rose, and addressed the House as follows: *—* Inserted, by Mr. Brougham's permission, from the original edition, printed for H. Colburn.128 In rising to address the House upon one of the most important subjects that can possibly be submitted to the legislature, I feel at the same time deeply impressed with the conviction, that it is also one of the most difficult, and certainly the largest, that could engage its attention. I am aware that I stand engaged to bring before you the whole state of the Common Law of this country; the Common Law I call it (in contradistinction to Equity), with the view of pointing out those defects which may have existed in its original construction, or which time may have engendered, as well as of considering the remedies appropriate to correct them. Nothing, I do assure you, at all strengthens and bears me up under the pressure of this vast and overwhelming burthen, but a conviction of the paramount importance, nay, the absolute necessity, of no longer delaying the inquiry, or postponing the needful amendments; and the intimate persuasion I feel, that I shall be able so to deal with the subject (such is my veneration for all that is good in our judicial system, and my habitual respect for those in whose hands the administration of it is placed), as neither to offend the prejudices of one class, nor vex the personal feelings of another. But I feel a confidence, also, which is unspeakable, resting on another ground. I come not here to raise cavils before men, ignorant of the details and niceties of the profession I belong to, and who, in that unavoidable ignorance, would be unfit judges of their merits; I am determined to avail myself in no respect of their situation, or of the absence of the learned body of the profession, for the sake of a futile and pitiful triumph over what is most valuable in our jurisprudence. I am comforted and confirmed in my resolution, from the accidental circumstances that have joined me, in some sort, to the administration of the law, in which I have had so considerable an experience, I have seen so much of its practical details, that it is, in my view, no speculative matter whether for blame or praise. I pledge myself, through the whole course of my statement, as long as the House may honour me with its attention, in no one instance to make any observation, to bring forward any grievance, or mark any defect, of which I am not myself competent to speak from personal knowledge. I do not merely say, from observation as a bystander; I limit myself still further, and confine myself to 129 causes in which I have been counsel for one party or the other. By these considerations, emboldened on the one hand, and, on the other impressed with a becoming sense of the arduous duty I have undertaken in this weighty matter, I will, without further preface, go on, in the first place, to state the points which I intend to avoid.
I shall omit Equity, in every branch, unless where I may be compelled to mention it incidentally, from its interference with the course of the Common Law; not that I think nothing should be done as to Equity, but because in some sort it has been already taken up by parliament. A commission has sat, and inquired into the subject, and produced a Report, received, though not yet acted upon. The noble and learned lord, who presides in the other House, has announced his intention of preparing a bill, founded on that Report. I may also add, that the subject has, to his own great honour, and to the lasting benefit of the country, been for many years in the hands of my hon. and learned friend, the member for Durham (Mr. M. A. Taylor): it is still with him, and I trust his care of it will not cease. For reasons of a like kind, I pass over the great head of Criminal Law. That inquiry, happily for the country, since the time when first sir Samuel Romilly (a name never to be pronounced by any without veneration, nor ever by me without sorrow) devoted his talents and experience to it, has been carried forward by my hon. and learned friend, the member for Knaresborough (sir James Mackintosh) with various success, until at length he reaped the fruit of his labours, and prevailed upon this House, by a narrow majority, to lend its attention towards so great a subject. On a smaller scale, on one indeed of a very limited nature, these inquiries have been followed up by the right hon. gentleman, who is now again Secretary of State for the Home Department. It is not so much for any thing he has actually done, that I feel disposed to thank him, as for the countenance he has given to the subject. He has power, from his situation, to effect reforms, which others hardly dare propose. His connections in the Church and State, render his services in this department almost invaluable. They have tended to silence the clamours that would otherwise have been raised against the reform of the law, and might possibly have proved fatal 130 to it. If (which I do not believe) he intended to limit his efforts to what he has already accomplished; if he were disposed to say, "Thus far have I gone, and no further can I go with you," the gratitude of his country would still be due to him in an eminent degree, for having abashed the worst enemies of improvement, by his countenance and support. But I trust he will gain direct the energies of his mind to the great work of reformation, and bestow his exertions over a wider space
Another reason for avoiding this part of the subject altogether is to be found in the nature and objects of the Criminal Law. I do not think it right to unsettle the minds of those numerous and ignorant classes, on whom its sanctions are principally intended to operate. It might produce no good effects if they were all at once to learn, that the Criminal Code in the mass, as it were, had been sentenced to undergo a revision—that the whole penal code was unsettled and about to be remodelled.
I intend also to leave out of my view the Commercial Law. It lies within a narrow compass, and it is far purer and freer from defects than any other part of the system. This arises from its late origin. It has grown up within two centuries, or a little more, and been formed by degrees as the exigency of mercantile affairs required. It is accepted, too, in many of its main branches, by other states, forming a code common to all trading nations, and which cannot easily be changed without their general consent. Accordingly, the provisions of the French Civil code, unsparing as they were of the old Municipal-law, excepted the law merchant, generally speaking, from the changes which they introduced.
Lastly, Sir, the law of Real Property forms no immediate subject of my present consideration: not that I shall not have much to propose intimately connected with it, and many illustrations to derive from it; but I am flattered with the hope, that the Secretary for the Home Department intends himself, on this subject, to bring forward certain measures, by which the present system will eventually undergo salutary alterations; and I cannot help here saying, that whatever the Criminal Law owes to the persevering and enlightened exertions of the late sir Samuel Romilly, and of his successor, the member for Knaresborough (sir James Mackintosh), I am 131 sure an almost equal debt of gratitude has been incurred on the part of the law of Real Property, to the honest, patient, and luminous discussion which it has received from one of the first conveyancers and lawyers this country could ever boast of. My hon. and learned friend (the Solicitor General) opposite, and those members of the House who are conversant with our profession, will easily understand, that I can only allude to Mr. Humphreys.
With these exceptions, which I have now stated as shortly as I was able, and for which I shall offer no apology, because it was absolutely necessary that I should begin by making the scope of my present purpose understood, I intend to bring all the law as administered in our courts of justice, under the review of the House; and, to this ample task, I at once proceed. But I shall not enlarge, after the manner of some, on the infinite importance and high interest which belong to the question, and the attention which it, of right, claims from us, whether considered as a branch of the government, or as the representatives of the people, or as a part of the people themselves. It would be wholly superfluous,—for every one must at once admit, that, if we view the whole establishments of the country, the government by the king, and the estates of the realm,—the entire system of administration, whether civil or military—the vast establish merits of land and of naval force by which the state is defended—our foreign negotiations, intended to preserve peace with the world—our domestic arrangements, necessary to make the government respected by the people—or our fiscal regulations, by which the expense of the whole is to be supported—all shrink into nothing, when compared with the pure, and prompt, and cheap administration off justice throughout the empire. I will indeed make no such comparison; I will not put in contrast things so inseparably connected; for all the establishments formed by our ancestors, and supported by their descendants, were invented and are chiefly maintained, in order that justice may be duly administered between man and man. And, in my mind, he was guilty of no error—he was chargeable with no exaggeration—he was betrayed by his faney into no metaphor, who once said, that all we see about us, King, Lords, and Commons, the whole machinery of the State, all the apparatus of the system, and its varied workings; ended in 132 simply bringing twelve good men into a box. Such—the administration of justice—is the cause of the establishment of government—such is the use of government: it is this purpose which can alone justify restraints on natural liberty—it is this only which can excuse constant interference with the rights and property of men. I then invite you, Sir, to enter upon an unsparing examination of this mighty subject: I invite the House to proceed with me, first of all into the different Courts—to mark what failures in practice are to be found in the system, as it was originally framed, as well as what errors time has engendered by occasioning a departure from that system; and then to consider, whether we may not, safely, and usefully, apply to these defects remedies of a seasonable and temperate nature, restoring what is decayed, if it be good—lopping off what experience has proved to be pernicious.
i.—In the first place, let us proceed to the Courts in Westminster-hall, and observe the course pursued in them. The House is aware that, whatever may have been the original of our three great Common Law courts, they now deal with nearly the same description of suits, and that, though the jurisdiction of each was at first separate, and confined within very narrow limits, their functions are now nearly the same. The jurisdiction of the court of King's-bench, for example, was originally confined to pleas of the Crown, and then extended to actions where violence was used—actions of trespass, by force; but, now, all actions are admissible within its walkthrough the medium of a legal fiction, which was adopted for the purpose of enlarging its authority, that every person sued is in the custody of the marshal of the court, and may, therefore, be proceeded against for any personal cause of action. Thus, by degrees, this court has drawn over to itself actions which really belong to the great forum of ordinary actions between subject and subject, as its name implies, the court of Common Pleas. The court of Common Pleas, however, in its exertions for extending its business, was not so fortunate as its rival; for, though it made a vigorous attempt under lord chief justice North with that view, it never was able to obtain cognizance of—the peculiar subject of King's-bench jurisdiction—Crown Pleas.
I hope, Sir, the House will allow me, for the sake of a little divertissement in the 133 midst of so dry a matter, to state the nature of the contest between the two courts, as described by Roger North in his biography of Lord Keeper Guildford; a work of amusement, with which I am sure my learned friend (the Solicitor-general) is as well acquainted as he is with the subtleties of his profession.
It appears from his account, that the courts of King's-bench and of Common Pleas had quarrelled as to their respective provinces; for he says, "The court of Common Pleas had been outwitted by the King's-bench, till his lordship came upon the cushion, and that by our artifice in process called ac etiams. His lordship used the same artifice in the process of his court, where it was as good law as above. But Hale exclaimed against it, and called it altering the process of law; which very same thing his own court had done and continued to do every day."* In another place he tells, "The courts being upon terms of competition, the King's-bench outwitted in the Common Pleas:" and how the latter invented a shift against the King's-bench, "There," says he, "the Common Pleas thought they had nicked them. But the King's-bench was not so sterile of invention as to want the means of being even with that device," and he shews how—concluding with this remark—"The late chief justice, sir Orlando Bridgman, and his officers of the Common Pleas, gave this way of proceeding to the King's bench very ill language, calling it an arbitrary alteration of the form of legal process, and utterly against law. But the losers might speak; they got nothing else; and the Triccum in lege, carried it for the King's-bench; which court, as I said, ran away with all the business."†
The Exchequer has adopted a similar course; for, though it was originally confined to the trial of revenue cases, it has, by means of another fiction—the supposition, that every body sued as a debtor to the Crown, and further, that he cannot pay his debt, because the other party will not pay him,—opened its doors to every suitor, and so drawn to itself the right of trying cases, that were never intended to be placed within its jurisdiction.
The first state of the courts being that of distinct jurisdiction, then, of course, this* North's Lives of Lord Keeper Guildford, &c. vol. 1, pp. 130,203.† Ibid.134 separation of provinces was praised, therefore all distinction became obsolete, and then the conflict and competition were as much commended; and with far greater reason, if it were real; but it is almost purely speculative. In the first place, the court of Common Pleas shuts its doors to many practitioners of the law, requiring that a certain proportion of fees should be advanced at a much earlier stage in the cause, than is customary in the other courts. And who is it that must advance this money? Either the attorney himself, if it be his own cause, must pay the money out of his own pocket, or, if he is acting as agent for a country practitioner, he must begin by laying out the money long before he can draw upon his employer for reimbursement; and he is not, in all cases, sure of being repaid for these advances. In the second place, clients and their attornies are induced, not to carry causes into the Common Pleas, by the strict monopoly that exists in the advocates of that court. I have every wish to speak with all respect of the learned persons who there engross the practice; but as, no doubt solicitors will have their favourites, and as possibly their clients may also have their favourites, the practice not being open to all barristers, prevents many suitors from resorting to a court where no one can be employed for them, at least in term time, except he be a sergeant; and, great as the learning of that body is known to be, well founded as their reputation is, for skill and for zeal, as well as for legal knowledge, yet the exclusive right which they exercise operates to keep away business from the court, and thus it has happened, both that other advocates seldom practise there at Nisi Prius where the court is open, and that much fewer suits are carried to the Common. Pleas than to the King's-bench. The causes which thus operate to shut the doors of that court must be removed before it can hope to have its fair share of practice. The Exchequer, in like manner, has its drawbacks, though they operate in another way. There is one reason why, as at present constituted, it cannot do much business, or have the high reputation which it ought to enjoy; I mean the mixture of various suits which are cognizable in it. It is, in fact, a court of all sorts—of equity and of law—of revenue law, and of ordinary law—of law between subject and subject, as well as of law between the subject and the Crown. This makes suitors, seeing the 135 business done in so many different ways, come to the conclusion that it is not well done in any: I do not by any means assert, that this is a correct opinion, at the present time; because the judges and the barristers employed in that court, do not, I am convinced, yield to any body of professional men in their knowledge of equity and law. There are to be found on its bench, highly distinguished equity, and common lawyers; men of known legal talents, and the greatest experience, both in Chancery practice, in Nisi Prius, and in Criminal law. In what, therefore, I have said, I refer merely to that species of public opinion, which, whether right or wrong, has been engendered by the constitution of the court; I refer, also, to the natural tendency of a jurisdiction, thus open to such a variety of jurisprudence, to degenerate into inaccuracy, or want of effective skill in each department.
But there is another and more obvious reason why this court does not obtain so much business as the others; I mean the limited number of attornies belonging to and allowed to practise in it. If there is cause to complain, as I have been doing, of the monopoly among the advocates attached to the Common Pleas, there is much more cause for a similar complaint touching the attornies in the Exchequer. The practitioners in that court are four attornies and sixteen clerks, and none others are allowed to practise there: if a country attorney wishes to take his cause thither, the only mode by which he can do so, is to employ one of the privileged attornies of the court, and divide with him the profits of the suit. It is needless to say, that such a system has, of necessity, a tendency at once to shut the doors of the court of Exchequer against suitors.
What, then, is the natural consequence of those restrictions which prevent suitors from approaching the courts of Common Pleas and Exchequer? Why, it is this—wherever there is but little business done in any court, those in power are induced not to place the strongest judge in that situation; then, the small portion of business to be done, renders the judge less fit for his office, and so, by action and reaction, while the little business makes the bench and the bar less able, the inferior ability of the court still further reduces that little business. I am here speaking of past times, but with a view, however, to what may occur at a future period. We 136 may not always have the bench so well filled as it is at present. The time may come when, if a judge were to be made, in consequence of political influence, who was known not to be capable of properly filling the office, it may be said by those who supported him, "Oh, it does not matter—send him to the court of Exchequer—there is nothing to do there." Thus, the small portion of business transacted—the suspicion originating in the general mixture of suits, carried on in different ways, that the business is not well done,—the monopoly of attornies, together with several other causes, occasions this court to be the least frequented of any: indeed, it has now scarcely any thing to engage its attention. The judges do not sit for more than half an hour some mornings, and there are hardly ever on the paper more than six or seven causes for trial after term: a dozen would be considered a large entry; when I well remember lord Ellenborough having five hundred and eighty-eight set down for trial in London only; and the present lord chief justice lately had on his paper no less than eight hundred and fifty untried causes. I mention this to support my proposition, that there is not really a free competition between the different courts. To say, in the circumstances which I have stated, that suitors have a free access to all the courts equally, is a fiction—an assertion adapted to what ought to be, perhaps to what is intended, but not founded on the fact.
Experiments have been tried to lighten the business of the court of King's-bench; but I do not find that any of them have answered the purpose for which they were instituted. The first of these attempts was made in the year 1821, when it was arranged, that the chief justice should sit in one court, and a puisne judge in another, at the same time; but never did any arrangement fail more completely. The court in which the puisne judge sat remained almost idle; while the other court was as constantly preferred, and nearly as much overloaded as before. Little else was effected but a great inconvenience both to practitioners and suitors, by the passing and repassing from court to court. In fact, it is not in the power of the courts, even were all monopolies and other restrictions done away, to distribute business equally, as long as the suitors are left free to choose their tribunal. There will always be a favourite court; and the cir- 137 cumstance of its being preferred tends to make it more deserving of preference; for if the favour towards it began in mere caprice, the great amount of business draws thither the best practitioners, to say nothing of judges; and the better the court, the greater will be its business. The same action and re-action will operate favourably, which I before shewed in its unfavourable effects, where a court was declining.—"Possunt quia posse videntur." The experiment of 1821, having failed entirely, was not repeated.
Another attempt has subsequently been made to relieve the court of King's-bench from the pressure of Term business, which must always bear a proportion to the Nisi Prius causes. This system is still going on, under the bill brought into the House by the present Chancellor, and of which, though he was induced to patronize it officially when Solicitor-general, I have reason to believe he never much approved. As this arrangement is compulsory, the client having no choice, it cannot well fail; but I heartily wish that it had failed, for it has done much mischief, and is certainly one of the worst changes that has ever taken place. It is true, the great pressure of business requires that something should be done; but it is equally true, that the right thing has not been adopted; for, where the King's-bench sits, with the chief justice presiding—where the suitors resort—where the bar is mustered—where the public attend—where all the counsel and attornies appear—where the business is disposed of, as it ought to be, gravely and deliberately, with the eyes of mankind, with the eyes of the bar, as well as of the world at large, turned on the proceedings—would not every one point to as the place in which all important legal questions ought to be decided? Would not any one, on the other hand, say, if another court were instituted in a sort of back-room, where three judges were sitting—where the only persons present, beside the judges, were the counsel and attorney employed on either side of the cause that was pending—where there was no audience, and the public eye was entirely directed not upon but from that to the other court—would not any one, I ask, declare, that a court so constituted was the place in which the trifling business alone should be transacted: These, I think, would be but natural conclusions; and yet if the matter be stated exactly the 138 other way, it will be far nearer the truth. Of the really important business, as regards both its difficulty and importance to the law, and, indeed, to the suitor, a very large proportion is done in that back-room, and before these three judges; it is done in a corner, and, I may say, disposed of behind people's backs, with only the attendance of the attorney and barrister on each side, or, at most, with the presence of these and of the practitioners waiting for the next cause; and as the court is not frequented by the public any more than the profession, the business may certainly be said to be transacted without due publicity and solemnity. Thus we see, that by this arrangement, while the most interesting matter is overlooked, trifling business and points of no importance are brought forward with all possible observation:—a motion for judgment as against the casual ejector, which is a motion of course—a motion to refer a bill to the Master to compute principal and interest—for judgment, as in case of a nonsuit—and a thousand others, either of course or of the most trifling moment, are heard with the utmost publicity, before the whole court—before the whole bar—before the whole body of attornies—before the whole public—all of which might be settled by three judges in a corner, or by any one of them, or by any one of their clerks. The consequence is, that much time is lost to the full court, while the most important business—special arguments, raising the greatest legal questions—new trials, involving both matters of law and facts affecting large interests; and the crown-paper comprehending all the questions from Session, are obliged to be heard in the private and unsatisfactory manner I have described. I wish this system to be remedied, because it is a great and growing evil. It may be said, that the judges have not time to do the business. I deny that: there is time. Six hours a day, well employed, would be amply sufficient for all purposes. Let them come down to the court at ten o'clock in the morning and remain till four—a period of six hours—and the business may be done. But the system is at present extremely ill-arranged; and I will show how, without having any one to blame for it. The judges do their utmost, but they cannot remedy the evil without your aid. Let us see how their time is employed. They are supposed to come to the court at ten 139 o'clock, and to remain there till four. Surely this time may safely be pronounced to be sufficient for the transaction of their business. Then why have they not these six hours? There are two reasons for this:—the one is, that bail must be taken by a judge. Mr. Justice Bayley, no longer ago than last Monday, was occupied the whole day in the Bail court; and this morning Mr. Justice Holroyd was not able to get away till twelve o'clock. I cite these instances of late occurrence, Sir, that you may see how closely I desire to keep by the actually existing state of the facts; but every week furnishes examples as well as the present. Thus, then, we see that in one case a whole day was lost, as far as regards a full court, and in another two hours, merely for the purpose of attending to trifling business, which might just as well be transacted by a commissioner, say a barrister of ten years standing. The other reason why the judges' time is mispent, arises from chamber business, which consists in the learned judges', the profound lawyers, the great magistrates, whose names I have made free to mention, sitting at Sergeants'-inn to hear the squabbles of attornies, and the clerks of attornies, among themselves, for barristers rarely attend: this takes them in rotation away from the court at three o'clock; so that, in fact, while their nominal time is from ten to four, they are only, on the average, really present from eleven or twelve to three, by which, instead of transacting business during six hours, the time is reduced to three, or at most four hours per day. And what, Sir, is the inference from all this? Obvious enough, certainly: for though it may be fairly contended, that the business of the Bail-court could be transacted by a commissioner, it may, perhaps, be doubted whether the Chamber practice does not require a judge to perform it, considering the points to be disposed of, and the persons to be controlled. There may, therefore, be a sufficient excuse for the arrangement, as matters stand at present, and yet a remedy may be necessary, as it may certainly be found in changing the circumstances. For my own part, I frankly confess that I am one of those who do not see the permanent excellence that some suppose to be vested in the number twelve; although lord Coke has spoken of it with a degree of rapture like that of the Algebraist, when he dwells upon the mar- 140 vellous powers of three or of nine. Twelve appears to be the number in his view, connected with all that is important and venerable, either sacred or profane, ancient or modem; but as I, unfortunately, do not possess the lights by which he was guided, I cannot help thinking that fourteen is a much better number than twelve, although it may not be so good for division; and although I cannot quote the fourteen Apostles, or the fourteen Tables, or the fourteen wise men. It will, indeed, divide by seven, which is more than can be said of twelve; but I rely not upon that superiority: it has another arithmetical quality of more importance. Though neither so divisable, nor so beautiful, nor so classical as twelve, it contains two more units than twelve—beats it by two beyond all doubt or cavil; and that superiority recommends it for my present purpose. If twelve was beautiful in the days of lord Coke, fourteen must now, I fear, on this account take its place: for how any one can suppose, that twelve men can be able to do now, what they were only able to do centuries ago, is to me matter of astonishment; now, that they have seven or eight hundred causes to try, where they formerly had but thirty or forty, and when we know, that in the time of lord Mansfield, in the late reign, sixty was reckoned a large entry.
