The Sun.
London, England, 1858-12-01 00:00:00

THE SUN, LONDON, WEDNESDAY EVENING, DECEMBER 1, 1858,

PROGRESSIVE LEGISLATION.

The following is an extract from a letter ad-
dressed by Lord Brougham to the Earl of Radnor,
as President of the Law Amendment Society :
" But I must here turn aside for a moment from
our own jurisprudence, and the amendment of it, to
congratulate
.you, which I do most heartily, upon
the measure in contemplation, we may say actually
begun, for effecting a great improvement, perhaps
the greatest that can be conceived, in the legal sys-
tem of a foreign country, and indeed in its social
state—a country far removed from us both by its
position and its institutions, and where we might
the least have hoped, even in this age of progress,
to witness any change—l mean the Russian empire,
with its vast population, the very great majority of
which is in a state of personal, at least predial ser-
vitude, attached to the soil and the property of its
'owners, as the inhabitants of the rest of Europe,
even of England, were some centuries ago. The
just and humane, but also the truly wise policy of
the present Emperor, with the full concurrence of
his most enlightened and best informed councillors,
has of late taken the direction of preparing the com-
plete emancipation of the serfs by safe and well-
devised steps. The obstacles interposed by the
ignorance and unreflecting prejudices of some
among the upper classes of landowners greatly in-
crease the merit of the Sovereign, while they add
to his difficulties ; and the alarm which false views
of their own interest have made them industriously
raise, whether really felt by them or not, renders
it a matter of doubt if we should dwell upon the
subject in this country, lest our satisfaction may be
ascribed to our prepossession in favour of what.
ever proceeds from, and supports, constitutional
government,
the object of our warm and just affec-
tions. The danger of popular movement, anti-
Jacobin clamour, cry of French principles, and
other topics to which were accustomed rather than
reconciled during the Revolution, and which for a
season destroyed some invaluable measures of im-
provement, and postponed so many more, might be
the consequence in Russia of our gratification de-
clared at popular meetings, as if we took part with
the peasant against his lord, This apprehension I own
it was that made me most reluctantly abstain, at the
late Social Science Congress, from giving expression
to my. feelings of admiration and gratitude for
the wise and generous conduct of the Russian Em-
peror and his able councillors. But what I now
write will only have the limited circulation of a
professional journal, and be confined to the perusal
of professional men. On the mode and manner of
making this great change I shall of course not now
dwell, further than to express my earnest hope
that the errors which either accompanied or soon
after followed our colonial emancipation may be
avoided, and that the gross inconsistency may not
be committed of making great sacrifices for the
compensation of the landowners, and then both
greatly injuring them and their peasantry, by ex-
posing them to the competition of foreign produce
raised in more advantageous circumstances, as we
let in the produce of foreign colonies, the fruits of
the slave trade, which we do our utmost to sup-
press, and thus at once encourage that execrable
traffic, and injure our own planters and their liber-
ated slaves. Nor .is this the only great improve-
ment .which now engages the Russian Government.
Important amendments of the judicial system, and
considerablelacilities to the press, are understood
to be more than contemplated.
" I have mentioned the late congress at Liver-
pool, and I perceive no small number of mistakes
committed as to its objects, and especially its ten-
dency. Thus, some represent its labours as only
calculated to obtain information, and diffuse this
generally--a very useful thing, no doubt, and of
importance proportioned to that of the subjects of
inquiry, the great interests of the community in
jurisprudence, in' education,• in the health of the
people, and in their morals. But the propounding
of opinions, and the discussion of them, is also part
of the association's duties; and, I must add, which
removes another error respecting it, that there never
will be the least scruple about obtaining the opi-
nions and ascertaining the inclinations of large
bodies, with the express view of affording help to the
Government and the Legislature—help which can-
not so well be given in any other way. Take an
example from what has occurred, both in the last
assembly and in the first at Birmingham. The
whole of the Bankrupt Law was fully discussed,
with all the plans proposed, whether by the
Government or by individuals, for its improvement.
Not only was a considerable body of information
collected, but resolutions passed, for the most part
with 'unanimous approval, embodying the opinions
of those who joined in the discussion. And who
were they P Delegates from the Chambers of Com-
merce, and other mercantile bodies in all parts of
the kingdom. They for -whom the law is made
have the best right to decide upon its operation ;
and their decision is without appeal if they declare
that they suffer under it. They have an equal right
to propose the remedy, though here it by no means
follows that their proposal must be adopted ; it
deserves, however, careful and respectful conside-
ration. Who can doubt that the greatest benefit
must accrue to the country from the aid thus given
to the Government ? Parliament may hear the
complaints of different places through their repre-
sentatives; petitions may contain important infor-
mation and suggestion ; but all this must needs be
partial. The statements of opinion are of necessity
insulated, and arise out of little discussion ; whereas
a congress of those who represent the feelings and
the opinions of all the great trading bodies must
have a salutary influence upon the Legislature, both
because they have the amplest means of information,
and because their judgment is wholly unbiassed by
party differences. Let me now advert to the mea-
sures of last session bearing upon the amendment
of the law.

