We much regret the late appearance of this paper, which though upon a different part of the subject, we should with great advantage have made use of; but can only refer our readers to it with an especial recommendation. In particular, the royal privilege of afforesting any subject's land (ante, p. 27, n.) is very clearly shown; the various rights of the crown and private individuals, legal and illegal, are described, and the desirableness of coming to a settlement of rights forcibly demonstrated.

"The present state of the New Forest is little less than absolute anarchy.. The records are insufficient to ascertain who are entitled to rights; there is no certainty what law, forest or common law, is current; and, consequently, what officers have power, and under what authority to interfere."

Notwithstanding 201. forfeitures for every offence,

"drifts are not made, and, now-a-days, from sheer inability to make them legally, not from want of will. Squatters come and settle here who cannot legally acquire, but who nevertheless exercise, rights of property; the persons legally entitled to common and other rights are oppressed and defrauded by the usurpers, who surcharge grossly in respect of their unlawful usurpations; and there are no means of ascertaining which are the persons legally entitled." (Sub-report, p. 31.)

At

Such is the description which applies more or less to 150 square miles of excellent land within a few miles of Southampton, and which ought to be as valuable as any land in England, whether for building or any other purposes. present it has not, and cannot have, an owner. We seem reverting to Eastern and primeval manners. There is nothing new. "The thing which is hath been of old": nature tends constantly to a reproduction of the same models; and society is a part of nature, a truth not always kept in mind. A squatter may walk into the New Forest and select his location with the same independence as if he were the inhabitant of a new born planet; and we have lately seen the Ausonian legend of Cacus, or rather the Arabian story of Ali Baba and the forty thieves, "done into English" by a constable of the L division and a gang of rascals under a dry arch of the South-Western Railway. B.

VOL. XIV. NO. XXVI.

D

ART. III.-THE OFFICES OF THE LORD CHANCELLOR.

[SECOND ARTICLE.]

N every occasion of proposing to abrogate an existing institution, which is of such a nature as to require a substitute, it is incumbent on the innovator to establish three propositions satisfactorily. 1st. It must be shown that the actual state of things is productive of evil. 2ndly. It must be shown that a substituted plan may be put in operation which will remove the evil complained of. 3rdly. It must be shown that this substituted plan will not itself be productive of evil, or at least of evil as great as that which is sought to be remedied.

Now, that the existing arrangements in Chancery are productive of evil, scarcely any person or party will wholly deny. Every person will admit the existence of defects in the constitution of the court: though some will be found (whose number, indeed, is daily diminishing) to maintain that, as a whole, the merits so far exceed the defects as to render the latter inconsiderable, and that the whole court is, as a human institution, perfect. It would be absurd to deny that, in our present state of society, a system of equitable jurisprudence is a matter of absolute necessity; and inasmuch as the Court of Chancery is the only tribunal in this kingdom which exercises an equitable jurisdiction, we acknowledge that it supplies a necessary want, and is therefore on the whole, not merely advantageous, but necessary. But we allege that, in consequence of the constitution of the court, it does not administer so much of this inestimable equity as it ought and might; and that this falling short is, viewed in itself, a mere denial of justice and an unmixed evil. Our quarrel is not with the object, nor with the general principle of the machine, but with the construction of certain parts, their form and strength, and the strain laid upon them.

And although a great deal of most important reforms might be recommended, as a great many have latterly been effected in the inferior and less important parts of the machine,— separately less important,-we at present shall confine our attention to the highest and noblest part, the office of the Lord Chancellor himself.

Now when the man whom the king delighteth to honour is entrusted with the great seal, he immediately passes from a private station-from his practice behind the bar, like Lord Brougham-from the serene gravity of the Rolls Court, like Lyndhurst or Pepys-or from the ermined dignity of the Common Pleas, like the present Chancellor-into the routine

belonging to the following functions. (1.) He is a cabinet minister, and must attend all cabinet councils, where his voice is of the greatest influence. (2.) He is a privy councillor, and must attend the Privy Council upon all great occasions. (3.) As a quasi minister of justice, he is often appealed to by the Secretary of the Home Department, who is frequently charged with the care of bills affecting the administration of justice-a subject which alone might well occupy the undivided attention of one individual, however able. (4.) He becomes Speaker of the House of Lords, and is required often, perhaps, by tyrant custom more than by any more direct sense of duty, to attend debates, and undergo the passive toil of hearing the policy of his colleagues attacked, or in his turn actively defending them, or the scarcely less exhausting monotony of retaining his place on the woolsack, while nature, worn out by the fatigues of the previous day, dissolves the limbs in sleep. (5.) He becomes the presiding and often the sole judge of appeals in the House of Lords, upon questions involving not only the common law and equity jurisprudence of England and Ireland, in equity appeals and writs of error, but a knowledge of the jurisprudence and practice of the Scotch law courts, distinct from ours as those of France or Germany. Nor can it be urged against the fact of his sitting thus generally alone, that the spectacle we had exhibited last August was unusual, and that under ordinary circumstances the Chancellor is assisted by other law lords.

