COUNTY PALATINE OF CHESTER. (Hansard, 22 April 1828)

§ Mr. Wilbraham

said:—I fear that it may be deemed presumptuous, in a person so little conversant in the details and intricacies of the law as I am, to introduce to this House a subject which mainly concerns its practical administration. To this imputation I am willing to submit in the performance of a great and imperious duty. I am aware, too, that it may be objected that I did not bring forward this subject at the moment the most opportune for its reception; at that time when, in consequence of the motion of the hon. and learned member for Winchelsea the whole state of the law was thrown open to the discussion of this House. Sir, I am free to confess that I was deterred from this line in consequence of the character of that discussion. I was unwilling to intrust my feeble powers upon so vast a plain, especially as the ground was occupied, with one exception, exclusively by gentlemen of the learned profession.

But I have since considered, that the subject which was then before the House, was one, not of partial interest, but of universal concern; and I have thought that it might not misbecome us, whom I may call the suitors, and, perhaps, the sufferers, if we were to state the nature of our grievances, to point out the source and character of our disorders, though we might leave it to the skill and sagacity of those learned persons to afford us, if they could, a remedy appropriate for their correction.

2 It is with this view, and in this character, that I present myself to the House, in order to call its attention to one of those anomalies which forms an exception to the general excellence of our judicial administration. If in directing the notice of the House to the subject of the palatine court of the county of Chester, I do not comprehend in my motion the courts of great sessions of Wales, it is not that I am ignorant of the close connexion of these establishments; but, besides that the administration of the law is essentially different in some particulars between them, there are, I know, many gentlemen in this House, representing the interests of the principality, who are better able, than I can pretend to be, to state the inconveniences that arise, or, if such there be, the advantages which result from their peculiar form of judicature. It is sufficient for me to confine myself to the courts of that county to which I belong.

It has ever been my pride, as an Englishman, to look up to the institutions of my country with that reverence to which they are generally entitled. Whatever I may at times have thought of the executive government, yet I have been always taught to speak of the administration of justice in our courts of common law in terms of the highest praise. If this perfection is, in a great measure, to be attributed to that noble institution, that glory of the English law, the trial by jury, some part of its beauty, at least, is due to the character of the judicial body, to their separation into a distinct order of men, nominated, indeed, by the Crown, but not subject to its continued control and influ- 3 ence. The independence of the judges was one of the best and earliest fruits of our glorious Revolution. It was further guaranteed to us by his late majesty, who, in the first speech which he ever addressed to his parliament, was pleased to declare, that "He looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities for the lives and liberties of his subjects; and as most conducive to the honour of the Crown." This declaration was followed, as we know, by an enactment which redounded as much to the honour, as it did to the popularity, of the new monarch.

Now, Sir, great as my satisfaction has always been, thus to be able to speak of the courts of law of England in general, how infinite must my regret have been, when I have found myself obliged to declare that that part of the country to which I belong is deprived, in great measure, of these advantages; deprived of them, forsooth, for no other reason than because some seven or eight centuries ago, William the Conqueror thought fit, in the general division of the country, according to the feudal system which he introduced, to allot one portion of it under the name of a county palatine, to one of his principal followers, and, I believe, a relative. I am not going to impugn the policy of that great man; as little am I inclined to question the wisdom of that act (36 Henry 8th), which created the courts of great sessions in Wales, and which regulated the palatine court of Chester in its present form; but I wish to appeal to this House, and, through it, to the common sense of the age, to ask, —why one of the wealthiest counties in England, yielding to none in the richness of its soil, and inferior to few in the magnitude of its commercial concerns, where, consequently, subjects of the highest importance must be annually brought into litigation, should still continue to be deprived of those advantages which inhabitants of the other counties of England regard as the best security for their liberties, their properties, and their lives? It is not my intention to go into any considerable "detail as to the inconveniences which arise from the peculiar form of the Chester courts. Neither my habits, nor my acquirements, befit me for such an undertaking. But, lest I might seem to have taken up this subject upon a superficial view of its bearings, I will mention 4 two or three of those disadvantages which must strike the most common observer.

