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member has taken his wild flight , and to which he has turned for an argument in favour of a cause which he > Has attempted to support , but which he is afraid to justify—( cheers ) --what happened at Tahiti ? It was an island containing a barbarous , a profliga te , and an ignorant population . Protestant missionar ies , with a courage and a zeal which did honour to the religion they professed—( cheers ) —and to the nation from which they sprang-Protestant missionaries , facing all the dangers and perils which naturally surrounded men going singly to plant themselves amid a horde of savages , went to that island and with perseverance , and by means of good counsel and Christian precepts , they converted those barbarous savages into what I am not afraid of calling comparatively at least , civilized
, Christians . ( Cheers . ) They restored peace and order , and virtue and morality , to a land which had been before the scene of profligacy and vice . ( Eenewed cheering . ) Then came the Catholic missionaries ; and what did theyP ( Rear , hear . ) Did they follow the example of the Protestants ? Did they go to islands where the dangers and difficulties of converting the heathen were to be encountered ? ( Hear . ) No , sir . They went to disturb the tranquillity of an island already pacified and converted ( cheers ); and , instead of going to places where they might have been exposed to danger , and where a religious ht have been
work worthy of Christianity mig accomplished , they proceeded to disturb those peaceful people of Tahiti , for the purpose of turning Protestants into Catholics . ( Cheers . ) Instead of turning heathens into Christians , they endeavoured to disturb the social tranquillity of those islands . ( Cheers . ) Well , I admit to the honourable member that the proceedings of the Tahitian Government , stimulated by our missionaries , exceeded , perhaps , the bounds of propriety and of justice ; but did they put those Catholic missionaries into ' comfortable' prisons ? ( Cheers and laughter . ) Did they treat those Eoman Catholic missionaries as the Grand Duke of
Tuscany treated the Madiai , and other persons who also professed Protestantism ? Why , sir , no ! ( Cheers . ) That which they did was to tell those missionaries— ' We don't want you ; we are already Christians , we don't need your instruction ; pray go away . ' They would not go away ; but there was a law of the island to compel them to go away , and all that was done was , that they were expelled , not exterminated . ( Cheers . ) Would that the Madiai had been so treated ! ( Cheers . ) The Madiai would be most thankful to the Grand Duke of Tuscany if he would do as the Tahitian Government did ; and if the honourable gentleman would only persuade the Grand Duke to follow the example of the barbarous Queen of Tahiti , and merely
expel the Madiai from his dominions , I venture to say that they would return him their most grateful thanks . ( Cheers . ) The honourable member has indulged in making reproaches against the Protestants for the persecution of Roman Catholics , while he is himself , as a member sitting in this House , a striking example of how little those reproaches are deserved . ( Cheers . ) I turn with pleasure to the speech of the honourable and learned gentleman the member for Ennis , as honourable to that gentleman . ( Hear , hear . ) I say the sentiments of that speech do honour to him and to the religion he professes , which I will designate as Christian , casting aside for the moment the difference botweon Catholic and Protestant . The
honourable member for Meath wishes us to apply to Governments that profess the same religion as ourselves . I ¦ w ill , in concluding , only recommend him to follow the example of that honourable and learned gentleman and of others who profess the Name religion as he does . ^ Cheers . ) Mr . Kinnaiui ) said that , after the speech of Lord John Russell lie would follow his suggestion , and ask leave to withdraw the motion . Motion withdrawn . COURSE OK LAW 1 IKFOBM . We have now beibre us the projected law reforms of the new ( Jovornment . . Lord Ckanwoutii , the Lord Chancellor , in a long and rather diffuse speech , stated , on Monday night , lo the assembled Peers , what were the measures intended to bis introduced into Parliament
this session . Hut first , by way of justifying Ihh own inactivity in those directions , ho described at length the (• fleet which the Common Lmv and Chancery reforms of the late Ministers lmd had in improving the state of the law . He told their lordships how greatly improved is the practice in the Courts of Common Law , by the Procedure Act ; how much the expense hits been lessened and process . s " nyj ) litie (\; and how there hiis been a great accession of business in consequence . Following the same lint ; , he Hhowed how the Court of Chancery lias been similarly improved ; and he decided , therefore , thai , he had better leave well alone , at present , and go no further . Incidentally , in his progress , lie touched on some * important topics . The fusion of
law and equity—that in , milking no distinction between one and the other—he thought should be carefully considered ; venturing so far , however , in an adirnmtivo direction as to my , that , when once a suit has commenced in any cohrt , it is to tho last degree expedient that such court should be enabled to give all the relief which the nature of the case permits , —that the parlien should not bo handed over from court lo court when it can be , avoided ; and , with the view of introducing amendments of that kind , recommendations will . conn * from the commissioners that in coses relating to the specific , performance of contracts , a concurrent jurisdiction Khali be jriveu to the courtu of common law with tlit ) courts of equity . On another topic of grout importance ho delivered the following opinion = —•
