HC Deb 20 June 1820 vol 1 cc1189-98
The Attorney General,

in moving that the House do resolve itself into a committee on this bill, said, that he was aware some objections were felt to the measure, particularly by members of the bar. No one was more anxious than him self to gratify the wishes and interests of the profession, and if the inconvenience which might be supposed to follow the bill did not fall much below the good that would result from it, he would not have introduced it. At present the chief justice was not allowed to sit at nisi prius for more than fourteen days after Term one of the objects of the present bill was to extend that time. Another object was, that two judges of the Court of King's bench might be allowed to sit at the same time, to hear nisi prius cases. This, he knew, was objected to, as altering the ancient constitution of that court. But when it was considered that for the last four or five years the business of that court had increased to a very great ex tents that alteration must be fairly allowed to be necessary, as the only way of getting rid of that arrear. However, he would only make the measure temporary; as far as this object. He intended there fore to limit it to two years, by which time the great arrear of business might, he hoped, be got rid of. If in the mean time the measure should be found pre judicial, it would of course at the end of the term cease to be law. If, on the other hand, it were found to be beneficial, the House would see the necessity of making it permanent.

Mr. Scarlett

said, that in duty to the profession of the law, he felt himself bound to oppose the bill. It was said that business: pressed upon the court, but if the trifling causes were removed from that court which Were of no benefit to the suitors, but, on the contrary, ended in the ruin both of the plaintiff1 and the defendant, it would relieve the court and benefit the public. But when it was said that the business of the court had greatly increased for the last years, he begged leave to deny it, and, in support of his assertion, referred to a statement, by which it appeared that the number of causes entered for trial in 1810 was 942; in 1811, 1008; in 1812, 1077; in 1813, 1033; in 1814, 803; in 1815, 879; in 1816, 899; in 1817, 809; in 1818, 810; and in 1819, 892; so that instead of an increase of business, there were during the years 1810, 11, 12, and 13, upwards of 200 causes more entered for trial than at the present period. He agreed with the attorney-general, that every facility ought to be afforded, in order to dispose of the business of the courts. And he should therefore think that the measure ought to be more general; but the plan of having two judges sitting at the same time to determine nisi prius cases, would only have the effect of increasing the business of the court which was, it appeared, already too great, because the greater part of the term business at present was made up of motions for new trials and arguments on points of law, growing out of nisi, prius trials previously had, therefore the increase of trials would only increase the quantity of term business. But why was the Court of King's bench thus overloaded? why was there so great a disproportion between the business of that court and the Court of Exchequer and Common Pleas? The Court of Exchequer had little business since the bill for authorizing the chief baron of that court to sit alone and determine equity causes. The puisne barons had almost nothing to do—they had as little to do as the barons of Scotland. Why was the business of the exchequer so little, whilst the business of the King's-bench was so great? The principal reason was this—the number of attorneys in the exchequer were very limited, the amount in clerks and assistants was but 16; if they threw open that court to the attorneys they would give the barons something to do. If such a measure would be found to interfere with the private rights of the officers of the exchequer, they would be fairly entitled to compensation. One cause of the arrear was a limitation of the number of days during which, the chief justice might sit at nisi prius in Middlesex—rail enactment which had been adopted on account of the fear which the city of London had that its business might be neglected. He thought there could be no objection to a repeal of this act. The ordinary business of the court in term time might as well be transacted by three as by four judges, when it consisted, as it so often did, of motions of course. In point of fact, a great deal of that business was transacted while one judge only was present. During that time, therefore, one judge might sit at nisi prius. As to the business which was at present accumulated in the Court of King's-bench, it consisted in great part of trifling causes. It was known that at the time when acts were passed to restrain actions below 40 shillings, that sum of 40 shillings was equal to 10l., perhaps to 20l. now. The greatest number of the new causes in the Court of King's-bench were for damages under 20l. The actions, in such cases, were no remedies; for if the plaintiff recovered full damages, he never put a shilling in his pocket. For all such causes, he wished to see a more summary and general remedy provided, and he opposed this measure, chiefly to compel the attorney-general to use the influence of his high station to procure the adoption of a more extensive measure, which might relieve all the courts from a species of business which was of no advantage to the suitors, and which threw discredit on the administration of justice.