" It is certainly a mistake to suppose that
nothing was done ; though the change of Ministry
cut short some very promising measures, and gave
a degree of despondency, I hope and trust ground-
less, to the friends of law amendment; at least
there can be no ground for despair. The Attorney-
General is a tried and efficient ally ; he has already
done something, oven during the late session,
though he has unhappily been prevented from ac-
complishing more—a remark which will be applied
also to the Irish Chancellor by all who read his
most able and enlightened address delivered at our
late congress. I must observe, too, that some of
the:amendments carried are much more important
than at first bight they appear to be, because they

remove great defects, one may say rectify gross
blunders, in former legislation, brought to our no-
tice by manifest failure of justice in causes actually
tried. Thus it was found that the true construc-
tion of the old act punishing the obtaining money
or goods on false pretences did not reach the case
of acceptance of bills, or signature of notes; so that
a person might cheat you of your acceptance or
signature for £l,OOO, because it had no value in
your hands; but it became .the means of at once
charging you with that sum at the suit of the dis-
counter who had given value for it without the
knowledge of the fraud. At the suggestion of the
Law Amendment Society I obtained the assent of
Parliament to a bill for amending this glaring de-
fect in our criminal, I may say, in our mercantile
law. The Copy-hold Acts, which I was some years
ago prevented from making as effectual as I had
desired, and which did not give either to the lord
or the tenant sufficient powers of compelling en-
franchisement, still continue inadequate ; but a con-
siderable portion of the compulsory powers I had so
long contended for is given by an Act passed late
in the session ; and I greatly approve of the provi-
sions respecting certificates of incumbrance, which
really make them a marketable security transfer.
able by endorsement.
" The violent opposition to the Divorce Act of
1857 had caused many defects to be left in it.
Though this is one of the few subjects on which I
fear you and I still disagree, I know well that, if
the proceeding for dissolving the marriage con-
tract is to form part of our judicial.system, you
will be the first to admit it should not be ham-
pered with repugnant matter, and disfigured by ano-
malies which leave in its full force the principle
objected to, and only needlessly increase the ex-
penses of the parties seeking relief under it, and
augment the difficulty of the Court in construing
the Act of 1857. The adversaries of that act resisted
the Attorney-General's Bill to amend it ; and hence
some material defects arc allowed to remain. But
considerable good has been effected by extending the
Judge-Ordinary's powers, by protecting the de-
serted wife's property, by admitting the evidence
taken in suits before 1857, by removing all doubt as
to appeal in cases of nullity of marriage, and by
enabling the Court to dismiss a party from the suit
in which there was no evidence against him, in
order that he may be a competent witness. This
last provision was thought necessary in consequence
of the Court having decided that my Evidence of
Parties Act (1851) excluded parties under the act
of 1857, and that they could not be made competent
by dismissal. I ventured, with great deference, to
agree with the minority of the judges who wore
divided in that case, and I had hoped that the judg-
ment would be altered on further consideration.
The new act, however, removes all doubt and diffi-
culty.
" But another measure of the Attorney-General
must be regarded as a very important step in the right
direction, and is likely to be followed by further
progress, though in itself it may seem to be of
subordinate importance, from being confined to one
kind of suit. I allude to the act, introduced for the
first time into our law--the declaratory action, found
so beneficial in Scotland, for the security of titles,
prevention of vexatious litigation, and preserving
the testimony of living witnesses. This act is con-
fined to cases of legitimacy, marriage, and place of
birth ; it enables any person to apply for a decree
of the new Court, declaring his legitimacy, the
validity of the marriage of his parents and their
parents, and that he is a natural born subject. The
decree is not to affect the rights of persons not
