Lord Broughamrose to move, that the Borough Courts (Rules of Proceedings) Bill, be committed, which enabled him to introduce a subject to the attention of their Lordships of very great importance, and to which he had to beg, not only the attention of his noble Friends behind him and other noble Lords, but more particularly his much esteemed and noble Friend near him. He knew, that a noble and learned Friend of his, not then in his place, also felt very much on this subject, and intended to state his opinions upon it. That noble and learned Friend might differ from him on some minor points in reference to the question now about to be discussed, but substantially they agreed with each other. The importance of this subject arose from the great number of bills now before the House, though not a greater number than 895 usually came before the House for the same purpose, namely, to give to particular local circuits and districts, Local Courts. He found there were twenty-one of those bills now before the House. Some were for the purpose of establishing what were called Courts of Requests, and others Small Debt Courts—but all substantially for the same purpose. Some of them were for places whose importance would seem to justify the passing of some such measures, but others were for other places, the population of which, was so extremely small, and the importance of which places was so inconsiderable, that he was by no means prepared to say such bills should be passed for those places. For instance, his noble Friend opposite (the Earl of Devon), had presented a petition that evening from a place called Kings bridge, praying to have such a bill, and which place he had never heard of before. There were also several other places, such as Hatfield, Glossop, Liskeard, Pontefract, and so on; some of which places were very insignificant and scarcely ever heard of; and it was proposed to establish Courts of Local Jurisdiction in those places, confining the proceedings to certain circuits, and those circuits entertaining causes of debt to a certain amount. So much for the general feature of the case, which consisted in the number of those bills, and the trifling importance of the places for which it was proposed they should be passed. He had now to state to their Lordships very strong arguments against these bills. In the first place, they were in their operation partial—they were varied—they were governed by no one principle, and almost in every one of them the principles were different. There was every variety of detail in the jurisdiction—in the machinery—in the guards provided—in the influence and patronage, and other particulars in which he need not trouble their Lordships. There was, consequently, a series of enactments in which not only no uniformity prevailed, but no well-considered principle adopted by the Legislature was applicable to them, even with certain local modifications which might be deemed necessary. But that was not all—he observed that great as was the variety that governed the frame work of these measures, in no one view of the case were they likely to confer a benefit upon the communities for which they were intended. Then there was a good deal of patronage—three or more 896 officers were to be created by these bills; and from their nature, they were much more likely to be holden by, to have the ditties executed by, and the emoluments bestowed upon, persons connected with local interests, persons connected with the place, persons who had never seen the light of Westminster Hall, who lived in the country, having a connection among the local authorities, and likely to be influenced by them. If, then, the establishment of these Local Courts had a tendency to open the door to jobbing (and he thought he was not using too strong a phrase), it would be for their Lordships to consider whether they were measures which ought to be entertained. There was another circumstance that struck him (he was merely running over the heads of his objections), and it appeared to him to be one of the reasons why these bills were so rife. When they saw places like Glossop, Liskeard, Hatfield, and others less known, seeking for these bills, they naturally asked did the demand come from the suitors? There was one class of suitors from which he believed they proceeded—the tradesmen and shopkeepers, and observe for what. Not because justice was thereby to be got cheap—not because it was brought home to their own doors—not because it was speedy in its operation, but because the Commissioners of those courts were whom? The shopkeepers themselves. Every one of those Local Courts, and that was another circumstance, not a variety distinguishing one from another, but an identity making all of the same feature—every one of those courts had for its judges a page and a half of names much more obscure than the places themselves. The shopkeepers of those places were to be the judges, of whom five in one, seven in another, fourteen in a third, and three in a fourth instance, were to be a quorum. And now observe what followed. He did not say, that it was a practice for the Commissioners to try their own cases. But this was done. A. B. C. would sit to-day, and try the causes of D. E. F., then to-morrow D. E. F. would sit, and try the causes of A. B. C. So that there was a constant tendency in favour of the plaintiffs. Even where an assistant barrister presided, the case must ultimately come for decision to the Commissioners, who were the jury. He hoped there was an intention to pass a general bill upon the subject. Some persons 897 thought it was wrong to establish these courts at all. He was of a contrary opinion. But by continuing to establish these courts, a host of local interests was raised up against the general measure which might be hereafter introduced. The Ecclesiastical Courts Bill had been prepared with the assistance of the most learned ecclesiastical and equity judges—but it had never yet passed. Why? Not because any of its promoters had altered their opinion respecting it;—but because there were local interests in almost every part of the country enlisted against it—that is, in every district where a court was established, there were persons whose "occupation would be gone," if the general measure passed. And just so was it with the local courts. He had brought a bill respecting those courts into their Lordships' House, and it was lost only by one vote. He confessed, that he regretted the loss of that bill. He hoped that he should see another of the same nature passed. No one would, with more cheerfulness, surrender the question into the hands of the noble and learned Lord on the Woolsack; who had, if not more information, greater opportunities for acquiring information regarding it than he had. And the measure would come with much higher authority from the Government. He hoped and trusted he should live to see the bill in operation. It had been stated, in a speech from the Throne, to be the