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a letter he had received from Lord St. Leonards, expressing hisi
intention to introduce a bill for the repeal of this clause, which was inserted (as we pointed out in our last Number, p. 191) during the passage of the bill through the House of Commons.‘
The other case to which we have alluded is In Re flliles’
Trusts, (29 L. J., Ch. 47), in which an application was made by a. trustee, under the 30th section, for the advice of the Mas
ter of the Rolls, as to the propriety of a proposed investment
in Scotch real securities. The trust in this case was under an instrument dated prior to the passing of the Act, and his Honour thought that the section was not retrospective, so that the act in no way enlarged the discretion of trustees of existing instruments ; his Honour, moreover, without giving any opinion on the efi'ect of the usual final clause, “this act shall not extend to Scotland,” did not, in his discretion, think right to advise a trustee to make an investment on Scotch securities.
We apprehend that there can be little doubt that Scotch investments are authorized by the Act; and on the question, whether the 32nd section be prospective only, we must observe that the words of fnturity “shall not be forbidden,” seem to be used by the Legislature with reference to the future time at which the investment is made, and not to that at which the instrument creating the trust is executed. The form in which the question arose 2'/2 Re Zililes’ Trusts, prevents that case from being held as a binding authority upon the point, which probably, sooner or later, will be settled in a hostile suit.
The insertion of this section in the Act, to meet the selfish views of particular persons, cannot be too severely reprehended ; and it would be a just retribution if, on the ground of the clause not being retrospective, the trustees under the will we have referred to in our note were held responsible for retaining securities which the will did not authorize them to retain. It is
1 It is understood that the clause was introduced to suit the convenience of some persons interested in the estate of a certain testator, who died possessed of a very considerable amount of Bank Stock and Indian securities, but whose will contained no provision enabling his trustees to retain such investments. '
deeply to be regretted that the forms of parliament compelled the noble lord who had charge of the measure,ito allow it to receive the royal assent without the removal from it of its greatest blemish. In other respects the Act, notwithstanding the defects we have mentioned, and some others of minor importance, is, taken as a whole, a most valuable instalment of a really effective course of reform of “ the Law of Property.”
We have in the course of our remarks on this important statute, made frequent reference“ to Mr. Hunter-’s edition of the Act. This we have done for our own convenience, because we had found it from the first a very useful work; and, moreover, we had the duty imposed upon us of testing its accuracy in detail, that we might speak with certainty of its merits. If we used the stereotyped phrase of, “ we commend this book to our readers,” it might only signify that it was ordinarily well prepared, and not ordinarily ill got up to sell. We therefore prefer to say, that, upon careful examination and sifting, we are willing and desirous to pledge ourselves that Mr. Hunter (who has already distinguished himself as a sound and accurate law-writer in his “ Suit in Equity” ') has now produced, in his edition of Lord St. Leouards’ Act, a work, which must bring him, both as a master of legal principles and a practical lawyer, augmented reputation. To each of the divisions composing the statute, the editor has prefixed introductory remarks, wherein he points out clearly the state of the law prior to the passing of the Act, and the evil which it is intended to remedy; and to each division he has appended excellent and practical notes on the wording and effect of the sections themselves. The work, indeed, proves to us that an Act of Parliament may be edited skilfully by a learned man so as to be worthy of his professional credit, and useful alike to doctor and student.
“l An Elementary View of the Proceedings in a Suit in Equity, by S. J,
Hunter, Esq., B.A., barrister at law, and Holder of the Studentship of the Inns of Court.”