Of late years this has been so and we have been willing to flatter ourselves, that what has been the result of accident, is the normal condition of the House of Lords. In consequence of the unusual oscillation of parties during the last twenty years, we have had three ex-chancellors to assist the deliberations of the noble lord on the woolsack. The presence of the political element in the title to the seals, which we affirm to be an enormous and most indefensible anomaly in the present state of society, has in this period, we admit, advantageously affected the composition of the House of Lords as a court of appeal. A system which gave us Lords Brougham, Lyndhurst and

1 See Mr. Lynch's Speech, 5th August, 1840; Hansard's Parl. Deb., 3rd Sess. vol. 55.

? Let us not be misunderstood: Lord Brougham deserves all gratitude and praise for his activity, courage and learning, in undertaking and deciding the arrears then before the House. But that any extraordinary gratitude and praise is due, is in itself sufficient evidence against the present system, which fosters an accumulation of arrears, and fails to provide a judge whose business it is to dispose of them, leaving us to the accident of finding a Lord Brougham, ready and willing to undertake the task.

Campbell, in addition to the chiefs of the common law and Rolls Court, to assist the Lord Chancellor pro tempore, it was said, must be admitted to "work well;" and this accidental good has, we verily believe, blinded the public to the far greater evil which must necessarily in the long run result from the union of political with the judicial functions of the Lord Chancellor. But party revolutions are, apparently, reverting to their old condition of comparative rarity, and it is not unreasonable to suppose that, if no change takes place in the constitution of the appellate court, we shall recur to the typical form of an appeal, viz. a rehearing before the same judge in another place. Such it virtually was in the time of the Hardwicks and Thurlows, and up to Lord Eldon's resignation ;1 and such, doubtless, it would now again present, if time could damp Lord Brougham's ardour, as it, alas! seems to have fallen heavily, at length, upon some of his illustrious competitors.

In addition to the important duties here pointed out, the Lord Chancellor's attention is to be directed, as Speaker of the House of Lords and chief protector of their privileges, (6), to all peerage cases; and (7), with a somewhat more limited responsibility, to all divorce bills, private estate bills, and bills of naturalization. The quantity of business under this head is very great, amounting in the twenty years terminating with 1843, to 540 estate bills, 151 naturalization, and 81 divorce bills, besides 176 of all kinds, which were dropped at various stages, making a total of nearly 1000 cases, or nearly 50 per annum. It is true, only a small portion of the labour and responsibility attending these rests upon the Chancellor, but all fall within his cognizance and authority.2 (8.) As keeper of the royal conscience and of the great seal, the Lord Chancellor has to peruse and approve of all letters patent and treaties signed by the crown, and which require the great seal to be affixed. (9.) A great deal of anxious duty is thrown upon this great official entrusted by the crown with the custody and management of the persons and properties of all lunatics and idiots. (10.) He has the disposition of a vast amount of church patronage, and

With the exception of the assistance which he at different times had from Lords Redesdale and Gifford.

2 E. g. the case mentioned by Sugden, where a private act of parliament being brought in to substantiate a title considered doubtful, Lord Eldon declared his intention to oppose the bill, as he considered it unnecessary, and as necessarily tending, if allowed to pass, to cast a slur upon other similar titles. This instance shows at once the attention which every individual case requires and receives from the Chancellor, and also that the cases which are not carried through all the stages, often involve as much consideration, or more, than those which are allowed to pass.

the appointment and superintendence of the magistracy throughout the country; a charge which often gives rise to imputations of party feeling, and to onerous and distracting negociations and correspondence. The hours which these complicated duties have not engrossed, the energies which they have not wholly quelled, he is called upon to devote, not to relaxation of the overstrained intellect, not to the amenities of social intercourse, or the tranquillizing influences of the "balmy breeze," but in the hot close court, in the murky atmosphere of Fleet Street and Holborn, surrounded and perplexed by wrangling counsel (a puzzled Chancellor has at length been seen in Lincoln's Inn) -there he fulfils the remainder of his destiny, deciding almost irrevocably (for how few dare dispute his decree, and at the expense of what time and money, before himself again on the woolsack?) on the most important issues in the world, issues upon which rest not only the 40,000,000l. personal property now under the administration of the Court, not only the vast extent of landed property rights, in which are matters of litigation then, but all the property, whether money or land, all men, whether lieges or aliens, which shall at any time hereafter, in any portion of the British dominions, be placed in circumstances similar to those of the case which the Chancellor is now deciding.

and

Such is a slight review of the more important of the multifarious duties cast, under the present system, upon one man. It appears almost an unnecessary investigation, to inquire any further whether any one man can fully perform them: the bare recital seems to carry conviction of the impossibility. There have not been wanting, however, grave authorities who have recorded their opinions against the only remedy, (viz.) a separation of those functions. Not to go back to those earlier days when faith in the fortunes of Britain did not include faith in the restoring, repairing powers of the Anglo-Saxon genius, we find in this sense Lord Redesdale's opinion in 1813, and Lord Eldon's in 1823. Lord Eldon said that, "now, at the close of his official life, he would assert that he had never known any man in the profession who had not deprecated the separation of the two offices of Lord Chancellor and Speaker of the House of Lords; against that project therefore he opposed not merely his own individual opinion, but the collective wisdom of an acute and intelligent profession." This was much to the same effect as the testimony given by Sir Charles (then Mr.) Wetherell, ten years before: "The separation had been so universally held to be inexpedient by all men whose authority was of weight, that it would be idle in him to repeat their reasons