HC Deb 23 May 1822 vol 7 cc728-35
Mr. Allen

prefaced his motion upon this subject by a variety of observations upon the state of the courts of justice in Wales. He complained generally of the want of responsible officers, and of the inefficacy of process issuing from the courts of equity. The courts of common law were, perhaps, in, even a worse condition. The allowing, judges to practise as barristers between the sessions was highly objectionable. It opened a door to connexions between judges and attorneys, which might be highly prejudicial to the ends of justice. The hon. gentleman further complained of that law which permitted the trying of a Welsh cause in the nearest English county. When the House heard that the cost of such a removal was 300l., they would at once see that the power was useless to the poor, and capable of being converted into an engine of oppression in the hands of the rich. In fact, in any dispute between a rich man and a poor one, the threat to try at Hereford commonly put an end to the suit. In proportion to the inexperience of the judges, the number of offences might be fairly presumed to have increased. Under the present system, strong political objections might be urged to the Welsh judgeships. These judges were now capable of holding offices at pleasure, and of retaining their seats in that House. The public opinion of their integrity must be weakened by the knowledge that they were selected from a different class of men from that out of which judges in England were chosen. The defective state of the judicature had a tendency to increase the number of attornies in Wales; yet, notwithstanding, the multitude of these gentlemen, either their inexperience or incapacity was very great under the existing arrangement, or they had not time to do justice to their clients. Sometimes issue was not joined for three days together after the plea had been put in. It might be supposed that he was prepared with some outline of the system which he proposed to substitute in lieu of the present Welsh judicature. In the first place, he should propose to make such an arrangement as might render two judges adequate to the whole of the duties; and secondly, he should suggest a plan by which employment might be found for these two judges in London, between the terms. He should propose to divide the Oxford circuit, and to appoint, as assize towns, four places for South Wales; namely, Worcester, Glocester, Monmouth, and Hereford; and four for North Wales—Shrewsbury, Chester, and two others. It was his purpose that these judges should form, as it were, an additional Court of Kings bench; that they should have, equal rank, salaries, and honours, with the judges of the King's-bench in England. They might be occupied in the discharge of insolvent debtors, in hearing cases after term, and in relieving the Court of Kings bench in London from a portion of their criminal proceedings, particularly in revenue cases. Of the necessity of such relief a very strong instance had occurred only a few days ago. Some libellers were brought up in the Court of Kings bench to receive judgment for defaming the late Queen. Judgment in that case was obliged to be postponed, because the court was not full. Now, the measure which he had to propose would keep the court always full, and prevent these inconveniences from occurring. He had prepared some resolutions, which he should move in the committee, if the House would allow the measure to proceed so far. He was disposed to think that the whole of this plan might be effected by appointing two more judges of the Court of King's-bench, in the room of the chief justice of Chester, and the seven other Welsh judges. Such a plan as he had now opened would greatly shorten those sittings after term, which now left, to the judges of the Court of King's-bench little or no vacation. Only a fortnight ago he was informed that there would remain for these sittings more than 40 cases in the Court at Westminster, and 100 in the Court at Guildhall. The hon. gentleman concluded by moving, "That this House do resolve itself into a committee of the whole House, to take into consideration the reports of committees upon Welsh Judi- cature in the years 1817, 1820, and 1821."

Mr. Barham

said, that on fairly viewing this subject, any one would naturally ask what reason could be assigned for supporting a separate judicature for so small a part of the united kingdom? Reasons, cogent enough, might have existed in the time of Henry 8th; but what was there now in the state of Wales, so different from that of any other part of the empire, as to make such a judicature necessary? He might be answered, that the language of the country was different. But to this he should rejoin, that the proceedings, the banisters, the judges, were all English. The country was mountainous; but many parts of England were equally so. He believed the present Welsh judges to be men of learning, integrity, and honour, but he must be allowed to observe, that the judges in Wales were not looked upon by the people with the same respect that was shown to the judges in this country. The Welsh people could not but be aware that, their judges were chosen, sometimes rather for their parliamentary services, than for their professional qualification. The best evidence of the opinions of the people was to be found in their own conduct; and certain it was, that they removed every thing they possibly could do—and that a great charge—to another judicature. Without meaning any reflection on an hon. gentleman, opposite (Mr. Jones), he did think that the motion would do a great good, if it should reduce the number of Welsh attornies in some proportion to the remainder of the population.

