DISTRICT COURTS OF BANKRUPTCY ABOLITION BILL. (Hansard, 29 June 1852)

LORD BROUGHAM

said, that he would take that opportunity of presenting two Petitions which had reference to the newly-established County Courts. The first was from a corporate body in Scotland, expressive of their satisfaction at the various amendments of the law which had recently been made in this country, and more especially at the establishment of courts of local judicature in England; and praying that the English County Court system might be extended to Scotland. As their Lordships were probably aware, there was a system of local judicature already, time out of mind, existing in Scotland; but the English system, as recently established, was much more cheap and efficient: and though in Scotland all but a very few kinds of action, and actions to any amount, could be tried before the local judicature—that of the sheriff in the first instance—yet the expense and delay were great, and the petition desired that for actions of a moderate amount the sheriff's small debt jurisdiction, now confined to 100l. Scots, or 8l. 6s. 8.d, should be considerably extended. The other petition was from an old man, crippled, poor, and uneducated, signed with his mark; who complained that he had been unjustly kept out of the possession of a small tenement to which he was entitled as heir-at-law, and that by reason of his poverty he had no means to obtain redress of the wrong he had thereby suffered, the party in possession not pretending any right, but knowing that the petitioner could not eject him, and therefore refusing to give it up; and the petitioner prayed their Lordships to extend the jurisdiction of the County Courts to cases of small value involving questions of title to landed property. Their Lordships were aware that County Court Judges could not entertain questions of title. He had already presented many petitions, praying for the extension of the jurisdiction of the 1354 County Courts to other cases, and especially to equitable matters, and to bankruptcy. He was of opinion that the time had arrived when bankruptey and certain proceedings in equity might be entrusted with safety and advantage to the County Courts, as had been provided in the original County Courts Bill brought in by him in 1830, and which so nearly passed in 1833; and it would be in their Lordships' recollection that he had last year introduced into their Lordships' House a Bill for the Further Extension of the County Courts, which contained clauses giving those Courts the jurisdiction exercised by the Masters in Equity. That Bill had been sent to the Commons, and adopted with amendments; but the prorogation had prevented it from passing their Lordships' House; and this year the Bill had been passed without the equity clauses which formed part of the Bill of the preceding year, he having consented to withdraw them until the new Bills on the Court of Chancery should pass, with which Bills it was by some feared that these clauses might clash. He trusted, however, that many months would not elapse before such an extension of the jurisdiction of the County Courts would be agreed to. The Chancery Bills now so nearly passed made this the more absolutely necessary. He further thought the County Courts should have jurisdiction in bankruptcy, as they had already in insolvency. He had, therefore, again brought in, with that view, the Bankruptcy Bill, now standing for a second reading, but which he proposed to defer until the next Session. It was hardly necessary for him to describe to their Lordships the extent of the business transacted in those Courts, or the important benefits conferred by their proceedings. In five years there had been upwards of 2,000,000 cases, involving claims to the amount of upwards of 6,300,000l. brought to these Courts. Since the extension of their jurisdiction, in 1850, there had been, out of 2,500 cases between 30l. and 50l.—the number tried in three months—only five appeals, and in only one out of these five cases had the judgment been reversed. One effect of this working of the County Courts had been the diminishing to nearly one-half the number of writs issued by the Superior Courts, and the amount of business there had been reduced in a still greater proportion. Many people supposed that because their labours had been so much lightened, there was no longer need of 1355 the same number of learned Judges in the Superior Courts; but he was of a wholly different opinion. Those Judges, besides other duties, might be well and fully employed in going oftener on circuit, in making gaol deliveries more frequently than they now did, and in trying causes which do not come within the cognisance of the County Courts. As to the effect which the establishment of those Courts might have in the lowering of the profession of the law in the Superior Courts, and lessening the number of those able men from whom the Judges both of the Superior and of the County Courts must be selected; the true remedy for that was to be found in lessening the delay, expense, and complexity of the proceedings of the Superior Courts, so that they might start fair, and no longer be under the disadvantages which at present encumbered them. Let there be more frequent circuits, and let the expensive delays be diminished, which now kept suitors out of the Superior Courts, and they would stand the competition of the new tribunals. Great as had been the benefits conferred directly by the County Courts, in his opinion they had less directly been beneficial in another respect—in the improvement which they had been the means of effecting in