In the first place, by the constitution of this court, the two judges are obliged to preside at the same time upon a trial. In other assize courts, I understand, that while one of the judges is occupied by the criminal trials, the other is pursuing the business at Nisi Prius. With us, on the contrary, the criminal calendar must be first disposed of, before the civil causes can commence. This arrangement might have been very satisfactory in former times, before Cheshire was a great commercial county, and when the assizes were usually finished in two or three days, but is exceedingly ill-adapted to the present magnitude and exigency of its affairs. It is only known to practitioners and to those who are in the habit of attending these assizes, with what inconvenience it is attended:—first, to the judges, who arc obliged to pass ten days in doing that which might be as effectually performed in five;—secondly, to the counsel, the most eminent of whom do not usually attend in the criminal court, and are therefore five or six days without employment, no small discouragement to their attendance at all; —thirdly, to the jurors, and particularly to the special jurymen, who never can know precisely when a civil case is to begin; and last, though not least in importance, to the suitors and their witnesses. All this delay is, of course, attended with a heavy additional expense. This evil is accompanied by another of a serious nature, but it is one which I must touch I upon with some delicacy. There is, undoubtedly, a very respectable body of gentlemen who usually attend the Chester circuit; but, in consequence of the arbitrary mode of fixing the time of holding these assizes, in which it has been suspected that private convenience sometimes supersedes the public good, it has frequently happened that we have been deprived of that large body of intelligent and experienced counsel, without whose assistance no one would undertake a cause of great importance.

The mode of moving for a new trial in this court is another objection—a process which, in all other cases, takes place before the judges in Westminster-hall. But had I occasion to move for a new trial in the local jurisdiction, I mean in those cases where the record does not proceed from the courts at Westminster—and this is no 5 inconsiderable part of the whole—to whom will the House think that it is necessary for me to apply? Why, to the very same judges by whose misdirection, perhaps, or by whose ignorance of the law, the verdict against which I complain has just been given. I say nothing of our exchequer and equity court; for though its power and jurisdiction are very extensive, yet, as it is almost fallen into disuse, I cannot complain of that as a practical grievance. One topic more only will I touch upon. This is the mode of levying fines and suffering recoveries,—a process which, in Cheshire, can take place only twice in the year. Thus, if I succeed to an estate tail in the month of September, I must wait till the following April before the entail can be barred—a delay which must often be attended with the greatest disadvantage to the parties. I mention this with the more confidence from the county magistrates having made strong representations on the subject, and having made them in vain. This is one of the evils, among others, which the Welsh Judicature bill abolished a few years ago; but let it be remembered that this bill was not extended to the county of Chester. So that we remain an insulated, proscribed body, excluded from the benefits of the English jurisdiction, and not allowed even to participate in the improved practice of our Welsh neighbours.

But I will not pursue this part of the subject further, for the reasons I have already given. I, however, pledge myself to substantiate by evidence in detail the truth of these general allegations, and to prove the disadvantages under which we labour. But even were I to omit this, I say that my case would scarcely be weakened; for I maintain that it is incumbent upon those who are interested in the continuance of these courts (and, undoubtedly, there will be found some who, from ancient prejudices, and from attachment to privileges, and to old customs, however bad, or from attachments of some other sort, will desire their permanence); I say it will depend upon them to show their absolute superiority, and the public advantages which are derived from them, in order to compensate for the original constitutional defect in their formation.

It may be asked, and reasonably asked, how it has happened, that if these evils are as great as I represent them to be, pe- 6 titions have not been laid upon your table, and that no gentleman connected with the county has brought the subject forward for the consideration of parliament? To the first of these questions I will reply, that the great body of the people, though really interested in perfecting these courts, know little beyond the sphere of their own county-town; and, therefore, have no standard whereby to draw a comparison. But the subject has frequently been brought before this House in conjunction with the Welsh courts, and as frequently discountenanced by the ministry of the day, and all alterations, as referring to the Chester court, entirely rejected. But, Sir, the principal reason why gentlemen connected with the county have always been unwilling to introduce this subject to the House has been this: they have feared lest they might seem to be making an attack upon the individual judges, and thus be the means of bringing an existing tribunal into contempt.

I can appreciate this delicacy. I know that it has lately deterred the magistrates and others from presenting petitions. How far a similar feeling ought to influence the conduct of a member of this House, it is not for me to determine. I wish, however, distinctly to declare that I have no charge to make against the character, honour, and integrity, of the two learned persons who, at present, occupy the bench at Chester. It is not to them personally, it is to the system that I object. It is to the mode of their appointment, for it cannot be denied that the principle of their appointment is very different from that which regulates the choice of the other judges of the land. Let me give the instance of the gentleman who is now one of the judges of the court of Chester; and, at the same time, a practising barrister on the Oxford circuit. Now, it may happen that this gentleman, in his capacity of counsel, may be consulted upon a case, without reference to names or places. It may, too, happen that this very same case may be brought for his adjudication at Chester. In what manner would it become him to act in such a situation? Could he retire from the bench, and thus, as far as it depended upon him, deny justice to the subject? Or would he be justified in adopting the other alternative, in proceeding with a cause, for his opinion upon which he had already received a pecuniary fee? Let not gentlemen suppose, that 7 this is a case of such rare occurrence, as may be supposed; for besides many cases of a similar sort, of which I have heard in the Welsh courts, I will undertake to prove that, within a few years, such an occurrence did actually take place in the court of Chester. I do not say this in the tone of accusation. On the contrary, I know that the learned person who then presided in the court of Chester, did behave with that delicacy and propriety which might have been expected from him in the awkward situation in which he was placed. I do not even blame him. I only mention this fact to prove the total incompatibility of the functions of judge and advocate, and to show that the better is the advocate, inasmuch as he is more likely to have extensive practice, the more certain he is to be an inefficient and improper judge. Now, so anxious is the English practice to prevent all intermixture between the branches of the profession, so desirous to obliterate every impression which might be handed over from the advocate to the judge, that when a barrister is appointed to the dignity of a judge, it is the universal custom that he should abstain, for some years at least, from going upon the same circuit where he had practised at the bar. Could there be any circumstance more likely to bring disrepute and contempt upon a court than the one which I have mentioned? I do not mean to say, that it is one which takes place so often as to be a serious impediment in the march and administration of the law—I make no such assertion. But why should we be subject to the possibility of its recurrence? or rather, why should we be contented with an inferior tribunal, when the constitution points out the very highest as our birth-right and inheritance?

