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measure, which took place thirty years ago, the abolition of the equity side of the Court of Exchequer, which, though separate from the common law side, afforded a tribunal in which Law and Equity were seen, side by side, and in which practitioners were trained and experienced in the reasoning of both. That court, however, was abolished, and practitioners arose,
estranged from equity, and attached to the rude and clumsy procedure of the
Under this system Baron Martin had been trained, and in upholding it he passed more than twenty years of judicial life. Even though one of the Common Law Commissioners, and no đoubt, according to his light, desirous of improvement, the habits of thought formed by a Common Law training fettered the minds of the Common Law judges too strongly to admit of his even comprehending any really effective changes in procedure. Thus, for instance, when the legislature had enacted that equitable defences should be pleadable, the Common Law judges came to a decision which neutralized the enactment, by requiring, in violation of the plainest principles, both of equity and of pleading, that the plea should set forth a case for an immediate, absolute, and unconditional injunction. Of course, there could hardly be a case in which this could be done, and the enactment was at once rendered nugatory. So, in every instance, as for example, as to discovery and interrogatories, the effect of the decisions of the Common Law judges was often to cripple and injure and obstruct the operation of the Common Law Procedure Acts. This is not intended as any reproach upon any of the learned judges, who only represented the inevitable result of a training confined within the narrow scope of the Common law.
It is obvious that such a type of judge would be ill-fitted to co-operate in carrying out a new and comprehensive judicial system, blending, in its enlarged and ample scope, all jurisdictions, and requiring for its administration men, not merely acquainted with the various rules of Common
Law, but versed in the principles of jurisprudence, and with minds also enlarged and liberalized by much mental culture. At the same time it was desirable, if possible, to unite with these qualifications some acquaintance with Criminal Law, and some experience of trial by jury.
No:v all these qualifications were happily united in Mr. Amphlett, a member of the Equity bar, therefore necessarily acquainted not only with the Common Law, which is included in Equity, but with those principles of jurisprudence out of which Equity is drawn, a man of culture and of scholarship, as well as legal learning, and one, also, who had had judicial experience in a Common law court, having presided for years as chairman of a Court of Quarter Sessions. In the whole profession there was probably but one man who united these important qualifications, and it is impossible not to see that they are as valuable as they are rare, and that Mr. Amphlett is just the type of man to be desired under the new judicial system.
No wonder, therefore, that our legal contemporaries, approve of his selection. He is known to have taken a great interest in the improvement of the education of his profession; and when Sir Roundell Palmer became Lord Chancellor, Mr. Amphlett was chosen his successor in the presidency of the Legal Education Association. He has also supported in Parliament the reform of the bankruptcy laws. The Law Journal, when the appointment was first rumoured, rose superior to narrow prejudices. It observed
“The rumour of the appointment of Mr. Amphlett has been received with some surprise. Since the abolition of the old equitable jurisdiction of the Court of Exchequer, no barrister from the ranks of the Chancery bar has been seated on the Common Law bench. But the Lord Chancellor could not be blamed if, on the eve of the coming into opera tion of the Judicature Act, he displayed anxiety to blend the Common Law accomplishments of the Court of Exchequer with Chancery learning and experience. Especially is such a course justifiable in the case of the Court to which Bankruptcy business is to be transferred. Mr. Amphlett is certainly a gentlemen whose promotion would command universal approbation. He has been nearly forty years at
the bar, and occupies a high position both in the law and in Parliament."
And upon the announcement of the appointment our contemporary adhered to its opinions.
The Law Journal observes of the recent appointment that the “Lord Chancellor has acted wisely in selecting the new Baron from the Equity Bar, and further that the choice of Mr. Amphlett is one which will command universal approbation.” We entirely concur with our contemporary, who also adverts to the high scholarship of Mr. Amphlett, and his zeal in the cause of legal education as an additional reason for granting the appointment.
