monarch in council, but to the tribunal itself-not even the name need be retained. The Lords President and Assistant might, together with the emeriti of the profession, constitute one grand Imperial Supreme Court of Appeal.

The question is to be argued, we apprehend, chiefly on two grounds; 1st, on constitutional grounds: 2dly, the convenience to the suitors. No reasonable fears can be entertained that either one tribunal or the other would not be perfectly of competent ability to examine and decide almost any question which the wit of man could devise. But the main ground of objection is the very great constitutional changes which, it is asserted, such an alteration would effect; as first, tearing this jurisdiction from the unwilling grasp of the House of Lords; then impairing their influence and dignity by abstracting from them all that quasi imperial judicial authority; and so most perceptibly paving the way for the downfall of the second estate in the realm, and, by the same stroke, most dangerously increasing the prerogative of the crown, and retracing much of the ground towards the reconstitution of the hated Star-Chamber, which it cost so much time and energy of our ancestors to abolish, and so tending again to a revival of the struggles which turned the best blood and spirits of Englishmen to gall and bitterness.

The judicial authority of the House of Lords is often spoken of, and that by the greatest authorities, as part of the constitution of our country. Lord Redesdale, in the debate on the Vice-Chancellor's bill (1812), said, "Either this bill must pass, or else your lordships must renounce their appellate jurisdiction. Which of these is the most constitutional course, it requires no argument to point out." But with all deference, as both courses appear to us perfectly capable of being entered upon with constitutional sanctions, the one no less nor more than the other, it does seem to require some argument to point out which is the most so. The judicial authority of the House of Lords is part of the constitution of the country just in the same manner as the 107. householder clause is part of the constitution of the country, and the window tax, and the game laws; and for the same reason, and no other (viz.), because it is sanctioned directly, or by necessary implication, by the legislature in parliament assembled. Indeed, the game laws are very much older, and did at one time form an essential part of the constitution. Modern legislation has modified them; but there is no epoch in our history when there were no game laws, and at one time, under the title of forest rights, they involved the whole prerogatives of the crown and the liberties of the subject; but we can very readily point to the time when there was no appellate jurisdiction in the House of Lords, and very readily also to the time when it was exercised

in defiance of all law or custom, though most usefully for the liberty of the nation, and for the restraint of tyranny. In fact, it has not been a really lawful court for much more than a century.1 The same authority which established it can remove it with equal observance of the constitution, upon a proper case being shown. Then, it is said, this removal will endanger the existence of the House, which derives so much of its dignity and lustre `from its judicial authority. The House will certainly stand as long as it is of use; and long may it stand! But we do not think so meanly of the House, as to think that it would desire to stand merely for the sake of standing, or when all its possibility of usefulness was at an end. If it can be shown that these judicial functions can be performed elsewhere with greater benefit to the commonwealth, we will not believe the House to be so wanting in patriotism as to refuse to abdicate this power of a century's growth. Neither do we think so meanly of the House of Lords, the noblest senate of the earth, as to deem that appellate jurisdiction the noblest or most lofty of its functions. Other functions remain behind; political, legislative, social, of a higher grade surely than examining or explaining the meaning of obscure and possibly obsolete customs or sentences. Nor in fact is this judicial authority a high privilege which noble lords seem very anxious, practically, to retain,-nor is it in fact exercised by the peers generally. On the contrary, instead of a high constitutional trust and privilege, they seem to regard it as a bore and a nuisance. Two devoted peers attend in rotation under a 501. penalty; but their bodily presence is all that is required; they may divert or occupy themselves with any entertainment or business other than the dry appeal before them. One pair of peers attends at the opening, another pair at the reply; anybody, or nobody, at the judgment, at which, by nearly unbroken custom, only the "law lords" vote. So that the peers generally do in practice transfer this tremendous prerogative, the loss of which would, it is said, dim the lustre and sap the foundations of their House, to one or two of their number,-often to a smaller number than are sitting as members of the Judicial Committee. This has often been called a mockery; it is beginning to be generally esteemed to be a mischievous mockery into the bargain. It need scarcely be pointed out that to retain the practice of a mischievous mockery must detract from the

1 It was not until the year 1726 that the jurisdiction of the House of Lords on appeal was completely established. However, several acts of parliament have been since passed, which must be taken to acknowledge that the House of Lords are fully entitled to the privilege they enjoy.-C. P. Cooper, "House of Lords," Pamphlet, 1850.

VOL. XIV. NO. XXVI.

E

reputation and even endanger the existence of the House, much more than to provide for the best possible exercise of this very important function.

Then again, as to the danger to be apprehended from the overconfidence of reposing in the Privy Council of the crown as the tribunal of last resort, and the impolicy of granting so large a prerogative, which may be turned to the worst purposes of tyranny by an ambitious monarch,' it may easily be answered that no derangement of the balance of powers exhibited by our constitution is at this day to be anticipated on the part of the crown. The encroachments are all from the other side. In the course of the last century and a half, or somewhat more, we have run the entire circle of points from whence disturbance of that balance can possibly arise. The efforts towards absolute monarchy having been successfully repressed, we hope once and for ever, at the Revolution, the aristocracy in turn became predominant; but in its turn has been overpowered by the democratic element. It is certainly this latter which has since the late war gradually been increasing its relative strength, and its ambition even beyond its strength. It is not now that we can pretend to dread the assumption of arbitrary power by the monarch; it is not now that we need be troubled by apprehension of any such consequences from transferring the supreme appellate jurisdiction to the Privy Council, acting under the advice of the Judicial Committee, far less from the tribunal we propose to be established, which would in fact be composed of all those members of the House of Lords and of the Privy Council who take any part in the hearing of appeals, and of such other members as the crown might think fit to appoint; the appointment to continue during good behaviour, and the whole authority of the tribunal being derived, not from any fabulous privileges of parliament, nor from any special prerogative of the crown, but from a source which all must acknowledge to be strictly constitutional, viz. an act of parliament.