HE absolute independence of all Judges is a first principle in our constitution, and is the very foundation-stone both of our liberties and of the administration of justice. No less ought the independence of magistrates in an inferior station be kept entire. This latter class has not only judicial functions to perform, but certain duties which are quasi judicial; and others of a discretionary kind, which make partiality much more easily and safely exercised than in the deciding of causes. If this latter class of magistrates were appointed by the executive government—that is, by some minister responsible for his selection— there could be no doubt whatever that their absolute independence would be the rule. Lord Eldon carried this principle so far, that he refused to exercise the power of removal undoubtedly possessed by the
Crown—that is, by the holder of the Great Seal—against any per-_
son who had been put in the commission of the peace, whatever misconduct he might have been guilty of, unless there had been a prosecution and a conviction. This was possibly a safe rule to lay down ; yet it ought to have been accompanied with some restriction upon the appointment of Justices, which is known to rest almost entirely with the lords-lieutenant of counties, who, from party connection or from personal favour, may often place unfit persons in the commission. The existence of the power to remove Justices, generally speaking prevents any gross misconduct ; because the matter can be brought before the public in various modes, and would inevitably find its way into the houses of parliament. But there is a class of magistrates exercising all the functions, judicial and otherwise, of Justices, who are irremovable; and who are appointed by no responsible minister, but by a body of their fellow-citizens—we mean the Borough Justices, and to them we purpose directing the attention of ourreaders.
\Vhen we say that these corporation magistrates are appointed without any minister being responsible, we do not forget that the consent of the secretary of state is required under the Municipal Act in many cases; but we conceive that this consent is given as a matter of course, unless there be some manifest objection known to all the borough. The town-council, in fact, chooses the persons whose names are submitted ; and there is, therefore, no real responsibility, because there is no individual responsibility. In counties the lord-lieutenant is responsible, and this aflbrds a material check to bad appointments: in boroughs, it may truly be said, no one is responsible. But in many cases the magistrates are chosen without a veto in the secretary of state ; and we shall instance that of the city of London as the most remarkable case, and it is, unhappily, the one in which the most glaring misconduct is not unfrequently exhibited. We may advert by way of illustration to one or two examples.
It has of late years become the practice for persons having a claim, real or supposed, against any person, to go before the sitting magistrate, and, under the form of asking his advice (which he, in ninety-nine cases out of every hundred, had no authority or right to give), to state whatever they choose against an absent party; and the magistrate, instead of refusing to interfere, in most cases gives his opinion—of course against the absent party. The whole is reported in the newspapers. In one case, a person statedhis claim to part of the estate of a great peer in one of the northern counties. The Lord Mayor, who was the sitting magistrate of the day, must have known that this was a. matter which he had no more right to hear than he had to hear the claims of the Pretender to the Crown, yet he allowed the party to tell his story, and issued a letter, sealed with the city seal, to the duke, calling his attention to the man’s claims. In another instance, a woman appeared as the widow of an eminent person deceased ; and, representing her distress to be great, stated that the king had given to two peers a certain sum of money for her behoof, but that their lordships withheld it from her. The Lord Mayor (another than the one before whom the case last mentioned came), instead of saying that he had no power to entertain the question, and instead of refusing to say one word upon the poor woman’s story against two absent men, at once broke out into unmeasured vituperation of them; declaring it to be quite scandalous that men wallowing in wealth should keep this widow’s pittance from her. Now, it happened that the royal bounty had been judiciously applied by the investing of the sum intrusted to those two noble persons, so as to prevent her from squandering it with a person of inferior station whom she had taken as a second husband ; and they were only thus enabled to supply her pressing wants. Their lordships were accordingly slandered in all the newspapers, being represented as publicly stigmatized by the Lord Mayor in the performance of a public duty, and in terms of unmeasured abuse. The same course of going before the sitting magistrate was wont to be taken with the police magistrates; but a notice from the secretary of state put an effectual stop to it, because these magistrates are removable, and their refusal to take the warning would have put an end to the authority which they abused.
It has recently been seen that one magistrate in the city, more than any other, shows his utter unfitness for his ofl-ice. The last occasion of his misconduct was in a complaint made against a poor boy, of undoubted good character, by a person who grossly forswore himself as to his residence and occupation, and charged the boy with attempting to pick his pocket. The evidence showed that no such attempt had been made, and that the accuser was wholly unworthy of belief even if his story had been uncontrariicted. The magistrate, however, would have committed the boy for trial, but that, fortunately, another magistrate attended on the day to which the case was adjourned, and, with every one else, pronounced clearly against his brother magistrate, who said to the boy that he owed his escape to his good character, which his master and others had spoken to; the truth being, that he owed his escape to the bad character and manifest perjury of his accuser, and to there being no kind of evidence on which the least reliance could be placed. Now, had not the second magistrate happened