Royal wish, and one more worthy of being mentioned in the Royal Speech, there could not be. It was stated by his late Majesty, that he hoped to see speedy justice on moderate terms, and with reasonable and safe dispatch brought home to the doors of every one of his subjects. He need not tell their Lordships the infinite advantages that would be derived from local jurisdiction. The people would have, in the first place, cheap justice; in the second place, they would have swift justice; and in the third place, they would have, which was not less valuable, constant justice, that was to say, constant access—not twice a year only, but constant access to the judge. No measure would more deservedly obtain the thanks of the people than such a blessing as that. Another great benefit that would be derived from the establishment of those courts would be, that they would be able to transact many important matters, which, at present, for want of such courts, were 898 either not done at all, or very ill done, and in a way that gave no satisfaction; or done by inefficient agents, instead of by agents fully accomplished and well qualified. He would refer particularly to the police, the origin of which police was to be traced to times when the agricultural population was thinly scattered over the country; manor courts were then established, high constables and petty constables appointed. The prevention of crime, the seizure of offenders, would be greatly aided by the establishment of such courts as these. It hardly required any observation from him to satisfy their Lordships of that important fact. The establishment of a rural police, which he believed was in contemplation, could not be established satisfactorily, or even with safety to the liberty of the subject, without also establishing, at the same time, and in harmony with it judicial courts. How much better it would be, that the population should have constant access to a good local criminal judge? His noble and learned Friend (Lord Denman), the first criminal judge of the land, so far from being jealous of the establishment of such courts, was convinced that they would prove a blessing to the country. According to the present law, a boy of ten years of age, for stealing a few apples, might be sent to prison by a zealous magistrate; and though his punishment might be, after trial, only a few weeks or days imprisonment, his imprisonment before trial might extend to three or four months, in the company of accomplished felons. He went to gaol, a poor boy, and left it either an accomplished felon, or with an education to fit him for it. The establishment of local courts, such as he contemplated, might also be made auxiliary to proceedings in equity. Much delay, expense, and vexation might be avoided, if, on disputed points, an order was sent down from Chancery, directing that issue should be joined in the court attached to the locality, instead of having it tried in town. There were, he conceived, other branches of equity which would be benefited and assisted by such an arrangement. Many of the inquiries in the Master's-office might, for instance, be sent down to these courts. He should wish that their Lordships would bear in mind that in what he was saying, he by no means wished to undervalue the services of the Masters in Chancery. They were, in fact, the organs of action of the 899 Court of Chancery. They were the trial by jury of that court. By a bill which he had brought in, he had done all in his power to raise the Masters in Chancery, by placing them on the footing of the judges of the land. His intention was, that they should be as a protection thrown round the Great Seal, and in his appointments to that office he had never made men Masters in Chancery, because the place was a comfortable one. He had never appointed an individual a Master in Chancery, because the place seemed fitted to him, but because be was fitted to the place. As to the idea of any other person applying to the Chancellor, or speaking to him on the subject of such an appointment, he would say, that it would be as great an insult, as great an injustice, and as great a prostitution of power, to allow this, as to allow a person to speak to the Chancellor on the appointment of puisne judge; and during the time that he held the Seals he had recommended persons to the Crown for the appointment of puisne judge even before the Prime Minister had been informed of the recommendation. As far as regarded this measure then, he did not mean to cast any doubts on the utility of the office of Master in Chancery, but he considered that these local jurisdictions might in many instances more effectually perform the functions of the Masters. He would now draw their Lordships' attention to what he conceived to be the necessity that existed for the creation of the office of Public Prosecutor, or of some office analogous to it. Had their Lordships witnessed the circumstances attendant upon trials conducted by a public prosecutor, the great advantage that the judge, the suitors, and all concerned, derived from the assistance of that officer—the great advantage derived by the prisoners also, in consequence of none but proper bills being preferred, they would agree with him in opinion as to the great importance and advantage to be derived from the appointment of a public prosecutor. He was sure that the Central Criminal Court, the jurisdiction of which extended over upwards of two millions of persons, afforded an admirable opportunity of trying the establishment of a public prosecutor upon a great scale. That court had been found to have effected admirably the purposes for which it was intended. A public prosecutor had, in his opinion, become absolutely necessary since 900 the Prisoners' Counsel Bill had passed, because, in a case where the prisoner employed counsel and the prosecutor did not, the judge who was said to be the prisoner's counsel could hardly do his duty without a little bending on the side which had no counsel, in order that the case might spring into an upright position. In such a case, without a public prosecutor, the judge would be placed in rather an invidious position; and without some plan of the sort to which he had referred was established, justice could not properly be administered. The establishment of Local Courts upon some just foundation would give, in his opinion, great facilities to the administration of justice. A public prosecutor had been found to be of great benefit in the places to which he had referred in the administration of justice, because he believed it had been always found that Grand Juries, with their divided responsibility, had never proved so effectual as a public prosecutor, with his undivided responsibility. He trusted, that their Lordships would excuse him for having occupied so much of their time, but in a case of such great public importance, he considered it his duty to state to the House what his opinions were upon the subject.
