a restoration of what was, in the opinion of Lord Hale, (Jurisdiction of the House of Lords,) its original constitution. If, however, this change should be thought too great, we still think that at least the Chancellor should, while the House is sitting, give his whole attention, with the exceptions above mentioned, to the discharge of his duties as president of that court, and that no other person ought to take any share in those duties. It follows of course, that if the Chancellor's time is occupied as above proposed, he cannot perform any duty as an original Judge in the Court of Chancery during the Sessions of Parliament. Nor do we think it at all desirable that he should do so, either then or at any other time. It would be much better that there should be two Judges holding regular morning sittings in the Court of Chancery, than that, as is now the case, the Vice-Chancellor only should sit regularly in the morning, and the Master of the Rolls a few evenings in the week, while the Chancellor avails himself of the intervals left open to him by his other duties, to hold morning sittings of occasional and irregular occurrence, and uncertain length. We concur, then, in Mr Miller's opinion, that the Master of the Rolls ought to sit at the same times as the Vice-Chancellor, and that if he so sits,"he ought to be released from his attendance upon appeals before the Privy Council. The part which he ought to take in the proceedings of the Privy Council as a court of justice, has never been sufficiently defined. His presence there at all is entirely optional, and he himself hardly knows how much attendance he ought voluntarily to give, nor how much his Majesty's Ministers have a right to expect. The continuance of such an arrangement does not seem to be on any account desirable.”—p. 54.

The Master of the Rolls and the Vice-Chancellor, then, having neither of them any official duty to perform which could interfere with the devotion of their time to their respective courts, and being completely independent of each other, the uninterrupted attendance of a portion of the Bar might be secured to each of them, as the nature of their functions would exclude the objections which have been urged against a division of the Chancery Bar between the Chancellor and Vice-Chancellor, namely, that, as the Chancellor's sittings are frequently interrupted by his other duties, his Bar would have considerable portions of their time unemployed, to the great diminution of their emolument, and that, as an appeal lies from the Vice-Chancellor to the Chancellor, it is advantageous both for the suitors and the Judges, that counsel who have been engaged on the original hearing in one court, should also attend in the other upon the appeal. But, as between the Master of the Rolls and ViceChancellor, such a separation might be effectually enforced, as

far as it would be desirable, by a peremptory rule that no cause or motion should be allowed to stand over on account of the absence of counsel, unless upon an application addressed to the court, under the hand of such counsel, assigning some good cause of absence, which his attendance in the other equal branch of the Court of Chancery should not be admitted to be. Every suit should, at its first institution, be assigned either to the Master of the Rolls or the Vice-Chancellor, and every proceeding in it should take place before the same Judge. Lunacy should remain under the exclusive jurisdiction of the person holding the Great Seal; and whatever alterations may be made in the inferior jurisdiction in Bankruptcy, the supreme control of that branch of justice should be exercised by the Chancellor alone. He also should discharge the duties now performed by the Master of the Rolls in the Privy Council, that all the tribunals of the last resort might partake of the influence of the first legal mind in the kingdom.

Thus far we have rather increased than lessened the weight of his present labours; but our next proposition will tend considerably to lighten them. We are clearly of opinion that several stages of appeal are in the highest degree burdensome and vexatious, and where the Judge who presides in the lowest court in the series is of such high rank and estimation as the Master of the Rolls or the Vice-Chancellor, must be unnecessary. It is certainly proper that the sentence even of these dignified courts should be subject to one revision; but we would allow of only one, and that should be by the House of Lords. This regulation is not intended to exclude a rehearing before the Judge who originally decided the cause, a proceeding which may be often useful for the purpose of rectifying mistakes, or supplying deficiencies in the first judgment. But when that Judge has finally made up his mind upon the subject, nothing short of the highest authority should be suffered to reverse his decree. It is of the greatest consequence that the suitors should be able to obtain in a reasonable time, and at a moderate expense, the decision of a competent Judge upon their rights; but this once done, expedit reipublicæ ut sit finis litium, and no encouragement should be given to carry doubtful or petty claims before a higher tribunal. As the House of Lords sits during a part only of the juridical year, and the duties which we have above ventured to assign to the Chancellor would probably not occupy the whole of the time of his court during the prorogation of Parliament, we should farther suggest that the House of Lords might, upon the application, or at least with the consent, of both parties, refer any appeal to the Chancellor, whose decision upon any appeal so referred, should be final.

This plan might perhaps meet the views of those eminent persons who, in consideration of the heavy expense incurred by an appeal to the House of Lords, have proposed to allow appeals from the Master of the Rolls and Vice-Chancellor to the Chancellor, at the option of the appellant; but in such cases to make his Lordship's decision final, if it affirmed that of the court below, and to permit an appeal from him to the House of Lords, only where he reversed the original decree, or pronounced the case a proper one to be carried to the court of the last resort;- -a measure which we should consider a very great improvement upon the present practice, though we still think it less calculated to give satisfaction to the suitors, as well as less effective than that above suggested, because, under the latter, one stage of appeal must in all events decide the cause. The amount of appeals to the House of Lords, under the system here proposed, would, we think, so far fall short of the aggregate amount of appeals to the House of Lords and appeals to the Chancellor, according to the present practice, that the labours of the latter would be considerably diminished by the entire result of the new arrangement.