Sir, I object to them, moreover, as political judges. Neither do I here mean to assert, that their party feelings and their political connexions are such as to warp their conduct and their decisions in the ordinary fulfilment of their duties. I know that, for some years, the circumstances and complexion of the times have not lent themselves to such a suspicion.— But it is notorious that these judges are usually appointed to serve ministerial objects; and let gentlemen call to mind the legal history of this country during those unhappy times, when political judges presided in our courts of law, and let them then be surprised if they can, that we 8 should take every means in our power to ward off a recurrence of similar disasters. What has happened once may take place again. Let me beg hon. gentlemen to look at the abominations which were committed under the name and with the sanction of the law, in the reigns of the two last princes of the house of Stuart, when the judges were entirely dependent upon the court, and looked for future promotion in their profession only by a servile compliance with the wishes of their employers, and let them then blame us, if they can, if we look with an eye of the most scrutinizing jealousy into the character and composition of our courts, which ought not only to be above every contamination, but, like Cæsar's wife, above all possible suspicion.

Sir William Garrow, while a member of this House, and his majesty's Attorney-general, was nominated chief justice of the court of Chester; thus uniting in his own person a portion of the legislative and the administrative powers, besides being counsellor to, and himself part of, the executive. Every writer who has treated the theory of the English constitution has denounced this conjunction of offices as totally repugnant to its first principles. Blackstone asserts that in the distinct and independent situation of our judges, consists one main preservative of the public liberty, which cannot subsist long in any state, unless the administration of justice be in some degree separated, both from the legislative, and also from the executive power. Montesquieu, no mean judge of the springs by which the movements of great governments are regulated, expressly asserts, that where there is such an union of the three powers in one man, or in a body of men, there is an end of all liberty. I well remember that this subject was brought before this House by the late sir Samuel Romilly, not as a substantive motion, but incidentally upon moving for the writ. No proceedings were had in consequence, and no defence of it was made by the minister of that day. There might have been good reasons for that nomination. I am forced to presume that there were good reasons for the silent acquiescence of this House; but this I do remember, that that nomination was considered by all impartial men as a most unconstitutional one, and, under those circumstances, as an insult to the county of Chester. Do not let me be supposed as here contending 9 against that proper and natural influence which every government acquires by the nomination of its own officers. Whatever theorists may advance, I am of opinion, that no government ever did exist without such influence, and I am further convinced, that no government could long subsist without it. It is one great source of stability. But it does not the less behove that body which is more immediately connected with the people to watch over this influence, to see that it be not perverted to the purposes of bad government, but, above all, to ward off its approach from all contact and collision with our judicial establishments. It is this which is the distinguishing beauty of our admirable system of administering justice; it is this which constitutes our superiority over every other country in the world; it is this, too, which unfortunately marks the inferiority of the tribunals of that county whose interests I am endeavouring to advocate.

It is no answer to what I have advanced to quote the names of many illustrious lawyers who have presided as judges in the court of Chester. I know, too, that some of the brightest ornaments of our country, and the great luminaries of the law, such as Coke and Bacon, were members of bad and unconstitutional tribunals: I am aware that lord Kenyon, sir Vicary Gibbs, lord Lyndhurst, and other great judges, did begin their judicial career upon the bench at Chester; I acknowledge their high qualities; I am sure I do not wish to detract from them; but, before gentlemen use this as an argument in favour of the present system, they ought also to add the length of time that we have had the benefit of their services. Sir Vicary Gibbs remained but one year, and lord Lyndhurst a single session in that office; for, as the chief-justiceship of Chester is looked upon but as the stepping-stone to higher employments, and, as it were, a training-ground for young judges, no sooner is their high merit discovered, and they begin to be acquainted with our peculiar practice, than they are immediately transplanted to more advantageous situations, and their places supplied by new aspirants.

