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cases, it is far easier to destroy than to reconstruct, — to point out defects than to discover the fitting remedies; and it is consequently with diffidence approaching to timidity, that we offer to the reflecting public the following suggestions.

We propose that practically a new court of ultimate appeal shall be established, consisting of two chambers, the one taking cognisance of writs of error, the other of appeals; that the law lords shall be ex officio members of this court, and shall be assisted in the one chamber by the Common Law Judges, and in the other by the Equity Judges; that the law lords alone shall be entitled to sit as presidents in these chambers, but that each judge shall be authorised to vote in judicio; that no member of the court, from whose judgment a writ of error is brought, and no Equity Judge whose decree is the subject of appeal, shall attend this tribunal, unless such member or judge be a Lord of Parliament; that at least seven of the Common Law Judges, and three of the Equity Judges, must attend each sitting of the respective chambers; that writs of error and appeals from Ireland, and appeals from Scotland, shall be determined in one or other of these chambers, according to the subject-matter of the dispute; that the Court shall be permanent, and shall be empowered to sit during each term a sufficient number of days to keep down effectually the arrears of business; that all unnecessary costs shall be abolished; that printed cases shall no longer be required; and that the taxing officers shall be directed to allow only such fees to counsel and attornies, as are at present considered reasonable for attending the Court of Exchequer Chamber. Of course appeals and writs of error will still be nominally brought in the High Court of Parliament, but would be virtually decided by the new tribunals.

We are aware, that, in proposing these alterations, we shall startle some few of our readers, who have been wont to regard

the jurisdiction and authority of the House." And in 1842 Lord Campbell brought in a Bill for allowing the House of Lords to sit and hear appeals and writs of error during the prorogation (but not during the dissolution) of Parliament, and summoning the Equity Judges, and the Judges of the Prerogative Court and High Court of Admiralty, in the same manner as the Common Law Judges; the intention being to make the House of Lords as efficient in numbers as the Judicial Committee of the Privy Council. It is only fair to observe that Mr. Lynch, now one of the Masters in Chancery, in a pamphlet published by him in 1836, was the first to propose most of these reforms.-EDITOR.

with undefined reverence the judicial supremacy of the House of Lords; but we would humbly remind such persons that, in reality, we are not seeking to deprive the collective members of that House of any substantial power. It is indeed perfectly true that the constitution recognises no distinction between lay and law peers, but that every Lord of Parliament has an inherent right to vote on every legal question that is brought before the court of last resort: but it is equally true, as was solemnly admitted by Lord Wharncliffe and the other lay peers in O'Connell's case, that, in practice, the judicial duties of the House of Lords are exclusively discharged by those peers, who have risen to eminence in the profession of the law. If this were not the case, the High Court of Parliament would not only, in the language of Lord Brougham, “be one of the most absurdly framed judicatures in the world'," but, in our opinion, its very existence, as a court of justice, would not be tolerated by the people of this country for a single session. We cannot, then, imagine that the lay lords would entertain any serious objection to the relinquishment of a power, which they do not in substance possess, or that they would regard the change as calculated to diminish their collective or individual dignity in the slightest degree. The law lords, no doubt, would be called upon to make a trifling sacrifice of authority, but ambition must be made of selfish stuff indeed, if they would not cheerfully acquiesce in a measure, the practical advantages of which they are best capable of appreciating. In proposing that the superior judges of the land should have co-ordinate power with the law lords in the court of last resort, we are probably only advocating a return to the practice of former ages; for although, during some centuries, these learned persons have attended the House of Lords simply as assistants, or, at best, as advisers, it would seem that, in the early periods of our history, they enjoyed the privilege of voting on the judgments to be pronounced. Such at least was the opinion of Lord Hale 2, who is no mean authority; and without giving to the circumstance undue weight, it will certainly go far towards satisfying those persons, who, being attached to old forms simply because they are old, will perhaps urge, that, since the House of Lords has 1 Speeches, iii. 449. 2 Hale's Jurisd., 59.

been acknowledged for a thousand years as the last resort of litigants, its judicial powers cannot now be entrusted to another tribunal without manifest danger to the constitution.

It is obvious that, if this change were once effected, justice in the last resort would be administered with far greater expedition and far less cost than at present; and it is almost equally certain, that, as the Court would be more readily accessible to suitors, and as the judgments would be founded on the aggregate opinions of the soundest lawyers of the day, the decisions would be more numerous, more likely to be sound, and much more satisfactory to the public, than those that could be pronounced by any other Court. It must always be remembered that the splendid talents of which the public has now the benefit in the House of Lords cannot be depended on, and their combination is in fact accidental. Our recommendations of course point to the establishment of a Permanent Tribunal. If then these results may be reasonably anticipated from the proposed alteration, we shall be justified in suggesting another amendment of vast importance. Writs of error, at present, lie from the Common Law Courts to the Exchequer Chamber, and appeals are brought from the decrees of the inferior Equity Judges before the Lord Chancellor. Thus, it is only after a second hearing of the respective causes, that recourse can be had to the court of last resort. Now we question the expediency of this mode of proceeding, and we humbly submit that these intervening courts of error and appeal should be abolished. If after two solemn hearings before Judges of competent experience and knowledge, substantial justice cannot be effected, it is in vain to hope that any further investigation will be productive of any practical advantage to the suitors. Wealthy and dishonest litigants, indeed, who are conscious of the weakness of their cause, may rejoice in any plan, that will legally enable them to ruin their opponents, or force them to accept an unjust compromise; but the public entertain very different views on this subject, and we are persuaded that no change in the law would be hailed by them with such universal satisfaction as that, which, by confining suitors to a single appeal, should carry out the old legal maxim, "Interest reipublicæ ut sit finis litium."