Mr. Warren

was of opinion, considering the state of the business in the King's-bench, that this bill was absolutely necessary. What was the situation of the court at the present moment? There were about 108 causes in arrear at Westminster, and 200 in the city of London, forming an aggregate of 308 remanent causes. Any measure that tended to decrease such an arrear ought to he supported by the House. The object of the bill W3s, to employ two judges in performing the duty, which was now effected by one—a plan from which great and evident advantage would be derived. The learned gentlemen apprehended that much inconvenience would be felt from the adoption of the proposed mode. Now, he did not mean to deny that some bill, more extensive in its nature, might perhaps be hereafter necessary; but that, he conceived, was not a good reason for objecting to the bill now before the House, if, for the time present, it wrought well. If the clause relative to the duration of the bill went to render it permanent, he certainly would oppose it; but, as the learned attorney-general was of opinion that the object would be practically obtained by making the measure temporary, and as ha had given notice that lie would, in the committee, move that its operation should be confined to two years, he conceived the objection, that might otherwise be advanced was almost wholly obviated. He thought, however, that the period of two years, to which the attorney-general meant to limit; the operation of the measure, might be curtailed with advantage. The learned gentleman had pointed out many modes by which the evil complained of might I be removed. But whether his propositions were good or bad was not a question proper to be then discussed, since they wanted some speedy remedy. The learned gentleman advised parliament to open the Court of Exchequer. Whether such a measure would or would not be beneficial was doubtful; but, even if it were admitted to be likely to produce; good effects, it could not be adopted in the present session. It was a subject that would require long and mature consideration before it was submitted to parliament. He was much surprised when: the learned gentleman said he was authorized on the part of one of the judges to object to this measure. He should have thought, if it were not for the positive statement of the learned gentleman, that when a proposition was made for the relief of the judges of the Court of King's-bench, any one of those judges would be the last person to make the sort of objection that had been introduced. If increase of salary were contemplated, was-the present, he would ask, the time to demand it? In his opinion, there appeared to be something invidious in bringing such a proposition before the House. It simply went to this,—"If you throw more labout on us we shall certainly expect an increase of salary." But, as the learned gentleman had declared that he was authorized to make such a statement, it was to be inferred that he had had a communication with some one of the judges, who had decided, that, if he were burthened with additional labour, he must have an additional salary.

Mr. Scarlett.

—I stated that the learned judge did not approve of the bill.

Mr. Warren

—If he understood the learned gentleman correctly, his statement was, that, unless the salary of the judge was raked, he would not undertake the duty. Another objection to the bill was, that the client would often be deprived of the benefit of that counsel whom he wished to employ. In some cases this would certainly be very disad- vantageous; but they must balance the inconvenience which attended the existing system with that which was likely to arise from the plan proposed. They must balance the inconvenience which clients might sometimes experience with that which must attend an arrear of 300 causes all ready to be tried, the witnesses examined by solicitors, the briefs drawn up, and much money laid out. But with respect to this alleged inconvenience, did it frequently happen that one counsel possessed such extraordinary acuteness of mind, such transcendant talent, such amazing legal knowledge, that all the attorneys of the kingdom must run after him? That was a situation, in which he believed the bar had never been placed. Although there might be a gentleman of extraordinary talent engaged in the legal profession, still there were always some others whose abilities (at some little distance, perhaps, from his) were yet highly respectable. A client was not, therefore, left without a fair choice. Let the House compare what was now proposed to be done, with what was effected, in 1813, in another court. At that time the lord chancellor was borne down by the number of causes, and the suitors in his court complained that they could not obtain justice. The remedy proposed was, that another court should be formed, and that the lord chancellor should determine what causes should be tried there. The same discretion was given by this bill to the chief justice of the court of King's-bench. He had inquired of some learned gentlemen what inconveniences they felt in the vice chancellor's court. They said that they experienced some difficulties at first, but not much. Like all other alterations, when it was brought fully into action it had worked facilities for itself; and the difficulties connected with the present measure would ultimately cease and vanish, like those which were, in the first instance, felt in the vice-chancellor's court.