cited in the • cause, nor of those claiming through
persons cited. The want of declaratory action in
England has been complained of by all Chancellors
when dealing with Scotch causes under that
joined in this complaint, and endeavoured to supply
the defect (it formed the subject of one of my nine
bills, introduced in 1845, the greater part of which
have since passed, but not this), I begin to enter-
tain hopes, from the partial success of my friend
the Attorney-General, that hereafter the same re-
medy will be extended generally, and persons no
longer obliged to continue in uncertainty of their
rights until actually sued, when their adversaries
alone may possess the evidence their case requires.
" The step which has been taken in Ireland for
the permanent establishments of the Encumbered.
Estates Court, and the extension of that most im-
portant jurisdiction to other than cases of encum-
brance, is of incalculable value. It really gives
one hopes of a similar benefit being conferred upon
England. But I was induced again to present my
bill for facilitating the transfer of real property ;
the'postponement, however, of so large a measure
for further discussion was quite unavoidable. I
certainly consider it of great importance; and the
rather because it is grounded on actual experience.
The bill was drawn by my very able and learned
friend. Mr. Fawcett, and the plan is the result of
his long and varied experience. He is an excel-
lent conveyancer and practised lawyer. But the
experience to which I refer is as steward of many
of our Cumberland copyhold and customary manors
during a period of 30 years. Thus, in one he has
never found a single instance of disputed title in all
the 500 estates of the manor ; they have every one
been repeatedly passed by sale, mortgage, and de-
vise or descent. The cost of the conveyance never
exceeds a few shillings, and the length of the deed
100 words. That the extension of this system to
freehold estates will require some machinery for
registration is clear ; but, when you consider the
provisions of the bill, I would fain hope that you
will admit the change in our system to be both

practicable and safe:
" The great extension and improvement of our
judicial statistics, is a matter of just congratu-
lation ; and Messrs. Fonblanque and Redgrave
deserve great credit for their most able co-
operation to it. What my Bill of 1856 was
beneficial law ; and having more than once both

intended to provide has been happily commenced,
especially the extension to civil proceedings. When
the plan is complete, legislation will become more
entitled to the praise ofbeing a science, and founded
upon principles of induction.
" That I continue to indulge the hope of con-
tinued improvement, notwithstanding all our dis-
appointments, is chiefly owing to the encouraging
aspect of the times, and the:, now universal and.
even earnest resolution of the country for the pro-
motion of well-considered measures of reform in our
institutions ; and, most of all, because it is the first
of all, in our jurisprudence. I purposely pass by
Parliamentary Reform, not that either of us can feel
indifferent on that great subject, but because it be-
longs not directly to the matter now mainly in
hand. Yet, how can I avoid turning my eye to-
wards other countries when speaking confidently of
our own steady, though occasionally somewhat
tardy, progress, without feeling most thankful for
security from all that has happened to their reforms?
Think, my dear old friend—well may I say so, for
I am reflecting on the period of our first acquaint-
ance at Professor Playfair's class, during the Reign
of Terror in France, perhaps in England too, when
the savage and irresponsible tyrant, the multitude,
domineered in the one country, and the law, through
Erskine's immortal triumphs, bore sway in the other
—think how all has been peaceful progress, with
freedom more firmly established here; and there—
but let us tun from the sight. The difference be-
tween the two countries, both well fitted for a free
constitution, lies in a sentence, as I took leave to
declare in our House when discussing reform in
1857. In England there ever prevails and ever
rules the wise principle of avoiding extremities in
the most violent of party contests, so that by timely
and often by mutual concessions, our institutions
may be saved ; in France, all party conflicts tend
towards disruption, and too often terminate in re-
volution."

