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219.: LORD BROUGHAM’S LAW REFORMS EXAMINER, 13 OCT., 1833, PP. 643-4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXIII - Newspaper Writings August 1831 - October 1834 Part II [1831]

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The Collected Works of John Stuart Mill, Volume XXIII - Newspaper Writings August 1831 - October 1834 Part II, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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219.

LORD BROUGHAM’S LAW REFORMS

EXAMINER, 13 OCT., 1833, PP. 643-4

This is the fourth of Mill’s leading articles on the parliamentary session of 1833 prompted by Le Marchant’s The Reform Ministry; see Nos. 216-18. In addition to those specifically mentioned in the text, Brougham’s Law Reforms include 2 William IV, cc. 34, 39 (1832); 2 & 3 William IV, cc. 51, 62, 116, 123 (1832); and 3 & 4 William IV, cc. 44, 67 (1833). For the context and bibliographic entry see No. 216. In the Somerville College set of the Examiner, the article is listed as title and enclosed in square brackets.

if the remarks by which we are about to qualify our applause of Lord Brougham’s Law Reforms should seem of a disparaging tendency, they are inspired by no love of disparagement, but by the conviction that there is no greater enemy of the good which is to come, than exaggerated praise of the good which has already been effected. Lord Brougham’s vocation is that of a popular orator rather than a legislator. The service which beyond all other men of his day he was fitted to render to Law Reform, was that of discrediting the existing system. This he has done, and is doing, as effectually perhaps as it could have been done by a mind of more philosophic habits and of more enlarged views. He is great as a destroyer; not great as a rebuilder. All that he has overthrown well deserved to fall; nothing that he has established, in the opinion of the most thorough law reformers in the profession, deserves to stand. Not only his reforms are partial and narrow, but they are such as cannot fit into any more comprehensive plan of reform. A great edifice cannot be built in a day; but his hasty erections will form no part of the building when it is completed; they are mere temporary sheds, occupying part of the ground—an actual obstruction in the way of the workmen, though a far less one than the cumbrous ruin which was cleared away to make room for them.

The old Bankruptcy Court was an abomination;1 the judicial arrangements relating to the affairs of lunatics were a mass of expensive absurdity;2 there could not be a worse constituted tribunal than the Privy Council, the sole court of appeal from the tribunals of the colonies;3 the Ecclesiastical Courts deserve to be swept away.4 But does any man, capable of forming the conception of a rational judicial establishment, believe that there will much longer be a court for bankruptcy alone, a court for lunacy alone, a court only for marriage causes and for proving wills, a court only to hear appeals from the colonies? Certainly not: and in the mean time all these new judgeships and commissionerships are so many vested interests, which, when the time comes, the public will be expected to buy off. All these nibbling reforms in Chancery, again, what are they? when every enlightened law reformer is convinced that the Court of Chancery as a separate Court must cease to exist, and that the same judges in the first instance, and the same judges of appeal, will ultimately administer both that part of the law which is called Law, and that other part of the law which is called Equity?

Of the defects in the details of Lord Brougham’s reforms, and of his views of reform, we can only select, nearly at random, a few instances as specimens.

He has abolished prospectively many legal sinecures, which yielded immense incomes to sons, nephews, and grandchildren of Chancellors and Judges, at the expense of suitors.5 Of the golden streams which flowed into the strong boxes of these lucky foster-children of the nation, a part, indeed, have been dammed up, but the remainder only diverted into the Exchequer of the State.6 Of the fees which unfortunate applicants for justice were forced to pay, avowedly for no purpose but to make an income for these sinecure placemen, a part only have been remitted; a part continue to be collected for the benefit of the public revenue! The most odious of all taxes—taxes on justice—abolished in 1823 by Lord Liverpool’s Ministry7 —behold them re-established by the Reform Ministry! It was reserved for the Reform Ministry, and for the man who desires to go down to posterity as the reformer of the laws of England, to re-enact an abuse so odious, that it was abolished even by Tories, in the very first hour in which the words law reform were uttered in a public place. Once more it has been decided, that a man is to be selected as a fit object of taxation because he is suffering evil—that because he is put to immense expense by having had his rights disputed, or a wrong inflicted upon him, therefore he shall be put to further expense for the general purposes of the State—that because the King, and the Ministers, and the army, and the navy, and the courts of justice, having succeeded in protecting the rest of the community from injustice, have failed in protecting him, therefore he shall be picked out from the rest of the community as the person who shall be required to pay more money for the support of those establishments! And the Solicitor-General, Sir John Campbell, a man whom we regret to blame, for no person connected with the Government oftener gives utterance to sentiments deserving of praise, actually congratulated the Chancellor of the Exchequer on this accession to his financial resources.8 A few thousands a-year, wrung from the needy and from the injured—a noble subject of congratulation!

