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in which they are now found. The copyholder now has a present interest in his estate so long as he performs his services; and the lords have certain rights and dues : and, so long as the copyholder performs his services and pays his dues, he has the same permanent interest in his estate as if it were freehold.”
ART. V.-EXTRACT OF LORD BROUGHAM'S LETTER
TO THE EARL OF RADNOR.
"BROUGHAM, October 9, 1859. YERTAINLY, therefore, we have a right to complain of the
late session in comparison with almost any of former years, both for the important measures of law amendment which were suffered to drop, and for those which were absolutely opposed and rejected. Of the latter, the loss most to be regretted is of the provisions agreed to by our House after full discussion and unsuccessful opposition, but thrown out in the Commons, for improving the procedure in the Divorce Court. One of the very few subjects upon which you and I have always differed, was the House of Lords' jurisdiction (for, under the name of legislation, such it really was) to dissolve marriage. I have no manner of doubt, that with the same repugnance to divorce by a court you must be of opinion that at least the same security possessed by the Lords against fraudulent collusion which you deemed all too little, should be possessed by the new court, to whom substantially the jurisdiction is transferred, that it should have the means which we had of protecting itself from such frauds, and which in many cases proved effectual, though certainly not in all. Any person having an interest in preventing the divorce, or the remarriage of the parties, or any friend desirous of preventing it for the sake of the parties themselves, could suggest to the Peers circumstances within his knowledge, and thus lead to the examination of evidence wbich might occasion the rejection
of the bill—suggestions and evidence which the parties would have carefully kept from the knowledge of the House. I have known many instances of this. Now, no such information can possibly reach the Divorce Court, no suspicions be raised in the minds of the judges, because no person can possibly communicate with a judge upon any matter judicially before him. I therefore proposed that the Attorney-general should watch each case, to whom any person might make a communication, and that he should have the power of calling the evidence suggested as likely to prove fraud and conspiracy. In the Privy Council no extension of a patent can be given without the presence of the Attorneygeneral, or some one on his part; yet all the facts are before the Judicial Committee; and, therefore, the only advantage of the Attorney-general's assistance is, that he may argue the case, and act as assessor to the court. In the Divorce Court it is far otherwise ; facts may be brought to the Attorney-general's knowledge which, if proved before the court, would at once defeat the attempts to obtain a sentence. The opposition to this plan was grounded on the assertion, that in many cases there would be no such information conveyed to the Attorney-general, and that in all cases there would be the expense of his attendance. Suppose this to fall upon the parties, it would be a very immaterial addition to their costs; but why should it not be borne by the public, if it is as necessary to protect the judges in the discharge of a most delicate and important office, as to pay them their salary for discharging its duties ? For the short time that this jurisdiction has existed, I have myself known two cases of conspiracy which the intervention of the Attorney-general would have at once made desperate ; and a third case has been stopped by a mere accident leading the court to call for a document which, without any accident whatever, must of necessity have been produced had the Attorney-general assisted.
“The Chancellor highly approved of this provision, and upheld it with his usual ability; indeed he had experience of it from having attended in divorce cases, as well as from what he had long known of the procedure in our House. He had always been
a strenuous advocate for the transfer of the jurisdiction from Parliament to a Court, and was favourable to the suggestion many years ago, of my committee upon Privy Council procedure, that, rather than allow it to remain in the House, it would be better to vest it in the Judicial Committee. He also agreed with the supporters of the bill in 1857, that there was no ground for alarm as to the increase of applications for divorce, because he well knew that in Scotland, where the dissolution of marriage could always be obtained by a suit in the court, the cases were extremely rare of it being thus obtained. The experience of the new court bears witness to the soundness of our opinions on this point. There have not been a greater number of divorces granted than the proportion of the population in the two countries would have led us to expect.