We disapprove of the numerous gradations of courts of error at law, as much as of the multiplied steps of appeal in equity, and on the same grounds. There is no reason, except usage, why the Court of Common Pleas should be placed under the perpetual tuition of the King's Bench. This course of appeal was wise in its first institution, when, with very few exceptions, all suits between subject and subject originated in the former court, and the specific duty of the King's Bench, in civil cases, was to correct the errors of other courts of record. Then the writ of error to the King's Bench gave the suitors an opportunity of having the judgment once reviewed; and with the result of that review it was probably expected that they would be satisfied, unless in cases of the highest difficulty and importance. So, when, in later times, the Court of King's Bench had acquired the jurisdiction which it now exercises concurrently with the Common Pleas in all personal actions, and the unconstitutional infrequency of Parliaments had left the suitors almost wholly destitute of opportunity to appeal from its judgment, the legislature, by the 27 Eliz. c. 8, provided a court of error in the Exchequer Chamber, for which the statute itself assigns the infrequency of Parliaments, and consequent delay of justice, as the reason. We conceive, therefore, that now, when Parliament is certain to sit every year, and the hearing of appeals is become a regular and important part of the business of the House of Lords, there is no good cause why the suitor should be liable to be dragged through two stages of appeal, and that

the system so happily begun in a late session of Parliament, (1825,) of preventing writs of error for the purpose of delay, would receive a great improvement, if the writ of error were made to lie from all the superior courts of common law immediately to the House of Lords.

Mr Miller's remarks on the doctrines of common law and equity are in general valuable, though his conclusions are, in our judgment, sometimes erroneous. We must content ourselves with noticing one instance on which we dissent from, and one on which we agree with him. He thinks that

"That part of the common law of England which pronounces agreements without consideration, otherwise termed voluntary agreements, to be invalid, might be submitted to re-examination."-p. 251. "That it may be fairly questioned whether the distinction which now subsists in courts of common law between deeds and agreements, ought not to receive some modification."-p. 254.

And he goes on to suggest that the sealing and delivery of deeds might be dispensed with, and signing in the presence of witnesses substituted for them. There is here some little inaccuracy of expression, as though the author had forgotten for a moment that an agreement may be under seal, and consequently may be a deed. We shall understand him, however, as he probably means to be understood, to say, first, that the law ought to enforce a voluntary agreement, though not proved by an instrument executed in legal form; and, secondly, that the form appointed by the law for the execution of those solemn instruments which are to express the final settlement of transactions, and which, supposing fraud out of the case, are to be unimpeachable as between the parties, ought to be altered. Admitting the obligation in foro conscientia of gratuitous promises, we think it would be highly dangerous for any human legislature to enforce the performance of such promises, unless they are proved by such evidence as may clearly show, not only that they were actually made,-made deliberately, and with a firm intention on the part of the promiser, according to the understanding of the other party at the time, of binding himself thereby,-but also whether they were made under any, and what conditions, qualifications, or restrictions. Now, a very desirable quality of such evidence is, that it should be in writing. We all know how liable mere verbal agreements are to be misrepresented by the mistake or villainy of the witnesses called in to establish them; so much so, indeed, that the legislature has declared, that in certain specified cases, which have been supposed peculiarly open to frauds of this description, no agreement, even though upon the most valuable consideration, shall be valid, unless reduced to writing;

and the principle of this law has been generally approved, though objections have been made to some of its details. Yet where an agreement is stated to have been made upon a matter of bargain, we have much better means of judging both of its reality and honesty, than where it depends upon mere gratuitous promise. In the former case, we are not obliged to rely wholly on the testimony of witnesses; the value of the objects alleged to have been contracted for on either side, is capable of being ascertained, and the probability of the supposed contract having been made, may be estimated accordingly. But when we come to deal with gratuitous promises, we are entirely deprived of this guide; and if the situation of the parties be not such as to render it glaringly unlikely that any promise at all should have passed between them, we are left quite at the mercy of witnesses, both as to the reality and the terms of the gift which they come forward to prove. Thus far we believe Mr Miller would agree with us, as his reasoning on voluntary agreements is confined to such as are written. Assuming, then, that the law ought not to enforce a gratuitous promise unless it be in writing, the only question that remains is, how this writing ought to be authenticated? The answer of the law of England is, by the party who is to be charged thereby, sealing and delivering it as his deed; though, as a farther security against fraud, his signature also is in many, and we think should be in all cases required, as it is in practice universally added to the seal. Now, our author proposes to abolish altogether the necessity of sealing, and to make signing in the presence of witnesses equivalent. We cannot see any good reason for this change. The act which is to authenticate an instrument must, in the first instance, be a matter of positive institution; but be it what it may, it acquires in process of time a degree of importance in the public mind, which makes every man feel that he must not do it negligently, and without due consideration of the contents of the writing to which it relates. Sealing has acquired this degree of importance in English eyes; we believe there is scarcely a peasant to be found who does not know that it is an act requiring considerable caution, and this generally received opinion of the serious consequence of this form is a sufficient reason against altering it. But supposing it to be altered, and signing in the presence of witnesses substituted; we have now a new mode of executing deeds, but the question will recur, What is to be the effect of a writing signed by the party without that formality? We have now got back again to a voluntary agreement without consideration, evidenced, indeed, by writing, but that writing not formally executed; and we have no difficulty in saying that such an agreement ought not to be en