the jurisprudence of the country. If it had not been for the light thrown by the experience of the County Courts, he did not think he should have been able to obtain the consent of Parliament to the Bill which he had last year introduced for making the evidence of parties to an action admissible, and for compelling them also to be examined. The importance of this amendment of the law had now been acknowledged even by the Judges, who were at first most averse to it. But it was, he hoped, about to produce a most salutary effect in checking bribery at elections. They were now on the eve of a general election, and he must say that he thought that the knowledge of that Act, a great deal more than the Corrupt Practices at Elections Bill, would do much to prevent bribery and corruption, and certainly to secure its detection if committed. The Act last passed, with some important changes; especially as to treating, made in that House, would still, he hoped have some effect; but it applied only to cases of general Corruption, and the parties might not be much afraid of a commission being issued; but the other Act to which he referred would apply to every single elector, and he could not help thinking that the 1356 fact of the person himself being compellable to give evidence on an Election Committee, would prove an effectual measure for checking bribery. Bribery assumed a contest, or the apprehension of a contest. A contest assumed the risk of a petitions and of an Election Committee; and, therefore, all candidates must be now aware that they would be strictly examined as to all that took place. They must expect to be thoroughly sifted by every means which the practised skill and ingenuity of counsel could afford. They must disclose every particular which they knew, or believed, or suspected, unless they confessed their guilt by sheltering themselves under the protection afforded by the Common law, and then their chance of retaining or obtaining their seat was gone. Therefore it would be well that every candidate, every candidate's agent, and every friend of a candidate, should be made aware that he was absolutely compellable to give evidence on oath before an Election Committee touching every one act that had been done or attempted to be done at the election. He had how made this statement as a warning to all such parties, and he trusted it might reach them and deter them from practices so sure to be exposed. Returning to the subject of County Courts, he had to remind their Lordships that they had now experience for the last six years, and with respect to sixty different Courts; By that experience it became our duty to profit. There had been several errors and more oversights in the framing of the Act of 1846, which passed very rapidly at the end of the Session, and which be had in vain attempted to prevent passing in Such a hurry; There had been other errors and omissions Which Could only be discovered by the actual working of the system. It now became necessary to supply these defects, and to amend, as well as consolidate the Various Acts, and parts of Acts, which related to the local jurisdiction. He strongly recommended the appointment of a commission to examine the whole subject. The examination of the learned Judges of these Courts, of the other officers, and of the practitioners, would afford most valuable information. He knew this not only front its great probability, but from the numberless communications which he had received during the last two years from those connected with the Courts, as well as the provincial Bankruptcy Courts. Many of the suggestions made he had adopted in the Bills now before the House. But many others, well 1357 deserving attention, would be conveniently inquired into if the commission was issued; and he trusted that the result would be to place the local judicature upon a sound and satisfactory foundation. One most important subject of inquiry would be the costs; and although the Bill which had passed both Houses, and only waited for their Lordships consenting to the Commons' Amendments, had introduced an invaluable improvement in that matter, much remained to be done, and it was absolutely necessary to reduce greatly the expense attending the procedure, chiefly by retracing the steps which had unfortunately been taken in 1846 of throwing the charges of the Courts upon the suitors by exacting heavy fees. The suitors now paid 60,000l. a year to the Judges, 76,000l. to the clerks, 27,000l. to the bailiffs upon service of process, for he did not reckon the fees upon levying execution, which might more justly be charged Upon the party, as he had been ordered to pay, and refused. But, independent of those execution fees, 163,000l. a year was extorted from the suitors for supporting that which it was the bounden duty of the country to provide, namely, the means of distributing justice. It is the very end and object of Government to afford the people protection. The condition of the subject's allegiance is the affording him this protection. He has exactly the same right to it which the Government has to his obedience, and the expense of affording him this protection must be borne by the community at large. Can anything be more unjust, indeed more utterly absurd, than to throw that expense upon one class, and that class suffering at the moment from injustice? Making the suitors pay for the Courts, is making those who have to be pitied as victims of injustice rather than oppressed, pay because they are suffering from the injustice of their adversaries. The State is bound to keep the peace. Suppose a riot to happen in