This, Sir, is one of the illustrations which I would give to expose the heedless folly of those who charge the Bench and the Bar with causing all the delays in legal proceedings. How can it be expected, that twelve judges can go through the increased and increasing business now, when the affairs of men are so extended and multiplied in every direction, the same twelve, and at one time fifteen, having not been much more than sufficient for the comparatively trifling number of causes tried two or three centuries ago? But, there is a far more unthinking and more dangerous prejudice to which the same topic is a complete refutation—I mean the outcry against innovation, set up as often as any one proposes those reforms, rendered necessary by the changes that time, the great innovator, is perpetually making.—Tempus novatur rerum.—Those who advise an increase of the judges beyond their present number are not innovators. The innovators are, in truth, those who would stand still while the world is going forward,—who would only employ 141 the same number of labourers while the harvest has increased ten-fold,—who, adhering to the ancient system of having but twelve judges, although the work for them to do has incalculably increased, refuse to maintain the original equality, the pristine fitness of the means to the end, the old efficiency and adequacy of the establishment; but they are not innovators who would apply additional power when the pressure exceeds all former bounds—who, when the labour is changed, would alter the price of workmen employed, and thus preserve the proportions that originally existed in the judicial system—who would most literally keep things as they were, or return them to their primitive state by restoring and perpetuating their former adaptation and harmony. The advantage of the addition I am recommending will become the more evident, when I consider the Welsh judicature, which I believe to be the worst that was ever established. Why should not the two judges be received amongst the others, and divide the Welsh circuits with the old ones? Not that I mean they should always take those circuits, but each might take them in his turn, as each in his turn might sit in the court of King's-bench and Common Pleas, and at the Old Bailey, besides dividing with the chiefs the sittings at Nisi Prius.*
There are two observations, Sir, which I have to make relative to the judges generally, and which I may as well state now I am upon that subject. I highly approve of paying these learned persons by salaries, and not by fees, as a general principle; but, so long as it is the practice not to promote the judges, which I deem essential to the independence of the bench, and so long as the door is thus closed to all ambition, so long must we find a tendency in them, as in all men arrived at their resting place, to become less strenuous in their exertions than they would be if some little stimulus were applied to them. They have an irksome and an arduous duty to perform, and if no motive* The three puisne judges thus sitting in banco, the fourth would each term take bail, and insolvents and common motions in the morning, and chamber business afterwards; he would also take the sittings in term, a serious inconvenience at present; and he might dispose of certain classes of cases after term, as undefended causes and bills of exchange.142 be held out to them, the natural consequence must be, as long as men are men, that they will have a disposition growing with their years to do as little as possible. I, therefore, would hold out an inducement to them to labour vigorously, by allowing them a certain moderate amount of fees: I say, a very moderate amount, a very small addition to their fixed salary, would operate as an incentive; and if this were thought expedient, it ought to be so ordered that such fees should not be in proportion to the length of a suit, or the number of its stages, but that the amount should be fixed and defined once for all, in each piece of business finally disposed of. I am quite aware that this mode of payment is not likely to meet with general support, especially with the support of the reformers of the law; but I give the suggestion as the result of long reflection, which has produced a leaning in my mind towards some such a plan. I throw out the matter for inquiry, as the fruit of actual observation, and not from any fancy that I have in my own head; but I may also mention, that some friends of the highest rank and largest experience in the profession, agree with me in this point, men who are among the soundest and most zealous supporters of reform in the courts of law.
The other general observation that I have to make, with respect to the judges, is of a nature entirely different from the last which I have submitted to the House. The great object of every government, in electing the judges of the land, should be to obtain the most skilful and learned men in their profession, and at the same time, the men whose character gives the best security for the pure and impartial administration of justice. I almost feel ashamed, Sir, to have troubled you with such a truism; but the House will presently see the application I am about to make of it. Sorry am I to say, that our system of judicial promotion sins in both these particulars. Government ought to fill the bench with men taken from among the most learned lawyers and most accomplished advocates—men who have both knowledge of the depths of jurisprudence and sagacity to apply it—men who, from experience as leading advocates possess the power of taking large and enlightened views of questions, and of promptly seizing the bearings of a case. There cannot be a greater error than theirs 143 who fancy that an able advocate makes a bad judge; all experience is against it. The best judges in my time, with the exception of the present Lord Chief Justice, than whom no man can discharge his office more excellently and efficiently, have all of them been previously distinguished as advocates in the profession. But not only should the choice be unconfined by the legal acquirements and professional habits of the practitioner, there ought not to be, in choosing judges from the bar, any exclusion or restriction. He alone ought to be selected, in whom talent, integrity, and experience most abound, and are best united. The office of judge is one of so important and responsible a nature, that one should suppose the members of government would naturally require that they should be at liberty to make their selection from the whole field of the profession—that they would themselves claim to have the whole field open to their choice. Who could suppose that a ministry would not eagerly seek to have all men before them, when their object must be to choose the most able and accomplished? But, although this is obvious and undeniable, and although the extension of the ministers' search cannot fail to be attended with the highest public advantage, as well as the greatest relief to him in performing his trust, is it the case that any such general and uncontrolled choice is exercised? Is all the field really open? Are there no portions of the domain excluded from the selectors' authority? True, no law prevents such a search for capacity and worth! True, the doors of Westminster-hall stand open to the minister! He may enter those gates, and choose the ablest and the best men there. Be his talent what it may, be his character what it may, be his party what it may, no man to whom the offer is made will refuse to be a judge. But there is a custom above the law—a custom, in my mind, "more honoured in the breach than the observance," that party, as well as merit, must be studied in these appointments. One half of the bar is thus excluded from the competition; for no man can be a judge who is not of a particular party. Unless he be the known adherent of a certain system of government,—unless he profess himself devoted to one scheme of policy,—unless his party happen to be the party connected with the Crown, or allied with the ministry of the day, there 144 is no chance for him; that man is surely excluded. Men must be on one side of the great political question to become judges; and no one may hope to fill that dignified office, unless he belongs to the side on which courtly favour shines; his seat on the bench must depend, generally speaking, on his supporting the leading principles of the existing administration.
But perhaps, Sir, I may be carrying this distinction too far, and it may be said, that the ministers do not expect the opinions of a judge should exactly coincide with theirs in political matters. Be it so; I stop not to cavil about trifles; but, at all events, it must be admitted that, if a man belongs to a party opposed to the views of government; if, which the best and ablest of men, and the fittest for the bench, may well be, he is known for opinions hostile to the ministry, he can expect no promotion—rather let me say, the country has no chance of his elevation to the bench, whatever be his talents, or how conspicuously soever he may shine in all the most important departments of his profession. No one, I think, will venture to deny this; or, if he do, I defy him to show me any instance in the course of the last hundred years, of a man, in party fetters, and opposed to the principles of government, being raised to the bench. No such thing has taken place that I know of. Never have I heard of such a thing, at least in England; though we have, perhaps, known instances of men who have changed their party, to arrive at the heights of their profession. But on this subject, desirous throughout of avoiding all offence, I will not press—I do not wish to say a word about it.
In Scotland, it is true, a more liberal policy has been adopted, and the right hon. gentleman opposite has done himself great honour by recommending Mr. Gillies, Mr. Cranstoun (now lords Gillies and Carrhouse), and Mr. Clerk, (lord Eldin) all as well known for party-men there as lord Eldon is here. Two other instances should be added—the lord Chief Commissioner, who has had the signal happiness of presiding over the introduction of jury trial into his native country, and Mr. Cathcart and lord Alloway; though, unfortunately, their party has been what is now once more termed, the wrong side; but all men of the very highest eminence among the professors of the law. Now, when I quote these instances in Scotland, 145 I want to see examples of the same sort in England; for, however great my respect for the law and the people of the North may be, I cannot help thinking, that we of the South too, and our jurisprudence, are of some little importance, and that the administration of justice here may fairly call for some portion of attention. But, Sir, what is our system? If, at the present moment, the whole of Westminster-hall were to be called in the event of any vacancy unfortunately occurring among the chief justices, to name the man best suited to fill it, to point out the individual whose talents and integrity best deserved the situation—whose judicial exertions were the most likely to shed blessings on his country—can any one doubt for a moment whose name would be echoed on every side? No; there could be no question as to the individual to whom would point the common consent of those most competent to judge; but, then, he is known as a party-man, and all his merits, were they even greater than they are, would be in vain extolled by his profession, and in vain desiderated by his country. I reprobate this mischievous system by which the empire loses the services of some of the ablest, the most learned, and most honest, men within its bounds.
And here let me not be supposed to blame one party more than another; I speak of the practice of all governments in this country; and, I believe, when the Whigs were in office, in 1806, they did not promote to the bench any of their political opponents; they had no vacancies in Westminster-hall to fill up, but in the Welsh judicature they pursued the accustomed course. Now, what is the consequence of thus carrying party-principles into judicial appointments? The choice of judges is fettered by being confined to half the profession; so that you have less chance of able men; and those you get are of necessity partisans, and, therefore, less honest and impartial. Why should the whole bench be Ministerial or Tory? No man can desire it to be so, for the purposes of judging over a community, far, very far, from being Ministerial or Tory. Yet it must be so, unless vacancies should occur during those visits of Whig ministries, "few and far between," when once in a quarter of a century power falls upon that party, and then spreads its wings and flies from them in a few months. 146 Does not this arrangement instil into the minds, both of expectant judges and of men already on the bench, a feeling of party fatal to strict justice in political questions? I speak impartially, but unhesitatingly on this point, for it is perfectly notorious, that now-a-days, whenever a question comes before the bench, whether it be upon a prosecution for libel, or upon any other matter connected with politics, the council at their meeting take for granted that they can tell pretty accurately the leaning of the judges, and predict exactly enough which way the consultation of the judges will terminate, though they may not always discover the particular path which will lead to that termination. While the system I complain of continues, while you suffer it to continue, such a leaning is its necessary consequence. The judges have this leaning—they must have it—they cannot help having it—you compel them to have it—you choose them on account of their notoriously having it at the bar; and you vainly hope that they will suddenly put it off, when they rise by its means to the bench. On the contrary, they know they fill a certain situation, and they cannot forget by whom they were placed there, or for what reason.
There is no doubt that the present judges will always discharge their functions with all the impartiality that any man can expect from them; but I speak without reference to individual habits or prejudices—I speak of impressions which it is natural to expect must exist, where circumstances all conspire to create them; I speak, too, I must be allowed to say, quite disinterestedly. I cannot take the situation of a judge—I cannot afford it. I speak not for myself, but for the country, because I feel it to be a matter of the deepest importance; and from what I have seen of the right hon. gentleman opposite (Mr. Peel), I really do hope to see this matter much more maturely weighed, than it has heretofore been.
ii.—I am afraid that I have already tired the House with the length of these details; but I must now take my leave, for a time, of Westminster-hall, and beg of you to mark, in the next place, the manner in which the law is administered in Wales. Why should Wales, because it happens to be termed the Principality, have the rights of property, and the personal privileges of the inhabitants, dealt with by different judges, and almost by a, 147 different system from that which is established in England? In England you have the first men—men of the highest education and experience—to sit in judgment on life and property. In Wales you have as judges, I will net say inferior men, but certainly not the very first, nor in any respect such as sit upon what Roger North calls the "cushion in Westminster-hall." I shall here show three great defects requiring a remedy most imperatively. Oftentimes, those gentlemen have left the bar, and retired to the pursuits of country gentlemen. I do not say that they are, for that reason, unfit for the office of judge, but still they cannot, be so competent as men in the daily administration of the law, and forming part of our Supreme courts. In some cases they continue in Westminster-hall—which is so much the worse,—because a man who is a judge one half the year, and a barrister the other, is not likely to be either a good judge or a good barrister. But a second and a greater objection is, that the Welsh judges never change their circuits. One of them, for instance, goes the Carmarthen circuit, another the Brecon circuit, and a third the Chester circuit—but always the same circuit. And what is the inevitable consequence? Why, they become acquainted with the gentry, the magistrates, almost with the tradesmen of each district, the very witnesses who come before them, and intimately with the practitioners, whether counsel or attorney. The names, the faces, the characters, the histories, of all those persons are familiar to them; and out of this too great knowledge grow likings and prejudices which never can by any possibility cast a shadow over the open, broad, and pure path of the judges of Westminster-hall. Then again they have no retiring pensions, and the consequence is, they retain their salaries long after they have ceased to discharge, properly, the functions for which they receive them. Now mark the result of all this. On one of the Welsh circuits, at the last Spring Assizes, there were set down no more than forty-six causes for trial; and how many does the House think were disposed of? Only twenty, and of the twenty-six made remanets, are some that had stood over from the preceding assizes. It is evident enough what should be done here. If any of the judges of the Principality have become, from the extreme pressure of business on the one hand, or from any 148 physical cause on the other, inadequate to the discharge of the business which comes before them, pension them off—if they be barristers yet remaining in Westminster-hall, and not fit to be raised to the bench, pension them off too: sure I am, that theirs will be the cheapest pension, nay, the most beneficial to the giver, "being twice blessed," which has ever been bestowed. I verily think that the Principality would itself cheerfully pay this first cost of a better system. At all events, add two judges to your present number, and let them take, with the other twelve, their turn and share in the business of the country. Let the Principality of Wales be divided into two circuits, and then you will have the work well done, and quickly done, especially if you transfer the equity jurisdiction to the two courts of Westminster. In addition to this, from the accession to the present number of judges, the existing difficulties arising from the bail court and the chamber practice will be done away.
And here, before passing to another head of judicature, the times of the circuits require a word or two. Not, perhaps, that this is of so much importance as the other defects I have already noticed, or shall presently touch upon; but it regards classes of great importance in themselves, judges, barristers, and solicitors; and it touches also, in no little degree, the conveniency of the community at large. I should be most glad to see that folly—for really I cannot call it by any other name—that absurd and vexatious folly of regulating Easter term by means of the moon, done away with. It is said by many that this would be difficult to reform. I see no such difficulty in the matter. Let the law returns be made certain, and leave the moveable feast to the church. I have no wish to interfere with the terms and seasons of the church; let those be regulated as you please; but let this inconvenience in the law be remedied, by making, for Easter and Trinity terms, like those for Michaelmas and Hilary, the returns on some certain days. I remember that when the late Mr. Erskine brought in a bill, in 1802, to fix Easter term, a learned judge delivered himself in print against the dangerous innovation; and some persons, alarmed by him, exclaimed, "Only imagine the horror of attempting to change Easter term, when all Christians throughout the world have at present the unspeak- 149 able comfort of knowing that they are keeping this great festival upon one and the same day." For my part, I have no wish to deprive them of this comfort, admitting it, as I do, to be unspeakable. The day upon which Good Friday falls may be determined as heretofore, that is, by the period of the full moon; by the same certain varying rule may Easter Sunday be fixed for all clerical purposes; but temporal business ought not to be sacrificed to these ideas of some undefined spiritual consolation. There is no inconvenience in Easter being moveable, but there is a very great inconvenience in making the law returns moveable. Why not, then, let the feasts of the Church remain changeable as heretofore, and the Terms of the courts, little enough connected with sacred things, fall at a stated period? Let it be counted, for example, from Lady-day, which is always on the 25th of March. But why, indeed, must we continue to count from Saints' days, now that we have happily a very Protestant country, more especially under the government of the present Commander-in-chief? Why preserve any Romish folly of this sort, and keep up a mere remnant of popery? Let Easter Term always begin on the 10th of April, or on the 5th, and the inconvenience will cease. It is the foolishest of vulgar errors to suppose, that, by how much the more you vex and harass the professors of the law, by so much the more you benefit the country. The fact is quite the reverse: for by these means you make inferior men, both in feelings, and in accomplishments, alone follow that profession out of which the judges of the land must be appointed. I should rather say, that by how much the more you surround this renowned profession with difficulties and impediments, calculated only to make it eligible for persons of mere ordinary education, and mere habits of drudgery, who otherwise would find their way to employment in tradesmen's shops, or at best in merchants' counting-houses—by so much the more you close it upon men of talent and respectability, and prevent it from being the resort of genius and of liberal accomplishments. I apprehend, therefore, that, the convenience of the Bar is a matter which the legislature ought never to lose sight of, where it clashes not with the advantage of the suitor. The having the Terms which are moveable (Easter and Trinity), and 150 the circuit, and the long vacation, earlier by four or five weeks in one year, and later by four or five weeks in another, is a most serious inconvenience in itself, and quite unnecessary upon any principle. Only observe how hard the present system bears, for instance, upon those who, like myself, frequent the Northern circuit. It happened to me, that I did not get home till the 20th of September last year, having repaired to London on the 5th of October the year before, so that I was engaged in my profession for eleven months and a half, and having been gratified, out of the twelve months, by exactly one fortnight's vacation for needful repose, when I should have been obliged again to bend my steps towards Guildhall, appointed to open on the 9th of October, I naturally enough joined those who signed a requisition to my lord Tenterden, entreating him to defer the sittings. His lordship most handsomely expressed his willingness to meet the wishes of the gentlemen of the bar, kindly returning the affectionate respect which all who practise in his court bear to his person. He stated his satisfaction at being able to accommodate us, by sitting on Tuesday the 16th, instead of Tuesday the 9th, so that we obtained a week, for which we were thankful. My lord observed, that in the state of his paper he could grant us no more; indeed, such is his resolution manfully and honestly to despatch his business, that he seems to take as much interest in his work as others do in their relaxation.
That his lordship's paper was far too heavy, there cannot be a doubt, and so it will always be. No one judge can get through the mass of causes entered in the King's-bench, trying them patiently and really hearing them to an end. Depend upon it, when more have been tried in the same time, they have been half heard and forced to compromise or reference. Now, if you will have two judges sitting at Nisi Prius at once, each of them taking a particular class of trials—the one confining himself to the heavy business, and the other to bills of exchange, promissory note cases, and undefended causes generally—the whole business of the court could be got through both thoroughly and with despatch; but, as the law now stands, it is utterly impossible for any man, in days consisting of no more than twenty-four hours, and labouring for eleven months in the year, to dispose of the business before 151 him. I say eleven months, for the Court, with the exception of a day or two of respite at Easter, and a week at Christmas, sat for eleven months last year, taking the circuits as part of the year's work.
Another obvious distribution might be made without having two judges sitting together in one court. If, as all real actions have their domicile in the Common Pleas, actions which, in their nature, partake of real actions, as ejectments, trespass to try title, and so forth, might be carried there too. Other suits might be susceptible of a similar classification, as if actions respecting tithes, which are not frequent, bills of exchange, and promissory notes, were carried into the court of Exchequer. The lord chief Baron is allowed, by the 57th of Geo. 3rd, to sit in Equity and to hear alone, all causes and all motions in equity; but he never, in fact, does hear motions, although certainly no lawyer ever sat in that court more fitted to despatch any branch of Equity practice than is the present head of the Exchequer. Were he confined to the equity side, and were another judge, a common lawyer, appointed to preside on the law side of that court, you would have two effective courts, instead of one not very effective for either law or equity. The court of Chancery would be materially relieved by this arrangement; while the double good would be found of the business being better done both on the bench and at the bar, from that expertness which ever attends the division of labour; and of seasonable relief being afforded to both the judges and practitioners of the King's-bench, who would be restored to something of the leisure, at least the moderate professional employment, so favourable to the liberal pursuits and unfettered study of jurisprudence, which have always formed the most accomplished lawyers.
iii.—I now pass to the Civil Law courts; and their constitution I touch with a tender, and, I may say, a trembling hand, knowing that, from my little experience of their practice, I am scarcely competent to discourse of them; for I profess to speak only from such knowledge as I have obtained incidentally from practising in the two courts of Appeal, the high court of Delegates, and the Cock-pit, where I have been occasionally associated with the civilians. The observations I have to make on this part of the subject resolve themselves, entirely, into those which I would 152 offer upon the manner in which their judges are appointed and paid. In the first place, I would have them better paid than they are now; a reform to which I would fain hope there may be no serious objection on their part, averse, as I know them, generally, to all change. I think they are underpaid in respect of the most important part of their functions. The judge of the high court of Admiralty, who has the highest situation, or almost the highest, among the judges of the land (for there is none of them who decides upon questions of greater delicacy and moment, in a national view, or involving a larger amount of property)—this great dignitary of the law has 2,500l. a-year salary only. The rest of his income is composed of fees, and these are little or nothing during peace. But, then, in time of war, they amount to seven or eight thousand per annum. I profess not to like the notion of a functionary, who has so many calls, as the judge of the Admiralty court, for dealing with the most delicate neutral questions—for drawing up manifestos and giving opinions on these questions, and advising the Crown in matters of public policy bearing on our relations with foreign states;—I like not, I say, the notion of such a personage being subject to the dreadful bias (and here, again, I am speaking on general principles only, and with no personal reference whatever) as he is likely to receive from the circumstance of his having a salary of 2,500l. per annum only, if a state of peace continue, and between ten or eleven thousand a year, if it be succeeded by war. I know very well, Sir that no feeling of this kind could possibly influence the present noble judge of that court; but I hardly think it a decent thing to underpay him in time of peace, and still less decent is it, to overpay him at a period when the country is engaged in a war. I conceive that it may not always be safe to make so large an increase to a judge's salary dependent upon whether the horrors of war or the blessings of peace frown or smile upon his country—to bestow upon one, eminently mixed up with questions on which the continuance of tranquillity, or its restoration when interrupted, may hinge, a revenue, conditioned upon the coming on, and the endurance of hostilities.
The other remark, which I have to offer on these courts, I would strongly press 153 upon the consideration of the House; it relates to the mode in which their judges are appointed. Is it a fit thing, I ask, now, when Popery is no longer cherished or even respected, indeed hardly tolerated, among us—that one of its worst practices should remain, the appointment of some of the most eminent judges in the Civil Law courts by prelates of the Church? I except, indeed, the judge of the high court of Admiralty, because his commission proceeds from the Lord High Admiral; but I speak of all those who preside in the Consistorial courts—who determine the most grave and delicate questions of spiritual law, marriage, and divorce, and may decide on the disposition by will of all the personalty in the kingdom. Is it a fit thing that the judges in these most important matters should be appointed, not by the Crown, not by removable and responsible officers of the Crown—but by the archbishop of Canterbury and bishop of London, who are neither removable nor responsible—who are not lawyers—who are not statesmen—who ought to be no politicians—who are, indeed, priests of the highest order, but not, on that account, the most proper persons to appoint judges of the highest order? So it is in the province of York, where the judges are appointed by the archbishop; so in all other Consistorial courts, where the judges are appointed by the bishops of the respective dioceses in which they are situated. From their courts an appeal lies, it is true, to the court of Delegates, in the last resort; but, so far from this affording an adequate remedy, it is an additional evil; for I will venture to affirm, that the Delegates is one of the worst constituted courts which was ever appointed, and that the course of its proceedings forms one of the greatest mockeries of appeal ever conceived by man. And I shall demonstrate this to you in a very few words. The Court is thus formed:—You take three judges from the Common Law courts, one from each: to these you add some half dozen civil lawyers, advocates from Doctors' Commons, who the day before may have been practising in those courts, but who happen not to have been in the particular cause, in respect of which the appeal has been asserted. Now, only see what the consequence of this must be. The civilians, forming the majority of the Delegates, are, of necessity, men who have no practice, or the very youngest of the 154 doctors. So that you absolutely appeal from the three great judges of the Civil and Maritime courts—from the sentences of sir William Scott, sir John Nicholl, and sir Christopher Robinson—of those learned and experienced men, who are to us the great luminaries of the Civil law—the venerated oracles best fitted to guide our path through all the difficulties of that branch of the science, and open to us its dark passages—you appeal from them to judges, the majority of whom must, of necessity, be the advocates the least employed in the courts where those great authorities preside, the most recently admitted to those courts, and the most unqualified to pronounce soundly on their I proceedings, if it were decent that they should pronounce at all; for, out of so small a bar, the chances are, that the three or four eminent advocates have been employed in the case under appeal. Thus the absurdity is really much the same as if you were to appeal from a solemn and elaborate judgment, pronounced by my lord Tenterden, Mr. Justice Bayley, Mr.; Justice Holroyd, and Mr. Justice Little-dale, to the judgment of three young barristers, called but the day before, and three older ones, who never could obtain any practice.
