ter-and he ought not to be surprised, nor to complain that his majesty's government should direct him to be taken back to that country from which he came.

Upon the several grounds alleged, therefore, the court have no hesitation in saying, that the prisoner cannot be liberated from the restraint under which he is held, but that he must be remitted to the custody of the proper officer for the execution of the warrant issued against him in the name of his majesty.

ART. VI.-BROUGHAM'S SPEECH.

Present State of the Law. The Speech of HENRY BROUGHAM, Esq. M.P., in the House of Commons, on Thursday, February 7, 1828, on his motion, that an humble Address be presented to His Majesty, praying that he will graciously be pleased to issue a Commission for inquiring into the Defects occasioned by time and otherwise in the Laws of this Realm, and into the Measures necessary for removing the same.' Second Edition. London, 1828. pp. 125.

THE speech of Mr. Brougham was made on his motion, "That an humble address be presented to his majesty praying that he will be graciously pleased to issue a commission for inquiring into the defects occasioned by time and otherwise in the laws of this realm, and into the measures necessary for removing the same.' The following resolution, which was afterwards substituted by him with the assent of the government, was unanimously carried: That an humble address be presented to his majesty, respectfully requesting that his majesty may be pleased to take such measures as may seem most expedient, for the purpose of causing due inquiry to be made into the origin, progress, and termination of actions in the superior courts of common law in this country, and matters connected therewith; and into the state of the law regarding the transfer of real property.' It will at once be perceived, that the resolution originally proposed embraces a far wider field of inquiry, than that which was finally adopted. Enough, however, is left to task the abilities of any commissioners.

In compliance with this resolution, two commissions have been issued by the King of England: one with regard to actions, and the other the law of real property. The commissioners appointed by the former, are John Campbell, Esq. one of the king's counsel, and William Henry Tinney, John Hodgson, Samuel Duckworth, and Peter Bellinger Brodie, Esquires, barristers; and by the latter, John Bernard Bosanquet, and Henry John Stephen, Esquires, serjeants, and Edward Hall Alderson, James Parke, and John Patterson, Esquires, barristers. These commissioners are directed to report to the court of chancery. What progress they have made in their examination we are unable to say.

It would not be possible for us, without making very copious extracts, to do justice to Mr. Brougham's thorough and masterly examination of the vast and complicated subject of his motion. With the exception of equity, criminal and commercial law, and the law of real property, he has attempted to point out the particulars in which the English law and administration of justice require to be reformed. This he has done in the most definite and business-like manner; stating in most cases the precise evil to be corrected, the general principles by which a reform ought to be attempted, and then in many instances. offering a specific remedy. The nature and the multitude of the evils to be redressed, must strike with surprise those who have been accustomed to regard the common law with superstitious reverence. Mr. Brougham brings to his task such high endowments both as a lawyer and a statesman, as, though not absolutely inconsistent, are rarely united in the same perNone but a lawyer could have understood so completely the evils and abuses of the existing system; and none but a statesman of a high and resolute character would have dared to examine them and expose them to the public gaze, and to propose the remedies. Nor could a mere theoretical jurist have performed the task so efficiently, even with the most sound and liberal views; it required a lawyer practically familiar with the operation of the dark mysteries of his art.

son.

Every thing which Mr. Brougham says has that air of truth and reality, and that directness of application which might be expected from his declaration in the outset: 'I pledge myself, through the whole course of my statements, as long as the house may honor me with its attention, in no one instance to make any observation, to bring forward any grievance, or mark

any defect, of which I am not myself competent to speak from personal knowledge. I do not merely say, from observation as a bystander; I limit myself still further, and confine myself to causes in which I have been counsel for one party or the other.'p.2. Every subject is discussed in the most frank and fearless manner, without any attempt to disguise or palliate existing evils, or any shrinking from the application of severe but necessary remedies.

It has been sometimes objected to this declaration of Mr. Brougham, that a specification of particular hardships arising in individual cases, would not prove any defect in the law, because under the very best human system individuals must sometimes suffer from the application of general rules. It is very true that it does not follow, because an individual is aggrieved, that the law ought to be changed. But yet it is only by a careful observation of particular cases that we can know thoroughly the general operation of the law. It is obvious that on this subject, as on all others, to make a beneficial use of personal experience, demands a sound and discriminating mind. It requires a power of judging whether the evil which is felt, is a common consequence of the law, or one that is merely occasional, and whether it is or is not compensated by greater good effects. No unprejudiced person, we think, can examine Mr. Brougham's speech, without being satisfied that he has made a good use of his own experience.

