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topic which, for the present, we must leave untouched, inasmuch as it is impossible to embrace them within the bounds of a single article. Our desire has been rather to endeavour to put before the reader a few of the principal points in the practice and law of banking, than to attempt to frame a compendium of the entire subject.
ART. VIII.—JUDICIAL ANTIGIPATION.
THERE are two courses pursued by judges, and even the most eminent have differed in their choice between them. One is, never to interfere during the progress of the cause, unless where it becomes necessary to interpose, either from an appeal made by the counsel, or from some irregularity requiring to be checked. The other is occasionally to state difficulties that may require to be got over, or doubts to be removed; in short, to bring the mind of the judge in contact, possibly in conflict, with that of the advocate, sometimes by starting objections requiring an answer, sometimes by a call for explanations, sometimes by ascertaining the precise drift of the argument or meaning of the narrative. Of the former class of judges, Sir William Grant was the most remarkable instance; and, with all the deference which so high an authority—-perhaps of all judicial authorities the highest—— naturally commands, we venture to doubt the expediency of the course he pursued, and to prefer the other, provided it be guided and controlled by sound discretion. Manifestly, Sir W. Grant’s mode was wholly inapplicable to trials at Common Law, even to arguments in Ban-c, touching what had passed at Nisi Prius; and, in a court of the last resort, it would have occasioned great risk of miscarriage, where no error or oversight even could be corrected. But even in the ordinary casepof arguments, whether in law or equity, it is manifest that the other is the better, and, upon. the whole, the safer course, although certainly it is, if not carefully guarded, apt to produce evil consequences, of which our present purpose is only to mention one—-the chance of the judge committing himself, and throwing out opinions which he ought afterwards to correct. This risk is always so far guarded against as can be done, by stating that the question is put, or the objection made, without any intention of indicating an opinion one way or another. Nevertheless, in some judges at least, there is unavoidably a leaning of opinion betrayed, and therefore they ought to be carefully on their guard against being influenced in their ultimate decision, by a. feeling that they had, to a certain degree, committed themselves. But what we are about to consider is a much more hurtful practice than even the least guarded interlocutory discussion. We allude to the course sometimes pursued of declaring, at the close of the hearing, the impression which has been made, although time is taken for final judgment, on the ground of the case being of great importance, or of considerable difliculty, or it may be on both grounds.
This is a practice, as it seems to us, always to be carefully avoided—we mean, of course, in all cases where there is no desire for further information from the bar, and where the hearing is entirely finished. The ground of our repugnance is obvious: whatever pains the judge may take to state that he has not finally made up his mind, he has so far announced the inclination of his opinion; and this is known to the parties, and to the bar, and very possibly is given in the regular report of the case, almost certainly in the newspaper account of it. Thus, can it be doubted that he will have a bias on his mind, powerful in proportion to his self-esteem ? With some judges this may have the effect of making the interval between the prelibation (to use the Roman expression) and the actual judgment, spent not so much in fully examining the merits of the arguments, as in finding reasons for supporting the views thrown out at the close of it. With other judges there may not be the same evil occasioned; but, with almost all, there is a motive allowed to operate wholly foreign to the only one that should prevail-an absolute desire of ascertain
ing the truth, and doing ustice. Judges are men, and subject to human infirmity ; and there may always be a disposition to shew that they were not mistaken in their first view of the question, even in those who are the least prone to rely upon their own infallibility. There is a snare laid for them-—a pitfall dug, into which they may slide when more or less heedlessly moving onward.