§ The Lord Chancellorsaid, that he entirely agreed with his noble and learned Friend so far as he had pointed out the necessity of having established some well-connected rules and principles for the formation of these courts. He felt persuaded, that nothing could contribute more to the proper administration of justice, than some well-regulated established principles on this subject. Many propositions had been stated by the noble and learned Lord which could not be controverted. So great a deficiency in the several local districts of carrying into effect what ought to be done, both with regard to the civil and criminal jurisdiction, and the multitude of applications brought up for bills, showed what was wanted. It was true the business was sometimes done by local acts, but it was only done partially, and not in a way to effect the due administration of justice. Many of those courts were presided over by commissioners, and unless they had some superior authority over them, such courts were productive of anything but justice. The means of recovering debts cheaply and speedily were but a small 901 part of the benefit to be derived by the community from having a well-established, well-constituted system of local courts. With respect to the courts of Equity with which he, the Lord Chancellor, was more particularly conversant, nothing could be more inconvenient, and nothing more defective, and nothing more expensive, than the course at present in existence of carrying into effect the every-day proceedings of a Court of Equity. To take as an example a matter of lunacy, which, though it might not strictly be considered as a proceeding in the Court of Chancery, yet was a proceeding before the Lord Chancellor; if a commission was to be executed in the country, that commission was merely granted by the Chancellor; but there was no person that he could appoint, or that he could direct, to preside over the execution of the commission. It was necessarily, therefore, directed to commissioners, and whether those commissioners should be well or ill selected depended a good deal on those who were prosecuting the commission. This proceeding was attended with great expense; and it was not known who the persons might be, who should preside over, perhaps a long trial—a trial which would incur great expense, and upon the result of which investigation the fate of an individual, as far as his liberty was concerned, depended. There was no local authority that could be appointed by the Chancellor to govern or preside over such a trial. Then again, as regarded examining witnesses in equity, it was not according to the constitution of that court to have witnesses brought up to London to be examined to save expense, as it was supposed a commission was granted to examine them in the country. But whose duty was it to examine them there? Why nobody was appointed for that purpose, and therefore again commissioners were employed? Then as to taking an answer in the Court of Chancery: there was no person regularly appointed to do that. In short, everything that was to be done, relating to the business in the country, in the Court of Equity was to be transacted by parties selected there—always at great expense—and through them a multitude of the business of the Court of Equity necessary to be transacted was transacted. He would not advert to the criminal jurisdiction. He did not apprehend their Lordships would entertain any doubt, that it was 902 expedient that the criminal administration of justice in this country should be much more frequent than it had been. He did not undervalue the duties of the magistrates of the counties, but if it were necessary, that the criminal justice should be more frequently administered, it could not be expected, that gentlemen would sacrifice the whole of their time for the purpose of trying prisoners and discharging the gaols. Those subjects had been matter of discussion, and their Lordships were aware, that in the course of the last Session, a bill was brought into the other House, but which did not reach their Lordships' House, intended to remedy that evil. He had heard but one objection to such a proposition, and that was the expense. But let them take the administration of criminal justice, and they would find, that if the sessions were only four times a-year, the expense would be much increased, inasmuch as the criminals must remain in prison for one or two months, or at the very least for some weeks. The great object was (independently of the inconvenience and injustice of keeping men in prison untried for any length of time) to lessen the expense of the support of these prisoners. That charge fell principally on the counties; but if any local judicial authority were established which held its sittings continuously, that expense would be altogether avoided. If they had an officer in the country who would execute all the duties growing out of the Court of Chancery, they would thereby save the suitors much of the expense they were now subjected to, and effect a great public good. In such a case they were not to take into account only the increased charge on the country, but how far the community at large would be benefited. It was impossible to enumerate the multiplicity of affairs which might be discharged by such an officer. The first object was, to see such an officer established, and if established, there would be no difficulty in finding business for him. The great difficulty would be to find an officer capable of transacting all the business that would be thrown upon him. He had been anxious to have such an officer, and was glad the subject had been taken up by his noble and learned Friend, and brought under the notice of their Lordships, because he deemed the establishment of such an officer of public benefit.