The Law Times observes that the Lord Chancellor in appointing Mr. Amphlett did not promote a political supporter :
“Mr. Amphlett, according to Dod, was not a Liberal, but a Liberal-Conservative; but although not a political ally, on all professional matters he was a sincere coadjutor of the Lord Chancellor, and quite as eager and liberal a law reformer. It is interesting to know what the solicitors think of the appointment, and we have received an expression of opinion which we reproduce. A correspondent writes :
Having in view the jurisdiction in bankruptcy matters which the Judicature Act throws upon the Court of Exchequer, it appears to me that the appointment of an equity counsel was very judicious. I am pleased to know that there is some prospect of law and equity working together in the Common Law Courts, as the trial of a similar working in the courts of equity has proved a success. If the Judicature Act is to be properly worked, Common Law and Equity judges must sit side by side. The presence of a judge who has had a training in equity principles, will prove of vast use in duty questions which are practically left solely to the decision of the Court of Exchequer.”
These remarks of a member of the most practical branch of the profession, embody, it will be seen, the conclusions at which we were led by a retrospect of our judicial history for the last half century or so, and we need hardly say that we entirely agree with them. We are well aware that there are grumblers at the Common Law bar, who, still attached to the traditions of the old system, quite resent the appoint
ment of an equity man in what they still persist in supposing to be a Common Law court. But they forget that the Court of Chancery is a Court of Common Law, and that the Court of Exchequer was a Court of Equity as well as law, and that it still is so in revenue cases, and that the new system, after all, is as much in harmony with legal history as the new appointment is in harmony with the new system. They affect to wonder what the new judge will do at Nisi Prius and on circuit, and fancy him ignorant of criminal law and the rules of evidence! They forget that the rules of evidence are the same at law and equity, and that the new judge has had an experience in trying prisoners, which few of the Common Law judges have had. As to Nisi Prius, all cases of the least doubt or importance are reserved, and the only thing to be regretted is that judges of such learning and ability as Mr. Amphlett should have to waste their time and talents in the mere trial of questions of fact.
A knowledge of equity, which includes law, necessarily implies a larger knowledge of law and legal principles than falls to the lot of most Common Law practitioners, with the knowledge of equity superadded. On the whole, therefore, the appointment of Mr. Amphlett is in every point of view eminently creditable and satisfactory, and may be regarded as marking an epoch in our legal history, and as an event of happy augury for the success of our new judicial system.
BAR EXAMINATIONS. — The Council of Legal Education have awarded to John Alderson Foote, Esq., of Lincoln's Inn, and William Ebenezer Grigsby, Esq., of the Inner Temple, Studentships in Jurisprudence and Roman Civil Law, of one hundred guineas, to continue for a period of two years; to John Henry Martyn Weitbrecht and John William Gustavus Leo Daugars, Esqs., of the Middle Temple, Studentships in Jurisprudence and Roman Civil Law, of one hundred guineas, for one year; to John Edward Courtenay Bodley, James Kinder Bradbury, Avetick Arratoon Shircore, William Eaton Young, Esqs., of the Inner Temple, and William James Howard, Esq., of the Middle Temple, certificates that they have satisfactorily passed a public exami. nation.
VI.-THE TICH BORNE TRIAL.
COMMITMENTS FOR CONTEMPT.
The committal of Mr. Whalley for a supposed contempt
in the publication of a letter expressing an opinion on the evidence of a witness, has raised again the question of the power of the Courts of Law in such cases.
We are so highly sensible of the patience, tact, and temper, which the judges have displayed in this protracted trial, in which their patience has been so sorely tried, that it is with as much reluctance as diffidence, that we venture to intimate a doubt as to the existence or extent of the legal power they have assumed themselves to possess. Assuming its existence, every one must feel that it could not have been exercised with more moderation and consideration. But lawyers are discussing among themselves, on this, as on the former occasion, whether any such power exists, that is, a power to punish for supposed contempts out of court, and not amounting to any obstruction or interference with the process or proceedings of the court, nor even to an attack upon the court, but merely to the expression of opinion on the evidence while a trial is pending. We have already, in the early part of last year, given our grounds and reasons for holding that no such power exists, but that the power of dealing with contempts is limited to insults and interruptions in the presence of the court, or to obstructions, or disobedience of its process. Since then, the Court of Queen's Bench (in the case of Mr. Lefroy) has held that this is so as to inferior courts of record, which it distinguished in this respect from the superior courts. But, with every respect for the judges of that court, there is no authority for that distinction, and the doctrine of contempt of court is laid down with the above limitation as to all courts of record. And in the only case in which a larger power of dealing with contempt out of court was claimed and exercised, the case