A great judge, one of the greatest that ever presided in the courts of this country—Lord Mansfield—-would sometimes, at the close of an argument, break the case, as he said, for the benefit of the student. It may be presumed that he seldom if ever did this where there was any great interest at stake, whether of the parties or of the law, or any material doubt of the ultimate decision. But Lord Mansfield might be safely trusted where most other judges would err, because of his extremely cautious nature, bordering on timidity, and the closeness with which he knew he was watched, both by professional and political jealousy; in so much that a clamour was once raised against him for giving an opinion judicially after hearing the point argued, contrary to one which he had given in advising on a case of a client—most absurdly raised, no doubt, but indicating the kind of eyes that watched him. We refer, of course, to the celebrated case of Perrin v. Blake. Other judges of great eminence have sometimes fallen into this reprehensible practice with little or no evil result, as Lord Eldon ; but then they who best knew his judicial nature were quite aware that when he discussed the case, as it were, provisionally, and postponed his judgment, he had, on almost every point, made up his mind, and only hesitated about giving forth his decision. There was therefore very little, if any, effect produced by this premature statement, generally of doubts which he little felt, more frequently of criticisms upon the arguments he had heard, in so far as he had given his attention to them. But we speak of the general case, and we feel confident that we have not gone too far in expressing a very decided opinion against the practice.
Nor let it be supposed that, if in consequence of some such premature statement one judge be misled, he can he corrected
by his brethren where there are several, or by the Court of Appeal if he sit alone. A doubt is thus cast upon the soundness of the decision by the needless diversity, or apparent diversity, of opinion, as not unfrequently happened from Lord Kenyon’s disregard of the other judges, hardly justified by his great acuteness and the extraordinary quickness of his apprehension. As for proceedings in appeal or error, it is both certain that cases which require it do not always undergo the corrective process, and that one of the evils inseparable from appeal is the tendency which the knowledge of their decisions being subject to it has to make some judges rely upon remediless mischief being thus prevented. Every judge is undeniably
bound to decide as if he were certain that his decision must be final.
UN the 10th of February, 1859, Mr. Secretary Walpole
announced in the House of Commons the intentions of the government with respect to the Statute Law Commission; and he then took the opportunity of observing, that he thought the commission had given the public “much information,” but, on the whole, the government was considering whether the commission might not be stopped for a time.
We presume, then, that the commission is now at an end. Indeed, had the then Home Secretary conveyed the opinion of the government in any but parliamentary language, he might possibly have said, “ The government thinks the commission has done nothing; the government does not believe it ever will do any thing; it has cost a great deal of money, and, if not stopped, will cost much more; the Chancellor of the Exchequer grumbles, and the government is now of opinion, as all the rest of the world has been for years, that the commission had better be abolished at once.”
Although “ much information ” may have been given, yet that information has not led, nor is it likely to lead, to any practical result; and it has been obtained, moreover, at a somewhat too costly price. Every one knows that the Statute Law Commission is (or was, as the case may be) an inefiicient body; that it has not done a whit more than any of its predecessors; and that it has benefited no one but Mr. Bellenden Ker (who, during its continuance, has received ‘£1000 sterling per annum) and the draftsmen, who received certain fees for drawing imperfect and useless bills.
The commission, it must be allowed, had enormous difiiculties to contend with ; but it never set about overcoming them in the right way. The only plea in extenuation which can be urged in its favour is, that this last commission has done no worse than those which preceded it ; for not one of the previous attempts to consolidate and revise the statute law of the realm, numerous as those attempts have been, was ever crowned with even partial success. It is a fact, not a little curious, that three centuries ago, with much becoming gravity, a scheme was propounded with the view of attaining the desirable end which we have just seen our dying or dead commission has so miserably failed in. It is worth while to note the history of this early effort, and how it was followed by others.
It was in the reign of Queen Elizabeth,‘ A.D. 1557, that Sir Nicholas Bacon, lord-keeper, drew up a plan for reducing, ordering, and printing the statutes. The heads of his plan are as follows :_“ First, where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated. Item, where there is but one lawe for
1 The particulars relative to the commissions, &c., prior to that of 1833, are extracted partly from Mr. C. P. Cooper’s “Account of the most important Public Records of Great Britain,” &c., and partly from the report of the Commissioners of 1833. »