Mr. Jones

expressed his decided disapprobation of the motion. Admitting, for the argument that the court of equity could not enforce it's decrees, it was in the option of the plaintiff to proceed either there or in the superior court of England; but he was prepared to show, in opposition to what had been stated, that it could enforce its decrees. Having gone through the whole of the evidence annexed to the two reports, he felt satisfied that it was strongly against the change now proposed. The hon. gentleman entered into some details in order to support this opinion. He particularly dwelt upon the point, that law was both cheaper and more expeditious in Wales than in England, and to this effect he quoted the words of the report of the committee of 1819. He also adverted to the testimony in favour of the alteration, and mentioned in succession the name of the judges who had formerly presided, in Wales, and of the more eminent barristers who had practiced there. He had never been more astonished that by the attack upon the mode in which the criminal law was administered in the principality, and was willing to give up the whole subject, if it could be satisfactorily provide that injustice had been done in a single instance. He agreed that the Welsh judges should not have scats in that House, and that the appointments ought to be made by the lord chancellor, and not by the Treasury, so that the office might not be conferred from any political motives. He was himself ready, if the present motion were rejected, to bring in a bill to remedy existing defects and abuses, such as were found by the committee to prevail; and which bill had had the sanction of the first legal authorities.

Sir J. Mackintosh

said, he should be curious to see in what manner the hon. gentleman would word his clause to prevent the appointment of Welsh judges from political motives, and to deprive the Treasury of the power which it possessed at present by law, in order to transfer it to the lord chancellor. The old mode of appointment by the minister of, the day, was, of itself, a most abominable evil; and he put it to those who heard hin, whether the inhabitants of the principality of Wales were not entitled to the same pure administration of justice as the people of England. It was puerile to bring forward the names of respectable persons who had taken Welsh judgeships only as a stage in their professional advancement. He might just as fitly quote the names of lord Bacon and lord Coke, in favour of the continuance of the court of star chamber. Would any man say that the principle of selection was the same with the Welsh judges as with the other judges of the land? It was not to be denied, that the former had been chosen for their parliamentary influence; and if this was the fact, what more was it necessary to state in support of the present motion? He was not at all sure that the exclusion of Welsh judges from seats in the House would be effectual. They might still be named from parliamentary considerations; and, though the mode and form might thus be changed, the effect would be the same, while the responsibility of the advisers of the Crown in this respect might be lessened. The details given in the course of the debate, showed that the tribunals in Wales were incompetent and inefficient. As to the question whether the inhabitants of the principality were in favour of the amendment suggested, that it was a matter peculiarly for the consideration of the legislature, and upon which popular opinion could be least of all valuable. The proposers of this committee, in his opinion, deserved respect and gratitude for not having excited clamour upon a subject of so much nicety and difficulty. The inclination of his mind was always against increasing the number of the judges, without a manifest necessity. He was fully aware of the advantage of having a small number of superior judges. It was only when the number was small, that the highest point of honour was placed in the judicial integrity and propriety of their conduct, for any number of years. Where the number was great, there would be many instances of failure both in point of ability and in point of propriety; and the more numerous such instances became, the more general would be the fall of tone and feeling on the subject of judicial honour. Such a fall of tone, he should regard as the greatest public misfortune. He had always thought, that two circumstances, which were most happy, were to be found in the judicial administration of this country. The first was, that the great secret had been discovered of making the superior judges small in number, and giving them an ample income; but not so large as to lead to improper appointments. The second circumstance was, the giving of dignity to gentlemen of wealth and character by the only means by which it could be given to them, that was, by making the duty of magistracy gratuitous in their hands. They enjoyed a rank above their fellow-citizens only by the faithful discharge of the most important duties. This state of judicature might be called the wisest and the happiest that ever existed, according to the views taken of its origin and history; for he would not take it upon him to say whether it was the result of human contrivance, or the happy effect of time and circumstances. But he was jealous a giving the title of judge, high and venerable as it was, to persons of inferior authority and qualifications. There was the highest propriety in keeping the function, station, the very name of judge, as high as they could be kept, and they could be kept high only by keeping the denomination itself high and limited. He had no prejudice for a particular number—he felt no Pythagorean affection for the number of judges now in our courts—he was effected by no superstitious abhorrence of an increase of judges, if the increase should be necessary. He thought, indeed, that the time was come when an increase of the judges became necessary, both from the increase of business and to spare the time and the health of those whose mental energies were so much tasked and so highly valuable. There were learned friends of his who thought that by a different distribution of duties the object desired might be attained. He did not pretend to oppose his judgment to theirs, after he had so long ceased to practise in courts of law; but he was convinced that the greatest business would always flow to that court where the most decided superiority of talent and character was to be found; and the highest reputation for talents and character would always be found where the greatest and most important business was done. The court of King's-Bench would, therefore, always have most business from its general consideration, its high character, the distinguished part it acted, and the conspicuous place it occupied. He would, then, rather add two judges to the courts of common law than appoint inferior judges.

