CHAPTER XL

THE REFORM OF THE LAW.

A.D. 1820-1830.

Amelioration of Criminal Law-The Court of Chancery-Felons and their Counsel-Great Speech on Law Reform-Its Proposals-Its Immediate and subsequent Results-Canning's Jocular Criticism of Brougham.

BROUGHAM was the greatest law reformer of his time. The regret which many of his more ardent admirers feel to this day, that he ever permitted himself to be withdrawn from the congenial arena of the House of Commons, and accepted a peerage and the highest judicial office, must be tempered by the very important considerations that, as Chancellor, he purged his court of its long arrears of suits, and that, as chairman of the Upper House, he turned his influence to account by introducing in rapid succession many most beneficial changes in the administration of the laws. Brougham carried more than fifty separate statutes, more than three-fourths of which are of a legal character. He introduced, besides, upwards of fifty other Bills. Large portions of many of these have formed the basis of subsequent legislation, and are incorporated, in whole or in part, in other Acts. Others of them still remain unenacted, but will, doubtless, from time to time, affect legislation yet to come.

In the first years of the reign of George IV., the

Reformers limited their endeavours for the amendment of the law to its criminal department. In the days when Eldon and Ellenborough presided in our supreme courts, our law and equity were such huge, and complicated, and anomalous congeries of wisdom and injustice, that no one had courage to undertake the daring task of improving the fabrics by removing their worse parts. Criminal law was simpler and more definite, its abuses were more easily understood and more directly visible. Considerable ameliorations were effected in our penal code ere the accession of King William. Brougham lent a helping hand to the efforts in this direction of Macintosh and others, but did not attempt to take the lead. He reserved himself for the harder task of commencing the attack on Chancery and the laws affecting property and commercial dealings.

So early as 1820, Macintosh succeeded in having shoplifting to the value of five shillings, poaching by night if the face was not blackened, mutilation of cattle, threatening with death, and personal assaults, removed from the category of capital offences. In the same year, the penalty of hanging was removed from those found guilty of these most extraordinary offences, which up till 1820 were capital: a gipsy for remaining one year in the country, a known thief found in the northern counties, any one who injured or defaced Westminster Bridge, and any person in disguise who was found in the Mint.

In 1823, Macintosh effected other important changes. The assize intelligence showed a frightful increase in the number of executions, and this was in spite of the facts that many juries refused to convict criminals proved guilty

by the most incontestable evidence, and that judges began to "record," not decree, the sentence of death. Macintosh carried a resolution pledging the House to revise the whole criminal code. The Home Secretary, Mr. Peel, shortly afterwards introduced four bills further diminishing the number of capital offences. The same gentleman took, in 1830, another important step in the amelioration of the criminal code. He passed a bill abolishing the punishment of death for forgery, except where official seals, wills, and signatures connected with funds, banks, or promissory notes, were feloniously imitated. Macintosh endeavoured, and successfully in the Commons, to exempt from death all forgers save those who fabricated false wills; but the Peers threw out his amendment.

But

Brougham acted with his friend in all these movements. In other departments, he almost exclusively appropriated the labour to himself. Mr. (afterwards Judge) Williams was the first to inaugurate the good work. For some time, murmurs, which were sometimes articulated in Parliament, had been rife about estates kept for half a century in Chancery, and even wealthy litigants beggared by successful suits. To all complaints, the invariable answer was-Eldon could do no wrong. in 1823, Mr. Williams moved for a committee of inquiry. It was denied. He renewed his effort in 1824. In this and the two following years, Brougham entered with vigour into the contest. From time to time he drew attention to the administration of justice in the Court of Chancery, and the cumbrous obstructions which impeded the action of the laws affecting real property. Without dwelling on details, it is sufficient to state that his efforts were quite ineffectual until he himself was seated on the

woolsack; then he exhibited to the world the extraordinary spectacle of a Lord Chancellor reforming his own court, root and branch, and seriously diminishing the emoluments as well as the patronage of his office.

Against the motion of Mr. Williams for a committee to be appointed by Parliament, Peel proposed a Government Commission. The amendment was accepted, and agreed to. During 1825, no report was made; and, at the instigation of Brougham, a provisional return was ordered, of "cases heard during the last eighteen years, wherein decision had not been given." The retrospective term of eighteen years was fixed, for it exactly included the period during which Eldon, for a second time, held the great seal. Eldon waxed very wroth, frowned in his place in the House, and declared to his colleagues that he would throw up his office. They took no other heed of his threat than to request him to hasten the preparation of the report of the commission. Frequent discussions occurred in the interval that still elapsed ere the report was made. In one of them Mr. Hume expressed his opinion that the Chancellor and Chancery constituted the greatest curse that could afflict a country. Disorder ensued, and when it subsided, Mr. Grenfell said

If his honourable friend had stated that the Lord Chancellor was a curse to the country, he had done that which was not altogether becoming in him, or any other member to do. But if his honourable friend had said that the Court of Chancery was a curse to the country, he had stated that which no man conversant with the subject could deny; it was only stating the current opinion of ninety-nine men out of every hundred.

At last the eagerly expected report appeared. It embraced one hundred and eighty-seven propositions for reform in the constitution and administration of the

court. A Government bill founded upon its recommendations was forthwith brought in, but a dissolution suddenly occurred, and the whole matter was left to be dealt with by Brougham in more favourable times.

Up till this time, felons were not permitted the services of counsel, except to examine and cross-examine witnesses, and to argue points of law; but they were not allowed to address juries for their clients. Even Blackstone, whose constant tone is one of almost unqualified panegyric on the laws and constitution of England as they existed in his day, thus expresses himself on this point: "It seems to me not at all of a piece with the humane treatment of prisoners by the English law; for upon what face of reason can that assistance be denied to save the life of a man which is yet allowed him in prosecutions for every petty trespass?" Mr. George Lamb, the brother of Lord Melbourne, introduced in 1824 and in 1826 measures to remedy this peculiarly gross and unique injustice. On both occasions he had the support of Brougham, but both times he was unsuccessful. succeeding years, Brougham took up the question himself. He had a "Prisoner's Counsel Bill" introduced into the Lower House, in the sessions of 1834 and 1835. On both occasions Lord Lyndhurst opposed it in the House of Lords, and prevailed upon the Peers to reject the measure. In 1836, his lordship confessed himself a convert to the doctrine, to the reduction of which to practice he had been the only obstacle, and the bill, endorsed with the name of Brougham, became a part of the law of England.

In

It was in 1828 that the career of Brougham as a zealous law reformer fairly commenced; and it was in