Page images

purchased by a Mr. Bolton; lot 2 by a Mr. Errington; while lot 3 for a time remained without a purchaser. This being the state of things, Mr. Errington entered into an agreement to cede to Mr. Bolton a portion of lot 2, if he, Errington, could obtain an equivalent in lot 3, which as yet was unsold. This contract was carried out by the order of the Commission; Bolton obtained the usual conveyance of lot 1, including the stipulated part of lot 2; and Errington obtained a conveyance of the residue of lot 2, including the part of lot 3 comprised within Mr. Rorke's lease. This shifting of Mr. Errington's purchase from a part of lot 2 to the part of lot 3 bound by Mr. Rorke's lease, was done without notice to Rorke, and the conveyance to Mr. Errington of his part of lot 3 took no notice of the existence of Mr. Rorke's interest in this lot, although it had previously been declared by the printed rental published by the order of the Commission.

Mr. Errington, shortly after this transaction, laid claim to the possession of this part of lot 3, discharged of Mr. Rorke's interest. Upon being refused the possession, he brought his ejectment on the title against Mr. Rorke, and relied upon the conveyance of the Commission, which omitted in the schedule of tenancies annexed to it any mention of Mr. Rorke's interest. Mr. Rorke gave in evidence the printed rental under the order of the Commission, referring in terms to this interest as subsisting, and the instrument under which he held the lands in question. In this state of things, the Lord Chief Justice of Ireland directed the jury to find for the defendant, giving it as his opinion, that the jurisdiction of the Commission attached only upon the reversion in fee in this part of lot 3, and that the Commission had no power under the Act to merge the subsisting interest of Mr. Rorke. Exceptions were taken to this charge, and upon solemn argument, two judges of the Queen's Bench against one decided for the overruling of them, thereby affirming the opinion of the Lord Chief Justice. In his very able judgment, Mr. Justice Moore considered that Mr. Rorke had brought his interest within the operation of the 23rd section of the Encumbered Estates Act, which enacts, "that the sale" of land within the Act "shall be made subject to the tenancies,


2 s

leases, and underleases, ascertained as aforesaid ;" and that, once his interest had been ascertained by the printed rental under the order of the Commission, he had acquired a perfect title by that order; but he threw out a strong opinion that, according to the true construction of the Act, the original power of the Commission extended only to the reversion in fee vested in Mr. Hamilton. The Lord Chief Justice fully coincided in this view, and analyzed the Act at length, to show that the subjectmatter for the operation of the Commission could only be "an encumbered estate in land," and not an unencumbered interest. Mr. Justice Crampton differed in opinion, thinking that the Court, under the 27th and 49th sections of the Act, was coerced to assume the conveyance of the Commissioners to be infallible in every particular.

As this decision will probably be subjected to judicial criticism in the Exchequer Chamber of Ireland, and perhaps in the House of Lords, we abstain from any lengthened comments on it. We may observe, however, that the 27th section of the Act, on which Mr. Justice Crampton mainly relies, and which enacts, "that every such conveyance, executed as aforesaid by the Commissioners, upon the sale of land, shall be effectual to pass the fee-simple and inheritance of the land thereby expressed to be conveyed, subject to such tenancies, leases, and underleases as shall be expressed or referred to therein, as aforesaid; but save as aforesaid, and as hereinafter provided, discharged from all former and other estates, rights, titles, charges, and encumbrances whatsoever of her Majesty, her heirs and successors, and of all other persons whomsoever,"-refers, by the terms "save as aforesaid," to the 23rd section, which enacts, "that the sale shall be made subject to the leases, tenancies, or underleases, ascertained" in the manner prescribed by that section; and therefore, that as Mr. Rorke had his interest " ascertained" within the meaning of the 23rd section, it is expressly, and in terms, within the saving of the 27th section. As for the 49th section of the Act, on which Mr. Justice Crampton also relies, and which enacts, "that every conveyance and assignment respectively executed as required by this Act, and every order for partition and exchange, or for division and allotment,

made by the Commissioners, under their seal, shall, for all purposes, be conclusive evidence that every application, proceeding, consent, and act whatsoever, which ought to have been made, given, and done previously to the execution of such conveyance or assignment, or the making of such order respectively, has been made, given, and done by the person authorized to make, give, or do the same." This seems to us merely to make the conveyance of the Commission conclusive proof that all acts done before such conveyance had been done by proper authority, but not to arm any such conveyance with the power of destroying an interest "ascertained" under the order of the Commission. This section establishes a canon to prove the validity of antecedent acts, but gives no authority to do an act not prescribed by the statute.