Mr. Lockhart

said, the learned gentleman who had just sat down had argued that, if the measure proposed were likely to remove, for the present, the inconvenience complained of, it ought to be adopted. He entirely denied the truth of this position. Ha did not consider that all inconveniences and misfortunes were good for nothing. They frequently had their benefits within themselves. For his own part, he could wish the inconveni- ence to grow to a greater height than it had at present arrived at, if it ultimately led them to a suitable remedy. The learned gentleman had observed that this would be but a temporary measure, and that others at a future time might be proposed. He, however, totally objected to these palliatives. If they took a judge, who ought to be sitting in banco, to hear causes at nisi prius, they must lose sight of those ulterior remedies which were necessary in the course of justice. In cases of the kind to which his learned friend (Mr. Scarlett) had referred, where, if 40s. were recovered, the successful party was entitled to but 40s. costs, not less than 28 persons were employed. There was a judge, an associate, a crier, two counsel on each side (one of them sometimes a king's counsel), two attornies, and 12 jurors. Such a case as this tried in the court of King's-bench, was fraught with ruin to both the parties, and might in fact be termed a mockery of the administration of justice. Cases of this kind should be removed to an inferior jurisdiction. Of late years more political causes than were ever before known had come before the court of King's bench. It was not right then, that the chief-justice should be overborne by the weight of business. He should be allowed some degree of leisure, in order that he might preserve that calmness and serenity of mind which it was impossible to do under the extreme pressure of constant business; The learned gentleman might say, that the argument made against his own view of the subject, since the bill was intended to grant relief and afford leisure to the chief justice. But he would answer, that the puisne judges, who were called in to assist the chief-justice with their counsel, should, equally with him, be allowed repose and leisure, in order that they also might discharge their functions in the best manner. But, if the whole court was to be brought into action; if the chief justice and the puisne judges were to be perpetually engaged in trying causes at nisi prius, not one of them would be able to bring his mind to the free, fair, and unembarrassed consideration of the many important subjects which called for decision. The best mode would be to remove from the court of King's-bench those frivolous and absurd causes, which not only pressed most heavily on the judges, but were ruinous to the parties engaged in them. Legal remedies of a more cheap description, and more easy of access, ought to be devised for the subjects of the realm. The chancellor of the exchequer, he observed, was attending to this question, and probably would oppose the introduction of such a remedy as he had adverted to, on the ground that it would diminish the revenue. But it would be much better, instead of raising taxes by means of stamps on legal proceedings, which, in effect, caused a denial of justice to the subject, if the right hon. gentleman would give his consent to the removal of those heavy imposts, and cast about in his mind for some other mode of raising revenue that would not be liable to such insuperable objections.

Mr. Chetwynd

objected to the bill, first, because it was unwise in its provisions, and, next, because it imposed a greater degree of labour on the puisne judges of the court of King's-bench, without providing for them any additional remuneration. Much of the time of the court was taken up in consequence of ex-officio informations moved by the attorney-general against individuals for breaches of the revenue-laws. Those persons, when found guilty, were brought up for judgment to the court of King's-bench, and much time was taken up in passing sentence on them. He could see no reason why sentence could not be passed at the assizes, instead of dragging individuals, frequently for petty offences, from the most remote parts of the country, to receive sentence here. Two remarkable cases were fresh in his memory; in one of them a poor woman walked up with a child in her arms from the West of England, to receive sentence for some trifling offence against the revenue laws. When the poor woman came into court, the feeling of compassion was universal. Mr. Justice Bailey—than whom a more humane and learned man did not exist—then emphatically addressed the attorney-general, "Mr Attorney-general, do you never proceed in these cases by indictment?" In the last Michaelmas term, also, a man walked up from the borders of Scotland to receive judgment, on account of a petty squabble with an excise officer. He did not mean to cast any reflection on the office of attorney-general, and he was ready to admit that the learned gentleman performed his duties with discretion and moderation; but in his opinion, the powers with which an attorney-general was vested were al- most too extensive to be intrusted to any man, and ought to be watched by parliament with peculiar jealousy. They must all recollect the treatment which sir Walter Raleigh received from an attorney-general. Thank God, those times were past; but still they ought never to lose sight of this extraordinary power. He; hoped the learned gentleman would accede to his proposition—namely, to allow: the judge on the circuit to pass sentence on individuals against whom criminal informations had been filed, instead of causing them to be dragged up to town for that purpose. This would materially lessen the public expense. When he saw in the miscellaneous estimate, a charge of 40,000l. for law expenses, he could not help submitting to the House whether it I was not a subject that demanded their serious consideration.