Mr. Scarlett

perfectly concurred with his hon. and learned friend, that rattler than the respectability of the administration of justice should be lowered by an inequality among the judges, the number of the superior judges ought to be increased; but he did not think the necessity existed. He had no partial attachment to the number of twelve, nor did he think there was any extraordinary virtue in that of four; but he thought that if at present an alteration of the judicature of our courts was necessary, the number of judges ought rather to be diminished than increased. He was opinion that one of, the judges of the King's-Bench might be detached in term time to do the inferior criminal business, while the higher duties might be performed by three. There was a great deal of minor business which came before this court, and which he thought might be disposed of as he proposed. As to the present system of Welsh judicature, it was undoubtedly very defective, It was difficult to suppose that gentlemen at the English bar, who were in any thing like eminent practice, would accept of the appointment of a Welsh judge, the total income of which did not exceed 1,100l. a year. It appeared also from the evidence of a Welsh judge before the committee, that a very small number of causes on each circuit were tried in Wales. It would appear that many were tried elsewhere and many compromised; and he could not think that the best system of justice from which men fled by compromise rather than trust to the justness of the decision. This system had been said to be ancient because it had been instituted by Henry the 8th; but he did not think the Welsh would be obliged to any one that said so. He knew something of the Welsh notions of antiquity; and as the reign of Henry the 8th was modern in English history, in Wales it was but of yesterday.

Colonel Wood

thought, that the great increase of property which had taken place in Wales since the time of Henry the 8th, entitled them to a change in their judicature more suited to their, present state. The honourable colonel said he had changed his mind on this subject; and he had done so from conviction.

The Attorney General

could not agree to the plan of abolition, or of increasing the number of English judge. The present system of Welsh judicature was defective, and ought to be amended; but the hon. member for Carnarvon was about to bring in a bill to remedy those defects, and the House was not at present in a condition to come to a decision on the question. Besides, the opinions of two previous committees were in favour of amendment, and not of abolition.

Mr. C. Wilson

bore testimony to the respectability and integrity of the Welsh judges; but said, that any measure which would have the effect of assimilating the jurisdictions in Wales with those of England should have his support.

Mr. Wynn

said, that he should, as a general principle, have no objection to the jurisdictions in Wales being assimilated to those in England; but he did not think that such a measure could be carried into effect without considerable inconvenience. He had no objection to discuss a bill on the subject; but he could not give his assent to the whole of the resolutions before the House. He would suggest to the hon. member to withdraw his motion now, and if he should not be satisfied with the plan to be proposed by the member for Carnarvon, he might renew it at a future day.

Mr. M. A. Tayor

supported the motion, but was unwilling that, a question of such importance should be disposed of in so thin a House. He therefore moved as an amendment, that the debate be adjourned to that day fortnight.

The gallery was cleared for a division; when there being only 34 members present, the House adjourned.