" It is said that the trial by judge , instead of by jury has been eminently successful in the County Courts . Undoubtedly that has been the case ; and it has been a matter of inquiry before the commissioners whether the same principle may not usefully be extended to the cases tried in other courts—whether you may not give up the machinery of a jury , and leave it to the judge to decide the question in dispute . I think , in considering such a matter , we ought not to lose sight of this fact—that , in sanctioning an arrangement of that sort , we should be taking a step towards unfitting 1 for their duties those who are to send representatives to the other House of Parliament , who are to perform municipal functions in towns , and who
are to exercise a variety of those local jurisdictions which constitute in some sort in this country a system of selfgovernment . It may be very dangerous to withdraw from them that duty of assisting in the administration of justice . I do not say that I have conclusively made up my mind on the subject ; but I must say it is a subject to be approached with very great delicacy and caution . My noble and learned friend ^ who has had the advantage , both as a judge and as an advocate , of attending in assize towns , and of seeing the proceedings in the courts , cannot ,
I am sure , have failed to observe , that at the end of the assizes , those who have been summoned as jurors quit the assize-hall a much more intelligent set of men than they entered it ; and , if that be the case , it ought not to be any very trifling advantage that should lead us to abandon such a system . Mechanics' schools may afford valuable instruction , but I doubt if there is any school that reads such practical lessons of wisdom , and tends so much to strengthen the mind , as assisting as jurymen in the administration of justice . I think , therefore , that this is a subject which deserves very serious attention . "
He described the state of the testamentary jurisdiction of the country as highly discreditable ; hut he is not prepared to do anything . Why ? " I cannot but feel that in introducing a measure of this kind there is a risk of shocking a great many interested persons , which we ought not to do unless we have strong grounds for it ; and also of imposing hardships upon many innocent and meritorious persons , which I am unwilline to do . " Besides , Tthe commission appointed by Lord Saint Leonards is still sitting . Then there are the marriage laws ; he has looted into these , hut he can do nothing .
" Three or four years ago , a commission was issued to inquire into the law of marriage . In the year before last , another commission was issued to inquire into the law of divorce—both subjects having been dealt with in the ecclesiastical report to which I have referred . Upon the subject of divorce I must confess I have an opinion so distinctly formed , that I believe nothing will Bhake me out of it . Your lordships will observe that every divorce a vinculo matrimonii , according to the present practice of
the country , is a privilegium or private law , and , so strange are our habits on the subject , that once establish the existence of certain facts , the party seeking the divorce is entitled to it , almost of absolute right , without any previous judicial inquiry ; whereas I hold that the inquiry ought to be one solely of a judicial nature , and that the result should depend upon the decision of the judge , ay or no . There , again , there is an inquiry ponding , and it would consequently be impolitic that I should propose anything until it is concluded . "
But he has some measures to propose , —namely , three : a bill for the Registration of Deeds , another affecting Charities , and a gigantic proposal to make a Digest of the Statute Law . The first bill is , of course , to facilitate the sale and pnrchaso of land . It will he seen that Lord Cranworth , at the outset , denies the practicability of placing land on a level with stock ; he rather evades the difficulties . " To suppose that , we can ever arrive at such a stato of
things as that the land of the kingdom can bo transferred as easily as Bank of England s ^ ck , is to suppose an utter impossibility . Why , the objections to this lie on tLo very surface . It is obvious that 10 ( K )/ . of stock is procimily the Kixmo as evory other 1000 L of stock , whnV ever y man ' s aero is different from his neighbour ' s aero . It is therefore necessary that wo should bo ablo to identify every particle of land that is subject to transfer . That is one difliculty . Hut the real difficulty in what is called tlio transfer of land ( loot * not ariso from the state of tho law
relafivo to tho transfer of land , but from the lawns it exists for tho purpose of tho social and political institutions of tho country . I find that what many persons moan by facility of transfer of land , when pressed to it , is Unit there should ho no ownership except that of ownership in fee . simple , as it exists in tho state of JVow York at this moment . . Ft * Micro were no ownership but that of feo simple , there would bit very lit tic difficulty indeed in tho transfor of it ; but onco admit the complication of intorestH arising from mortgages , nottlomentH , jointures , ontnilfl , and what are culled shifting estates , the difficulties aro
very considerable ; because , when a party sells ho muni prove that none of thoso circumstances affect his title . I believe , that this is at tho root of Mm difficulty and oxponso in tho transfer of lurid in this country , and not in tho HyNtom of conveyance ; mid an I do not think it my duty , oven if 1 thought it bonoficitil , to propose any alteration of tho existing system of entail , Bottlomontu , Ac , in this country , I must deal with tho question as 1 find it , and proceed upon tho aNHumption that such is still to bo tho fltatnof tho law , and that parties aro to continuo in tho poHHOHHion of tho right . H thoy now onjojr with regard to tho bettleniont and disposition of their property . "
11 is proposition is one based on a . Bill brought m by Lord Campbell in 1851 . " 1 propose , when anybody purchases an ostato , that ho