Sir, I have spoken of the primate and his principal suffragan; and I hope I need not protest, especially while I have the pleasure of addressing you, that what I have said of the privilege belonging to the highest dignitary in the Church, my observations were meant to be most remote indeed from every thing like personal disrespect; towards no persons in their exalted station do I bear a more profound respect than to both the distinguished prelates I have named, well knowing the liberality of their conduct in exercising the powers I am objecting to, as all the country knows the extent of learning and integrity of character which have made them the ornaments of our hierarchy.
iv.—I next come to speak of the Privy Council; a very important judicature, and of which the members discharge as momentous duties as any of the judges of this country, having to determine not only upon questions of Colonial Law in Plantation cases, but to sit also as judges, in the last resort, of all Prize causes. The point, however, to which I more immediately address myself on this head is, that they hear and decide upon all our Plantation 155 appeals. They are thus made the supreme judges, in the last resort, over every one of our foreign settlements, whether situated in those immense territories which you possess in the East; where you and a trading company together rule over not less than Seventy millions of subjects; or are established among those rich and populous islands which stud the Indian Ocean, and form the great Eastern Archipelago; or have their stations in those lands, part lying within the Tropics; part stretching towards the Pole, peopled by various castes differing widely in habits, still more widely in privileges; great in numbers, abounding in wealth, extremely unsettled in their notions of right, and excessively litigious, as all the children of the New World are supposed to be, both from their physical and political constitution. All this immense jurisdiction over the rights of property and person, over rights political and legal; and all the questions growing out of such a vast and varied province, is exercised by the privy council unaided and alone. It is obvious that, from the mere distance of those colonies, and the immense variety of matters arising in them, foreign to our habits, and beyond the scope of our knowledge, any judicial tribunal in this country must, of necessity, be an extremely inadequate court of review. But what adds incredibly to the difficulty is, that hardly any two of the colonies can be named which have the same law; and in the greater number the law is wholly unlike our own. In some Settlements, it is the Dutch law; in others the Spanish, in others the French, in others the Danish. In out Eastern possessions these variations are, if possible, yet greater: while one territory is swayed by the Mohammedan law, another is ruled by the native or Hindu law, and this again, in some of our possessions, is qualified or superseded by the law of Budda, the English jurisprudence being Confined to the handful of British settlers, and the inhabitants of the three presidencies. All these laws must come, in their turns, in review, before the necessarily ignorant privy councillor, after the learned doctors in each have differed. The difficulty thus Arising of necessity from our distance, an unavoidable incident to our colonial empire, may almost be deemed an incapacity, for it involves both ignorance of the law, and unfitness to judge of the facts. But so much the more anxious should we be to remove every unnecessary 156 obstacle to right judgment, and to use all the correctives in our power. The judges should be men of the largest legal and general information, accustomed to study other systems of law beside our own, and associated with lawyers who have practised and presided in the colonial courts. They should be assisted by a bar limiting its practice, for the most part, to this Appeal Court, at arty rate making it their principal object. To counteract, in some degree, the delays necessarily arising from the distance of the courts below, and give ample time for patient inquiry into so dark and difficult matters, the Court of Review should sit frequently and regularly at all seasons. Because all these precautions would still leave much to wish for, that is no kind of reason why you should not anxiously adopt them. On the contrary, it is your bounden duty, among those countless millions whom you desire to govern all over the globe, not to suffer a single Unnecessary addition to the inevitable impediments which the remote position of the seat of empire throws in the way of correct and speedy justice. Widely different are our arrangements. The privy council, which ought to be held more regularly than any other court, sits far less constantly than any, having neither a regular bench nor a regular bar. It only meets on certain extraordinary days—the 30th of January, the Feast of the Purification, some day in May, Midsummer-day, and a few others. I find, on an average of twelve years, ending 1826, it sat in each year nine days, to dispose of all the appeals from all the British subjects in India; from our own civil courts, to the jurisdiction of which all our subjects are locally amenable, throughout the wide extent of the several presidencies of Calcutta, 'Bombay, and Madras; to dispose of all the causes which come up from the three several native courts of last resort, the Sudder Adawluts, from the two inferior courts of Zilla and Circuit, comprising all contested suits between the Hindoos, the half-caste people, and the Mahomedan inhabitants. But in the same nine days are to be disposed of, all the appeals from Ceylon, the Mauritius, the Cape, and New Holland; from our colonies in the West Indies and in North America; from our settlements in the Mediterranean, and from the islands in the Channel;—nine days sittings are deemed sufficient for the decision of the whole. But nine days do 157 not suffice, nor any thing like it, for this purpose; and the summary I have in my hand demonstrates it both by what it contains, and by what it does not. It appears that, in all those twelve years taken together, the appeals have amounted to but few in number. I marvel that they are so few—and yet I marvel not; for, in point of fact, you have no adequate tribunal to dispose of them; and the want of such a tribunal is an absolute denial of justice to the native subjects of the Crown in those colonies. The total number is only 467; but, Including about 50, which came from India, and appear not to have been regularly entered, though they are still undisposed of, there are 517. Of these 243 only have been disposed of; but only 129 have been heard, for the others were either compromised from hopelessness owing to the delay which had intervened between the appeal and the sentence, or dismissed for want of prosecution. Consequently, the privy council must have heard ten or eleven appeals only per year, or little more than one in the course of each day's sitting. Again, of the 129 which were heard and disposed of, no less than 56 were decided against the original sentences, being altered, but, generally speaking, wholly reversed. Now, 56 out of 129 is a very large proportion, little less than one half; and clearly shows that the limited number of appeals must have risen, not from the want of cases where revision was required, but from the apprehension of finding no adequate court of review, or no convenient despatch of business. And that the sentences in the colonies should oftentimes be found ill-digested, or hasty, or ignorant, can be no matter of astonishment, when we find a bold lieutenant-general Lord Chancellor in one court, and an enterprising captain president in another; and a worthy major officiating as judge-advocate in a third. In many of these cases, a learned and gallant Lord Chancellor has decided, in the court below, points of the greatest legal nicety; and the Judges of Appeal, who are to set him right here, are chosen without much more regard to legal aptitude; for you are not to suppose that the business of these nine days upon which they sit is all transacted before lawyers: one lawyer there may be, but the rest are laymen. Certainly a right honourable gentleman whom I see opposite to me is there sometimes by chance, and his presence is sure to be attended with 158 great advantage to us. Occasionally we see him or my learned friend, his predecessor (Mr. Abercromby), but this good fortune is rare; the Master of the Rolls alone is always to be seen there, of the lawyers; for the rest, one meets sometimes in company with him, an elderly and most respectable gentleman, who has formerly been an ambassador, and was a governor with much credit to himself in difficult times; and now and then a junior Lord of the Admiralty, who has been neither ambassador nor lawyer, but would be exceedingly fit for both functions, only that he happened to be educated for neither. And such, Sir, is the constitution of that awful Privy Council which sits at Westminster, making up, for its distance from the suitors, by the regularity of its sittings, and for its ignorance of local laws and usages, by the extent and variety of its general law learning; this is the court which determines, without appeal, and in a manner the most summary that can be conceived in this country, all those Most important matters which come before it. For instance, I once saw property worth thirty thousand pounds sterling per annum, disposed of in a few minutes, after the arguments at the bar ended, by the learned members of the Privy Council, who reversed a sentence pronounced by all the judges in the settlement, upon no less than nineteen days most anxious discussion. Such court, whose decisions are without appeal,—irreversible, unless by act of parliament—is the supreme tribunal which dispenses the law to eighty millions of people, and disposes of their property.
I cannot pass from this subject without relating a fact which illustrates the consequences of the delays necessarily incident to such a jurisdiction. The Ranee, or queen of Ramnad, having died, a question arose among the members of her family, respecting the succession to the vacant musnud (or throne), and to the personal property of the deceased sovereign, as well as the territorial revenue. The situation of the country, as well as its population and wealth, render it a province of some note. It reckons four hundred thousand inhabitants, and it lies in the direct road which the pilgrims from the south of India take to the sanctuary in the island of Remisram, frequented by them as much as the Juggernaut is by those of the north. On the death of her highness in 1809, proceedings commenced 159 in the courts below, upon the disputed succession; an appeal to the king in counsel was lodged in 1814; it is still pending. And what has been the consequence of this delay of justice? Why, that the kingdom of Ramnad has been all this time in the keeping of sheriffs' officers, excepting the honourable company's peshcush, or share of the revenues, which, I have no manner of doubt, has been faithfully exacted to the last rupee. It is strictly in what amounts to the same thing as the custody of sheriffs' officers, having been taken, as I may say, in execution; or rather by a kind of mesne process, such as we have not in our law.
As the papers on the table, to which I have referred, show so much fewer appeals from the plantations than might have been expected, it is fit now to remind the House how equivocal a symptom this is of full justice being done. It is the worst of all follies, the most iniquitous, as well as the most mistaken, kind of policy, to stop litigation—not by affording a cheap and expeditious remedy, but by an absolute denial of justice, in the difficulties which distance, ignorance, expense, and delay produce. The distance you cannot remove, if you would; the ignorance it is hardly more practicable to get rid of: then, for God's sake, why not give to these your foreign subjects, what you have it in your power to bestow—a speedy and cheap administration of justice? This improvement in the court of appeal would create more business, indeed, but justice would no longer be taxed and delayed, and in the cost and the delay be denied. But if you would safely, and without working injustice, stop appeals from the colonies, carry your reforms thither also: I should say, for instance, that a reform of the judicatures of India would be matter most highly deserving the consideration of his majesty's government. I am at a loss to know, why there should be so rigorous an exclusion of jury trials from the native courts of India. I know, and every one must know, who has taken the trouble to inquire, that the natives are eminently capable of applying their minds to the evisceration of truth in judicial inquiries; that they possess powers; of discrimination, ready ingenuity, and sagacity in a very high degree; and that where they have been admitted so to exercise those powers, they have been found most careful and intelligent assistants in aiding the investigations of the judge. 160 But I know also that your present mode of administering justice to these native subjects, is such as I can hardly speak of without shame. Look at your local judges—at their fitness for judicial functions. A young writer goes out to India; he is appointed a judge, and he repairs to his station, to make money, by distributing justice, if he can, but, at all events, to make money. In total ignorance of the manners, the customs, the prejudices, possibly of the language, of those upon whose affairs and conduct he is to sit in judgment, and by whose testimony he is to pursue his inquiries, and very possibly equally uninformed of the laws he is to administer—he must needs be wholly dependent upon his Pundit for direction both as to matter of fact and matter of law, and, most probably, becomes a blind passive tool in the hands of a designing minister.
The House will not suppose that I mean to insinuate for a moment the possibility of suspicion as to the wilful misconduct of the judge in this difficult position. I am very sure that the party who may happen to occupy that high office would rather cut off his right hand, if the alternative were put to him, than take the bribe of a paria to misdecide a cause that came before him. But I am by no means so secure of the Pundit upon whom the judge must necessarily be dependent; and while he is both less trust-worthy and wholly irresponsible, the purity of the responsible, but passive, instrument in his hands is a thing of perfect insignificance. The experiment of trial by jury, by which this serious evil may in part be remedied, has been already tried. The efforts made by a learned judge of Ceylon, sir Alexander Johnson, to introduce into that colony the British system of justice, manfully supported by the government at home, have been attended with signal success. I am acquainted with a particular case, indeed, the details of which are too long to lay before the House, but which showed the fitness of the natives to form part of a tribunal, notwithstanding the prevalence of strong prejudices in a particular instance among them. A Bramin was put on his trial for murder, and a great feeling excited against him, possibly against his caste. Twelve of the jury were led away by this feeling, and by the very strong case which a subtle conspiracy had contrived against the prisoner,—when a young 161 Bramin, the thirteenth juror, examined the evidence with a dexterity and judgment that excited the greatest admiration, and from his knowledge of the habits and manners of the witnesses, together with extraordinary natural sagacity, succeeded in exposing the plot and saving the innocent man. Other considerations there are, less immediately connected with the administration of justice, and which I might press upon the House, to evince the expediency of introducing our system of trial in the East. Nothing could be better calculated to conciliate the minds of the natives than allowing them to form part of the tribunals to which they are subject, and share in administering the laws under which they live. It would give them an understanding of the course of public justice, and of the law by which they are ruled; a fellow feeling with the government which executes it, and an interest in supporting the system in whose powers they participate. The effect of such a proceeding would be, that, in India, as in Ceylon, in the event of a rebellion, the great mass of the people, instead of joining the revolters, would give all their support to the government. This valuable, but not costly fruit of the wise policy pursued in that island, has already been gathered. In 1816, the same people which, twelve years before, had risen against your dynasty, were found marshalled on your side, and helping you to crush rebellion. So will it be in the Peninsula, if you give your subjects a share in administering your laws, and an interest and a pride in supporting you. Should the day ever come when disaffection may appeal to seventy millions, against a few thousand strangers, who have planted themselves upon the ruins of their ancient dynasties, you will find how much safer it is to have won their hearts, and universally cemented their attachment by a common interest in your system, than to rely upon one hundred and fifty thousand Seapoy swords, of excellent temper, but in doubtful hands.
v.—I now, Sir, come to the administration of law in the country, by Justices of Peace; and I approach this jurisdiction with fear and trembling, when I reflect on what Mr. Windham was accustomed to say, that he dreaded to talk of, the game-laws in a House composed of sportsmen; and so, too, I dread, to talk of the Quorum in an assembly of magistrates. Surrounded as I am with my Honourable Friends, and 162 among Honourable Members on the other side, by gentlemen in the commission, I own that this is a ground on which I have some reluctance to tread. But I have to deal with the principle only, not with the individuals: my reflections are general, not personal. Nevertheless, considering the changes which have been effected in modern times, I cannot help thinking it worth inquiry, whether some amendment might not be made in our justice of peace system? The first doubt which strikes me is, if it be fit that they should be appointed as they are, merely by the Lords Lieutenant of counties, without the interference of the Crown's responsible ministers. It is true, that the Lord Chancellor issues the commission, but it is the Lord Lieutenant who designates the persons to be comprehended in it. Such a thing is hardly ever known as any interference with respect to those individuals on the part of the Lord Chancellor. He looks to the Lord Lieutenant, or rather to the 'Custos Rotulorum,' which the Lord Lieutenant most frequently is (indeed everywhere but in counties Palatine), for the names of proper persons. The Lord Lieutenant, therefore, as Custos Rotulorum, absolutely appoints all the justices of the peace in his county, at his sole will and pleasure. Now I cannot understand what quality is peculiar to a Keeper of the Records, that fits him, above all other men, to say who shall be the judges of the district whose records he keeps. I think it would be about as convenient and natural to let the Master of the Rolls appoint the judges of the land; indeed, more so, for he is a lawyer; or to give the appointment to the Keeper of the State Papers. The Custos Rotulorum may issue a new commission, too, and leave out names; I have known it done, but I have also known it prevented by the Great Seal; indeed, it laid down as a rule by the late Lord Chancellor Eldon, from which no consideration, his Lordship was used to say, should induce him to depart, that however unfit a magistrate might be for his office, either from private misconduct or party feeling, he would never strike that magistrate off the list, until he had been convicted of some offence by the verdict of a Court of Record. Upon this principle he always acted. No doubt his Lordship felt, that, as the Magistrates gave their services gratis, they ought to be protected; but still it is a rule which opens the door to very serious mis- 163 chief and injustice; and I myself could, if necessary, quote cases in which it has been most unfortunately persevered in. On looking, however, at the description of persons who are put into the commission, I am not at all satisfied that the choice is made with competent discretion; and upon this part of the question I may as well declare at once, that I have very great doubts as to the expediency of making Clergymen magistrates. This is a course which, whenever it can be done conveniently, I should certainly be glad to see changed, unless in counties where there are very few resident lay proprietors. My opinion is, that a clerical magistrate, in uniting two very excellent and useful characters, pretty commonly spoils both; and the combination produces what the alchemists call a tertium quid, with very little, indeed, of the good qualities of either ingredient, and no little of the bad ones of both, together with new evils superinduced by the commixture. There is the activity of the magistrate in an excessive degree—over-activity is a very high magisterial offence, in my view—yet most of the magistrates distinguished for over-activity are clergymen: joined to this are found the local Ratings and likings, and, generally, somewhat narrow-minded opinions and prejudices, which are apt to attach to the character of the resident parish priest, one of the most valuable and respectable if kept pure from political contamination. There are some Lords Lieutenant, I know, who make it a rule never to appoint a clergyman to the magistracy; and I entirely agree in the policy of that course, because the education and the habits of such gentlemen are seldom of a worldly description, and therefore by no means qualify them to discharge the duties of such an office; but, generally speaking, as the House must be aware, through the country the practice is far otherwise. Again, some Lords Lieutenant appoint men for their political opinions—some for activity as partisans in local contests; some are so far influenced as to keep out all who take a decided part against themselves in matters where all men should be free to act as their opinions dictate; and in the exercise of this patronage no responsibility whatever substantially exists. Appointed, then, by irresponsible advisers, and irremovable without a conviction, let us now see what is the authority of men so chosen and so secure.
164 In the first place, they have the privilege of granting or withholding Licences. As we all know, it lies in the breast of two justices of the peace to give or to refuse this important privilege. It is in their absolute power to give a licence to one of the most unfit persons possible; and it is in their power to refuse a licence to one of the most fit persons possible. They may continue a licence to some person who has had it but a twelvemonth, and who, during that twelvemonth, has made his house a nuisance to the whole neighbourhood; or they may take away a licence from a house to which it has been attached for a century, and the enjoyment of which has not only been attended by no evil, but has been productive of great public benefit. And all this, be it observed, they do without even the shadow of control. There is no rule more certain than that a mandamus does not lie to compel justices either to grant or withhold a licence. I hardly ever remember moving for one; and I only once recollect a rule being granted—it was on the motion of, I believe, my honourable and learned friend, the solicitor-general. But I know that great astonishment was expressed on the occasion; that every one asked what he could have stated to make the Court listen to the application; that all took for granted it would be discharged, as a matter of course; which it accordingly was, in less time than I have taken to relate the circumstance. What other control is there over the conduct of the licensing magistrate? I shall be told that he may be proceeded against, either by a criminal information, or by impeachment. As to the latter, no man of common sense would dream of impeaching a magistrate, any more than he would think now-a-days of impeaching a minister. Then, as to proceeding by criminal information: In the first place it is necessary in order to obtain the rule, to produce affidavits, that the magistrate has been influenced by wilful and corrupt motives: not merely affidavits of belief in those who swear, but of facts proving him guilty of malversation in his office. Then, suppose, as not unfrequently happens, a rule obtained on this ex parte statement; the magistrate answers the charges on oath; he swears last, and may touch many points never anticipated by the other party, consequently not answered; and unless the alleged facts remain, upon the discussion, undeniable, and the guilt to be inferred from them 165 seems as clear as the light of day, the rule is discharged with costs. The difficulty of proving corruption is rendered almost insuperable, because all the magistrate has to do, in order to defend himself from the consequences of granting or withholding a licence, is to adopt the short course of saying nothing at the time—of keeping his own counsel—of abstaining from any statement of his reasons. Let him only give no reason for his conduct, and no power on earth can touch him. He may grant a licence to a common brothel, or he may refuse a licence to one of the most respectable inns on the North road; let him withhold his reasons, and his conduct remains unquestionable; although the real motive by which he is actuated may be, that he is in the habit of using the one house, and that the landlord of the other will not suffer him to use it in the same way. Unless you can show that he has himself stated his motives, or that there are circumstances so strong against him as amount to conviction, you are prevented from even instituting an inquiry on the subject. Thus absolute is the authority of the magistrate with regard to licensing. With the permission of the House, in order to illustrate the abuse of this extensive power, I will read a letter which I received some time ago on the subject of the licensing system, from one of the most worthy and learned individuals in this country—a man of large fortune, and of most pure and estimable character—who long acted as a magistrate in one of the neighbouring counties.
[Mr. B. here read a letter, in which the tendency of justices is stated to favour particular houses, and not take away their licences, though guilty of the grossest irregularities, on the pretence, become a maxim with many of them, that "the house being brick and mortar cannot offend;" whereas a haunt of bad company being established, it becomes the magistrate's duty to break it up. It was also shown how the power of licensing placed millions of property at the disposal of the justices, a licence easily adding 500l. to the value of a lease, and often much more, and the number of victuallers exceeding forty thousand. It further showed the partiality of the bench towards brewers and their houses, especially in Middlesex and the home counties.]
I have received a variety of other information upon this subject, all leading to the 166 same result. That which I have described—the leaning of justices towards brewers, whom, in licensing, they favour, as brother magistrates, although the latter are not allowed by law to preside at a Brewster sessions, is, perhaps, the most crying evil connected with the system; but who does not know (I am sure I do, in more parts of the kingdom than one or two), that licences are granted, and refused, from election motives? When, some time ago, I brought the Beer bill into this House, I had, of course, an extensive correspondence on the subject; and I was assured by many highly respectable persons, that the evil of this system is by no means confined to the neighbourhood of London, of which they gave me numerous instances. Nor is the licensing power of the magistracy that in which alone great abuses exist. They prevail wheresoever their authority is exercised; in the commitments for offences against the game-laws, in dealing with petty offences against property, in taking cognizance of little assaults, especially on officers, in summary convictions for nonpayment of tithes, and a number of other matters affecting the liberties and property of the subject; and yet, for their conduct in all of which they are not amenable to any superior power, provided, as I have said before, they only keep their own counsel, and abstain from stating the reasons by which they have been actuated, should their motives be evil.
