« PreviousContinue »
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
so 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 writerhas 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.
our profession. He thinks that his brethren out of their humble means may help his voyage to England; and he asks me, as the ancient friend and advocate of his race, to advise him how he shall proceed, and to tell him if he shall meet with no obstruction, or may even find encouragement, among my brethren of the bar. I have at once answered that obstruction there will be none, and that I can almost undertake, for one or other of our equity draftsmen, or special pleaders, receiving him as a pupil. He is a native of Barbadoes, and resides there. Let me add to the credit of the people of Brazil, that they have long practically treated the people of colour in all respects on the same footing with whites. Professional men of that caste are, in every particular, employed and received in society without the least regard to the difference of colour; a statement which I was authorized, by the Portuguese minister, to make in our house three years ago, and in so stating I was under the painful necessity of contrasting the Southern with the Northern portion of the American continent.
“And now, my dear old friend, the oldest now left me, as I shall feel too severely when I go to the Edinburgh meeting, to which the great kindness of all the parties there has invited me, where I shall hardly see one of those whom we knew sixty-five years ago—I release you from this long letter; but I must add a few words on a matter to which I alluded painfully last year. To-morrow I set out for our great Social Science congress at Bradford, where I shall be among my Yorkshire constituents, and have perfect freedom, both from them and from the constituted authorities of every description, spiritual and temporal, civil and military, to discuss, without restraint, subjects of all kinds affecting the well-being of the community, often, it may be, giving umbrage to princes, principalities, and powers; sometimes, peradventure, giving offence to the people in their various classes. Now, I can hardly think of this liberty and security (for such it is) which we enjoy, and not wish, with the same earnestness with which we ourselves prize the inestimable Llessing, that other nations shared it, especially our nearest neighbours. Sincere respect and affection for them is, I confess, only the second reason for this wish. My first is our own deep interest in their possessing it. My confidence is entire in the good sense and right feeling of the great bulk of that renowned people; and with a constitutional government they never would encounter the hazard of being overpowered by the multitude, armed and unarmed. Even in the present state of things we may trust the government and the nation and we do trust them ;-but we trust our own government and our ownselves more, and we must be content to undergo such heavy burdens for defensive preparations by sea and by land, as shall make attack not only impossible to succeed, but impossible to be attempted. The burden is common to us and to our French neighbours; and it is devoutly to be hoped that they, as well as we, may be relieved from it, for it presses severely upon all.”
ART VI.-CONSTITUTIONAL RELATIONS
GREAT BRITAIN AND HER COLONIES.
1. Colonial Administration of Great Britain. By SYDNEY
Smith Bell, of Lincoln's Inn; one of the Judges of the Supreme Court of the Colony of the Cape of Good Hope. London : Longman & Co., 1859.
LTHOUGH Mr. Bell's treatise does not contain facts new
to those who interest themselves in the subject which he handles, nor propound many arguments which have not before been urged, yet it is a volume timely and valuable. We would that we could dispense a thousand copies of it among the members of the two Houses of Parliament, and with each copy a writ of mandamus, compelling every one, before the next assembly of the august bodies, to read it and ponder over it. A calm view of