[EVER was a State in a more ludicrous position than we are now in regard to the business of legislation. Crowds of measures are introduced, without the slightest pretension to consistency of purpose, unity of design, uniformity of method, or clearness of expression either to the members of the Legislature or the people at large. Everything is at sea. There are motions for the establishment of the office of Minister of Justice; an almost universal recognition of its necessity; promises to meet the demand by adequate arrangements through the intervention of the Statute Law Commission. Then we have a project for the establishment of an Appellate Tribunal; the Ecclesiastical Courts Bills, the County Courts Bill, the Divorce and Matrimonial Bill, and we know not how many others; which seem to indicate that we are to pursue a policy of piecemeal legislation, without reference to the circumstances of our

time, because in times past we have been forced, under special circumstances, to adopt piecemeal expedients to meet the occasion.

The question of the Law University, or Legal Education, the results of the Inns of Court Commission; the consolidation of the law in a systematic manner; the improvement of our system of law reporting; the scheme for public prosecutors; and many other questions, hang fire, purely from the want of an officer of state armed with the means of conducting the inquiries, the preparation of legislative measures, the passage of them through Parliament, and their judicial administration.

Having one thing to do, we make of it a hundred, because we will not lay hold of the principle, or main purpose; having to give every individual subject his tribunal for the administration of his affairs of justice sufficiently near to his home, we refuse to consider this need as one simple thing, much like the Post Office, or the Excise Office, or the Customs Office, or anything else of the like public sort, whereby we collect from the subject his dues to the State. We choose to start from some by-point, some old effete or imperfect institution, not considering how the new jurisdictions are to be fitted on to old things; forgetting the Scriptural story of old and new bottles; forgetting the individual in our regard for the practitioner, or the persons who live by the existing institutions. The matters just specified need, however, specially to be considered, and are not to be neglected with safety, especially in the period of transition between the present state of things and our ulterior future of better fitness; for it is obvious, that till a new breed of lawyers have arisen, whose education has trained them for the changes which are to take place, we must perforce avail ourselves of those we have, even if it were not that they have much sagacity, and wisdom, and skill, which we shall not easily dispense with.

The end of all the exertions of the law reformer should be to bring home to the individual inhabitant of every part of the realm the due administration of justice, in subordination to one common law and one system of tribunals, acting together to that end.

Now, our statesman-lawyer having such end in view as his object, must, as a statesman, needs act in relation to the State

at large-to the other departments, which, together with his own department, constitute the five great powers of the State.

Of these five great powers of the State, or body politic,—the management and the administration of our forces, taken in the widest sense, as including all the people, of whatever class or denomination, the administration of public instruction in all its forms; the administration of justice and law; the administration of finance; and the administration of executive affairs, general and local, internal and external,-none perhaps is greater or less than another; and assuredly the administration of justice and law is not the least.

Not disparaging, therefore, any by our selection of Justice and Law for our special topic, but selecting it for comment as that which is peculiarly within the province of this journal, and one of most instant need, if we are to manage the reformations that are now in progress with due regard to the future development and adjustment of those reformations in a permanent constitutional state and government, we proceed to consider it, not piecemeal and bit by bit, but comprehensively, in order that we may collect how each part may aid every other part, and facilitate the general task.

The office of Minister of Justice has become an admitted want; but the place which that office is to fill in the State, its purposes, its jurisdiction, its powers, its responsibilities, its indemnities, and its rewards, are not yet understood, simply because the nature of the interests to be served-those of the people, individual and collective, local and national-have not yet been considered.

One should have thought that our great reformers or amenders of the law would have rejoiced in the opportunity which the consolidation of the Statute Law affords, to lay down the foundations of the larger work in the methodical arrangement of the matter, in chart or code; but here again blindness has seized our leaders, from want of the conception of the office which they had undertaken.

Let us now humbly point out the clue by which all difficulty in the work may be eventually removed, and a fabric worthy of the country be gradually constructed.

« PreviousContinue »