There is not a worse constituted tribunal on the face of the earth, not before the Turkish cadi, than that at which summary convictions on the game-laws take place; I mean a bench or a brace of sporting justices. I am far from saying that, on such subjects, they are actuated by corrupt motives; but they are undoubtedly instigated by their abhorrence of that caput lupinum that hostis humani generis, as an honourable friend of mine once called him in his place, that fera nature—a poacher. From their decisions on those points, where their passions are the most likely to mislead them, no appeal in reality lies; for, unless they set out any matter illegal on the face of the conviction, you remove the record in vain. Equally supreme are they in cases where sitting in a body at quarter sessions, they decide upon the most important rights of liberty and property. Let it be remembered, that they can sentence to almost unlimited imprisonment, to whipping, to fine, nay, to transportation for 167 seven and fourteen years. I have shuddered to see the way in which these extensive powers are sometimes exercised by a jurisdiction not responsible for its acts. It is said, that the magistracy ought not to be responsible, because it is not paid; but we ought not to forget, that as gold itself may be bought too dear, so may economy; money may be saved at too high a price. Mark the difference of responsibility between the quarter-sessions and one of the superior courts of the kingdom. In the King's-bench, the name of the judge who pronounces the judgment is known, and the venerable magistrate stands before the country in his own proper person, always placed at the bar of public opinion. Here it is Lord Tenterden—it is Mr. Justice Bailey, by their names: in the other case, it is merely the quarter-sessions, which, as Swift says, is nobody's name. The individual magistrates composing it are not thought of—their names are not even published. It is a fluctuating body. If the same individuals always sat in the court, there might be some approach to responsibility. At present there is none; and where there is no responsibility, injustice will occasionally be committed, as long as men are men. It would be some correction of the evil, if the number of magistrates was fixed; if their names were always known in connexion with their acts; and if they were more easily removable on proof of their misconduct. Then comes the question,—is it, after all, gratuitous service? We are told that we cannot visit them severely, or even watch them very strictly, because they volunteer their duty, and receive no remuneration for their trouble. But although they have no money for it, they may have money's worth. Cheap justice, Sir, is a very good thing; but costly justice is much better than cheap injustice. If I saw clearly the means by which the magistrates could be paid, and by which, therefore, a more correct discharge of the magisterial duties might be insured, I would certainly prefer paying them in money to allowing them to receive money's worth by jobs, and other violations of their duty. Not only may the magistrate himself receive compensation as money's worth; he may receive it in hard money by his servants. The fees of a justice's clerk amount to a little income, often to many times a man's wages. I have heard of a reverend justice in the country having a clerk, whose emoluments he wished to in- 168 crease, and therefore he had him appointed surveyor of weights and measures, with a salary of a guinea and a half a week. This person appointed a deputy, to whom he gave five shillings and sixpence, and who did all the duty. These circumstances came under the consideration of his brother justices; when, after a strenuous opposition, and among others, on the part of the gentleman who communicated the occurrence in a letter now lying before me, it was decided, not only not to remove the first appointed person, who it was proved was doing nothing, but to swear in the other as his assistant! My friend is not entirely without suspicion that this person, having so small a remuneration as five shillings and sixpence a week, can only have undertaken the duty with a view of increasing it by some understanding with the people whose weights and measures it is his duty to superintend. The operation of pecuniary motives in matters connected with the magistracy is more extensive than may at first sight appear. There was a bill introduced by the right honourable gentleman opposite, for extending the payment of expenses of witnesses and prosecutors out of the county rates. It is not to be doubted that it has greatly increased the number of commitments, and has been the cause of many persons being brought to trial who ought to have been discharged by the magistrates. The habit of committing, from this and other causes, has grievously increased every where of late, and especially of boys. Eighteen hundred odd, many of them mere children, have been committed in the Warwick district during the last seven years. Nor is this a trifling evil. People do not come out of gaol as they went in. A boy may enter the prison-gate merely as a robber of an orchard; he may come out of it "fit for"—I will not say "treasons"—but certainly "stratagems and spoils." Many are the inducements, independent of any legislative encouragement, to these commitments. The justice thinks he gains credit by them. He has the glory of being commemorated at the assizes before the Lord Judge, and the Sheriff, and the Grand Jury, and all who read the Crown Calendar. On that solemn occasion he has the gratification of hearing it fly from mouth to mouth—"He is a monstrous good magistrate; no man commits so many persons." Then there is the lesser glory acquired among neighbours; I into whose pockets they are the means of 169 putting money, by making them prosecutors and witnesses in petty criminal cases; and thus converting (as sir Eardly Wilmot says) their journey of duty into a jaunt of pleasure to the assizes. The reputation of activity is very seducing to a magistrate; but I have known it curiously combined with things more solid than empty praise.—In a certain town, which I am well acquainted with, one suburb was peopled by Irishmen and Scots, who were wont to fight on every market time a good deal, at fair tides a good deal more, but without any serious affray taking place. Besides these two classes of the King's subjects, there also dwelt in those parts two justices of the King, assigned to keep the peace; for the better keeping of which, they repaired at the hour of fight to an ale-house, conveniently situated hard by the scene of action, and there took their seat with a punch-bowl full of warrants, ready to fill up. If the Irish happened to be victorious, the Scots came one after another, and applied for commitments, against those who had assaulted them. The despatch, at least with which warrants, if not justice, were administered, was notable. Then came the other party, and swore to as many assaults upon them, and, justice being even-handed, they, too, had their desire gratified; until the bowl was, by degrees, emptied of its paper investment, and a metallic currency, by degrees, took its place.
Some of these details may be ludicrous; but the general subject is a most serious and a most important one, because these facts show the manner in which justice is administered to the people out of sight of the public and out of reach of the higher courts of law. It is through the magistracy, more than through any other agency—except, indeed, that of the tax-gatherer—that the people are brought directly into contact with the government of the country; and this is the measure of justice with which, when they approach it, they are treated by functionaries irresponsible for its proceedings. A justice of the peace, whether in his own parlour or on the bench—whether employed in summary convictions, or in enforcing what is called, after a very worthy friend of mine, Mr. Nicholson Calvert's Act (one of the worst in the Statute-book, which I hope to see repealed, and which I trust its excellent author will very long survive,)—is never an ostensible individual; responsible in his own proper person, to public opinion hardly ever unless 170 he chooses, by some indiscretion, to make himself so, amenable to a higher and purer judicature. The judges of the land, chosen from the professors of the law, after the labours of a life previously devoted to the acquirement of knowledge calculated to fit them for their office, and clothed with attributes of supreme power over petty magistrates, are responsible for every word and act, and are subject to every species of revision and control. They were selected with the most anxious caution for every qualification of high character and of profound knowledge; and yet they are incapable of pronouncing a single decision, from which an appeal will not lie to some other tribunal immediately above them; while, from the decision of the country justices—taken from the community at hazard, or recommended by the habits least calculated to make them just, subject to no personal responsibility, because beyond or below the superintendence of public opinion, and irremovable, unless by a verdict for some indictable offence—from their decision there is no appeal; from their decision, although they have to deal with some of the most important interests in the country, there is no appeal, unless their misdeeds shall have been set forth in a case, submitted by their own free will, with their express permission, to the Court of King's Bench.
These are the principal points to which, in the first division of my subject, I desire to call the attention of the House, as deserving your deliberate consideration, and as the materials of solemn inquiry. I could have wished to accomplish my object more briefly, but I found it impossible consistently with distinctness; I am not aware that I have made an unnecessary comment; and I must trust to the candour of honourable members, in weighing the importance of these statements, to pardon the apparent prolixity unavoidably incident to the handling of a very extensive and varied argument.
II. I wish I could give the House any promise that my speech was approaching its termination; but that hope can hardly be entertained, when I state, that I am now about to enter on the still more vast I and momentous consideration of the laws as administered in those tribunals, whose construction we have been surveying—the distribution of justice in those courts I in which it has been my fortune to practise during a pretty long professional life.
171 There is a consideration of a general nature, to which I would first of all advert, I mean, the inconvenient differences, in the tenures by which property is held, and the rules by which it is conveyed, and transmitted, in various districts of the country. Is it fitting or consistent with reason, or, indeed, with justice, that merely crossing the river, or travelling a distance of some miles in this neighbourhood, should make so great an alteration in the law of real property, as that, to the eastward of us, all the sons inherit equally; to the westward the youngest alone; and here the eldest; but these rules of the Common-law, of Gavelkind, and of Borough English are better known, and operate with more defined limits. What shall be said of the customary tenures, in a thousand manors, all different from the Common-law that regulates freehold estates, most of them differing from each other? Is it, I ask, fit that this multitude of laws, this variety of codes, the relics of a barbarous age, should be allowed to exist in a country subject to the same general bonds of government? I should trespass at greater length than I am willing to do, were I to detail the various customs which exist in the manors of this country; but to give the House an idea of their diversity, I must mention a few. In one manor, the copyhold property is not allowed to pass by will; in another, it may be so conveyed. I admit that a great improvement has been made in this respect, by the act of an hon. friend of mine, (Mr. M. A. Taylor) to whom we owe several other important legislative measures, allowing it to be devised by will without surrender. This is the only material improvement which has been made with respect to such property, within the last hundred years; but it only operates in facilitating the transmission, according to the custom of the manor, passing the copyhold by will. In one manor, a devise is not valid, if made longer than two years before the testator's decease; so that it is necessary for wills to be renewed every two years; in another one year, in a third three years are the period; while in many there are no such restrictions. In some manors the eldest daughter succeeds to the exclusion of her sisters, as the eldest daughter (in default of male heirs) succeeds to the crown of England; in other manors all the daughters succeed jointly as co-parceners, after the manner of the Common-law. In some 172 manors a wife has her dower, one-third of the tenement, as in case of freehold. In others, she has, for her "free bench," one half; and again, in some, she takes the whole for life to the exclusion of the heir. The fines on death or alienation, vary; the power and manner of entailing or cutting off entails vary; the taking of heriots and lords' services varies. There are as many or more of these local laws than in France, in the Pays de Coutûme, of which I have seen four hundred enumerated, so as to make it the chief opprobrium of the old French law, that it differed in every village. Is it right that such varieties of custom should be allowed to have force in particular districts, contrary to the general law of the land? Is it right, I may also ask, that in London, Bristol, and some other places, the debts due to a man should be subject to execution for what he owes himself, while in all the rest of England there is no such resource; although in Scotland, as in France, this most rational and equitable law is universal?
All these local peculiarities augment the obstacles, both to the conveyance and to the improvement of landed estates. They prevent the circulation of property in a great degree, and they lessen the chance that an owner of such tenements would otherwise have of raising money, on their security, adequate to their value. The greater facility of conveyance is nothing set against the ignorance of local custom; and then copyhold property is not liable even for specialty debts, nor can it be extended by elegit; and thus, absurd and unjust as is the law which prevents freehold property from being charged with simple contract debts, it goes further in this instance, and exempts the copyhold from liability, even to those of the highest nature, a judgment itself not giving the creditor any right of execution against it. The obvious remedy to be adopted in this case is, to give all parts of the country the same rules touching property; and, therefore, I would propose an assimilation of the laws affecting real estates, all over England, to take place at a given period, say twenty or thirty years hence, so as to prevent interference with vested interests.
Having now, Sir, pointed out some of the varieties of our law in certain districts,—its inequalities in respect of place,—let us proceed to examine whether it is more uniform and more equal in respect of persons. And here we are met, at the very 173 outset, with a most fearful exception to the maxim, which describes the law as no respecter of persons. It is commonly said, that the Crown and the subject come into court on equal terms. Lawyers of the present day do not, I am aware, profess this; but that great dealer in panegyric, Mr. Justice Blackstone, has spoken as if the King had no greater advantage in litigation than any of his people. It would have been well if he had stated that this was only a fiction; though he must have been puzzled to prove it, like other fictions, invented for the furtherance of justice. It is true that the law itself makes no such pretensions to impartiality; for of the two classes of manifest inequality which I am about to mention, one is avowedly such, by reason, as it is said, of the prerogative; although the other, just as substantial in reality, is not avowed to be so. I begin with the latter. It is said, that the Crown can no more take my estate than I can another man's; for if I have a claim against the Crown, it is said that I have a remedy, by the decent and respectful mode, as they term it, of a petition de droit, or, in case of a title—by matter of record, a monstrans de droit. The same eloquent panegyrist, whom I have mentioned, describing the very name of the process to have arisen from the presumption of the law, that the King can do no wrong, adds, that, from the great excellence ascribed to the Crown, "to know of an injury and to redress it, are one and the same thing—therefore, the subject has only to make his grievance known by his petition." From this is drawn the conclusion, that when a subject has a right, he can have the means of defending it with equal facility against the Crown as against any other party. Now, let us see how far this consequence is, in point of fact, realized. The Crown never moves by itself, but through the medium of the King's Attorney-general. No proceeding can be taken against the Crown without the fiat of the Attorney-general; and unless a party obtains that, all his trouble and expense in going to Whitehall, and asking the permission of the Secretary of State, is lost, because all such affairs are referred to the Crown lawyer; and if he should refuse leave, the only remedy left to the subject is the very convenient and practical one of impeaching that officer. It may be said that the Attorney-general would not refuse his fiat, because it is a mere proceeding in the first 174 instance, like suing out an original writ, or a latitat, to bring a cause into the King's-bench; and the Attorney-general here is like the Chancellor or the sealers of the writs elsewhere, who issue writs to any suitor as a matter of course. But I make answer that, although it ought to be so, it is not so. It is in the discretion of the Attorney-general, that is, of your adversary's counsel, to let you bring your action or not as he pleases. Why, I demand, should it be left in the breast of any man to refuse that which another may claim as a right, and as the lowest of all rights, to have his right inquired into by law? To show you how this discretionary power is used, I might say abused, I will mention a case; and, following the rule I prescribed to myself at setting out, it shall be one that has come within my own knowledge professionally. A considerable estate had, in a supposed default of heirs, been granted to a gentleman of great respectability, a friend of mine. After some time another individual set up a claim to it, on the ground of being the heir of the body of the original grantee, the first gift having been in tail male. The case was submitted to me and to a learned friend of mine at the Chancery bar; and we advised that the party should proceed by petition of right. We examined all the cases upon the subject, and deeming this the only mode, we applied to the Attorney-general, and he refused his fiat, giving no better reason than that we ought to have proceeded by ejectment against the; tenant in possession. We preferred our writ of right against the Crown, as all lawyers term the petition de droit. Had the question been with a subject, we might either have proceeded by ejectment to recover possession, or by writ to try the mere right as the higher remedy; and no officer could have shut us out at either door by which we chose to enter the court. Now, I can state conscientiously my opinion, that the case of the individual alluded to was a strong one in statement. It was one of pedigree, and certainly one of the clearest I had seen on paper. I do not mean to assert,—for I had no means of ascertaining it,—that it was unanswerable. There may have been some gap in the chain, some marriage, or some birth not proved, or some other flaw in the claimant's title; but of that I can form no judgment, because that I was not allowed to try; and this is the hardship of the case—the matter of which, I hold, my 175 client had just reason to complain—he was not allowed to bring forward his proofs. Then, I ask, is it not a mere mockery in those panegyrists of things as they are, to say that the Crown and the subject stand on equal footing?
But the cases in which the same disparity prevails between their rights, avowedly and by the positive sanction of the law, are much more numerous; they are of constant occurrence, too, in practice, and I will, therefore, mention them for the information of those who are not lawyers, and, I believe I may say, of some who are. In the first place, it is the general principle that a demurrer is an admission of the fact in dispute; but this, it is said, does not extend to the Crown, and that, if defeated in this way, it can begin again, and is not concluded. Secondly, it has been decided lately in the Exchequer—I was not in the case, but so I have heard, from those who attend that court,—that no such thing is allowed as an exception for insufficiency to an answer filed by the Attorney-general on behalf of the Crown. But the subject notoriously enjoys no such privilege; his answer is open to all exceptions; were it not, you must, in suing him, take for an answer just what he chooses to tell you, and he escapes the equitable jurisdiction entirely. Next, (and an instance occurred lately, which I argued in the court of King's-bench, and which was decided against me, without hearing the other side,) wherever a suit is commenced, whether it be in Cumberland, Middlesex, or Cornwall, (and in Cornwall was the case I allude to,) if the Crown has any title which may, however indirectly, come in question, although no party, the proceedings can at once be removed by a mere suggestion, not of record, but on the part of the Attorney-general, stating it from his place in court, and a trial must then be had at bar before the four judges. In this way all the preparations made by the parties are put an end to, and witnesses must be brought to town at an inordinate expense, and under every disadvantage. There is no doubt that an allowance would, in such cases, be made by the Crown, to compensate for this additional cost; but still the party has to pay in the first instance, together with being taken away, as well as his witnesses, from that part of the country in which he and they are known, to the county of Middlesex, where the power of the Crown is more accurately 176 known than the character of the other suitor. When this point was argued, the Court held the prerogative too clear to be discussed. There is a fourth striking advantage which the Crown possesses over any other party. No person can, after the jury is sworn, withdraw a record, but must be non-suited, to avoid a verdict. The Crown has, to my knowledge, withdrawn it, after counsel had been heard, and witnesses examined, and the jury been charged by the judge; I have known the record withdrawn while they were deliberating, and because they were deliberating, which indicated hesitation; and this late retreat is made without the penalty to which any other party would be liable, who had fled before the cause was called on, namely, the costs of the day; for there is another unfairness to justify this course; that as the Crown is supposed above receiving costs, so it is to be exempt also from paying them. But the reason of this I cannot possibly see. I cannot grant that the dignity of the Crown places it above taking costs, when I reflect that by the Crown is here meant the revenue raised from the people for the public service, and that, consequently, the non-payment of costs to the Crown is an increase of the people's burthens. But, even if I could admit the propriety of the Crown's receiving none, it would by no means follow that it should pay none to the subject, who is in a widely different predicament. All this, however, arises out of notions derived from the feudal times, when the Crown was in a situation the very reverse of that in which it stands at present, its income then arising almost entirely from a land revenue. There is now no reason why it should be exempt from paying, or disabled from receiving, in all cases where costs would be due between common persons. Indeed, there has been of late years an exception made in the Crown law on this head, but so as to augment the inequality I complain of. In all Stamp prosecutions, the costs of the Crown are paid by the unsuccessful defendant; so far does it stoop from its former dignity; but not so low as to pay the defendant a farthing of his costs should he be acquitted. The last and the worst part of the history remains; whenever a special jury is summoned in a Crown case, and that all the twelve jurors do not attend, a tales cannot be prayed to let the cause proceed, without a warrant from the 177 Attorney-general: so that it is in the power of your adversary to refuse this at the time it may be most for his advantage so to do; while you have no option whatever in case it should be for his interest to proceed, and for your's to delay. I pray the House will mark attentively what I am now about to relate, although, indeed, I should apologise for thus appealing to them, after the singular patience with which I have been heard throughout, for the great length of time I have already occupied. There was a case in the Court of Exchequer, in which I acted as counsel for the defendant, and had to subject a Crown witness to a severe cross-examination; he exhibited strong indications of perjury, but the verdict went against me notwithstanding. My learned friend, Mr. Serjeant Jones, (whose talent and professional skill entitle him to higher praise than any in my power to bestow,) whether he profited by my experience, or was more dexterous in dealing with the case, did honour to himself by succeeding in the next trial, when the same witness was examined; for the suspicion of perjury entertained before was now turned into certainty, and the party acquitted. A prosecution for perjury was instituted against that man and others connected with him; eighteen indictments were found at the sessions, and the Crown at once removed the whole by certiorari into the Court of King's-bench. There they were all to be tried, and a former Attorney-general conducted the prosecution. On the first, Meade, the witness I have mentioned, was clearly convicted. The other seventeen were then to have been tried, and Mr. Serjeant Jones called them on, but the Crown had made the whole eighteen Special Jury causes: a sufficient number of jurymen did not attend; my learned friend wanted to pray a tales, and the Crown refused a warrant. Thus an expense of ten thousand pounds was incurred, and a hundred witnesses from Yorkshire were brought to London, all for nothing, except, after the vexation, trouble and delay he had endured, to work the ruin of the prosecutor, who had been first harassed upon the testimony of the perjured witness. These poor Yorkshire farmers, whom this villain had so vexed, had no more money to spend in law; all the other prosecutions dropped; Meade obtained a rule for a new trial, but funds were wanting to meet him again, and he 178 escaped. So that public justice was utterly frustrated, as well as the most grievous wrong inflicted upon individuals. Nor did it end here; the poor farmer was fated to lose his life by the transaction. Meade, the false witness, and Law, the farmer whom he had informed against, and who was become the witness against him, lived in the same village; and one evening, in consequence, as was alleged, of some song or madrigal sung by him in the street, this man Meade seized a gun, and shot Law from his house dead upon the spot. He was acquitted of the murder, on the ground of something like provocation, but he was found guilty of manslaughter, and such was the impression of his guilt upon the mind of the court, that he was sentenced to two years imprisonment. A case of more complicated injustice—one fraught with more cruel injustice to the parties, I never knew in this country, nor do I conceive that worse can be found in any other. We may talk of our excellent institutions, and excellent they certainly are, though I could wish we were not given to so much Pharasaical praising of them; but if, while others, who do more and talk less, go on improving their laws, we stand still, and suffer all our worst abuses to continue, we shall soon cease to be respected by our neighbours, or to receive any praises save those we are so ready to lavish upon ourselves.
i.—And now, having thus far cleared the way for examining the proceedings in our courts of justice, the first inquiry that meets us is, by what means unnecessary litigation may be prevented; in other words, suits unjustly and frivolously brought, and wrongfully defended, by oppressive or intemperate parties. I shall here, as under all the other heads of the subject, begin by laying down what I take to be the sound principles of legislation applicable to the point, and then comparing with these the provisions actually adopted by our jurisprudence. The first and most obvious step is, to remove the encouragement given to rich and litigious suitors, by lessening the expense of all legal proceedings; and I would put an end to all harassing and unjust, defences, by encouraging expedition. Next, I would not allow of any action or proceeding which only profits the court and the practitioners, and the object of which is always granted as a mere matter of course; all things should be considered as 179 done at once and for nothing, which may now be done on a simple application to the Court with some delay and expense. Thirdly, no party should be sent to two courts where one is able to afford him his whole remedy; nor to a dear and bad court, when he can elsewhere have a cheaper and a better remedy; nor should any one be obliged to come twice over to the same court for different portions of his remedy, which he might have all in one proceeding. Fourthly, whenever a strong presumption of right appears on the part of a plaintiff, the burthen of disputing his claim should be thrown on the defendant. This I would extend to such cases as bills of exchange, bonds, mortgages, and other such securities. In those cases I think the plaintiff should be allowed to have his judgment, upon due notice given, unless good cause be, in the first instance, shown to the contrary, and security given to prosecute a suit for setting the instrument aside. This is a mode well known in the law of Scotland, and would put an end to all those undefended causes, which are now attended with such great and useless expense, as well as injurious delay to the parties. Fifthly, I would suggest, that in all cases where future suits are to be apprehended, proceeding might be adopted immediately to raise the question, and quiet the title. The law on this head also is very different in the two parts of the island. In England, it is not possible to have the opinion of any Court, until the parties are actually engaged in a lawsuit, opportunities for which may very frequently not occur, until the witnesses to prove a case may be dead, or an infant, or a person living abroad, and incapable of well defending his right, has come into possession. But the Scotch law furnishes a kind of action, the adoption of which may be productive of the greatest benefit, as I have once and again heard lord Eldon hint in the House of Lords. I know very well that here we may file a bill for perpetuating testimony, but there must be an actual vested right in the party instituting the suit: and the proceeding is, besides, so cumbrous, as rarely to be used. The Scotch law, on the contrary, permits a declaratory action to be instituted by the party in possession or expectancy, quia timet, and enables him to make all whose claims he dreads parties, so as to obtain a decision of the question immediately. This is, of course, and very pro- 180 perly, at the expense of him who brings forward the suit for his own interest, unless where a very obvious benefit arises to the other party; for in Scotland they have nothing like our statute of Gloucester, and costs are always in the discretion of the Court, as with us in equity. Sixthly, I would abolish all obsolete proceedings, which serve only as a trap to the unwary, or tools in the hands of litigious and dishonest parties, and lie hid or unheeded until, unexpectedly, they are brought forth to work injustice. For an instance, I will name wager of law, a defence which may be set up in answer to an action of detinue, or of debt on simple contract. This is another of the remains of the old feudal system. The defendant has only to swear that he does not owe the sum of money claimed by the plaintiff, and bring eleven others to swear that they believe him; and a defendant would certainly be badly off if he could not find out so many persons to do this kind office for him, as he needs only bring those who know him, but know nothing at all of the circumstances; for the less they know, the more ready will they be to swear they believe their friend. He has only to place them on opposite sides, at the end of the table, (for the wisdom of past ages hath carefully fixed the stations which the parties are to occupy pending this solemnity,) get them to swear, and there is an end at once of the action. It is true that pleas of this kind are seldom pleaded, though it was done some time ago in the Common Pleas: and the oldest practitioners there, not being acquainted with the plea, were about demurring to it, when it was discovered to be a law wager well pleaded, and a complete good defence in law, though the practice was obsolete.