Mr. Denman

felt the strongest objections to the measure now proposed. In the first instance it was to have been permanent, but now, he understood, it was to; be temporary. In either point of view: it was objectionable. If it were permanent, it would effect a permanent alteration in the court of King's-bench, and if temporary, it would produce one of the greatest evils that could be found in a; court of justice—a temporary and experimental course of judicature. Why should such a measure pass? Was the King's-bench the only court in Westminster-ball to which causes should be sent? If so, then the twelve judges should belong to; that court. But if there were two other courts, sitting almost in idleness, he thought it would show more good sense to alter their situation, rather than to remodel that court, in which justice was so; perfectly administered, as to create the very arrear that was objected to. That arrear, he contended, was not an evil for which the court was answerable. It was a circumstance caused by the popularity of the court. One court would be pen haps capriciously what might be termed a fashionable court; to it the suitors would resort, and there would be found the arrear. If, however, instead of in a king the two other courts act, they erected a third, perhaps it would be found that they had only added another to the idle courts already existing, while the King's-bench still remained encumbered with a vast mass of business. By this new plan more labour was to be thrown on the puisne judges, and he thought it was fair for them to know whether they were to receive farther remuneration. The loading the judges with more business was of itself a great evil, because (heir; minds, like the minds of other men, should be allowed time for relaxation, and even for observation. It was too much to expect that they could be always drawing on the old stock, without ever attempting to replenish the reservoir. They had voluntarily devoted several weeks in the course of the year to their legal duties, which they had not in former times been accustomed to do. He thought they had acted wrong in so doing, because they thus increased the arrear by inviting that accession of business which now overloaded the court. If, however, a suitor thought fit to go into a court in which there was a great arrear of business, he must submit to the common lot of mankind, and content himself with the feeling that he would be heard in his turn, on the principle of "first come, first served." The two clauses least effective in the bill he had proposed were introduced into this bill, while the really necessary and beneficial changes were rejected. He had proposed that, instead of interrupting the business of the court, while indictments, perhaps for sedition, perhaps for blasphemy, should be read, the parties should be sent to plead and to hear the indictments read in the bail-court. To this he could still see no objection. He had also suggested that sentences should be passed at assizes. This could not be done in all cases, but there were cases in which it was imperatively called for. The present course of proceeding was the grossest system of jobbing in the Crown courts. A party had been convicted at the assizes, and afterwards brought up to the King's-bench, perhaps from Bury, perhaps from Cornwall, perhaps from Lancaster, to receive judgment. What judgment? A judgment fixed often by act of parliament, and beyond the discretion of the court. All this was done for the purpose of increasing the expense; and thus increasing the punishment appointed by the law, which might not perhaps be more than imprisonment for three months. There appeared to be no foundation for the assertion that the number of causes had increased, as appeared by a comparison of the numbers in the corresponding terms of this year and 1810. There was, in fact, a diminution of more than 20 in each tenth It had been said that it was only a choice of evils; but he would rather bear present evils, which were not of our own seeking, than create evils by experimental legislation. The court of exchequer was shut against causes by its peculiar attornies, and the Court of Common Pleas by its peculiar barristers; these barriers might be removed if the increase of causes required it. The analogy with the Vice-Chancery Court did not hold. The effect of that measure, as he understood, was, to withdraw the lord-chancellor from Chancery, and to transfer the business to the vice-chancellor. Besides, in Chancery, where the papers were all read afterwards by the judge, it was immaterial in what order the counsel might speak; but before a jury, a younger counsel, however able, and however destined for future eminence, would not be able to supply his leader's place. As a proof that justice was not much delayed in this country, he mentioned, that a person had been tried at the Old Bailey for an offence committed in August last, and one of the witnesses charged with perjury at that trial, had been tried upon that charge more than a month ago so that this succession of offences were tried at no greater distance from the time of committing the first offence than from August to May. Upon all the considerations, he had stated, he should oppose this bill.

Mr. Nolan

observed, that as the object and tendency of this measure was to facilitate the administration of justice, the generality of the gentlemen of the law would be decided advocates for its adoption, whether it interfered with1 their own individual interests or not. He contended that this was only a temporary relaxation of the duties of the chief justice. He did not consider that by its adoption an alteration would be made in the constitution of the court of exchequer.

The question being put, That the Speaker do now leave the Chair, the House divided Ayes, 18; Noes, 8. As there were not 40 members present, an adjournment of course took place.