In our last Number1 we dwelt at length upon this highly important subject, and we complained, or rather we echoed the

1 We should here observe that the account which we gave in this article of the course pursued in Edinburgh on obtaining the degree of Advocate related rather to a bygone time than to that which obtains at present. In the present day the party claiming to be admitted as an Advocate is not obliged to bring any certificates of his having attended any lectures, either on Roman or Scotch law, either in "the University of Edinburgh or in any university whatever. There is now no such thing known in the University of Edinburgh as distinct courses of lectures on the Institutes of Justinian and on the Pandects, although the present excellent and most zealous Professor of Civil Law in that university endeavours, as far as the limits of the session permit him, to introduce his pupils to a knowledge of the Pandects along with the more particular and severe study of the Institutes; and no lecture on any branch of Roman law is now delivered in Latin.

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Formerly, also, the examinations might with some justice have been described to be Nor real examinations, precisely in consequence of the "very bad practice " alluded to of informing the candidate beforehand of the particular title in which he was to be examined. But of late years the examinations have ceased to be ceremony and from," partly because the examiners are strictly prohibited from informing the candidate on what titles he is to be examined, and partly because all examinations are now conducted in English. Nor is there now any limitation of the prescribed preparation to any number of titles of the Civil or of the Scotch law. On the contrary, the candidate must stand an examination on the whole of Justinian's Institutes, and on the whole of Erskine's Institutes of the law of Scotland; and the English reader must remember that there is an interval of a year between the Civil and Scotch law examinations. As to the Thesis, a correspondent, who evidently speaks from personal experience, writes "As these productions are never looked at by the profession except to ascertain to whom the Thesis is dedicated, the young lawyer VERY SELDOM INDEED is the real author of his Thesis. If you had the opportunity only once of witnessing the distribution of the Thesis, which, fresh from the hands of the stitcher, and radiant with gilt-edged leaves, is presented by the candidate propriis manibus to every member of the bar as he enters the court at nine o'clock, and of observing, how, ten minutes afterwards, the suppositious first-fruits of legal erudition, crumpled, soiled, and tattered, are feeding the stoves and littering the floor of the Outer House, it might pleasantly produce a conviction that this very Thesis teaches betimes "the young lawyer" with us the value of the maxim "Qui facit per alium, facit per se.” — En.

to us,

We may also take this opportunity of making some further observations on those mystical letters LL. D., which are explained in the same article, p. 146., to signify Doctor in the Civil Law. We have thought it due to our readers to examine more particularly into the grounds of that explanation.

We first find the term Legis Doctor, or Legis Magister, used in the eighth and three following centuries to signify a judge, or other person learned in the admiVOL. I.

A A

universal complaint, that there is in England, and in England alone of all European states, no provision whatever made for

nistration of the law; as in the following, among many other documents, by Pepin, A. d. 751; by Hilderadus of Milan, A. D 853; by Otto the Great, A. D. 964; and by Pope Leo IX., A. D. 1049. (Savigny, i. 470, 471, 472.) 1RNERIUS, who first gave celebrity to the school of civil law at Bologna, about a. D. 1115, appears to have been only termed Magister, as was VACARIUS, who first taught the Roman law at Oxford, A. D. 1144. Shortly after this time, however, "Legis Doctor" was the designation applied to a teacher of that law, as in the case of WALFRIDUS, about A. D. 1146. (Savigny, iv. 61, 62.)

Long prior to this period "Professores Utriusque Juris" are mentioned, in a document of the year 689, among the counsellors of King Alan of Bretagne, which terms are supposed to have meant persons skilled in the Roman civil law and in the canon law. It was not, however, until after the latter law had been systematized by GRATIAN, A. D. 1151, that we find it taught in the schools, and brought into competition with the study of the civil law. The laws of the Church had been first termed Canones, to distinguish them from the temporal laws, which, in the middle ages, had generally obtained the appellation of "Leges." The Canones, on the other hand, were digested into three books, called Decreta, now better known by the singular Decretum. About the end of the twelfth century the teachers of this systematized canon law began to be called Decretorum Doctores, in contradistinction to Legum Doctores. (Savigny, iii. 207.) At first the schools of the Legum Doctores and those of the Decretorum Doctores were entirely separate; but at length one BASIANUS, a canon of Bologna A. D. 1197, taught both systems. His example was afterwards followed by others; and though some learned persons were distinguished as civilians only, and some as canonists only, yet there were others equally celebrated in both laws, and called "Doctores Utriusque Juris."

The dignity of Doctor was perhaps assumed at first by the teacher himself, or given to him by his scholars; but eventually the universities in Europe generally assumed to themselves, or received from the pope, the exclusive privilege of conferring this among other degrees. So early as A. D. 1150 we find Thomas à Becket mentioned at Oxford as 66 Legum Doctor" (Reddie, 40.), which, if abbreviated, would be LL.D., the two L's implying plurality: and it is certain that this could only have meant Doctor of the Civil Laws, because at that time the Decretum was hardly published, and Doctorates in the canon law were unknown til long afterwards. In 1417, however, Archbishop Chicheley thus enumerates the doctorates of the Universities of Oxford and Cambridge: :1. Sacra Theologiæ.

2. Decretorum.

3. Legum.

4. In Medicinis. —(Lyndwood, Const. Prov. p. 71.)

It is clear, therefore, that at that time LL. D. was the appropriate designation of a Doctor of the Civil Law, and D.D. of a Doctor of the Canon Law; and thus matters stood till the time of the Reformation. But as great part of the canon law had been framed purposely to support doctrines and pretensions of the Church of Rome to which the government and reformed Church of England were opposed, King Henry the Eighth, in the year 1535, issued a precept to the Universities of Oxford and Cambridge, prohibiting them from granting degrees in the canon law. That precept, however, in no manner