§ Lord Abingersaid, that when any specific measure should be brought forward in reference to the subject which the two noble and learned Lords who had just spoken, had submitted to the consideration of the House, he should then be prepared to discuss it; for he thought that that would really be the proper time for the discussion. In the meantime he must protest against any general declaration of opinion being taken to bind him to the approval of any particular measure that might be introduced. He must be permitted to say, that nothing was more easy than to find fault with existing institutions, for it was impossible for any human institution to be perfect; but before they destroyed what existed, they ought to consider well the advantages of what they proposed to substitute. He recollected, some few years ago, to have heard, in the House of Commons, most eloquent declamations uttered against the existence of local jurisdictions, until at last the House of Commons was schooled into their abolition. That, however, passed some time ago, and now it seemed that the period had arrived when all that was then done must be undone, and local jurisdictions again be established. Without at all denying, that there might, under the present system, arise expenses to suitors and other persons, which, under a new system, might be got rid of, he nevertheless thought that the establishment in each county of judicial tribunals to try causes would create great inconvenience, from the diversity of their decisions, and would finally raise a clamour in the country against the system. A fashion had now begun, too, of making the institution of grand juries a topic of declamation. For his part, he must say, that he never would consent to the abolition of grand juries. He was of opinion that the institution was of the greatest benefit to the country. It brought the people in daily, nay, hourly, connexion with the administration of justice; and nothing could be more advantageous for the security of property and life, than that the magistrates of England should frequently intervene in the administration of justice. It was now said, that the administration of criminal justice was not so frequent as it should be in each county, and that therefore some new judge must be appointed. Whether there might not be an advantage in having a judge to preside at quarter sessions, he 904 was not prepared to say; but he protested against the cry, which, ascending from low to high quarters, was now beginning to prevail, that the interference of the people of England in the administration of justice should be dispensed with; for, whatever inconvenience or expense might attend the existing system, the advantages greatly outbalanced, in his opinion, the disadvantages. He thought that the jurisdiction of the county magistrates ought to be upheld and encouraged, instead of weakened or destroyed. Of course he could pass no opinion on a measure not yet before the House; and he had only risen to address their Lordships, in consequence of the speech of the noble and learned Lord, which, however, had no connexion, as far as he could see, with the bill now about to be committed.
§ Lord Denmanexpressed his satisfaction that this Bill had given rise to the presen discussion, which he could not but consider had been of the greatest importance, because it was a subject which required and demanded the fullest and most complete consideration. He thought his noble and learned Friends pad stated defects of considerable magnitude, and he did not think the remedy was ever thought of until those defects were made known as a grievance among the public generally. He did not think the present was an occasion on which he ought to give an opinion of his own as to the remedies to be applied to those serious grievances. He was disposed to think, without pledging himself to any particular measure, that this bill did not interfere, in any degree, with any plan which might be devised for the future improvement of the administration of the law. By the Municipal Corporation Act, the right of regulating and approving of such rules as the judges of the inferior courts might recommend was given to any three of the judges. A Committee of the Judges had met last term, and the result was, a bill had been prepared, which he would have the honour of laying before their Lordships. That bill would be applicable to courts in general, and it proposed that every action in the inferior courts should commence by writ of summons, and that there should be frequent holding of those courts. He did not think any objection could well be made to the bill, but he had no doubt, their Lordships would, under the circumstances, think it ought to be received.