No such act of parliament, however, can at present be hoped for. Lord Langdale admitted in 1836 that the public mind was not prepared for his scheme. It is only too probable that the public mind is still less prepared now for that modification of his scheme which we have suggested. We think this would be the best; but the least eligible of all the schemes mooted since 1830, and referred to above, would be a vast improvement upon the present system, the inefficiency of which is more and more fully established by every change of Chancellor, whether from better

1 This danger is insisted on (among others) by Sugden in his Letter of 1835, and Lord Lyndhurst, 1836. See too Sugd. H. of Lords, p. 47.

to worse, or vice versâ. When an efficient Chancellor succeeds an inefficient upon the woolsack, we condemn the system which retained the other there so long; when an inefficient Chancellor is appointed, we condemn the system which places him there at all. Each of the schemes which we have mentioned has some peculiar advantage, the lack of which shows as a disadvantage in its rivals; and it is this competition of advantages, rather than the alternative of inconveniences, which makes the choice so difficult. Keeping in view the many objects in which we deem reform necessary, and the manner in which all these objects are complicated together, we think one measure might embrace them all; and that that measure is the largest, and at the same time (keeping in view the results) the simplest, which we have enumerated. But relief upon any one point would be extremely desirable; and, if we cannot get all we would wish, we shall be happy to take whatever we can get.

B.

ART. IV.-ON THE TERM HEREDITAMENT.

Lloyd v. Bacon, 6 C. B. 90.

In the N the multifarious technicology of the law, perhaps no term more frequently strikes the lawyer's eye than hereditament, yet a precise definition of it is anything but obvious. It is true, every one is aware of Lord Coke's statement, that "whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real, or personal, or mixt" (Co. Litt. 6); but the practical question occurs, whether all hereditaments must be things inheritable? And such is the absolute dearth of learning on this head disclosed in the usual books of reference, as Viner, Comyns, &c., and so little that is satisfactory is to be found, we believe, in any single book of authority in the law, that we are tempted, hoping that the inquiry may yield something of utility, if not much of attraction, to lay before our readers a more full examination of what we deem the law on this subject, than they will meet with elsewhere. The immediate inducement to this was presented by observing in the last case, we believe, in which the subject has been alluded to, and which is named at the head of this article, the following statement per curiam, "hereditament is defined in the text books of authority to signify all such things, whether corporeal or incorporeal, which a man may leave to him and his heirs by way of

inheritance, and which, if they be not otherwise bequeathed, come to him which is next of blood, and not to the executors or administrators, as chattels do," referring to Termes de la Ley ; Co. Litt. 6a; 16. Now with respect to the text books of authority, we think we may assert that no other text book of authority, except Cowell's Interpreter, and no other court or judge has ever before put forth or sanctioned the above explanation; the passage from Co. Litt. 6 a has already been cited, and as to Co. Litt. 16, all that is there said relates exclusively to the meaning of inheritance, a very different matter, as it would appear. For Lord Holt's opinion, in Smith v. Tindal, 11 Mod. 91, that hereditament is synonymous with inheritance, is said to be exploded in one text book of authority,1 and in another it is laid down to be "clear that the word inheritance will carry the fee; Lord Holt seems to have considered the word hereditament to be equivalent, but it is established that a devise of hereditaments will carry only an estate for life;" and "although the older authorities speak of incorporeal inheritances, yet there is no doubt but that the principle [that they lie in grant] does not depend upon the quality of interest granted or transferred, but on the nature of the subject-matter; a right of common, for instance, which is a profit à prendre, or a right of way, which is an easement, or right in nature of an easement, can no more be granted or conveyed for life, or for years, without a deed, than in fee simple." It is true, that the use of the word in Lord Coke's doctrine of a personal inheritance, which has been fully adopted in the courts of equity, who have held that an annuity in perpetuum, granted by Charles II. to A. and his heirs, payable out of the coal duties, though it descends to the heirs, is personal and not real property, seems to approach nearer to the true signification of hereditament; but on the whole we think no candid mind can long maintain much doubt that the two terms represent things essentially distinct. But it will show this still more clearly, perhaps, to point out expressly that things may be hereditaments which cannot of themselves be inheritances; thus a right of action has been held to be an hereditament, and held to be so after an argument to the contrary from Serjeant Williams, each of whose arguments, like those of

1 2 Powell, Devises, by Jarman, 419.

3 Wood v. Leadbitter, 13 M. & W. 842, 843. fully explains what an estate of inheritance is.

22 Jarman, Wills, 190. Seymor's Case, 10 Rep. 97 b,

4 Co. Litt. 144 b, 374 b; E. of Stafford v. Buckley, 2 Ves. sen. 178; Lady Holdernesse v. Lord Carmarthen, 1 Bro. Ch. Cas. 377; Radburn v. Jervis, 3 Beav. 450. Vid. Wms. Exors. 688, 4th edit.

5 Smith v. Coffin, 2 H. Bla. 444, 462.