In a matter nearly connected with this, the House of Commons proved themselves better law reformers than Lord Brougham. The principle of remunerating judicial officers by fees instead of salaries, at the expense of suitors instead of the State, that is, at the expense of those who derive less benefit than any one else from the administration of justice, being put to trouble and expense for that protection which others obtain gratuitously; this pernicious principle, discarded by Lord Brougham in a great variety of cases, had been most inconsistently retained in others: but the House of Commons, in passing the Chancery Reform Bill, extirpated that mischief from it altogether.9 This roused the Chancellor; who, when the Bill returned to the House of Lords, entered into a vindication of his own views. He said, that unless the officers of the court were paid by fees, their reward would not be in proportion to their exertions, and they would have motives to retard instead of accelerating the despatch of business.10 Extraordinary as it may seem, in this doctrine the Chancellor was perfectly serious, and, we are persuaded, sincere. All it proves is, on how slender a foundation of principle his opinions rest, and with how little of reflection they are taken up. Strange not to see that this reason for payment by fees instead of salary, is applicable to all public officers whatever, if to any: still more strange not to see that a superior functionary stultifies himself, when he professes incapability of compelling his subordinates to do their duty, unless they are bribed to do it by the very person who least of all others in the community ought to bear that extra burthen. Formerly almost all public officers were paid by fees: the iniquity of the principle, and the abuses to which it was liable in practice, have caused payment by salaries to be almost universally substituted; and now what is it which keeps public functionaries to their duty? The good sense and vigilance of their official superiors: and is the Chancellor incapable of exercising similar vigilance? Say that it is necessary that his subordinates should have the additional inducement of a pecuniary remuneration proportional to the quantity of the work, (even if at the expense of the quality,) are there no means devisable by human ingenuity for giving them that pecuniary inducement, except out of the pockets of injured men petitioning for justice? When nobody but the public is interested in getting over a difficulty, the easiest effort of thought seems to be grudged for finding a solution. Not that the public good is not dear to these men, but that their zeal for it is a capricious and wavering, not a steady principle of action.

Though the Chancellor defended the principle of remuneration by fees, he did, we believe, throw out something like a condemnation of making those fees contingent upon any incident which the officer receiving the fees has the power of multiplying, for the purpose of increasing his own emoluments. But so completely are the acts of the Chancellor at issue with his professions, that the particular fees which the officers who profit by them have the greatest power of multiplying the occasions for, (and have exercised that power to the most mischievous extent,) those very fees, both in the Court of Chancery and in the Courts of Common Law, instead of abolishing, or diverting into other channels, the Chancellor has largelyincreased. We do not believe that this was done with evil consciousness for jobbing purposes. But is it at all wonderful that there should be thousands who do think so?

We are compelled to select as examples of the Chancellor’s defective notions of legislation, not the most important instances, but those which can be exhibited at least length. We will mention one which is striking, and will occupy little space. Even the unprofessional reader knows that lawsuits are often decided by arbitration, and that after the parties have incurred nearly the whole expense of a suit, the judge frequently advises them to refer the case to a gentleman of the bar; but they do so at their option, and not otherwise. One of Lord Brougham’s Bills contained a clause, which was struck out of the particular Bill, but afterwards revived, and which we understand is still persevered in, empowering the judge at his discretion to nominate an arbitrator, and rendering the decision of the arbitrator so designated compulsory on the parties.11 Now observe the character of this proceeding, and of the process of thought in the Chancellor’s mind, on which it must have been founded. All the presumptions are against arbitration, as compared with a suit in the courts. The arbitrator is wholly irresponsible, even to the opinion of the world; he decides without publicity, and decides upon evidence taken without publicity: he is a person selected almost at hazard, hardly ever of any professional eminence, certainly of less than the judge who selects him, unless the appointment of the judge amounted to an act of the grossest public profligacy. Nevertheless, although there are all these strong presumptions against decision by an arbitrator, the voluntary agreement of the parties to submit to it in preference to the regular tribunal, is a presumption in its favour stronger than these, and outweighing them. Therefore the parties shall be compelled to choose it whether they will or no!