Now, these being the fundamental principles that should guide us on this head, nothing can depart more widely from them than our practice, and nothing can be more easy than making it conform to them. In the first place, without throwing away a thought upon the pain which I should necessarily inflict upon some of my learned friends, much wedded to such lore—without caring a rush for the quantity of curious learning which would thus be thrown to waste—or dropping a tear over the musty records which must be swept away—I would abolish at once the whole doctrine and procedure of Fines and Recoveries. I hope I may not offend the ears 181 of my respected brethren the conveyancers; but I may say, that if ever there was an absurdity not to be tolerated, it is those fictitious suits at any time, but above all, in the present state of society.
I wish to make myself understood, for I see by the countenances of some gentlemen, that they do not quite comprehend the whole absurdity of the law respecting fines and recoveries. I do not by any means wish to interfere with the power of making, or of barring entails: I consider the English law as hitting very happily the just medium between too great strictness and too great latitude, in the disposition of landed property; sufficient restraints upon perpetuities, upon endless settlements, are provided, to allow a free commerce in land, as far as that is consistent with the interests of agriculture, and the exigencies of our mixed constitution; while as much power is given of annexing estates to families, as may prevent a minute division of property, and preserve the aristocratic branch of the government. With the substance of our law of entail, then, I have no wish to meddle; all I desire is, to abolish the ridiculous machinery by which fines are levied and recoveries suffered. Every gentleman knows, that if he has an estate in fee he can sell it, or bestow it in any way he may please; but if he has an estate tail, to which he succeeds in the long vacation, he can go, on the first day of Michaelmas term, and levy a fine, which destroys the expectant rights of the issue in tail; or he may, by means of a recovery, get rid of those rights and all remainders over. He can thus, by going through certain mere forms, make himself absolute master of his estate, and do with it as he pleases. But this must be done through the Court of Common Pleas, at certain seasons of the year. And why should there exist a necessity for going there? Why not, if it be necessary, pay the fines which are due, without going there at all? I, the other day, asked this question of some learned friends,—why force tenants in tail into court, for mere form sake? They laughed at my simplicity, and said, "All this was asked a hundred years ago; there is no necessity for the proceeding, only to keep up the payment of the King's silver, alienation fines, and other duties." In case of bankruptcy, the necessity for those forms is not felt. A trader who is tenant in tail commits an act of bankruptcy, and 182 by the assignment under the commission not only the interest vested in him is conveyed, but all remainders expectant upon it are destroyed, for the benefit of his creditors, and the estate passes to his assignees free from all restriction. The courts have held, as indeed the Bankrupt Laws evidently intended,* the conveyance in bankruptcy to be a statutary barring of I the entail—an enlarger of the estate tail I to a fee. Now, I would do that for honest landowners, which the law at present permits to be done for tradesmen and their creditors. So, too, a man and his wife cannot convey an estate of the wife without a fine or a recovery, neither can the wife be barred of her dower without a similar proceeding. The reason is, the influence her husband may possess over her mind; and, consequently, a judge takes the woman, in these cases, into a private room, to examine her, first, as to whether she acts from fear, and then, when that is out of the case, whether she is influenced by favour and affection; and he also examines her, as to any temporary increase of affection from any passing cause; and then, when she has purged herself of all increase of affection from any passing cause, of all fear, and all love, she is allowed to give her consent. Now I would propose, in place of all this inquiry, not always very delicate, nor even very satisfactory, to let husband and wife join in common conveyance, with the consent of a guardian, to be appointed, or of the next male relative of the wife, who is not related to the husband, and not interested in either the succession or the conveyance.
Now there is certainly nothing very real in a Fine; but as to Recoveries, I ask, do those persons who seem to hold by them, know at all what they avowedly proceed upon? They go upon the ground of compensation in value being made to the remainder man, whose right they cut off, and who, but for this fictitious suit, would have a title to take the estate after the* Of the bar to remainders in tail there can be no doubt; but there are decisions which lean against, the operation of the Bankruptcy, to bar the remainders over, contrary to Blackstone's decided opinion, (2 Com. 286. 361.) and it should seem to the plain intent of the legislature. See Doe v. Clarke, 5 B. A. 458, and Doe v. Tayleure, 3 B, A. 557.183 tenant-in, tail's-decease. He is said to recover a compensation in value; and from whom does he get it? Why, the common vouchee, who is the crier of the Court of Common Pleas, and who, like the man at the Custom-house, obliged to take all the oaths other people do not like, lies groaning under the weight of all the liabilities he has incurred to every remainder man, since he became crier, and answerable for the millions of property in remainder, the rights to which have been barred, he not being worth a shilling. Locke says, that a madman is one who reasons rightly from wrong premises; so it is with the lawyers on recoveries, who argue very ingeniously, and even soundly and consistently, on the principle of the compensation, and whose conclusions could in no wise be impeached, if you once allowed the fact, that those in the remainder are compensated by the proceedings. Indeed, it happened to myself, not long ago, in a case, where a very large estate was in question, to argue, and to prevail, respecting the effect of a recovery, on this very ground of compensation in value. I there had to contend, that the claimant was barred by the recovery, in consequence of the compensation received from the vouchee, though it was quite certain that, from the vouchee, there never was, nor ever could be, received a single shilling. My argument, on that occasion, did not excite a smile in the court, because the principles of the law were known to be thus established, and the consequences were of serious import, be the premises ever so ludicrous. But, were I to use the same argument elsewhere, it would, if understood, be received with much less gravity. Put an end, then, to all such ridiculous forms, which have no earthly use but to raise a little money by way of fees; and which, beside creating expense and delay, and oftentimes preventing tenants in tail from passing their property by will, which they cannot if they die before suffering the recovery, give rise to a number of questions in law, often very puzzling, always dilatory and costly—not rarely to mistakes in fact; as where I knew an estate go to the tenant in tail in remainder, instead of the recoveree's heir-at-law or devisee, which he fully intended it should, merely because in suffering the recovery an omission was made of one parcel.
Sir, I also, would put an end to those 184 imaginary trusts made in settlements for the purpose of preserving contingent remainders. It has been said, that some Members of this House, who, during the Commonwealth, retired to the country and employed themselves in conveyancing, invented those refinements which characterize what are called strict settlements. I repeat, that my object is not to touch the principle of the law of entails, as it now exists in this country; believing that owners of estates should not be laid under greater restrictions than they now are in disposing of them by will after their death, or by settlement upon marriages in their families. But let the purpose of the owner be accomplished more simply and more easily than can now be done. I would allow every man to settle or to devise his property to A during his life, and after him to B and C in succession, making by plain words so many life estates, and giving a fee to the person who, by our present law, takes the first estate tail, not allowing him to have any power over the property until it became vested in possession, but requiring that, in order to affect it while in expectancy, he and the tenant for life should join in some simple conveyance, as a feoffment, where-by the settlement might be carried on. The property then would not be alienable an hour sooner than it now is, and it would be alienable without fine or recovery;—and I would make the act, which the law now deems a discontinuance, as a feoffment in fee by tenant for life, absolutely void to all purposes, instead of making it a forfeiture of the particular estate of the feoffor though void as a conveyance; so that I would get rid of the necessity of trustees being interposed to save the contingent uses from destruction.
Again, I would restore the Statute of Uses to what it was clearly intended to be. Our ancestors made that law, by which if land were given to A for the use of B, the latter was deemed the legal owner, the use being executed in him, just as if A did not exist. It was justly observed by Lord Hardwicke, that all the pains taken by this famous law, ended in the adding of three words to a conveyance. This has been said by conveyancers to be a severe remark,* but it is perfectly* Some have questioned its authenticity, as not to be found in a MS. note of Hopkins v, Hopkins—but the words are185 correct; for the Courts of Equity invented second uses or trusts, by holding with the Courts of Law, that the statute did not apply to land given to A to the use of B, in trust for C; that it executed the use only in B, but not in C; therefore, the whole provision is evaded, by making the gift "To the use of B in trust for C;" and these three words send the whole matter into Chancery, contrary to the plain intent of the statute. It was also held, that copyhold estates are not within the statute in any way, and there are other nice exceptions, but not much better grounded. Can there be any reason whatever for not making all such estates legal at once, and restoring them to the jurisdiction of the common law, by recognizing, as the owner, the person to whom in reality the estate is given, and passing over him who is a mere nominal party?
Another deviation from the principles I have laid down, and a great source of multiplicity of suits, is the law with respect to agreements for sales, leases, and other conveyances. Thus, if I agree with a person to give him a lease, though he, under the agreement, becomes my tenant, he is my equitable tenant only, but not my legal tenant. He may be possessed of a written agreement, signed and sealed, for a lease of ten years, and may occupy under it, but he has no lease which a Court of Law can take notice of; and if an ejectment is brought, he must go out. He may go into a Court of Equity on his agreement, if that is any comfort to him; he may apply for a decree against me to perform my agreement, but till then his claims are not recognised in a Court of Common Law. If an injunction be brought, the expenses are further multiplied. Why, I ask, should not the agreement, such as I have described, be as good as a lease; when, in substance, it is the very same thing, and only wants a word added or left out to make it the same in legal effect too? A case illustrative of this subject,far too remarkable to have been inserted:—"By this means a statute made upon great consideration, introduced in a solemn and pompous manner, by this strict construction has had no other effect than to add at most three words to a conveyance."—I Atk. 591. The remark nearly in the same words is adopted by Blackstone, who cites lord Hardwicke in confirmation of it.—2 Com. 336.186 happened to come within my own observation. I was counsel in a case, at York, where an agreement had been entered into and possession given; but because it did not contain words of present demise, it was no lease, and, therefore, the tenant could not stand a moment against the ejectment that was brought, but was driven into the Court of Chancery, where the other party could just as little stand against him. How much inconvenience, expense, and delay, then, might be saved, if such an agreement were pronounced equivalent to a lease; and, in general, every thing were supposed done in one court, which may be ordered as a matter of course to be done by another, reserving, no doubt, all objections on the head of fraud, mistake, surprise, and the like, which may be raised by pleading at law, just as easily as in equity.
In like manner, I would allow a legatee to sue an executor or administrator for his legacy, and the mortgagor to sue for his rights. It is always said, that in these and the like cases of active trusts, accounts must be taken; and so they must in every action where there is a matter of set-off against a demand. The old action of account might be greatly improved; and by its aid, and by reference to arbitration, where necessary, much that now goes to equity might be disposed of at law. The only reason why such cases as these, where the assets are to be marshalled, and cross claims considered, now go into the Court of Chancery, is, not for any superior fitness of that Court itself, but because of its appendages, the Masters' Office, without which it would be no better than the King's-bench to manage even long trusts, chronic cases, as they have been termed, (though every suit in Equity might be thus named). Let the Court of King's-bench have an equal number of Masters—let Arbitrators be publicly appointed, to whom parties may refer before any expense has been incurred, as they do now after all the bill has been run up—nay, to whom they may go without even consulting an attorney—and if this machinery be found not enough effectually and properly to despatch the business of the Court, let its machinery be increased, and sure I am it would be the cheapest and most powerful that ever was set up. It would do away with the ridiculous importance attached to a few words of conveyance;—it would oust the jurisdiction of the Court of Chan- 187 cery in all the matters of which I have been speaking, and which it has from time to time drawn over from the Common Law, to which those matters originally belonged. Then the Courts of Equity would be left to execute their ordinary jurisdiction in matters of account requiring a long course of time, and minute and daily attention—cases calling not for decision, but superintendence,—to the care of infants, idiots, and insolvent estates, and other matters which it would be impossible for a Court of Common Law effectually to take cognizance of.
Again, on the same principle of avoiding multiplicity of suits, why, in ejectments, should two processes be requisite to give the plaintiff his remedy? As things now stand, after a man has succeeded in one action to establish his title to the possession, he must have recourse to another, to recover that which he ought to have obtained by one and the same verdict that established his title—the mesne profits? Why could not the same jury settle the matter at once? Why is an individual driven to maintain two actions for the purpose of obtaining one and the same remedy? Or why should not the jury that tries the right, also assess the damages? Mr. Tennyson's bill, which was intended to remedy some part of this evil, is only permissive; it ought to have been compulsory. It is only recommendatory, and its recommendations are not always attended to, because the lawyers, having the choice, do not think fit to pursue that which is the least profitable; they choose the two actions, when one would suffice for the interests of justice—for the interests of the plaintiff and defendant—for all interests, except those of the practitioners.
ii.—Having now considered how the number of needless suits may be diminished, I proceed to the next head of my inquiry—to ascertain how, after their number is reduced as low as possible, and those only brought into Court which ought to be tried, you may best shorten the suits brought, by disposing of them in the shortest time, and with the least expense. And this topic leads me to examine the principles which ought to be adopted for encouraging the parties to come to an amicable settlement as speedily as possible. The law cites as its warrant for certain steps in every suit, the injunction of Scripture—"Agree with thy adversary 188 quickly, whilst thou art in the way with him, lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison. Verily I say unto thee, thou shalt by no means come out thence till thou hast paid the uttermost farthing." The latter part of the text is applicable enough to the proceedings under the English law, and this scriptural advice to compromise ought to be constantly set before the eyes of suitors in all our courts with the penalty denounced. Our law, however, no sooner adopts the principle by allowing a party to imparl, than it departs from the spirit of it; for it must be observed, that the delay of imparlance is admissible, not "in the way," but in the Court, after arrest, and when the effect is only to produce unnecessary loss of time, and fees as unnecessary. Here, however, the sound principles are as obvious as before. Whatever brings the parties to their senses as soon as possible, especially by giving each a clear view of his chance of success or failure, and, above all things, making him well acquainted with his adversary's case at the earliest possible moment, will always be for the interests of justice, of the parties themselves, and indeed, of all but the practitioners. It is the practitioners generally, that determine how the matter shall proceed, and it may be imagined that their own interests are not the last attended to. The seeming interest of two parties disposed to be litigious, in many cases appears to be different from the interests of justice, although their real interest, if strictly examined, will not unfrequently be found to be the same. Now, justice is embarrassed by the disingenuousness of conflicting parties; justice wants the cases of both to be fully and early stated; but both parties take care to inform each other as little as possible, and as late as possible, of their respective merits. One tells as much of his case as he thinks good for the furtherance of his claim, and the frustration of the enemy's—so does the other, only as much of his answer as may help him, without aiding his adversary; and the judge is oftentimes left to guess at the: truth in the trick and conflict of the two. The interest of the Court of Justice being to make both parties come out with the whole of their case as early as possible, the law should never lend itself to their concealments. This remark extends to the proof 189 as well as the statement of the case; an intimation of what the evidence is may often stop a cause at once. In Scotland, the law in this respect is better than ours, for no man can produce a written instrument on trial without having previously shown it to his adversary. For want of this salutary rule I have often seen the most useless litigation protracted for the sole benefit of practitioners. I was myself lately engaged in a cause, the circumstances of which will give the House an idea of the mischief. I was instructed not to show a certain receipt to the opposite party, as my client, the defendant, meant to nonsuit his adversary in great style, as he would call it. Well, the plaintiff, (an executor), stated his case, and called his witnesses to prove the debt. I did not take the trouble to cross-examine, which would have been quite unnecessary. Equally so was it to address the jury. I acknowledged the truth of all that had been sworn on the other side, but added that it was all useless, as I happened to have a receipt for the money, which had been paid to the testator. This, of course, put an end to the case. The sum sought to be recovered did not exceed twenty pounds, and the expenses could not have been less than a hundred. If that action had been brought in Scotland, it never could have come to trial, nor, indeed, been prosecuted beyond the mere demand: for, this receipt being shown, the claim would have been abandoned. Here some person or other, I will not say who, had an interest in the cause being suffered to proceed, and the law enabled him to accomplish his object. I think, Sir, the adoption of some such rule as the Scotch might be desirable. At least, it would be well to inquire how it acts in Scotland, and be guided by the result.
Next, the greatest encouragement should be given to compromises in all cases. At present the law recognises the principle to a certain extent, and permits money to be paid into Court, in some instances, as cases of contract and quasi-contract, where the damages are certain. But nothing can be less judicious than restricting the power of paying money into Court, to those classes of causes, and excluding actions upon contract with uncertain damages, and actions upon tort, which are far more likely to be brought hastily or obstinately defended, because they 190 are accompanied by irritated feelings* The earliest opportunity should be afforded in all cases to each party of getting rid of the suit on receiving or making compensation. I would, therefore, extend the right of paying into Court, or tending amends, to all cases whatever. As the law now stands, it is only magistrates, officers, and other persons specially protected by the statutes of James 1st and George 2nd who can thus proceed in actions for injury offered to the person or property.
But the great means of shortening litigation are to be found in an enlargement of our law of arbitrament. I much fear that this, my next proposal, may seem strange, especially as coming from a professional man—for it goes directly to abridge the length and the expense of law proceedings in a great number of cases, and of preventing not a few from ever coming into Court. But it is calculated to secure justice effectually, without which no saving of expense or of time deserves the name of an improvement. Now, I do not lay claim to any peculiar disinterestedness in broaching this matter. Few persons, it is true, have less interest in diminishing the amount of business in our Courts, because there are not many who gain more by it, and to whom, therefore, the abuses which I am describing, if such they be, are more profitable. But I really believe that lopping off needless litigation, by measures calculated to lessen the expense of procedure in all its branches, would greatly increase the number of lawsuits—real suits, which ought to be encouraged, as necessary to justice, but which at present are kept out of Court, by the double tax of cost and delay. The County Courts ought to be diligently reformed—their process extended to matters of a larger amount, and of greater variety—their officers rendered more able and effective. This improvement of itself would greatly diminish* It has been held, that money cannot be paid into Court in actions for breach of contract to deliver goods at a fixed price, (3 B. and P. 14) for dilapidations, (8. 7 R. 47.) on bond for money in a foreign currency depreciated, (57 R. 87.) Chambers J. in the first and the strongest of these cases says, "It could not be done without violating every rule of practice."—See Com. Pleas, C. 10.191 the number of trifling suits brought into the higher judicatures; and how can I, or any one conversant with the practice of the law, adequately express the benefits of having a speedy and cheap redress for petty wrongs, when we daily witness the evils of the opposite system! How often have I been able to trace bankruptcies and insolvencies to some lawsuit about ten or fifteen pounds, the costs of which have mounted up to large sums, and been the beginning of embarrassment. Nay, how often have we seen men in the situation described by Dean Swift, who represents Gulliver's father as mined by gaining a Chancery suit, with costs! The public generally, are little aware of the number of petty actions forming the bulk of every cause paper at Nisi Prius. Professional men can tell how many now stand for trial concerning demands under twenty pounds; how few of these have been thus far ripened by the fostering care of the profession and the offices, under a hundred pounds expense. I made the Prothonotary, four years ago, at Lancaster, give me a list of fifty verdicts obtained at the Lent assizes; the average was under fourteen pounds, including, however, two or three actions brought to try rights, where the damages were of course nominal. But if the money recovered amounted in all to less than nine hundred pounds, the costs incurred certainly exceeded five thousand pounds: fifty pounds a side being indeed a very low average of costs as between attorney and client. It is not too much to affirm that not above a tenth part of those fifty cases would ever have seen the Court at Lancaster had a right system prevailed; that is, if the parties who were to bear the heavy charge, whether of losing or seeming to gain (for the loss, generally speaking, only differed in degree) had been early apprized of their real situation and exercised their own judgment upon the question of going on or settling betimes. An extension and improvement of arbitration is one of the remedies I have ventured to suggest, at least for further discussion. If arbitrators were publicly appointed, before whom parties themselves might go in the first instance, state their grounds of contention, and hear the calm opinion of able and judicious men, upon their own statements, their anger would often be cooled, and their confidence abated, so as to do each other justice without any expense or delay. Such a tribu- 192 nal exists in France, under the name of Cour de Conciliation; in Denmark it exists; and for certain mercantile causes in Holland also. If it be thought too great a change to introduce it here, in what I deem its best form, I think much good would arise from a modification of it—the appointment of public arbitrators, who might at all times sit and take references by consent, with process to compel the attendance of witnesses, and the execution of their awards. At least we should see all those cases taken before them at once, which are now brought at great cost into Courts wholly unable to try them, and are uniformly greeted with the observation from both bench and bar—"Oh an account and a set-off—a hundred items—so many issues—no judge or jury can try it," after all the expense of trying it has been incurred.*
iii.—The course of our inquiry has thus brought us, in the third place to the commencement of a suit; and here the principles and rules which present themselves are as obvious as they are important. The first is to prevent the debtor's escape, and hinder him from delaying his creditor, by wilfully absenting himself. The second is to give the debtor due notice of the particular nature of the claim, so that he may defend himself if right, or yield if wrong, that is, if actually indebted. The third is, to give the debtor no unnecessary inconvenience, till found to be in the wrong, (that is, indebted), as far as is consistent with due security to the plaintiff against a defendant likely to escape; taking care also to protect the defendant against a plaintiff likely to oppress him with costs and leave him without remedy on dropping the suit. Now, against all these, which I consider cardinal virtues in this importtant stage of procedure, our laws offend most grievously; for, in the first place, we assume the defendant to be in the wrong, and not only so, but to be meditating flight from his country and his home; we therefore, arrest him immediately, and cast* Out of the Statute of William, Arbitration is no favourite of our law. An agreement or a covenant to refer, is waste paper; no action can be maintained for a breach of either; and Equity will not enforce the performance. (6 Ves. 818.) A great Judge said on this case, that he had since a cause he mentioned, made a rule to recommend, an Arbitration.193 him into prison or compel him to find bail. A Member of this Honourable House, if, by the acceptance of an office, he happens, for the space of a few days, to be out of Parliament, may thus be arrested, and put to the most serious inconvenience. It might have happened the other day to the member for Oxford. If he bought twenty pounds' worth of goods on a Saturday; went to his villa and returned on Monday, on knocking at his door he might be met with an arrest, and he must then accompany the sheriff's officer to a lock-up house till he procured bail. He would then do what I understand is usual in such cases, send for his butcher and his baker, and get bailed; but a gentleman could not, after that, complain so well of the meat or bread, or the bills during the next half year. Certainly he would not be in a situation, the week after, to criticise his tradesman's conduct with a good grace. I have known worse inconvenience happen from such use being made of the law, at elections; indeed, when candidates have carried their adversary's voters to Norway, instead of letting them reach Berwick, we may believe they would not scruple to use the writ for a similar purpose. But however malicious or spiteful may be the motives of any one in so employing the process of the law, there being a probable cause of detention, and the process not being abused, no action lies against the wrong doer. If he have no accomplices, so as to fall within the charge of conspiracy, he is safe. To the wealthy, however, all these inconveniences are trivial; but how does such a proceeding operate on a poor man, or a tradesman in moderate circumstances? He has no facilities for obtaining bail; if he does, he pays one way or another afterwards for the favour; and if he cannot procure it he must go to prison. Perhaps no man ever holds up his head, or is the same man again, after having once been in prison, unless for a political offence. But, I ask, why should a man ever be arrested on mesne process at all? The honourable member for Montrose has brought this subject before the House, and he has my hearty thanks for it. On what ground of common sense does our law in this matter rest? Why should it be supposed that a man, owing twenty pounds, will leave his house, his wife, his children, his country, his pursuits; and incur voluntarily the punishment awarded for great crimes, by banishing himself for life? 194 Yet the law always proceeds on the supposition, that a man will run away the moment he has notice given him of an action for the debt. Some men might possibly act thus, but their conduct forms the exception, not the rule; and do you legislate wisely—do you legislate like men of sense—do you legislate with common consistency—when you denounce a penalty against all men, in order to meet a case not likely to occur once in a thousand times?