St. James's-square, where his noble Friend (the Earl of Derby) resides, how would he like, if he had to pay the policemen or the military who put it down and saved his life and property from destruction? He would say it was enough to have suffered from the alarm and from the partial injury his property had sustained. But that was not all. We made the suitor in one Court pay for the expense of maintaining the officers of other Courts in which he does not sue. How would his noble Friend like to pay for the police and soldiers which put down a riot 1358 in London, merely because he had suffered from a riot in Westminster? Even that was not all. There are large sums—47,000l. and more—levied on the suitors to pay for erecting court-houses, which may last eighty or a hundred years. These are paid for by the suitors who have causes to try this year. How would his noble Friend like to pay for the police and soldiers who may be employed to put down a riot in 1862, because he had suffered himself in a riot of 1852? Nay, even that was not all. The suitor in Middlesex, where a court-house is not wanted, has to pay for providing a court-house in Yorkshire. He whose cause can be tried in the old courthouse here, must, because he has the misfortune of having a cause to try, pay so much in addition to all the expenses of that trial, in order that the Yorkshireman may have his cause tried where there is now no coort-house ready. How would his noble Friend like if, because he had suffered from a riot in London this year, he had to pay for the suppression of all the riots that might happen in Yorkshire for fifty years to come? Really the gross injustice of this extortion is lost in its glaring absurdity. The fees of Court extorted from the suitor, in causes from 20l. to 50l., amount to no less than 3l. l1s. 6d. on each case, all to relieve the State of the expense of performing its most imperative duty; and the very persons who ought the least to be charged with this expense, those who are the least able to pay it, and are suffering from misfortune, are alone burthened with it, and because of that misfortune. Surely it is impossible that this grievous abuse, if inquired into before the commission, should not receive a speedy and effectual remedy. He could not leave the subject of Law Amendment without asking his noble Friend at the head of Her Majesty's Government a question on another important matter intimately connected with it—he meant the digest of the law, statute as well as common, civil as well as criminal, but he especially referred to the criminal law. The learned Commissioners who were appointed in 1833, with instructions relative to digesting the law, had made a valuable report on that subject in general; but they had afterwards, in 1844, prepared a digest of the law of crimes and punishments. This had been referred hack to them for revision, and he (Lord Brougham) had brought in a Bill to enact it, when a second reference was deemed expedient, and a second Bill of his had been 1359 referred to a Select Committee, which had consulted the learned Judges of the three Kingdoms upon it, and none had expressed any dissatisfaction with the result of the labours of the commission. But the digest of the law of criminal procedure, subsequently prepared by the commission, remained imperfect in consequence of the death of Mr. Starkie. When the commission of which he was so effective a member, expired, he (Lord Brougham) recommended the Government of the day to renew it for six months longer—a period in which all that was wanted might be completed. Already a large sum had been expended in defraying the expenses of the commission, occasioned by its labours on the Criminal Law. Of the 80,000l. or 90,000l. which the commission had cost, between 30,000l. and 40,000l. had been the cost of the Criminal Law digest, only 2,000l. was wanted to complete the work, and two years ago that sum was offered to be supplied in case the Government would not furnish it. The Government, however, refused the money, and also refused to renew the commission, accompanying their refusal with the assurance that care would be taken that the fruits of the labours of the Commissioners should not he wasted. He did not find fault with any one; but worse economy could hardly be imagined, for the want of that small additional expenditure rendered all the rest of the money which had been advanced just as useless as if it had been thrown away. When it was said that although the commission was not renewed, the labour and cost of the commission were not to be lost, the meaning must have been, in other words, that the Government would act on that which the Commissioners had prepared, and would give us a well-digested code of criminal law and procedure. But it now appeared that nothing whatever had been done during these two years. He trusted that his noble Friend at the head of the Government would direct his attention to this subject during the recess, and would renew the Commission, so as to complete this great work, and to give us a well-considered and well-consolidated digest of our criminal laws, and the law of criminal procedure. If it were a sacred principle, an imprescriptible right of the subject, that he should receive protection in return for his allegiance, as he (Lord Brougham) had taken leave to affirm a few minutes ago, it was a principle not less sacred, and regarding a right as imprescriptible, that the peo- 1360 ple must have given to them a due knowledge of that criminal law for the infraction of which they were liable to the heaviest punishment, the loss of liberty, and oven of life itself.