the law is the last result of human wisdom acting upon human experience for the benefit of the public." Johnsoniana, vol. 1, P. 44. ON THE EXAMINATION OF ATTORNEYS. A SMALL pamphlet has just been published, by Mr. Hussey, a Solicitor, of Maidstone, entitled, "A Letter to the Lord Chief Justice of the Court of King's Bench, on the intended new system of Examination of Attorneys-at-Law, before admission." We consider it necessary to notice all publications on this subject, otherwise the argument urged by the present writer is so untenable that we should have passed it by as unworthy of consideration. His notion is, in effect, that by the payment of 120l. to the revenue, an articled clerk acquires an inchoate right to admission as an Attorney, without an examination into his fitness and capacity! dation for his argument would be, the nonNow to us it appears, that the only founexistence of any Act of Parliament previous to the promulgation of the New Rule; but Mr. Hussey, no doubt, will feel that he has very much mis-spent his time in writing this pamphlet, when we inform him, that there are a succession of Statutes and Rules of Court for several centuries, enjoining the Examination of Attorneys, and particularly, that the 2 Geo. 2, c. 23, expressly requires the Judges, before they admit any person as an Attorney, to inquire into his fitness and capacity. It is true that these statutes have not recently been acted upon, except by requiring a certificate of due service, and that the clerk is a fit and proper person to be admitted; and we can understand, that if a severe examination were immediately to be required, there would be some ground of complaint: but an articled clerk must be presumed to know sufficient of the law in which he undertakes to practise; that he was liable to be examined prior to admission; and that the Judges have only dispensed with it in reliance on the Attorney to whom the clerk was articled. 1 many of the several candidates must be incompetent to satisfy. Thus the candidate, perhaps, well skilled in some departments, but the whole, will be liable to rejection, because unavoidably skilled in only a small portion of he does not know all. It is probable, that not one of the very examiners themselves could pass an examination before this board of concentrated practice and experience." We are then told, that "the term of apprenticeship, in all professions, is necessarily passed without the acquisition of any considerable skill, excepting those professions partaking chiefly of the character of handicraft. The mind is not generally open at that time to any attainments for earning a future livelihood, but those of a manual character." Now, with submission to Mr. Now all this is very true in itself, but is Hussey, we should state the very reverse of nothing to the present purpose. We canthis; for it is well known, that in the me-not give credence to the notion that any dical profession every candidate for admis- such examination will be authorized as here sion must give decisive proof of skill and anticipated. We do not think the examiknowledge before he is allowed to practise.ners will be so unreasonable as to propose The author then proceeds to point out such a scheme, and we feel quite sure that the defects in the present mode of instruct- the Judges would not sanction it. ing articled clerks. In this respect, we believe, there is room for amendment. Mr. Hussey, however, does not deny the necessity of a proper examination. He says "Articled clerks," he says, are subjected to no discipline fitted to qualify them for a serious examination; and have no means and no encouragement to prepare themselves for it. Will any one of those men who have been most successful as attorneys, or who have most adorned the profession, venture to declare, that when his apprenticeship was over, he was so well skilled as to have been able to pass an actual examination, such as will now be re-in all points. I do not contend that some quired ?" "I am not disposed to maintain that some real examination may not be an improvements I am no friend to idleness. I have myself served a clerkship; and I served not idly. I should not, when it was over, have feared any examination in those branches of business in which I had had experience, but I certainly could not successfully have faced the fourteen knights of the round table, each armed with his own peculiar weapon, ready to prick at me good may not be done; but I do contend that much modification of the design, and much moderation, care, and discrimination in the execution of it, are essentially necessary: and, after all practicable modification and care have been applied, I must take leave to doubt whether much good will really be done." This anticipation of severity we believe to be unfounded. Mr. Hussey, besides losing sight of all the former Statutes and Rules of Court on the subject, has also set up an imaginary code of rules, by which he supposes great injustice will be effected. Having admitted that a real examinaHe assumes, that the young articled clerk tion, properly conducted, may be an immust prove himself to be a perfect lawyer. provement, the author must excuse our He truly says, "There is a very great di-entering on the ground of his doubts. versity of parts in the whole duties of an at-That which is practised with advantage in torney. There is no attorney's office, in town the clerical and medical professions, may at or country, where any effectual experience can least be worth the experiment in the legal be gained in the whole. The business of one lies chiefly, or even solely, in one branch; that profession; and as the appointment of the of another, in branches totally differing. Not examiners will annually bring the subject only in the several parts of London, and other to the notice of the Judges, we can have great towns, but also in various parts of the no doubt that the regulations they will country, and even in offices situated in the make from time to time will be both reavery same spots, in both town and country, sonable and effectual-that they will, on there is a marked and essential variance in the branches of business in which they severally the one hand, see that the examination does are conversant; and commonly to the total not degenerate into a mere form, and, on exclusion of, and ignorance in, all other the other, that it is conducted with fairness branches. The duties of the profession are and propriety. so multifarious, that not even the most experienced of us has any real practice or skill in all. Yet the Board of Examiners will together combine a knowledge of all. It will not be possible for any articled clerk to be prepared to stand before such a body of examiners; some one or other of whom will undoubtedly be able, and disposed, to ask ques We subjoin the following Letters and Answers on this subject:— Sir. ADMISSIONS IN CHANCERY. I sk 1 be extremely obliged if you will state tions in his own peculiar department, which in your next Legal Observer, whether a clerk The Right of a Mortgagee to Distrain. 