is to go to the registrar and put it upon the register When time passes , and I want to sell , it will be seen that I have that register , and my deeds will show what mj title ' was , ' because I do not propose to effect bygone titles ; and then I propose that nothing shall affect the title to that land beyond what is seen upon the register in conjunction with my own original deeds . It' is said that there are difficulties in the way of settlements . The way in which I propose to deal with that : question is this : —A party registers his title . If he wishes to make a settlement he may make it and put it upon the register . Then
anybody who purchases the land may see what that settlement is . But if he wants to retain the power of selling the land , notwithstanding the settlement , I propose thai he shall have the power , if he desire it , of stipulating thdfc the settlement shall not appear upon the register . It is argued that that affords ¦ an opportunity of defeating the settlement . Undoubtedly , I admit that it does ; but if you wish to make the settlement binding , you must put ifc on the register , and then it cannot be aefeated . At the same time , provisions are made that any peAons entitled under a settlement which is not on the register may obtain an inhibition upon the lqnd being sold , and may prevent injustice being done . "
The Charitable Trusts' Bill is also one which has before been submitted to the House of Lords , by Lord Campbell , in 1851 . In dealing with the third topic—the digest of the statutes at large , he gave some idea of the statutes now existing . From the first of Edward III . to the end of Queen Anne , it appears , there had passed 3256 statutes ; from the end of Queen Anne to the Irish Union , 5952 ; and from the 41 st of ( M > vge III . to the end of 1844 , about 5200 more , making an aggregate of statutes from the first of Edward III . to the end of 1844 of 14 , 408 . That is exclusive of the Irish and Scotch statutes ; which , altogether , must increase the aggregate to something like 20 , 000 statutes . And he describes these statutes as follows : —
" They are all in a most repulsive form—there is no classification ; but they are huddled together in the most complex fashion . It is part of the common law of the land that there cannot be a single stop in a statute , and , though you see them printed with stops , I have heard it argued that if the stops were in different places a different meaning would attach , and that the stops must be disregarded altogether . This , surely , is hardly a creditable state for our statutes to be in . Then , again , the style in which
they are couched is most perplexed . You will see enormous sentences occupying a whole quarto sheet , unbroken by a single paragraph or division . The result is really deplorable . By one of the fictions of law the judges are supposed to be acquainted with all the law , both written and unwritten . To suppose that they really do know anything like all these statutes is absurd . No human mind could master them . What has been tho consequence ? Enowledge is impossible , and therefore ignorance has ceased to bo a disgrace . "
With this enormous mass of acts he proposes to deal . By analysis , be has found that nearl y three-fourths of the whole 20 , 000 have either been repealed , or were temporary , or for personal , local , or private purposes . For example , taking the number of statutes for three years , in the reign of George III ., he computes that out of 109 statutes , 20 only remain in operation , in one instance ; 8 out of 107 , in a second ; and 34 out of 108 , in a third . Tins gives only one fifth of the whole mass passed in those years ; but ho calculates that there may be one-fourth on the statute-book which would require to be dealt with . Nor does be tbink the work
so difficult as it appears . " What I propose is to take a very Bimple course , and it is this : —I think I may be able to secure the services of Mr . Bollendon Kerr , one of tho formor commissioners , to act under my own immediate superintendence , having , further , tho co-operation of two or three gentlemen well skilled in tho subject , and whom I shall , as it were , retain in tho case , to give their whole time to it . I do not propose for them to inquire- how tho thing is best to bo done ; but tho course I contemplate is to say to them , — ' Gentlemen , first of all complete that which has boon already done up to tho roign of Queen Anno , and mark evory statute that is now in forco , bo that wo may know precisely of what the statute law at this moment consists ; and then distinguish what of Miohostatutes is of a local or temporary character .
I next propose to direct thorn to rodueo tho statutos upon a particular subject into one statute , and , in so doing , not necessarily to adopt tho order which they may find in tho statute-book , or the language of tho utatuto book , only , whero any particularity of language has led to particularity of construction , I Hhall instruct thorn to report tho special caso to mo , and I will endeavour to huvo tho languago to bo adopted , upon mature consideration of such construction , rendered clear and intelligiblo ibr future reference . Ah 1 watch tho progress of tho work itsolf , ideas will doubtless develop themselves from tho work itsolf , which will untiblo nio to carry tho undertaking to a auconuiiUl and satisfactory inmio much moro effectually than any abstract references or inquiries addressed to commissions or to learned individuals . "
Those , then , ure bis propositions for continuing' tho work of reform . If they fall short of expectation , ho replies that he bus dono his best . It would have been Hcumlnlous had ho accepted tho groat weal without feeling competent to perform its duties . This will bo a work of which ho will novor bo ashamed . He may nntioipnto larger results than will ensue ; thero is moro or less of exaltation , and romance in tho mind of every
Untitled Article
172 THE LEADER . [ SATtrcsAtf ,
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Citation
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Leader (1850-1860), Feb. 19, 1853, page 172, in the Nineteenth-Century Serials Edition (2008; 2018) ncse.ac.uk/periodicals/l/issues/vm2-ncseproduct1974/page/4/
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