§ The Earl of Devonsaid, they were not called upon to decide whether the officer proposed by the noble and learned Lord should be appointed. He was an old chairman of Quarter Sessions, and he was sure that the magistrates would not stand in the way of any improvement of the law. The subject of the trial of offenders came under the consideration of a Committee of their Lordships' House last year, and he had been directed, as their Chairman, to submit a bill to their Lordships, and he had only forborne presenting that Bill, by finding, on the Votes of the other House, that the noble Lord, the Secretary for the Home Department, had given notice that he should bring the subject before that House. He thought that, concurrent with this bill, they ought to have regard to the question of the summary conviction of offenders.
§ Lord LangdaleAlthough there may be some irregularity in this incidental discussion, I am very glad that it has taken place, because I cannot help hoping that some public advantage may arise from the various suggestions which have been made. I do not mean to trouble your Lordships by discussing or expressing any opinion on the general question of Local Courts, but confining myself to that part of the subject with which I am most familiar, I hope I may be excused for expressing my opinion that for facilitating proceedings and inquiries in the Court of Chancery, there is great need of local authorities both ministerial and judicial. The jurisdiction of the court extends over the whole country, and many things are to be done personally by persons required to obey the orders of the court. When a defendant has appeared he has to put in his answer. In London, there are proper authorities to receive the answer with the sanctions required—but all defendants cannot come to London, and in the country there are no permanently constituted authorities by whom the answer can be taken; and to supply the defect, it is necessary to create a competent authority on each occasion by commission; and when the answer is taken by such authority, there are no regular means provided for its conveyance to London: the party is to find a messenger who will carry it to London, and swear that he received it from one of the commissioners, and has since kept it in his own possession; and, notwithstanding the difficulties which sometimes occur in getting this done, the party is held to be in con- 906 tempt if he does not perform it in a limited time. Again when witnesses are to be examined, there are proper officers established to perform that duty in London, but none such in the country, and this defect has to be supplied by creating an authority for each occasion, or in other words by issuing a commission. And the commissioners, who are not always the most competent persons, have too often the means of making the execution of the commission subservient to their own convenience or pleasure. Great unnecessary expense is occasioned to the suitor, and when the depositions are taken, a messenger is to be found to convey them to London. Besides these, there are many other ministerial duties connected with the proceedings in Chancery, which must be performed in the country, where there are no permanent or regular authorities provided to perform them; and I cannot help thinking that the suitors and the public have great reason to complain, that a remedy is not found for defects which can hardly be considered otherwise than as grievances. What reason can be given why officers should not be provided to enable suitors living at Carlisle, or Liverpool, or in Cornwall, to swear their answers and examine their witnesses in their own neighbourhood, and have their answers and depositions officially conveyed to London? I have never heard a reasonable objection to such ministerial duties as I have referred to, being intrusted to permanent local authorities. Various ministerial duties are intrusted to local authorities created for each occasion, and there seems to be no reason, why they should not be intrusted to local authorities created for all such occasions, and steadily subject to the authority of the court in London. But I go further, and. think that other duties having more of a judicial character, might well be intrusted to such local authorities. When long accounts are to be taken between parties resident at Liverpool, and all the books and documents which relate to the subject, and are often very numerous and bulky are at Liverpool, and all the witnesses who know anything of the matter are also there, why are every body and every thing necessary for taking and verifying the account to be brought to London? My Lords, I am persuaded that such regulations might be framed, and such a system of control established, as would make it perfectly safe and satisfactory to the suitors, and a great saving of expense, to have many operations of this 907 kind, and many important inquiries, conducted in the country—but for this purpose you must have competent authorities; and I rejoice at the discussion which has taken place to night, in the hope that it may lead to such authorities being provided.
Lord Broughamconcurred with his noble and learned Friend who had just sat down in the satisfaction he expressed at the question being brought under the notice of the House, and he believed that be was perfectly regular in his proceedings, as he had given notice of his intention to make the statement last night, and he was happy in any way to be the instrument of stirring such a question, and calling their Lordships' attention to it. He had heard the speeches of his noble and learned Friends, and it filled up the measure of his self-gratulation to find that they agreed with him that some change was necessary. Allusion had been made to a speech delivered by him in the other House, and he was proud to say, that in looking over the points of that speech, he found that only one recommendation contained in it was not now the law of the land.
§ Lord Abingerhad not made any allusion to the speech of the noble and learned Lord; he had said, that he had heard long and eloquent speeches in another place upon the subject, but he had not said that it was from the noble and learned Lord.
§ Bill went through Committee. Report to be received.