What would be the effect of altering the law in this respect? Could its reformation injure anyone? Certainly not; on the contrary, it would benefit all classes of the community. The very first consequence of such an alteration would be to make tradesmen less easy in giving credit, by rendering them more cautious. At present, they are induced to rely on the suddenness of personal arrest for compelling a payment of their demands, in preference to others, and thus to speculate upon the chance of payment from insolvent persons; so they enter into a competition—not an honest, praiseworthy competition, in the correctness of their dealings, or the goodness of their wares—but a competition in the credit they give to needy and profligate, or suspected and extravagant men, unable to pay any thing like the whole amount of debts, which the rashness or cupidity of tradesmen may allow them to contract. And on whom does the loss thus incurred by the tradesman finally fall? Not unfrequently on those who can and do pay; they have to answer for those who do not; they pay a sort of del credere in proportion to the loss incurred through giving credit—a species of insurance on all bad debts. Even the more respectable customers would be all the more regular in their dealings and economical in their habits, were they never tempted by easy credits to buy what they have not money to pay for.
My next objection to the present system under this head is, that no proceeding can take place in our courts unless there be an actual appearance. We outlaw a man to compel an appearance. Why do so? Why can we not proceed as in a case of ejectment, where a notice is left at the dwelling-house? Why can we not leave a writ at a man's house, stating what we sue him for; and only when we think him about to fly, call upon him to give surety? I repeat, why not send a writ to the known, domicile or house of business of the debtor; a writ, too, which shall plainly describe 195 the cause of action, instead of serving him with a writ that only tells him he is a prisoner for some reason or other, which in due time he will be informed of: and, if he cannot be found, outlawing him after nine months' delay? This is done in Holland, a mercantile country, and in Sotland, a wary country, where too great charity is not generally shown to the debtor; at least the Scotch have not the reputation of being unnecessarily merciful on such occasions; yet a writ to take the debtor's person is only obtainable there if he be in meditatione fugœ. Our process of outlawry is, in its nature, extremely foolish; its object being to compel an appearance, which, after all, is not necessary, provided he wilfully absents himself after due notice. If a man chooses to keep away, why not proceed without him after such a delay, and so many services at his place of residence as shall ensure him having a knowledge of the action? As for any scruple about proceeding against an absent man, without making perfectly sure of his having notice, the present law has no right to say a word on the subject; for its process of outlawry is neither more nor less than a mean by which you harass an absent man, without even pretending to give him notice. He may be in the Greek Islands, on the coast of Africa, or in the back woods of America, and his creditor can outlaw him, and proceed to have his goods forfeited without his being aware of the transaction, and without the proceeds of the forfeiture necessarily benefiting any one but the Crown. In Exchequer cases, it is true, the debt and costs, not exceeding 50l. are paid out of the fund arising from selling the goods; in all other cases a party must apply to the Lords of the Treasury. Why should this be? What have the Lords of the Treasury to do with the legal remedy of plaintiffs in suits? Why send any one to the executive power for the redress which the judicial authority alone ought to administer?
iv.—We are now to suppose the parties in Court, and called upon to state their cases, the claim of one, and defence of the other. Anciently this pleading, as it is termed, was by word of mouth; but in more modern times it has been carried on in writing. Originally, too, pleas were in French, afterwards in Latin, and, for a century past, by a great, but most salutary innovation, doubtless much reviled and dreaded in its day, they have been con- 196 ducted in English. I must own that I approach the subject of Special Pleading, in the presence of my most worthy friend and learned instructor in that art, (Sir N. C. Tindal,) with some degree of awe. That excellent person's attainments in its mysteries are well known, and justly appreciated. He is intimately acquainted with the subject. The distrust of my own learning therein, while addressing him, is not lessened by my recollection of the praises lavished upon it by high authorities of past times. Lord Coke deemed it so delightful a science, that its very name was derived, according to him, from its; pleasurable nature: "Quia bene placitare omnibus placet." Incapable of inventing a new pleasure, I would fain restore a lost one, by bringing back pleading to somewhat of its pristine state, when it gave our; ancestors such exquisite recreation. Certain it is, that our deviations from the old rules in this branch of the law has been attended with evil effects. Those rules, as Lord Mansfield once said, were founded in reason and good sense; accuracy and; justice were their object, and in the details much of ingenuity and subtlety was displayed; but by degrees the good sense has disappeared, and the I ingenuity and subtlety have increased beyond measure, and been oftentimes misdirected; nay, to such a pitch have the changes proceeded, that at last subtlety has superseded sense; accuracy and justice are well nigh lost sight of, and ingenuity is exhausted in devising pretexts for prolixity and means of stratagem. In these really hurtful innovations the courts of law have been the far too ready accomplices: and the legislature has been a most willing instrument, to increase the evil, by sanctioning, almost as a matter of course, in each new act, the power of pleading the general issue; so that to call the modern practice by the name of special pleading is an abuse of terms. It can be only restored to its ancient condition, and made deserving, if not of Lord Coke's panegyric, yet of the more measured commendations of Lord Mansfield, by reviewing the entire system as it at present stands. My wish is, as far as possible, to revive the accuracy of the old pleading, without its niceties and verbosity; while pains are taken to improve it where this can safely be done, by adapting it to the advanced state of modern jurisprudence.
The precedents of the ancient pleaders, 197 and the other rules recognized in their times, furnish the most valuable materials for this reform; and, indeed, it is chiefly from the science as they left it that the principles I am about to state are drawn. The first great rule of pleading should be to induce and compel the litigant parties to disclose fully and distinctly the real nature of their respective contentions, whether claim or defence, as early as possible. The second is, that no needless impediment should be thrown in the way of either party, in any stage of the discussion within the Court, whether plea, replication, or rejoinder, whereby he may be hindered to propound his case in point of fact, or of law. In the third place, all needless repetitions, and, generally, all prolixity should, as well as all mere reasoning, which neither simply affirms nor denies any proposition of fact or of law, be prevented; and all repugnant or inconsistent pleas should be disallowed. That these were the principles on which the ancient pleaders bottomed their system entirely, I will not affirm; but upon them it was mainly built; and I regret to say, that the last century and a half has witnessed great and prejudicial alterations in the original plan: so that the record, instead of exhibiting a plain view of what each party is prepared to prove, in the great majority of cases, contains an endless multitude of words, from which, if the real matter in dispute can be gathered at all, it is only by guess work, or by communications out of the record relating to things, of which it gives not even a hint. Let us look into this a little more narrowly. The count of a declaration should convey information as to the subject of the action; but it conveys no precise knowledge of the plaintiff's demand, or of indeed what the suit is about. Take the instance of the Common Counts, as they are justly termed, being those constantly resorted to; and take the most common of these, the count for money had and received. I will take no advantage of the audience I speak before, being unacquainted with legal niceties, in order to make merry with the venerable formalities of the art. All lawyers know how easy it would be in this place to raise a smile, at the least, by recounting the little fooleries of our draftsmen; but I disdain it; and will treat the subject precisely as if I were addressing professional men. The plaintiff declares, that the defendant, be- 198 ing indebted to him for so much money had and received to the use of the said plaintiff, to wit, one thousand pounds, undertook and faithfully promised to pay it but broke his engagement; and the count is thus framed, the self-same terms being invariably used, whatever be the cause of action which can be brought into Court under this head. Now, observe how various the matters are which may be all described by the foregoing words. In the first place, such is the declaration for money paid by one individual to another, for the use and benefit of the plaintiff"; this is what alone the words of the count imply, but to express this they are rarely, indeed, made use of. Secondly, The selfsame terms are used on suing for money received on a consideration that fails, and used in the same way to describe all the endless variety of cases which can occur of such failure, as an estate sold with a bad title, and a deposit paid; a horse sold with a concealed unsoundness, and so forth. Thirdly, The same words are used when it is wished to recover money paid under a mistake of fact. Fourthly, To recover money paid by one person to a stakeholder, in consideration of an illegal contract made with another person*. Fifthly, Money paid to revenue officers for releasing the goods illegally detained, of the person paying†. Sixthly, To try the right to any office, instead of bringing an assize ‡. Seventhly, To try the liability of the landlord for rates levied on his tenant. What intimation, then, does such a declaration give? It is impossible, on reading this count, to say which of the seven causes of action has arisen; and it is not merely those seven, for each one of them has a vast number of varieties, which are declared on in the same words. In actions of trover the case is even worse. Suppose the case of a plaintiff suing for any chattel, as a gun, the declaration will be such as may apply equally to at least eight different heads, under each of which are many different causes of action. The words in all would be the very same—that the plaintiff' was possessed of a gun, as of his own proper goods and chattels; that he accidentally lost it; that the defendant found it, and converted it to his use. Now this count describes only one case, that of a gun lost by its owner, and detained by the finder. But* 1 B. and P. 3. lb. 296 † 4 T. R. 485. ‡ Str. 747. Carth. 95. 1 T. R. 255.199 it is employed to mean: secondly, That the gun has been taken by the defendant, under pretence of some title, or in any way not felonious. Thirdly, That it was deposited with the defendant, who refused to deliver it up. Fourthly, That it was stopped in transitu, the price not having been paid. Fifthly, That the plaintiff is the assignee of a bankrupt, and seeks to recover the gun, as having been sold after the bankruptcy of the vendor. Sixthly, That the plaintiff has been improperly made a bankrupt, and sues the assignees to try the bankruptcy. Seventhly That his goods have been unlawfully taken, and he sues to try the validity of an execution, on any of the various grounds of fraud, &c. which impeach the validity of the process. Eighthly. That the gun has been misdelivered, or detained by a warehouseman or carrier. All those causes of action differ from each other as much as different things can differ; and yet they are all stated in the declaration the same way, and signified under the same form of words.
The pleadings in cases where it might be expected that the greatest particularity would be given to the statement, actions upon torts to the person, are somewhat, but for the most part, not remarkably more definite and precise in their description. The declarations on the seduction of a wife, servant, or daughter, assault, and false imprisonment, are drawn so that you can say, no doubt, what the action is about, which, you hardly ever can in cases of assumpsit or trover; but the same form of words is used, whatever the particular shape of the cause may be. Of the circumstances peculiar to the transaction the pleadings tell the defendant nothing—they tell the counsel nothing—they tell the judge nothing. It may be said, that the defendant must know the cause of action himself; but that does not always follow, especially if (which may be presumed barely possible, though it seems never to be thought so) the allegations are groundless. There is, however, one person who must know the cause of action, and that is the plaintiff. He ought, for the satisfaction of all concerned, to state it distinctly. The same may be said of the counts in trespass, for taking goods. In trespass quare clausum fregit, perhaps, the description of the wrong done is more specific. But it happens that the circumstances here are of far less importance; damages are not in question; a shilling or 200 so is to be recovered, the object of the action being almost always to try a right of property or an easement. In all other cases of trespass, where a knowledge of the wrong suffered is most material, the parties are left to fight, and the Court to decide, in the dark; but in the case I have just alluded to, where a knowledge of the circumstances in which the trespass was committed is immaterial, every thing is told to them of which it is wholly unimportant that they should be informed; in a cumbrous way, no doubt, and with much fanciful statement, but still it is told. Actions for slander and libel, for malicious prosecutions, and malicious arrest, or holding to bail, with others on the case, are very particular, and form certainly, an exception to the ordinary course of pleading; at least, as far as the declaration goes; no further, as we shall presently see—for I now proceed to the next stage of the pleadings; namely, to the pleas which the defendant puts upon the record in answer to the plaintiff's complaints.
In this stage of the cause we encounter the same evils, but in greater abundance; for they affect those actions on the case where the count is most precise. Generally speaking, it may be said, that if the plaintiff tell us nothing in his declaration, the defendant, in return, tells us as little in his plea; in that respect, at least, they are even. This is, perhaps, a consequence of the former evil; but, be that as it may, it ought to be remedied. The plaintiff ought to tell the defendant the real nature of his complaint, and the defendant ought to make him equally acquainted with the nature of his answer. If this were always done, perjury would not so often be committed; every thing intended to be proved would be stated on each side, and the parties, knowing the evidence on which the respective statements must be established, would have an opportunity of examining into the character of the witnesses, and of procuring the best evidence to elucidate the point. At present, the mystery of pleading leaves them in doubt; and the vague and indistinct statements on the record, unaccompanied by other information, open a door to the entrance of falsehood in the witnesses, far wider than any you could open, by enabling them to get up proofs in answer to those expected from the opposite side. Whenever the parties fight each other by trick, on the record in the first instance, fencing to evade telling 201 their grounds of contention, they renew the fight afterwards by perjury in Court. I will now give the House some instances of the vagueness of this part of pleading.
In the indebitatus assumpsit, from which I took my first example, the general issue is non assumpsit. Now, under that plea no less than eight different defences may be set up; as, for instance, a denial of the contract, payment, usury, gaming, infancy, accord and satisfaction, release, and coverture. All these defences are entirely different, and yet they are all stated in the self-same words. So, too, in the action of trover; take our former case of the gun: the defendant, under the plea of "not guilty," may set up as a defence, that he is a gamekeeper, and took it by virtue of the statute of Charles II*; or that he had a lien upon it, as a carrier for his general balance, and had, therefore, a right to detain it; or a particular lien for work done upon it; or that he had received it as a deposit, and was entitled to keep it; or that he took it for toll†, or detained it till passage money due by its owner were paid‡ or the reward due for saving it from shipwreck §. Any one of these defences may be concealed under the plea of "not guilty," without the possibility of the plaintiff discovering which it is that his adversary means to set up; so that every body will, I think, agree with me, that if the count teaches the Court and opposite party little, the plea teaches them not a whit more.
It is of these things that Mr. Justice Blackstone must be speaking, when he thus eloquently closes his account of special pleading and actions (not otherwise remarkable for accuracy¶ with a merited panegyric upon that perfection which it shares in his eyes with all the rest of our system.—"This care and circumspection in the law, in providing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not, by receiving such notice, take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly* St. 22. 23. Car. II.—Dawe and Walter in Bull. N. P. 48.† Sir W. Jones, 240.‡ 2 Camp. 631.§ Lord R. 393.¶ E. G. His giving as an example of assumpsit, an undertaking without consideration.202 and exactly answered; in clearly stating the question either of law or of fact; in. deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; this anxiety to maintain and to restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation—this parental solicitude, which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen*."
The inconsistency of many of our rules of pleading for his the next head of complaint to which I shall direct your attention, and it is just as manifest as the vagueness and indistinctness I have been pointing out. Why are infancy and coverture to be given in evidence under the general issue, while other defences of a similar description must be pleaded specially, as the statute of limitations always, and leave and licence in trespass? If it is right that specific defences, of which your general plea gives your opponent no notice, should be couched under that plea, why should you be compelled to give notice of other averments before suffered to prove them? Why do you, in one case, multiply pleas, which, in the other, your own practice declares to be unnecessary? One or other course, the vague or the precise, the prolix or the concise, may be fitting; both cannot be right. Nay, there is often an option given as to the same thing; infancy, coverture, release, accord and satisfaction, and others, may either be given under the general issue in assumpsit, or pleaded. Why, this choice amounts to no rule at all! If a ground of defence is ever to be pleaded specially, why not always?
A-kin to this inconsistency of principle is the variety of repugnant counts and pleas allowed in all cases whatever. Where there are ten different ways of stating a defence, and all of them are employed, it is hardly possible that any three of them can be true; at the same time their variety tends to prevent both the opposite party and the Court from knowing the real question to be tried. Yet this practice is ge-* 3 Com. 423,203 nerally resorted to, because neither party knows accurately what course his opponent may take; each, therefore, throws his drag-net over the whole ground, in hopes to avail himself of every thing which cannot escape through his meshes. Take the case of debt on bond. The first plea in such an action, almost as a matter of course, is the general issue, non est factum, whereby the defendant denies that it is his deed; the second as usually is, solvit ad diem—he paid it on the day mentioned in the bond, a circumstance not very likely to happen, if it be not his deed; the third is solvit post diem—he paid it after the day; a thing equally unlikely to happen, if it be not his bond, or if he paid it when due; and a fourth often is, a general release. What can a plaintiff learn from a statement in which the defendant first asserts that he never executed the deed, and next, that he not only executed it, but has moreover paid it off? Where pleas are consistent with each other, it may be well to let them be pleaded in unlimited abundance: where they are not only not consistent, but absolutely destructive of each other, it would be a good rule to establish that such pleas should not be put together upon the record, at least without some previous discussion, and leave obtained. The grounds of action are often stated with almost as great inconsistency—almost always with greater multiplicity in the declaration. I recollect that at York, many years ago, it was my duty, as junior counsel, to open the pleadings in an action brought upon a wager which had been laid upon the life of the Emperor Napoleon. I stated to the jury in the usual way, that the defendant, in consideration of one hundred guineas, agreed to pay the plaintiff a guineas a-day during the life of one Napoleon Buonaparte, and so forth, alleging the breach. Thus far all was well, and the audience were not disturbed; but there was not much gravity among them, when I went on to state the second count, averring another wager on the life of "one other Napoleon Buonaparte"—and, indeed, though one in those days was quite enough for the rest of the world, two did not satisfy the pleader, who made mention of a third and a fourth Napoleon.
I know that it is frequently said these allegations deceive nobody, and their vagueness and repugnancy keep no one in the dark, for each party contrives to have 204 a good guess of what his adversary means. That this is not the case in many instances I know; that it takes place more frequently than might be expected, I am ready to admit. But what vindication is this of the system? If any thing like precise information is obtained in such cases as I have described, it is most assuredly not from the record, but in spite of the record; it is by travelling out of it—by seeking elsewhere for what the record does not give, or for correcting the false impression which it conveys; consequently, this defence of pleading is the very humble one, that it is useless, and, were it not for the cost, would be harmless.
Before the statute of the 4th of Anne, no man was 'allowed to plead double; the plaintiff might have as many ways of stating his case as he pleased, but to each count the defendant could only give one answer. By that statute he may, with leave of the Court, plead two or more distinct matters. Though that leave was formerly granted or refused at the discretion of the Court, it is now regularly given as a matter of course. There is, however, a fee to be paid to the office for it, and also a fee to counsel for signing the rule to obtain it, which, of course, implies a charge by the attorney also. I believe every practitioner is fully aware of the consequences. Beside the expense, the utterly needless expense, the mischief of it is great and undeniable. I believe in my conscience, that many an attorney's clerk, who afterwards proceeds to still greater frauds, begins his career of crime by stopping this fee to counsel on its way. It is not necessary that the barrister should sign his name; and a knowledge of that, fact among attornies' clerks and barristers' clerks seduces into a course of petty embezzlement, which leads to larger peculations in the long run, and ends in all the dishonesty which marks the life of the disreputable practitioner. According to the principles before laid down, such rules as I this, to plead double, and all others of the kind, ought at once to be abolished, and the parties allowed to do, without any application, or rather supposed application, to the Judge, and without any expense, what they thus obtain for the mere payment of money. But to proceed: though the defendant may plead, the plaintiff cannot reply many matters. For instance, in indebitatus assumpsit, if the defendant pleads, first, that he never made any 205 promise, and next, that he was an infant when he made the promise, the plaintiff must either admit the infancy, and set up a subsequent promise, or deny the infancy altogether, and re-affirm the original promise; for he cannot both deny the infancy and set up a subsequent promise. Now, I will ask the House, why, if the defendant may plead several matters, the plaintiff should not reply several matters? There must be some limit, I allow, set to the replication, otherwise, at each stage of the pleading, there would be a multiplication of issues, like the puzzle of the nails in a horse-shoe; but, surely, there can be no harm in allowing each separate ground of defence to be met both by a denial and an answer; giving the plaintiff a general replication to make the defendant prove his plea, and one special replication; I mean, as long as you allow the defendant to multiply, without restraint, his grounds of defence; for the power of pleading repugnant pleas being restricted, there will be the less prolixity occasioned by enlarging the power of replying.
The restriction upon demurrer, or pleading to raise an issue in law, appears still less founded in principle. By demurring, a party is obliged to confess the facts to be true as stated by the opposite party, and confine himself to a denial that, by law, those facts warrant the inference against him to raise which they are stated. If I am alleged to have made a particular promise, I may deny that I made it, which would raise a direct issue on the fact: or I may say that, though I did make it, such a promise is not binding in law, which raises an issue on the law. These two denials, however, cannot both be given; I must take my choice, either to admit the law or the fact. How is this in common life? If I am charged with any thing wrong, as using certain blameable expressions, I may deny the words altogether, but may add, "admit, for argument sake, I did utter them, they were wholly harmless—wholly free from the meaning affixed to them." In truth, men are demurring all day long, when they are conflicting or disputing with one another, and no one ever dreamt of tying down his antagonist to an admission of the fact, because he had argued against the inference. If any thing can make the rule more objectionable, it is the gross inconsistency which it exhibits to the last rule I mentioned, the permission given to a defendant to raise as 206 many repugnant issues of fact as he pleases. Why should a party be allowed to say, "In point of fact, I deny the promise; but, if I made it, six years have elapsed—or I made it underage," and be prohibited from saying—"In point of fact I deny the promise; but, if I made it, there was nothing binding in point of law?" The two defences, as far as their duplicity goes, are precisely similar; and as it must be allowed that, before double pleading was introduced, the restriction upon demurring was consistent with the general principles of the system, so, if repugnant pleas were forbidden, the objection, in respect of consistency, to a demurrer admitting the facts pleaded, would be removed. On other grounds, however, it would still be quite wrong. I admit that part of the mischief occasioned by the rule may be remedied after verdict, the objection being on the record. But beside that this remedy cannot, in every case, be applied, there has been the delay and expense, to say nothing of the absurdity of a trial of facts, which, if proved, amount to nothing. Why should not the Court first determine the disputed law, and then, only if it becomes necessary, try the truth of the facts?