If the law reforms of the Chancellor were analysed in detail, we should be able to exhibit innumerable specimens of loose and imperfect thinking, not inferior to these. We have not room for that minute examination here. But we must notice something of more serious moment, because on a larger scale; what we hold to be an error of principle of the very first magnitude. The whole of the Chancellor’s notions on the subject of appeal, the very key-stone of a good system of judicature, appear to us to be radically erroneous, and all that he is doing or planning with relation to it, to be fundamentally wrong. If there is one principle more than another, which is universal and paramount in public business of almost any kind, but above all in judicature, it is that the functionary should be one. Not indeed where the law is doubtful; for then the question should be referred to the collective body of the highest legal authorities, as now to the fifteen judges, not so much for greater certainty, as to ensure uniformity in the law. But in all other cases, to set three or four judges on a bench to hear one cause, is not only paying three or four persons to do the work of one, but it renders absolutely certain their doing it ill. One judge feels the public eye upon him; he is ashamed to be corrupt, or partial, or inattentive; but when there are several, each dares perpetrate under the sanction of the others, wickedness the undivided obloquy of which he would have shrunk from; each trusts that others have been listening though he has not, that others have given their minds to the cause though he has not; and instead of the services of several judges, the public has something considerably less than the best services of one.

But Lord Brougham carried the prejudices of a Common Lawyer into a Court of Equity, and resolved to assimilate the two, by altering the practice not where it was bad but where it was good. Hitherto in the Court of Chancery the appeal has been from one judge to one judge: when the proposed Bill shall have passed, it will be from one judge to three.12 A similar change has been effected in the Privy Council.13 And this the ministerial pamphleteer lauds as a most glorious improvement. “It must be admitted that a single judge hearing and deciding on questions of great moment was not a very good specimen of a court of appeal.”14

One ridiculous effect of this so-called reform, which does not appear to be at all thought of, is the following: at present three judges in the first resort sit regularly for the dispatch of business, and one only is ever occupied in hearing appeals from them: but now every appeal will take up the time of three, leaving only one to judge in the first instance. We may look forward therefore to an immense and rapidly accumulating arrear, or to the speedy appointment of several more judges in equity.

We shall only further mention, under the title of Law Reform, two instances of discreditable truckling which we really hope not to see renewed. When the House of Lords was about to reject the Local Courts’ Bill, which had already been mulcted of almost all that was valuable in it except the principle, in order to have a chance of passing, (the jurisdiction, originally of 100l., having been reduced to 20l.)15 what said the Chancellor?—That if, by rejecting a bill, the utility of which had been pared down almost to a minimum, they proved that no measure for really improving the judicature of the country had any chance of finding acceptance with them, he would give over compromising, and making his measures petty and contemptible to please them, and would propose a large measure containing all that the public welfare imperiously required, leaving them to reject it at their peril?—Nothing of the kind. He told them that if they threw out the Bill they should not daunt him, nor turn him back in the career of Law Reform, and that he would next time present to them a Bill—far less extensive than the preceding!16 This was tantamount to actually inviting their rejection of the Bill, and promising to do all he could to cover over and shelter the iniquity of their conduct. Let us hope that his acts, in this instance, will be better than his words.

This was truckling to the House of Lords. Their leaving the Registration Bill, the only really important measure which has emanated from the Real Property Commission, in private hands,17 while all the other Bills of that Commission were adopted as Government measures, this was truckling to the House of Commons. And a notable specimen was the rejection of that Bill, of what that House is—of what are the interests which still predominate there. Still the House of Landlords; still the House of Insolvent Debtors; and when strong public clamour does not compel some regard to the public interest, still as stupidly and as blindly selfish as in the worst times. Every man who voted for throwing out the Registry Bill, stamped himself thereby as a man more deeply in debt that he dared to avow. Not only was there no good motive, there was no other motive, good or bad, which could render a landowner averse to the official authentication of his property, and the claims on it, in the same manner in which his father’s will is authenticated by registry in Doctors’ Commons.