349 who will be duly admitted an Attorney in the | 245,-shews that a mortgagee is, after notice Common Law Courts in Easter Terin next, of the mortgage, entitled to the rents of the (the notices having been given for that pur- mortgaged premises, becoming due from tenpose previous to Hilary Term), can be adinit-ants who come in after the mortgage; and it ted in Chancery on the first day after that is upon these two cases that the opinion of (Easter) Term, without examination; and what the right of the mortgagee to distrain upon notice must be given. tenants who come in after the mortgage, is A SUBSCRIBER. founded. [There can be no doubt, we think, that persons who are admitted in the Common Law Courts in Easter Term, which will be previous to the operation of the New Rule, will be entitled to admission in Chancery the day after Term, as usual.-ED.] COMMON-LAW ADMISSIONS. G. having been admitted in the King's Bench for the last 16 years, but not in the Common Pleas or Exchequer; can he not, next Easter Term, procure his admission in those Courts on production of his King's Bench admission, without examination under the New Rule, and without having, before this time, given any notice, in fact, under the old practice? With regard to the case of Moss vGallimore, the mortgagee in that case, as before stated, had a right to distrain because the reversion was in him; but where tenants are in after the mortgage, there is no reversion in the mortgagee, and therefore no right to distrain. The mortgagor, after the execution of the mortgage, has no estate in the mortgaged premises, and therefore can grant none. Parties put into possession by him are trespassers and wrongdoers, and the mortgagee can at any time turn them out without notice. This case therefore seems to establish nothing in favor of the doctrine, as there the mortgagee had the reversion in him. The case of Pope v. Biggs, shews that a mortgagee is entitled to the rents of tenants who come in after the mortgage, as well as of those who are in before; but there does not the assumption that he has the remedy of disappear to be anything in that case to warrant [This case obviously does not come under the New Rule, which applies only to a person" not previously admitted an Attor-tress to recover it, and in fact it rather tends ney of any of the Three Courts." G. being admitted in the King's Bench, need not be examined previously to his admission in the other Courts.-ED.] to shew that he has not, because of the want of privity. This was an action of debt for use and occupation, against a tenant who came in after the mortgage; and Mr. Justice Bayley, says, "It is quite clear that the mortgagee might have maintained an ejectment against defendant and the other tenants, and thence I think it follows that it is not necessary for RIGHT OF MORTGAGEE TO DIS. the mortgagee to go through the form of an TRAIN. ejectment: an arrangement may be made with the tenant and the right of the mortgagor will then be pro tanto destroyed,"-Mr. Justice THIS is a question which occurs often, and is Littledale says, "I am of the same opinion: of very great importance; and though it ap-if tenant acquiesce, he from that time becomes pears settled in practice that a mortgagee, after notice of his mortgage, has the right to distrain for rent due from tenants who come into possession after the mortgage, and this practice is supported by the opinion of some very eminent lawyers, my object is shortly to enquire into the basis of this presumed right. and the tenant of the mortgagee; for until the tenancy be agreed upon, the person holding possession is strictly a trespasser as regards the mortgagee, and the rents might be recovered from him as mesne profits: the mortgagee may therefore receive the rents without going through the form of an ejectment, if tenant will consent to pay them." Thus it must be All persons possessing the reversion of pre- observed that Mr. J. Bayley, speaks of an mises, are of common right entitled to distrain; arrangement, as being necessary to establish but the old authorities shew that, without the the relation of landlord and tenant between reversion, the power of distress cannot exist, the party in possession and the mortgagee; unless the power is given by a special reser- Mr. J. Littledale, is still more clear on the vation, point. "If tenant acquiesce," says he, then he Before the case of Moss v. Gallimore, 1[becomes tenant, but if not, he is a trespasser, and Doug. 279, it was considered very doubtful whether a mortgagee could distrain for rent, upon parties who held under a lease made prior to the mortgage. By that case it is dedided that they have such a right, because the reversion, which, until the mortgage was in the mortgagor, is by mortgage vested in the mortgagee; and therefore he gains the power of distress. The last case bearing upon the subject, that of Pope v. Biggs, 9 B. and C. the rent must be recovered as mesne profits, If, therefore, the tenant does not acquiesce, there is no privity of estate, and consequently no power of distress; and this is in accordance with the old rules of law. The argument in favor of the right is that after the execution of the mortgage the mortgagor stands in the situation of a mere agent or receiv of rents in relation to the mortga gee, (ar ny cases appear o establish this |