The propriety of some of the changes which he proposes may be questionable; and some inaccuracies may perhaps be found in his statements of the existing law. But taking the speech as a whole, it exhibits great vigor of intellect, and a complete mastery of the subject. It has made a deep impression on the public mind; and has given a powerful impulse to the reform of the English law which is now going forward.

We shall not attempt to give any analysis of Mr. Brougham's speech, but confine ourselves to the discussion of one or two topics which it has suggested to us.

No American can read this work without being surprised to find how many of the evils of which it complains have been remedied in this country. We had occasion to make the same remark in our notice of Humphreys on Real Property. But though we have thus far avoided many of the evils of the English system, yet they deserve to be studied in this country, because the laws of all the states are based on that system,

and

in addition to the elements of corruption which are found in all human institutions, contain, no doubt, some of the peculiar principles of evil which have produced the present state of the law in England. By learning, therefore, the causes and nature of the disease in that country, and the history of its gradual introduction into the frame, we may perhaps, devise means to check it when its first symptoms appear in America. If we will but listen to the warning voice of experience, we may, perhaps, arrest the slow and stealthy progress of abuse, and by an unceasing vigilance to preserve the purity of our institutions, and a constant regulation of practice by principle, we may for a long time avert the evils which now press heavily on our parent country.

Most of the grievances specified by Mr. Brougham are such as relate not so much to the general principles of right, as to the means by which they are enforced. The great difficulty seems to be in the machinery of justice, such as the constitution of the courts, fines and recoveries, mesne and final process, the rules of pleading and evidence, modes of trial, and costs. Excepting the law of real property and criminal law, which are not touched on by Mr. Brougham, the greatest changes which have been made in this country in the common law, are in relation to the particular subjects which he treats. The nature and obligation of contracts, such as insurance, bills of exchange, promissory notes, the law of principal and agent; the rights and duties arising from the relations of husband and wife, master and servant, guardian and ward, are more likely to be similar among civilized nations, than the regulations by which rights are enforced, which admit of an almost endless variety. And on examining the legal systems of different and disconnected countries, we shall find that while many and very striking analogies exist in the general principles of law, the means for carrying them into operation, are often very dissimilar.

A large part of Mr. Brougham's speech is occupied by an examination of the constitution of the courts of justice in England. The chief evils which he mentions are the accumulation of business in the Court of King's Bench, the administration of justice in Wales, the mode of appointing and paying the judges of the civil law courts, appeals to the privy council, and some other connected topics. This part of the speech can have little direct application in the United States; yet we

could not read it without reflecting on our own judicial systems. Many of them seem to us very faulty. Thus in Connecticut, Vermont, Rhode Island, Virginia, Ohio, Illinois, North Carolina, Tennessee, South Carolina, Georgia, Alabama, and Mississippi, the judges of the highest courts are chosen by the legislature. We doubt whether popular bodies, composed of such materials as our legislatures usually are, are the most suitable for selecting judicial officers. Many of the members must always be ill-qualified to estimate the comparative merits of candidates for judges. Party feelings and popular prejudices are always likely to influence strongly the choice made by large bodies of men. But above all, the responsibility of the choice does not rest on any individual. The governor of a state who appoints a notoriously incompetent person to a judicial office, disgraces himself. His own personal character suffers. though a legislative body may disgrace itself by a similar appointment, the share of disgrace which rests on each individual is generally considered a very light burden. The qualities, besides, which create popularity in a party leader, who will be most likely to receive the suffrages of a popular body, are not those which are required in a judge. These remarks are, no doubt, familiar to most of our readers, and we should not repeat them if the practice of so many of our states did not show that the arguments are not felt so strongly as they deserve to be.

But

Another, and as it seems to us a still greater, error into which some of the states have fallen, is to have the judges of the superior courts chosen for limited terms. The term is seven years in New Jersey, Ohio, and Indiana; three in Georgia, and one in Vermont and Rhode Island. It is scarcely necessary for us to point out the tendency of such a system to destroy the independence of the courts, to introduce perpetual changes among the judges, and thus lower the character of the judiciary. The desire of retaining his situation tends to create in the judge the same subserviency to the person or body to whom he looks for re-appointment, which the fear of removal formerly did in the judges in England, while their continuance in office depended solely on the royal pleasure. shortness of the term of office, besides its thus diminishing the independence of the judiciary, must also generally deter the most able professional men from accepting a situation, the tenure of which is so precarious; and must prevent judges from

The