[1 ]Reformed by 1 & 2 William IV, c. 56 (1831).

[2 ]Reformed by 2 & 3 William IV, c. 107 (1832), and 3 & 4 William IV, c. 36 (1833).

[3 ]The Judicial Committee of the Privy Council to hear appeals was established by 3 & 4 William IV, c. 41 (1833).

[4 ]The Ecclesiastical Courts, which had jurisdiction over divorce by annulment and probate as well as Church matters, had had their powers slightly altered by 2 & 3 WilliamIV, c. 92 (1832), but were not significantly reduced in authority until 1857 by the Matrimonial Causes Act.

[5 ]See Brougham, Speech on the Abolition of Chancery Sinecures (2 Aug., 1832), PD, 3rd ser., Vol. 14, cols. 1016-19; and the abolishing acts, 2 & 3 William IV, c. 111 (1832), and 3 & 4 William IV, c. 99 (1833).

[6 ]For illustrative details, see 2 & 3 William IV, c. 110 (1832), Sects. 8 and 10; and 3 & 4 William IV, c. 84 (1833), Sect. 7.

[7 ]For the repeal (enacted in 1824, not 1823), see 5 George IV, c. 41.

[8 ]John Campbell, Speech on the Chancery Office Bill (22 Aug., 1833), PD, 3rd ser., Vol. 20, col. 829.

[9 ]In its original form, “A Bill Intituled, An Act for the Regulation of the Proceedings and Practice of Certain Offices of the High Court of Chancery in England” (19 July, 1833), PP, 1833, I, 289-97, the measure included fees. As revised by the Committee, the Bill (17 Aug., 1833), ibid., pp. 297-316, had a new Clause 29 providing for salaries. It was enacted as 3 & 4 William IV, c. 94 (1833); for fees, see Sects. 19, 41, and 44.

[10 ]Brougham, Speech on the Court of Chancery Regulation Bill (27 Aug., 1833), PD, 3rd ser., Vol. 20, cols. 892-3.

[11 ]The Clause is on p. 13 of “A Bill, Intituled, An Act for Settling Controversies by Arbitration,” 1 William IV (30 Nov., 1830), PP, 1830-31, I, 13-18 (not enacted). A substitute provision is on p. 17 of the Bill of the same title, 2 William IV (23 Aug., 1831), PP, 1831, I, 15-20 (not enacted); it was “revived” as Clause 28 of “A Bill, Intituled, An Act for the Further Amendment of the Law, and the Better Advancement of Justice,” 3 William IV (16 Apr., 1833), PP, 1833, III, 19-34 (enacted in Sect. 39 of 3 & 4 William IV, c. 42 [1833]).

[12 ]See “A Bill Intituled An Act for Appointing a Chief Justice in Chancery, and for Establishing a Court of Appeal in Chancery,” 4 William IV (19 July, 1833), Sessional Papers of the House of Lords, 1833, CCCXV, 217-20 (not enacted). For discussion of an earlier French measure of similar intent, see No. 66, n1, and No. 76, n3.

[13 ]By Sect. 1 of 3 & 4 William IV, c. 41.

[14 ]Le Marchant, p. 63.

[15 ]The clause containing the £100 limit is on p. 60 of “A Bill, Intituled, An Act for Establishing Courts of Local Jurisdiction,” 1 William IV (2 Dec., 1830), Sessional Papers of the House of Lords, 1830-31, CCLXXXIII, 57-104 (not enacted). The limit to £20 is in Clause 15 of the Bill of the same title, 3 William IV (28 Mar., 1833), ibid., CCCXIV (1833), 205-38 (not enacted). For the debate in the Lords that led to its defeat, see PD, 3rd ser., Vol. 19, cols. 307-74.

[16 ]Brougham, Speech on Courts of Local Jurisdiction (9 July, 1833), PD, 3rd ser., Vol. 19, col. 371.

[17 ]Those of William Brougham (1795-1886), brother of the Lord Chancellor, a barrister, Master in Chancery from 1831, and M.P. for Southwark 1831-34. He introduced “A Bill for Establishing a General Register for All Deeds and Instruments Affecting Real Property in England and Wales,” 3 William IV (13 May, 1833), PP, 1833, III, 489-540; it was debated and defeated on 19 June (PD, 3rd ser., Vol. 18, cols. 1001-11).