A very great, amendment of the law would be, to permit, all formal errors to be amended, even at the very last stage of the cause. No one should be turned round on a mere variance; no one should be defeated on a mere verbal mistake, as it was my lot to be lately in an indictment, the history of which will aptly enough introduce this head of remark. It was a prosecution for perjury: the jury was sworn, the case was opened, witnesses were examined, and documents read, when a variance was discovered between the affidavit, on which the perjury was assigned, and the copy of it which formed part of the record: in the one the word "grandmother" was used: in the record the syllable "grand" was omitted, and only the two last syllables "mother" were inserted. This was, of course, fatal to the indictment. There can be no doubt that the perjury, which consisted in the denial of a payment, was equally committed, whether that supposed payment was made to the mother or the grandmother; yet, owing to this utterly unimportant error, all the trouble of the Court, and all the expense of the prosecutor, were rendered perfectly useless, and the ends 207 of public justice frustrated. In ninety-nine cases out of every hundred—indeed, I might say, in nine hundred and ninety-nine cases out of every thousand—in which parties are turned round upon variances, the materiality is not greater than in that which I have just mentioned to the House. The improvement which I would suggest is to allow nobody to be turned round upon a variance, except at the discretion of the Judge. Where it is clear that the record by its variance from the evidence has deceived the party, then the discrepancy ought to be fatal; but because this may happen once in a thousand times, ought we to legislate upon the exception, and introduce a general system of quirks and niceties upon sorry trifles—the greatest opprobrium of the law? Furthermore, I would allow no failure of a case from the want of a sufficient stamp being affixed to any instrument used in evidence. In a case which occurred not long since, my Lord Dudley was turned round, because it was said there were a few words more in the instrument than we had counted, and the stamp was some half-crown below the amount required. At the trial of the cause, it was not disputed by us, that the words were more in number than the stamp covered; we took for granted that our adversary had reckoned right, and we did not require the process of addition to be gone through in Court; it was afterwards found out that the defendant had counted the words wrong, and that they fell short of the number mentioned in the Stamp Act. The plaintiff, in consequence, got a rule for a new trial. But suppose we had been wrong and he right, what difference would that have made in the justice of the cause, which was truly an undefended one? I would allow the judge to inflict a penalty of 20l., of 50l., if necessary, to protect the revenue, instead of 10l. for the want of a stamp; but I would not allow the party to be turned round, and to lose his trial, because he had got a wrong stamp, or no stamp at all, affixed to his agreement or deed.
Let not the House suppose that grievances, such as I have been describing to flow naturally from the present system, are imaginary and theoretical. I can assure the House, from my own daily experience, that they are not: they produce constantly a cost or a delay, amounting to the positive denial of justice. To give an illustration of some of the parts of the 208 system in its workings, I shall read the letter which I hold in my hand, from an eminent practitioner in the law. The widow of a Welsh clergyman was obliged to bring an action upon a mortgage-deed for the payment of the mortgage-money and interest, and for performance of the covenants in the deed. She might have foreclosed by a proceeding in equity; but preferring the delays of the King's-bench to those of the Chancery, she brought an action of debt of the simplest possible kind, both in its nature, and in the form of the proceedings; and the House shall now hear from her solicitor himself, what was the progress and termination of that action.—"The defendant was a Member of Parliament, and some delay, as is usual with such defendants,"—(I beg pardon, Sir—of course I am not answerable for the terms of the letter)—"took place in enforcing an appearance. When the declaration was delivered, the defendant demanded oyer of the bond, and that obtained, made as many applications as the Judge would allow for further time to plead. At the expiration of this period, he pleaded—1st, Non est factum— 2nd, Solvit ad diem—3rd, Solvit ante diem*—4th, Solvit post diem—5th, Performances. It is needless to add, all these pleas were pure legal fictions. The plaintiffs, in their replication, took issue on such pleas as concluded to the contrary, and assigned breaches of the condition, according to the statute. The breaches assigned were, non-payment of the principal—non-payment of the interest—and non-performance of the covenants of the* Had the plaintiff's pleader chose, the law enabled him to demur to this plea (but it would have increased the delay and served the defendant's purpose.) The ground of the doctrine, that paying before the debt falls due is no answer to the action seems not very intelligible but it is now settled law.—The reason assigned (in Cross v. Tryon—though there are cases contra, Cro. Eliz. 143, Dyer 222 and see 14 Ann, c. 16. § 12.) is that if the verdict on that issue goes for the plaintiff, it by no means follows that he has a right to recover, for he may have been paid at or after the day. But so it may be said of a plea of infancy—or, indeed, of solvit ad diem itself—for though the verdict negative that plea, non constat that there may not have been duress or a release. The true test of a plea (or an affirmative issue tendered at any stage of the pleadings) plainly is this—if its being found for him who pleads it decides the matter in his favour, it is good—if not, bad.209 mortgaged-deed. The defendant, for the purpose of splitting the second into two issues, and thereby creating the delay of an issue in law, to be tried before the court in banco, and an issue in fact, to be afterwards tried at Nisi Prius before a jury, demurred to the last assignment of breaches—a sham demurrer for delay. The plaintiffs joined in demurrer, and made up and delivered the paper-book and demurrer-book. The defendant, in order to entitle himself to bring a writ of error for delay, without giving bail, then suffered judgment to go by default, for not returning the paper and demurrer-book. The consequence of this was, that all the pleas, replications, rejoinders and demurrer, became useless, and were struck out of the record; and the plaintiffs had to execute a writ of inquiry before the chief justice, under the statute of William III. to assess damages on the breaches suggested. But these proceedings had answered the purpose of harassing the poor defendant with useless and expensive litigation, swelling the pleadings from five folios to one hundred and eighteen; and they had already accomplished much delay, having occupied four terms: the bill was filed in Trinity Term, the pleas and replication in Michaelmas Term, the demurrer and joinder in Hilary Term, and the final judgment was obtained in Easter Term. The defendant then brought a writ of error, without the slightest pretence of actual errror; and that proceeding, of course, delayed the plaintiffs four terms longer. All this was necessarily attended with expense, grievous to a poor person, as the party in this case was. The costs of the judgment were taxed at 80l. 4s., and the costs in error at 19l. 10s., making together 99l. 14s. for the costs, and two years for the delay in an undefended action, in which the length of the declarations was five folios! Comment on such a case would be a waste of words."—It would indeed! But if it be wanted, Blackstone shall be the commentator. "So tender and circumspect," saith he, "is the law of England in providing that no man's right shall be affected by any legal proceeding; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the law and the fact; in deliberately resolving the former and indisputably fixing the latter by a dilligent trial; in correcting such errors as may have arisen in 210 either decision, and in finally enforcing the judgment, when nothing can be alleged to impeach it! So anxious it is to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation,—so parentally solicitous is our whole legal constitution to preserve that spirit of equal liberty, which is the singular felicity of the British nation."
I must now tell the House, that besides the 99l. 14s. taxed costs, this poor widow had to pay 30l. for extra costs, which she never received a shilling of from the defendant, and which she had to defray after he had handed his share of the costs over to the plaintiff's attorney. In prosecuting an undefended cause she paid this sum, and if it had so chanced that the defendant, instead of being merely a distressed man, (for I happen to know the gentleman in question, and that though a distressed he is not an oppressive man) if he had been such a character as was once known in the northern provinces, and as we have had represented on the scene,—pertinacious, litigious, grasping, oppressive, with a long purse to back him in defending acts of injustice and cruelty,—he would have resisted at every stage of the action by counsel and witnesses; he would have had the demurrer argued before the Court; he would have tried the issue at Nisi Prius; he would have carried his Writ of Error through the Exchequer Chamber into the House of Lords; and then the extra costs, instead of 30l., would have amounted to I dare not say what sum, knowing that costs to the amount of 500l. have been incurred to recover a debt of 19l. "So tender is the law of England in providing that no man's right should be affected by any legal proceeding—so parental its solicitude to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other person whatsoever."
Sir, after Mr. Justice Blackstone had written his beautiful and, in part, profound Commentaries, there occurred a case, which he published himself in his Reports, and which must, I conclude, have happened after the panegyrics were composed. I marvel much, however, that, when a subsequent edition of his Commentaries appeared, he did not correct the error into which he must then have been convinced that he had been betrayed, by his 211 excessive admiration for the forms and technicalities of our common law. The case, as reported by himself, was, in substance, this:—A gentleman of the name of Robinson, in Yorkshire, was minded to try the resources of the law in an action of trespass against some poor men, who lived near him. In the course of it, reference was made to the Master, to report by whose fault the pleadings in the action had extended to a most enormous and unprecedented length. The Master reported, that in the declaration there were five counts; that twenty-seven several pleas of justification were pleaded by the defendants, which, with replications, traverses, new assignments, and other muniments of pleading, amounted at length to a paper book of near two thousand sheets. He was of opinion that the fault lay principally in the length and intricacy of the declaration, the action being only brought to try whether the freeholders and copyholders of the manor of Ellerton, in Yorkshire, whereof Mr. Luke Robinson was lord, were entitled to common in a ground called the Inclosure. He likewise reported, that the declaration was so catching, by ringing changes upon the several defendants, and the several names of the ground, that it was necessary for the defendants to guard every loophole; which made their pleas so various and so long, especially as Mr. Robinson had declared, that he had drawn the declaration in this manner "on purpose to catch the defendants, and that he would scourge them with a rod of iron." The Court was very indignant at this abuse of the technicalities of the law, and the reporter says, that Mr. Robinson appeared in propria persona, to show cause against this report, "no other counsel caring to be employed for him." The Court ordered Mr. Sergeant Hewitt and Mr. Winn to settle an issue, which they did in a quarter of an hour, and in the space of a quarter sheet of paper, instead of two thousand folios. Talk of scourging with a rod of iron! Why should he think of it? The lash of parchment, which is applied to all suitors in our courts of law—that flapper, which keeps them awake to the course of justice by the expense and anxiety it inflicts, that truly parental corrector of human errors, manufactured in the engines of practice and pleading, which, pretending to enlighten, serve only to keep the Court and the suitors in the dark as to what they are 212 conflicting about, and oftentimes teach them nothing certain, but that they are ruined, and cannot tell how!—this parchment lash was a far more safe as well as powerful scourge for the rich and crafty lawyer, and a far more deadly one for his poor and simple antagonists, than any rod of iron which he could have obtained in Colebrookdale.
v.—The parties being now supposed at issue by the result of their pleadings, the facts in dispute are to be tried by a jury through the medium of Evidence, and the comments of the counsel and judge. Before I enter, therefore, on the head of Evidence and Proceedings, or Trial generally, the House will permit me to say a few words upon the subject of Juries, the rather because this venerable institution has, I lament to say, been of late years, attacked by some of the most distinguished legal reformers. Speaking from experience, and experience alone, as a practical lawyer, I must aver, that I consider the method of Juries a most wholesome, wise, and almost perfect invention, for the purposes of judicial inquiry. In the first place, it controls the Judge, who might, not only in political cases, have a prejudice against one party, or a leaning towards another, but might also, in cases not avowedly political, where some chord of political feeling is unexpectedly struck, if left supreme, show a bias respecting suitors, or, what is as detrimental to justice, their counsel or attornies. In the second place, it supplies that knowledge of the world, and that sympathy with its tastes and feelings, which Judges seldom possess, and which, from their habits and station in society, it is not decent that they should possess, in a large measure, upon all subjects. In the third place, what individual can so well weigh conflicting evidence, as twelve men indifferently chosen from the middle classes of the community, of various habits, characters, prejudices, and ability? The number and variety of the persons are eminently calculated to secure a sound conclusion upon the opposing evidence of witnesses or of circumstances. Lastly, what individual can so well assess the amount of damages which a plaintiff ought to recover for any injury he has received? How can a Judge decide half so well as an intelligent Jury, whether he should recover as a compensation for an assault fifty pounds or a hundred pounds damages?— 213 or for the seduction of his wife or daughter, fifteen hundred, or two thousand, or five thousand pounds damages? The system is above all praise—it looks well in theory, and works well in practice—it wants only one thing to render it perfect—namely, that it should be applied to those cases from which the practice in equity has excluded it; and that improvement would be best, effected by drawing back to it the cases which the courts of equity have taken from the common law, and which they constantly evince their incapacity to deal with, by sending issues to be tried whenever any difficulty occurs.
I shall not press this subject further, for I begin to feel that I shall be exhausted with the labour I have undertaken, and I fear that your patience may be exhausted with my strength. I will, therefore, proceed to the great subject of Evidence; and, first of all, we are met by the question. Ought the testimony of the Parties to be excluded? The strong opinion expressed by some great authorities on this head requires that, before entering on the Law of Evidence, we should touch the fundamental rule which draws so broad a line between parties and witnesses. It is clear that the law on this head requires revising; it is not so clear that the reform will be best accomplished by receiving every one's testimony in his own cause. The friend of exclusion proceeds upon the supposition, that the situation of a party differs wholly from that of another person; whereas it only differs in the degree of the bias arising out of interest, from the situation of many who are every day allowed to depose. He also maintains that it is dangerous to receive the party's evidence, because of the temptation afforded to perjury. That there is much in this argument, I admit; but, speaking from my own observation, I should say that there is more risk of rash swearing, than of actual perjury—of the party becoming zealous and obstinate, and seeing things in false colours, or shutting his eyes to the truth, and recollecting imperfectly, or not at all, when his passions are roused by litigation. I shall not easily forget a case in which a gentleman of large fortune appeared before an able arbitrator, now filling an eminent judicial place, on some dispute of his own, arising out of an election. It was my lot to cross-examine him. I had got a great number of letters in a pile under my hand, but concealed 214 from him by a desk. He was very eager to be heard in his own cause. I put the question to him: "Did you never say so and so?" His answer was distinct and ready,—"Never." I repeated the question in various forms, and with more particularity, and lie repeated his answers, till he had denied most pointedly all he had ever written on the matter in controversy. This passed before the rule of evidence laid down by the Judges in the Queen's case; consequently I could examine him without putting the letters into his hand. I then removed the desk, and said, "Do you see what is now under my hand?" pointing to about fifty of his letters. "I advise you to pause before you repeat your answer to the general question, whether or not all you have sworn is correct." He rejected my advice, and not without indignation. Now, those letters of his contained matter in direct contradiction to all he had sworn. I do not say that he perjured himself,—far from it. I do not, believe that he intentionally swore, what was false; he only forgot what he had written some time before. Nevertheless he had committed himself, and was in my client's power. I said, "My advice is, that you pay the whole demand before to-morrow." This only increased his anger; he "scorned the offer and the imputation." Turning to his solicitor, I asked if he concurred in his client's view of my proposition. "Very far from it," was the answer. The meeting broke up, the arbitration terminated, and the money was paid the next, morning. Now, had this trial occurred in an open court, the gentleman would have been ruined for ever; he would have had no opportunity of explaining, nay, all explanation would have been useless; if he had escaped prosecution, he would have been suspected of perjury ever after, when all that he was guilty of was too much eagerness, too much impetuosity, and a little wrong-headedness, arising from confidence in his own cause, and a desire to defeat, his adversary. But this anecdote is fruitful in Platter of reflection. On the one hand, we see the risks of admitting impure or uncertain evidence, and the probability of receiving wrong impressions respecting a witness's bias while undergoing the question; on the other hand, we perceive, that it, to a certain degree, the same consequences flow from our present practice of allowing such evidence in some 215 cases, and not in all. Our system is clearly inconsistent in this particular. At least we ought to be uniform in our practice. Why refuse to allow a party in a cause to be examined before a Jury, when you allow him to swear in his own behalf in your Courts of Equity, in your Ecclesiastical Courts, and even in the mass of business decided by Common Law Judges on affidavit? Why is the rule reversed on passing from one side of Westminster Hall to the other, as if the laws of our nature had been changed during the transit; so that no party being ever allowed before a Jury to utter a syllable in his own cause, in all cases before an Equity Judge parties are fully sworn to the merits of their own cause? If it be said, that there is no cross-examination here, I answer, that this is a very good argument to show the inefficacy of Equity proceedings for extracting truth from defendants, but no reason for following a different rule in the two jurisdictions. Indeed, the inconsistencies of our system in this respect almost pass comprehension. All pleas at law are pleaded without any restriction upon their falsehood; in Equity the defendant answers under the sanction of an oath. But Equity is as inconsistent with itself as it is different from Common Law; for the plaintiff may aver as freely as he pleases, without any oath or any risk at all. When an inquiry is instituted into these things, I do venture to hope that something will be done to diminish the number of matters decided on affidavit. This is, indeed, a fruitful parent of fraud and perjury, and not only a great departure from the principle which excludes the testimonies of parties, but an abuse of all principle; for he who would allow such testimony, under due restraints, may very naturally argue, that suffering men to swear for themselves without being exposed to cross-examination must lead to endless equivocation, suppression of truth, and all the moral guilt, without the danger, of actual perjury. If it be right to exclude the parties from giving evidence in their own behalf in one case, it is not right to admit them to give evidence in others; and more especially is it absurd to admit them where they have the power of deceiving with impunity, and exclude them where they would swear under checks and restraints.
The first matter that presents itself to my attention, when I come to the subject 216 of evidence, is the great question (intimately connected with what I have been discussing,) how far interest should disqualify a witness. The ancient doctrine upon this point has, of late years, been so much restricted by our Courts of Law, so little is left of the principle on which this objection to incompetency rested, that, for my own part, I will confess I cannot see any adequate reason why all witnesses of good fame, that is, all not convicted of an infamous offence, should not be admitted, leaving the question of their credibility, and the weight of their testimony, to the consideration of the jury. In the case of "Bent v. Baker," an action against one underwriter of a policy, the Court held that another underwriter of the same policy was a competent witness for the defendant, because the verdict could not be evidence in an action against himself, although it was clear that the first action must, in fact, decide both claims. After that decision it cannot be said, that there is any rational ground for exclusion on account of interest in the event, any more than interest in the question. The rule thus established has ever since been followed; and now, in all cases, a person is competent, whatever bias he may have from interest, provided the verdict against him cannot be given for him in another cause; the bias under which he swears being only a circumstance that goes to his credit. After this it is in vain to exclude any evidence upon the ground of interest in the event, and the principle should be extended to all interest direct or indirect. For let the House look at the inconsistency of the present system. If I have the most distant interest, even the interest of a shilling, in reversion on an estate of 50,000l. a year, I am incompetent to give evidence on any point affecting that estate; but suppose I have a father, ninety years of age, lunatic, bedridden, at the point of death, and quite incapable of doing any legal act whatever; that he is in possession of an estate in fee-simple; that I expect to be his heir; or that he had formerly made a valid will in my favour, so that nothing can prevent me from succeeding the moment he dies,—I may be a witness to give him the estate,—I am competent to swear into the possession of my father a property of 50,000l. a year, to which, in the common course of events, I must myself succeed in a few months. But pecuniary interest 217 is not the only feeling that biasses the mind of a witness; and yet any one may swear for a parent, a brother, a sister, a child, on questions most nearly affecting the peace, and honour, and happiness of the whole family. I therefore think that a line ought to be drawn, not between one sort of interest and another, but between competency and credit; and that all should be admitted to give evidence, leaving it to the jury to determine what dependence may be placed upon their testimony. This is rendered the more fit by the nature of the shifts resorted to for the purpose of restoring the competency of interested witnesses; I allude, of course, to that notable expedient, a release of all actions or causes of action. When a witness has an interest, if he is deprived of it by a release, there is no objection to his competency. Evidence is thus often cooked up for the Court, nay, in the Court, while the witness is in the box, which, according to the existing rules, is not admissible, without such a process. Now, what is the real effect of the release on the mind of the witness? Just nothing—for if he be an honourable man he gives it up the moment he leaves the box, and while swearing he knows that he is to do so; so that, the operation being performed upon him adds a pound to the year's revenue, nothing to the credit of his testimony.
With regard to written evidence, I must say that it appears to be no less capriciously required than dispensed with. I think as highly as any lawyer ever did of the Statute of Frauds; I would go the full length of the learned judge who said, that every line in it was worthy a subsidy; and it is, therefore, that I could wish a few lines might be added, so as to increase the number of subsidies at which I may value it. First, I would extend the number of cases in which written evidence is exacted. The French law requires that all contracts for sums above one hundred and fifty francs should be reduced into writing, and even authenticated by notarial forms. I would adopt some such extension of our statute; and as almost all men are able to write at the present day, I do not think this would occasion any inconvenience. But then the outlets should be stopt up, by which the exigency of the statute is escaped. I think, as far as I can discern from reading the French Code Civile, and the Conferences upon it, (a wonderful 218 monument of Napoleon's genius, as well as of the talents of his councillors,) that no part performance takes a case out of the French enactment. With us the things are so numerous which take cases out of the Statute of Frauds, that the memorandum in writing is only in a small proportion of cases required. Hence, among other consequences, much subtlety of construction—often needlessly extended by jurisconsult exercitations, as the distinction between crops growing and severed, or a right and an easement, in determining what is an interest in land*. A judicious enactment, restoring the force of the Statute in these particulars, as well as extending it to other cases, would be highly beneficial in preventing fraud, forgery, and litigation, and could offer no impediment to commerce, further than the beneficial one of narrowing the credit given by small tradesmen.
The rule by which a man's books are let in or excluded after his decease, is also, in my mind, extremely defective. They are evidence, if he has entered the receipt of sums by which he makes himself chargeable to any amount. If he only debits himself with the receipt of 5l. which very likely he may have received, he makes his books evidence for his representatives, who may gain 500l. to which he never was entitled. The ground on which they ought to be excluded is, the general probability of their having been made for the purpose of creating evidence; but that probability is never weighed at all in the particular instance. We had much discussion of this matter in the case of Barker v. Wray, beford Lord Eldon, who appeared exceedingly to question the soundness of the received rule; this at least was certainly the impression of the bar. Would it not be better to abolish the legal presumption, exceedingly ill-founded in fact, which lets in all such documents generally, and as generally excludes all others, and to substitute in its place the rule, that any deceased person's books or memorandums may be received, provided it appear that they were not prepared with a view of making evidence for* Thus a license for any number of years to stack coals on a close is not within the statute; this complete occupation of every inch of the surface, and exclusive of all other use of it, even by way of easements, is not held to be an interest in land. There is a case to this effect in Sayers's Reports.219 his successors, but plainly alio intuitu? Observe, too, that in one case we admit, without any qualification, the books of a predecessor, in his successor's behalf. I mean entries made by a deceased rector or vicar of the receipt of tithes, which are always admitted as evidence for succeeding incumbents, because he is supposed to have had no interest in mis-stating the fact—as if the clergy were always entirely free from a corporation spirit.