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ferred for deer-stalking by sportsmen, gentlemen, and.
gamekeepers. Telescopes 31 inches long, by which a per-
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the size of a walnut, by which a person can be seen
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FROM THE GAZETTE OF YESTERDAY.

WAR-OFFICE, Nov. 30.

The Queen has been graciously pleased to give orders for
lie appointment of _ _

Charles Joseph La Trobe, Esq., some time Lieut.-Governor
of the Colony of Victoria; Herman Merivale, Esq., one
of the Under Secretaries of State for the Colonial De-
partment; James Douglas, Esq., Governor and Com-
mander-in-Chief in and over Vancouver's Island and the
Colony of British Columbia; William Stevenson, Esq.,
Governor and Commander-in -Chief in and over the
Island of Mauritius ; William Arrindell, Esq., Chief
Justice for the Colony of British Guiana ; and James
Buchanan Macaulay, Esq., some time Chief Justice of
the Coirunon Pleas for Canada, West ;

to be Ordinary Members of the Civil Division of the Third
Class, or Companions, of the Most Honourable Order of
the lath.

WAR-OFFICE, PALL-MALL, Nov. 30.
Royal Eng,ineers—Brevet-Colonel Henry Owen Crawley
to be Colonel, vice Savage, removed as a General Officer;
Brevet-Major James Holt Freeth to be Lieutenant-
Colonel, vice Crawley ; Second Captain and Brevet-
Major Charles Brisbane Ewart to. be Captain, vice
Freeth; Lieutenant Charles Elwin Harvei to be Second
Captain,,vice Ewart. •
COMMISSARIAT DEPARTMENT.

Acting Commissary-General John W. Smith,.C.B., to
be Commissary-General.
Commissary-General John W. Smith, C. 8., to be Com-
missary-General-in• Chief.

Dec. 10, at half-past two, am d Jan. 11, at two, at the Court
of Bankruptcy.
George Cook, grocer, Low er-road, Islington, Dec. 8, at
twelve, and Jan. 14, at two, a it the. Court of Bankruptcy.
George Lewis, leather cute 31) Clarence-place, Hackney-
road, Middlesex, Dec. 10, at l calf--past eleven, and Jan. 14,
at twelve, at the Court of Bar, lcruptcy.
Frederick Spencer, mercer, Birmingham, Dec. 11 and 31,
at half-past eleven, at the Bir. mingham District Court.
Thomas Coke Johns, print er, New-street-square, city,
Dec. 10 and Jan. 7, at twelve, at the Court of Bankruptcy
Alexander Gibbs, stained gla as painter, Bedford-square,
Dec. 13, at half-past twelve, an i Jan. 17, at twelve, at the
Court of Bankruptcy.
Alfred Rolfe, timber ram •chant, Dorrington-street,
Clerkenwell; Dec. 9 and Jan. 17 , at eleven, at the Court of
Bankruptcy.
Henry Monument, victualler and tavern keeper, city-
road, Dec. 13, at eleven, and Jan . 17, at one, at the Court
of Bankruptcy.
Richard Clear Parvin, haberd asher, Oxford-street, De.c•
8, at one, and Jan. 7, at twel ye, at the Court of Baur
ruptey.

COUNT.RY 02-ARKETS.