“ You may recollect that your objection to the action for criminal conversation, now put an end to by the new course of procedure, rested in part upon the indelicate nature of the evidence generally adduced; but the details of the Divorce Court, especially in suits for impotence, very far exceed all that the trials at Nisi Prius used to exhibit. Accordingly, the Consistorial Court was always in the practice of hearing such cases with closed doors; and the Chancellor very naturally considered that the Divorce Court having succeeded to their jurisdiction, the same leave should be given to it of excluding the public. He merely proposed to vest a discretionary authority of this nature in the judges, and it was taken for granted that they would exercise the power with a sound discretion. Unfortunately, from an over-jealousy founded on a sound principle, but carried to an unreasonable excess, this provision, which we had after much discussion adopted, was rejected in the other House, and I will add that Sir R. Bethell received very little of the support, which he had every reason to expect, either on this or on the provision respecting the Attorney-general. The Divorce Bill owes as much to him as any important measure ever did to a minister or a member of parliament. He carried it through the Commons two years ago, when it had to encounter a most formidable oppo
sition, led by Mr. Gladstone with his accustomed eloquence and skill. The provisions respecting the Attorney-general coincided with all my right honourable friend's strong opinions upon the jurisdiction of the court, and I have no doubt that the other proposal respecting private hearings, must have had his concurrence also. The lateness of the period in the session at which this bill went down from the Lords, is the only explanation I can give of the Attorney's failure to carry through its most important provisions.
“When I congratulated you, two years ago, upon the passing of the Act to remove the stigma on our law, of its being the only system of jurisdiction in the world which regards breach of trust as no offence, I could not foresee that still greater necessity for making such acts severely punishable, would soon appear to exist than those which gave occasion to the measure of 1857. There have, of late, been the most flagrant cases of dishonesty in professional men-solicitors embezzling the money of their clients, and speculating with it to the ruin both of their clients and of themselves. The misery thus entailed on
80 many persons, families plunged into absolute destitution by those whom they had intrusted with their whole property, and the scandal brought upon the profession, has prompted a most able and respectable member of it (Mr. Cox), to propose that no solicitor should be allowed to embark in any other concern than in his proper business. It appears, however, that this is open to grave objections. A person so dishonest as those have proved whose offences give rise to the proposal, would underhand, and in the names of others, evade any such prohibition. We may remember a similar suggestion, where some bankers were found defaulters, and it was proposed that no one should be allowed to issue notes without adding to their designation as bankers, that they were also engaged in such and such a concern.
The clients of a solicitor have more access to circumstances affecting his credit than the customers of a banker; and it happens in most cases that they are not sufficiently alive to what should excite their suspicions.
“The frauds of which I am speaking, like all other breaches of
the law, are greatly facilitated by the easy means of conveyance both on sea and land. Nor is it to be doubted that the difficulty of securing in one country those who escape from either their creditors or prosecutors in another, requires to be met by treaties between different states, more effectually than by the present course of proceeding. The variety of judicial procedure, including police, in neighbouring countries, offers very great impediments to extradition, which ought to be made so easy as almost to be a matter of course in the case of all but political offences. Before trial or before judgment in an action, there may be some difficulty in defining the proof which ought to be required. But after either judgment for a debt, or finding of a bill for an offence, or judgment of outlawry, there ought to be no difficulty in obtaining the defaulter's person. Certain it is, that while the intercourse between neighbouring states continues to be upon
its present footing, the law, both civil and criminal in each, cannot be said to have any force against parties who are able and willing to change their residence.
“Before closing this letter, I cannot help mentioning a circumstance which has interested me very much; and, though it has no immediate connection with law amendment, it relates both to the legal profession, and to the interests of a large portion of our fellow-creatures, who have long suffered under the wretched system prevailing in too many parts of the new world—the coloured race. A letter has been addressed to me by one of that class, admirable for its sound sense and good composition. The writer' has for some time devoted himself to literary pursuits, and it is easy to perceive with abundant success. He feels the difficulty of attaining that object on which his heart is bent, the elevation of his brethren to a level with the whites; but he conceives most rationally and soundly that, if individuals aspire successfully to eminence in professions which have influence on society, by degrees the difference of colour, the only mark of their slavish origin which now remains, will cease to operate their exclusion, and, as it were, alienship from the rest of the community. He has accordingly been studying with a view if possible of entering
1 Mr. E. W. Reeves.