It will be said that I am endeavouring to make a great innovation upon an old and established system, which time has hallowed, and which long practice has endeared to the people. Sir, I am the last man who would willingly disturb any of those ancient institutions, in which even 10 the prejudices of the people are involved —in which they saw, or fancied they saw, any greater security to themselves, and to their property, than in the realization of any more perfect theory. But out of the precincts of the court, I defy any body to show such a feeling in the county of Chester. On the contrary, all those who have paid a little more attention to this subject than their fellows, look with something like contempt upon their own courts, and with envy upon those of the surrounding counties.

But, let it be called an innovation. I recoil not from the word, for I say our legal history teems with such innovations. We have numberless instances of courts which were extremely well adapted to the purposes of their original formation, but which have afterwards become useless, their practices obsolete, and themselves consequently abolished. Among others, I will name the Star Chamber, a court second only to parliament itself in authority, which was, as we know, abolished by 16 Charles 1st, for the abuse of its power. The Court of President and Council of the North, that court in which the famous lord Strafford first developed those arbitrary principles which afterwards subjected him to so harsh and irregular, though so well-merited a fate, was put an end to by the same statute. The Court of Wards and Liveries was abolished by stat. 12 Car. 2nd. The Court of the President and Council of Wales, and the Marches, restrained by stat. 16 Car. 1st, was finally abolished by William and Mary, and the counties palatine of Hexham and Pembroke were extinguished by 27 Henry 8th, and 17 Eliz. Now, Sir, it is not for me to recommend in what manner this reform, to which my motion evidently points, shall be carried into execution, whether by throwing the county of Chester into one of the English circuits, or by creating a new circuit altogether, in conjunction with the twelve Welsh counties. Still less do I presume to say, whether two or more judges should be added to the present number, whether they should be placed in the court of King's-bench, in the Common Pleas, or in the Exchequer court. I know too little of the practice of those courts to hazard such a suggestion; but lest I may be supposed to have proceeded without sufficient grounds, and lest the goodness of my cause should suffer from the weakness of its advocate, I must 11 beg leave to appeal to an authority which cannot be esteemed a very light one in this House. I appeal, Sir, to the authority of your immediate predecessor in that chair, Mr. Abbot, the present lord Colchester, who, in a work he published above thirty years ago, upon the jurisdiction and practice of the courts of Wales and Chester, has made some remarks so strongly bearing upon the subject which I have introduced to the House, that I cannot with justice to my cause, and to those who are interested in its success, refrain from asking permission to read a few short extracts from it.

" Upon examination of the whole question, in all its parts, if it should finally appear that the arguments for abolishing the Welsh judicature ought to prevail, it will then be satisfactory to find that such a measure would be warranted by general principles, and analogous precedents, each of the highest authority.—In principle, this alteration would fully satisfy the standard proposed by lord Hale, in his 'Discourse upon the Amendment of the Laws,' by which he requires,—'1st. That the change be demonstrable to be for the better, and such as cannot introduce any considerable inconvenience: 2. That the change be not in foundations or principles, but in such things as may consist with the general frame of the government or law.' The consequences of such a measure to the public interests of the kingdom are next to be considered. And although it might require an increase in the number of English judges to discharge the increase of circuit duty instead of those judges whom it would supersede, yet this very consequence might be economically beneficial, as far as that consideration ought to weigh; and it might also be rendered of the highest importance, and of the greatest advantage, to the general administration of justice. Nor can any valid objection arise from the mere change in the number of judges, as that has been extremely variable at different periods of time. Economically, there would be an advantage to the public, if two additional English judges were appointed in lieu of the present establishment of eight inferior judges for Wales."

And now, Sir, before I submit my motion to the House, I have but one word more to add to a statement which, I fear, has been already too long. In doing- this, I shall endeavour to imitate the example, 12 and to tread in the steps of my hon. and learned friend the member for Winchelsea; in every other instance at a distance immeasurably great, but, if in no other, yet in this approaching him, by an earnest endeavour to divest myself of every political or party feeling in pursuance of this our common object, a minute though no unimportant portion of that great scheme of judicial reform which his comprehensive mind alone could embrace, and which his splendid eloquence alone could illustrate. For though I do not pretend to be more exempt from those feelings than any other member of this House, yet when the greater interests of my country are at stake, when it is required to bring equal justice home to the door of every Englishman, (and it would be difficult to produce an instance more pregnant with that necessity than the one which I have had the honour to introduce to the House) I would scorn to let any inferior feelings intermix themselves with so great an object, my only purpose being to render some little service to a county to whose interests I profess a particular attachment.—I move, Sir, "That instructions be given to the Commissioners of Inquiry into the defects of the laws occasioned by time or otherwise, that they direct their early attention to the administration of justice in the county Palatine of Chester."