Than as to the rules for the examination of witnesses, I am of opinion that nothing can be better, generally speaking. Every facility is afforded to counsel for extracting the truth. Upon this important head, therefore, my remarks will be few. There is a want of uniformity in the practice of the judges towards counsel engaged in examination. Some will not allow them to cross-examine a witness whom they have called themselves, even though he is stated when produced to be a hostile one; and others will not allow them to put a leading question to an adversary's witness, in cross-examination, if he be really friendly to them. The sound rule seems to be that it depends on the connexions and demeanour of the witness, whether he shall be regarded as the witness of the party producing him or no.—Again, certain tests are excluded, by which the capacity and the credit of a witness may best be tried. If I wish to put a witness's memory to the test, I am not allowed to examine him as to the contents of a letter or other paper which he has written. I must put the document into his hands before I ask him any questions upon it, though by so doing he at once becomes acquainted with its contents, and so defeats the object of my inquiry. That question was raised and decided in the Queen's case, after solemn argument, and I humbly venture to think, upon a wrong ground, namely, that the writing is the best evidence and ought to be produced, though it is plain that the object is by no means to prove its contents. Neither am I, in like manner, allowed to apply the test to his veracity: and yet, how can a better means be found of sifting a person's credit, supposing his memory to be good, than examining him to the contents of a letter, written by him, and which he believes to be lost? There is another test, excluded in cases of Libel, of which I shall say the less, as I brought in a Bill some years ago to remedy this defect. The main question in any prosecu- 220 tion for Libel being the innocence or guilt of the publication, is it not preposterous to keep the proof of its truth or falsehood from the view of the Court? Almost every thing else is admitted which can throw any light upon the motives of the party; but that is carefully shut out which is the best test by far of their nature, though certainly only an unilateral test, inasmuch as there must always be guilt, if there is falsehood, though truth does not of necessity prove innocence. Nay, the defendant cannot even now be allowed to urge the truth in mitigation of punishment after conviction; as if there were the same criminality in publishing that a man had been tried and sentenced to the gallows for forgery, who was so sentenced, and that an innocent individual had been sent thither, who never had been tried or even suspected of the offence—a case which lately occurred within my own experience.
Another test, of a still more important kind, is excluded by a very injudicious refinement of our law,—its repugnance to try collateral issues. A foul charge is brought against a man, of rape, or some yet more horrid offence, and the liberty of cross-examining the prosecutor or his witness, whom I will assume to be his fellow conspirator, is, in a most important particular, restrained. The defendant's counsel may address the witness thus—"Were you not examined on different occasions, at four or five several sessions, when you sought, by your testimony to convict as many different individuals of an offence similar to that which you now accuse this prisoner of committing, and were not all those persons whom you so prosecuted acquitted? Did not the Court reprimand you for prevarication, nay, order a bill for perjury to be preferred against you?" True, the Council is at liberty to put questions like these; but what, if the witness answers, as in all probability he will, be the fact how it may—"No"? The prisoner cannot give evidence in contradiction of the wretch's assertion, at least the practice goes the full length of this. But at any rate it is quite clear law that, if the witness is asked, "Have you not yourself been guilty, repeatedly, of this very crime which you now wish to fasten on the prisoner?" and he should reply, as doubtless he will, "No,"—the prisoner is not allowed to adduce evidence of the fact, because, forsooth, the Court cannot try collateral issues," unless the record of a 221 conviction is produced. Nay, I have known judges, though on this they differ, who would not suffer the prosecutrix in a case of rape to be asked, if she had not led an unchaste life before, because a common whore may be ravished,—as if the probability of the event were the same in all cases, a mere nothing to the question under consideration.
Furthermore, I ask, why should any class of persons be excluded from giving evidence in criminal cases on account of their religious opinions, notwithstanding their testimony is admissible in cases of a civil nature? A quaker is precluded by his religion from taking an oath; his affirmation is received in civil, but rejected in criminal cases. I was once employed, with two of my learned friends, to defend a man, prosecuted by the Attorney-General, for a misdemeanour. We had a very worthy and learned physician, by whose testimony we expected to rebut the charge; but it turned out, when he came to the witness-box, that he was a quaker; of course he would not swear, and equally of course he could not affirm. Our client, also of course, was convicted. This is bad every way; it is bad, for that it suffers guilt to escape; it is bad for that it suffers innocence to be destroyed. The quakers, it is true, desire not to see a change, because, being averse to capital punishments, they do not wish their testimony to be used in capital cases; but they forget that their evidence may be the only means of saving an innocent person from the very punishment of death to which they object, and that, rather than help to hang the guilty—a punishment they dislike,—they are allowing the innocent to suffer by the self-same punishment. There is, in my opinion, no reason for excluding any individual, be he of what religion, sect, or persuasion he may, from giving testimony in cases of every kind, provided he believes in the existence of a God, and a state of future rewards and punishments; and is not openly infamous by sentence of a court.
I have already, in speaking of competence of evidence, said somewhat of presumptions; but there is a class of presumptions which has found its way into the practice of all Courts, and ought, in my opinion, to be carefully excluded; I mean presumptions affecting the weight of evidence—tending to withdraw the attention of the Court from the facts of the 222 particular case, and to produce a decision founded upon some kind of average taken from other cases, and because taken at a former period, of course excluding the case in hand. It has thus become almost a rule of law, that perjury can only be proved by two witnesses, or perhaps, by one witness and the defendant's handwriting. Why may not other circumstances exist, quite as sufficient to cast the balance against the oath of the accused, and give credit to his accuser? This presumption goes in favour of the defendant; but there is another, by which he is often, I am convinced, improperly convicted; I mean the rule that an accomplice is entitled to credit in all particulars, provided he be confirmed in some. I once, many years ago, endeavoured to contend for a limitation of this rule, when the late Chief Baron Thompson presided in the Special Commission at York. I maintained that it was necessary to give the confirmation upon some fact which could not be true, consistently with the defendant's guiltlessness. It is certain, however, that the law knows no such qualification, and the Judge whom I have named, than whom no greater criminal lawyer, or more humane and upright man ever existed, ruled, with his reverend brethren, against me; and seventeen men suffered death, some of whom were convicted on the testimony of accomplices. I do not exactly recollect, whether the confirmation was as slight as would barely satisfy the exigency of the rule; but I am very sure, that instances frequently occur in which the story of an accomplice leads to a conviction, while all the witnesses of credit swear only to slight or wholly equivocal circumstances.
It is a somewhat similar anomaly in the rules of evidence, that the Court always takes upon itself to construe written instruments, of whatever kind, as if their sense must be matter of law, while the weight of all parol evidence is as invariably left to the Jury. Why should the assistance of the Jury be wholly rejected in this province? It is another and a kindred rule, that where, on the face of a writing, there is an apparent, or as the lawyers term it, a patent ambiguity, no other evidence can be I allowed to explain it; where the ambiguity is latent, or raised by extrinsic evidence, I there other evidence may be adduced to remove it. This principle has been laid down by high legal authority—for it is 223 first clearly stated by Lord Chancellor Bacon—but I am much disposed to question its correctness. Coupled with the other rule, which excludes the Jury from construing written evidence, it tends greatly to narrow and darken the path to a correct decision.
This naturally leads us to examine a little how the Courts have exercised this, which they have thus claimed as their exclusive province—and we are thus conducted to a variety of other presumptions respecting evidence, which have been received and acted upon, so as now to have become rules of interpretation, and parcels of the law of the land. With much unfeigned respect for the authority of the great names whose sanction this large branch of our jurispudence has enjoyed, and with much admiration of the ingenuity and astuteness which it has called forth, I must be permitted to say, that, considering the paramount object of all law—its use as a rule of life for the people,—no part of our system is less entitled to praise.
It should seem that one obvious principle of construction would be to take words in their plain ordinary sense, and always to construe them alike, in whatever import they might be used. Only let lawyers consider what a mass of technical niceties and real difficulties this would get rid of; only let them reflect on the consequence of following the very opposite course. Why should the same words be differently construed in a will and in a deed? Why do words, which in one species of instrument give an estate in fee, convey only a life-interest in the other? Why should the last words employed in a will overrule the earlier ones, and not in a deed, on the vain refinement that these express a man's latest intention—as if the whole taken together were not his latter will as much as the whole taken together are his deed? But even in wills, where we affect most to follow the intent, so nice is the construction, so technical has it become through many decisions of the courts, and so imperfect consequently is the knowledge generally possessed by people on the subject, that a man cannot well be more in the dark on the subject of the distribution of his property after his will has taken effect, by his being naturally dead, than he is at the very moment of making it. In fact, most men, while disposing, or fancy they are 224 disposing of their property, do not, in the least, know what they are doing. An unlearned individual thinks he is giving a life-estate when he is giving an estate in fee, or in tail, and vice versâ. The testator, J. Williams, whose will gave rise to the case of Perrin v. Blake, where the rule in Shelley's case was extended, little dreamt that the first taker was to have the absolute control over the property, when he directed him to take an estate for his life and no longer. Observe, I am far from complaining of that any more than Shelley's case. The refinement which unites the particular estate with the remainder, in issue of the first taker, is little more than an application of the simplest rule in law, that an estate to a man and his heirs (or, which is the same thing, to a man for life, with remainder to his heirs,) is a fee simple. But the law should prevent the niceties arising from following out its principles, from misleading those who are ignorant of those principles. By freeing it from such technicalities you would, I think, rather elevate the study of jurisprudence and raise its professors;—I am certain you would benefit all the rest of the King's subjects. It is hardly to be conceived how much, as matters at present stand, a man who makes his will is in the dark as to its final operation. Thus the creditor who appoints his debtor executor to his will, is considered as having granted a release of the debt: what ordinary person would think he had done so? The very same reason that induced him to lend the money, friendship, blood, confidence, and to count upon its faithful repayment, naturally leads him to appoint the borrower his executor. I have known it happen in this way fifty times in the country, yet the debt is gone at law; and equity will only relieve by holding the executor a trustee, where there are other debts and no free fund to pay them, or some words showing an intention to revive the debt—words not very likely to be used by a person who never dreamt of its being extinguished. Then suppose a man has made two wills of the same date, and cancels one of them; it is held that, in certain circumstances, he cancels the other. If one of the wills is at his banker's, the law raises a strong presumption that by cancelling his own copy he intended to cancel that, when the probability is, that he cancels because he is aware there is a duplicate, and does not wish to have the 225 first lying about his house. When both copies are in his own possession, the law does not entertain so strong a suspicion of the intention to annul the will, by cancelling one. Still, however, the presumption is raised; an individual may be thus held to have died intestate, who never entertained any intention of the kind: and his property may pass away from those near relatives or favoured friends to whom he destined it, and be given to his hundred-and-fiftieth cousin, or, for default of legitimate relatives, may be vested in the Crown. But it is not thus only that a person may revoke his will without knowing it, and die intestate while he thinks he is disposing of his property. He may happen to do so by the very act he performed with a view of confirming his testament and establishing his purpose. A recovery suffered, unless the will be republished, destroys it entirely, upon the nicety, quite consistent, I admit, with strict legal principle, that a new estate is taken back, different from that which was in the testator when he devised. This happens frequently to frustrate the plain intent of parties. Lately in the Court of King's-bench we had an instance of large property in this immediate neighbourhood, going any where rather than according to its owner's intention, because a recovery had been suffered; and a recovery, suffered for the express purpose of confirming the will, deprived Lord Erskine of a large estate in Derbyshire. So a conveyance, which divests an estate though but for an instant, to serve a use, with the intention of immediately taking back the former uses, which are accordingly taken back, totally revokes the will made before.* Nay no less a judge than Lord Hardwicke has expressly laid it down that where a man, supposing he had only an estate tail on which a devise could not operate, suffers a recovery for the express purpose of taking back a fee in order that his will may be good, it is thereby revoked.† The most notable part of these excessive refinements is, that they all proceed upon the act being evidence of a presumed intention, when no man can doubt that either there was no such intention, or one of the very opposite description. Thus if I devise lands to a person, and afterwards, for the same reason of favour towards him, by way of making* Cro. Jac. 49. 4 Ves. jun. 656.† Goodtitle v. Otway, 7 T. R. 399.226 him more secure, give him a lease in the same, to commence after my death, he being perhaps tenant for years under me at the time, the will is gone.* It thus happens that, in the very act of his life, in which it is most important that a man should see clearly what he is about, and most likely that he should have no professional assistance, he is often wholly in the dark as to the effect of what he is doing.
Were I in want of further illustration for this matter, I might go at once to the doctrine of Powers, and show how the thing intended to be permitted is often prevented, and vice versâ, by the view which Courts have taken of what is and what is not a good execution, and which renders it unsafe to give an opinion upon any power, the very words of which have not received a judicial construction. I might go to the still greater niceties in the rules respecting the construction of contingent and executory Uses, a chapter of our law, signalized by the utmost learning and ingenuity of those who have treated it. I might, indeed, at once ask what foundation in reason, or even in analogy, there is for holding that a purpose should be accomplished, by way of executory devise, which cannot be effected by way of contingent remainder; as the mounting a fee upon a fee, or directing a contingent use to spring and enure without any particular estate to support it; if, indeed, I ought not rather to ask why there should be any necessity in either case for a freehold interest to support an after-taken contingent estate, and why there should be any horror of mounting a fee upon a fee, an idea so familiar to the feodists in the sister kingdom, that their strict settlements (always made by deed, for they, having their niceties like ourselves, though of another sort, allow no devise of real property at all) consist of a succession of fees under restraints specifically presented as to alienation and incumbrances. But I will satisfy myself with what has been said on this head, and suggest, as the obvious corollary, a remedy for the great bulk of the mischief I complain of, the* Sparrow v. Hardcastle, ib. in not. Nor is it necessary to change the estate, in order to operate a revocation, e. g. a feoffment by tenant in fee to another to his use and that of his heirs, 3 Ves. 7, and an ineffectual recovery by tenant for life, (reversion in fee, disposed of by will) 2 Ves, jun. 430.227 laying down by the Legislature of certain formulae, couched in plain language, and of an import recognized by written law. You give this help to Justices, to prevent convictions and orders being set aside for technical error. Why not give it to men often less learned than they, for disposing of their property? Why not say, that whoever would give a fee, should use these words;—an estate for life these; that whoever would cloathe the takers of that estate with certain powers, may do it thus—and so forth—not stating that such are the only words which shall effect the same purpose, but that at any rate those shall.
By such a plan, and by retrenching some refinements which the fund is ample enough to spare, in rules of construction, I know that much curious learning will be brushed away; but I also know that the law will be rendered accessible to those whose rights it is to govern, and that the lay people will gain far more than the learned lose. Thus much for amending the rules of construction. But for the general establishment of sound rules of evidence, I should recommend, first of all, an introduction of one rule as to the manner of examining witnesses, instead of trying issues of fact in one court by written depositions and in another by vivâ voce examination, (whereby the same will may be, and sometimes has been supported in Doctors' Commons, upon personalty, which a Court of Nisi Prius has afterwards set aside altogether) in one court by affidavit, by sworn answers to unsworn bills, by yet more clumsy and ineffectual examination, on written interrogatories previously drawn; in another only by parole examination. I would have all matter-of-fact, wheresoever disputed, tried by a jury. For sifting the truth by such a trial, I would admit all records between the parties or their proxies, and all instruments and writings of every kind, of the parties against whom they are used; so much the law now permits; but I would let in whatever documents, written by persons deceased, appear plainly to have been made, without any view to manufacturing evidence. In a word, excluding inferior evidence where better can be obtained, and, therefore, all hearsay absolutely, I would admit whatever could not be deemed to have been done with a view to the fabrication of proof, by the knowledge that such would be receivable. Allowing objections from interest in the event as well as in the 228 question, to weigh only in estimating a witness's credit, I would make no man incompetent to give evidence in any cause, civil or criminal, who was not either an unbeliever in God and a future state, or convicted of some infamous offence. In examining the witnesses, I would suffer a witness to be contradicted as to matters directly affecting his credit, and on which he had been questioned; * and in the event of a witness turning out hostile to the party calling him, there can be no sound reason why, subject to the Judge's discretion, he should not be treated as adverse, and even contradicted, without which the latitude at present given by some Judges, only amounts to a power of putting leading questions. Of nonsuits for variance, and other technical defects, I have already spoken.
The law respecting Limitations comes as an appendix to the chapter of Evidence. No branch of our jurisprudence is more imperfect, and hardly any more demands revision. Why should there be no statutory limitation of a bond or other specialty? For want of it the Courts have adopted a sort of rule, founded upon presumption of payment, that where the instrument is twenty, or even eighteen years old, sometimes less, (so accurate is the rule,) and no interest has been paid, or other acknowledgment made of the subsistence of the debt, it may be assumed to be satisfied; that the instrument is cancelled they cannot presume, for there it is, seal and all, staring them in the face; but there being no receipt or discharge, and the bond being in the obligee's hand, is surely quite enough to rebut any presumption of payment—so that the Courts have really made a law, though a bad and uncertain one, to meet the case. It would be far better to fix at once a period of ten years, after which no action should be maintainable upon specialties.
But even in cases where we have a statute of limitation there is hardly any vestige left of the relief which it was intended to afford, owing to the labours of the Courts in finding means of evading its beneficial operation,—it was plainly meant as an act of peace and quiet. My noble friend (Lord Plunkett) who presides in*This is really only a nominal relaxation of the rule in Spencely v. de Willet; the spirit of that rule is preserved, for the credit of the witness is not a collateral issue.229 the Court of Common Pleas of the sister kingdom, once said, with his usual felicity of expression, that Time is armed with his scythe to destroy the evidence on which titles rest, but the lawgiver makes him move with healing on his wings to stay the ravages of his weapon. To thwart the design of the Legislature the Courts have been setting up their rules of presumption. At one time they seemed really to hold that any thing, even the simplest expressions, would take a debt out of the statute of limitations; for instance, if a defendant had said—"I have paid the debt," he was taken as admitting it, unless he could prove payment. Again, if he said—"I owe you nothing," the assertion was taken as an acknowledgment; and he was also required to prove an acquittance of the plaintiff's claim. The reply—"Six years have expired" was equally dangerous, though it was only saying out of court what the statute itself allowed him to say in pleading. In fact, so deeply did Lord Erskine feel the difficulties which encompassed the defendant under these efforts of judicial acuteness, that he said the only safe course a defendant could take when his adversary sent a fishing witness to him was to knock him down, for though he might be proceeded against for the assault, he retained the benefit of the statute, as regarded the debt. Although of late the current of decisions (as it is pleasantly termed) has set in more in an opposite direction, there is still abundant room for a provision to give this wholesome law effect. The means are obvious; let nothing but an acknowledgment in writing take any debt out of the statute. In a word, prop the main, pillar of security against stale and unjust demands, the Statute of Limitations, by a beam from that other bulwark against perjury, the Statute of Frauds.
The law of Limitation seems to require alteration, not additional enforcement, in the case of real actions. The period for a writ of right is thirty or sixty years, according as the demandant counts on his own or his ancestor's seisin. But in a formedon, which is often termed, as in truth it is, the tenant in tail's writ of right, it is no more than twenty years. The difference surely is founded on no sound reason, and ought to be done away, by a law fixing thirty years as the period of limitation in all real actions, and removing the important difference in construction 230 which Sir T. Plomer's late decision has made from the different expressions used in the statute of Henry VIII. and James I., so as, in many cases of property under lease, to deprive the demandant of his remedy altogether.
But in one case there is no limitation at all, I mean that of Church rights. Why should there not be? I admit that the same period ought not to be adopted respecting the Church as the nullum tempus act prescribes for the Crown; but I confess I do not see the necessity of leaving the law as it now stands, and exempting ecclesiastical claims from all restriction whatever. What is the consequence? It was admirably pointed out by a most learned Judge (Mr. B. Wood), in one of the ablest tracts ever written, no less distinguished by closeness of legal argument than by that pure and concise diction peculiar to him. A composition real may have been made between a clergyman and his parishioners, at any time since the restraining statute of Elizabeth; for 200 years the land may have been possessed by the parson, and yet if the original agreement should have been lost, as it is almost sure to be amongst farmers, though no tithe has been taken during all that time, there would be no bar by limitation in the event of the clergyman claiming the tithes; so that it could not be ascertained by whom the land had been given, and the land could not be restored for want of claimants; indeed there are cases in which the clergyman thus retains the land originally given for the composition, and has his tithes paid to boot. I would say, then, with Mr. Burke, take not away from the Church its power of being useful, but deprive her only of that which makes her odious. The reign of Richard I. is the period up to which all rights as against churchmen must be carried; nay even against lay impropriators, to whose case none of the reasons for favouring ecclesiastical claims apply. Yet that period becomes daily more remote and more inapproachable by evidence. Does not every principle of justice require, that lay titles to tithe should be put on the footing of other property, and that for Church rights, properly so called, a period of limitation should be affixed, longer than for other rights, to prevent collusion between incumbents and tithe-payers, and combined, if necessary, with the number of two or three vacancies?
231 vi.—The course of my observations has now brought me to the Trial of Issues, raised by the Pleadings, on the Process, and investigated by means of the Evidence. On this branch of the subject I have little to offer. The principles are plain which should guide us, and they are not so widely departed from in practice as to require any great change. Each party should be allowed fully to propound his case in the way most advantageous to himself. All new matter advanced by the one should receive an answer from the other; each should be encouraged and not hindered to bring forward whatever evidence may tend to throw light upon the matter in question. Our practice, at least in modern times, departs a good deal from these principles, but is very easily restored to them. We compel the plaintiff to explain his case, and comment upon it before his witnesses are examined: unless his adversary produces evidence, he has no means of observing, even upon his own case, after he has proved, or attempted to prove it. Hence his opening must be often very general, for fear of his evidence falling short; and hence he often labours under a prejudice from that short opening, which a little explanation might remove. Counsel are every day obliged to open their cases in the dark; experience teaches us in some degree the difference between what is set down and what will be actually sworn; so that a young advocate will give a very different statement on the same brief from a practised one—no great compliment to our method of trying causes, in which as little as possible should depend on the forensic skill of practitioners; but even the most experienced are constantly deceived by their instructions; the cause may change its aspect, especially in the cross-examination of their witnesses; and they have no opportunity of correcting the error and preventing the result from turning on a matter wholly foreign to its merits—the discretion of those who prepared the brief—unless the other party gives evidence. Now, for this very reason, and to gain by his adversary's failure, (a failure not necessarily connected with merits,) he will avoid doing so; he will also avoid it generally, to prevent his own remarks from being answered. Hence much important evidence is every day shut out, by this play of counsel to avoid giving a reply, which the plaintiff should have, whether the defendant calls witnesses or no. Here, 232 as in other things, the system is far from uniform: in Appeal cases, both before the House of Lords and the Privy Council, there is a reply, as of course; and in the Committees of this House, as well as in trials for high treason, there is an opportunity given to each party of commenting on his case, after it has been presented in evidence, by a summing up. The practice is the same in the Ecclesiastical Courts, and the Delegates. I understand that a summing up, or speaking to evidence, as they call it, is allowed in Ireland; in Scotland both prosecutor and prisoner are heard on the evidence after it has been adduced, the want of an explanatory opening being in part supplied by the debate upon the relevancy of the indictment. I believe in civil cases they have adopted our modern practice, instead of the older method to which the Irish adhere.
Before leaving this head I may be allowed to suggest an amendment of a minor kind, but of very considerable importance, It would be advantageous to have a Sworn short-hand Writer in every Nisi Prius case. Those who attend our Courts of Nisi Prius are aware how sorely the Judge is hampered, and his attention diverted from more important considerations, by being obliged to take such full notes of the evidence. This practice is necessary, because the only record of the facts of the case is to be found in his notes. Now, the judge is often a slow writer, and, in this respect, men differ so much, that one judge will try three or four causes while another will dispose of only one, and one will impede a cross-examination so as to render it quite ineffectual, while another will never interrupt it at all. It happens likewise that a judge may be an incorrect taker of notes, which not unfrequently leads him to an incorrect decision, at least to an incorrect report of the case when a new trial is moved for. No judges ever write short-hand, and for no other reason, than that their notes may have to be read by another, if the record comes not out of their own court. My honourable friend, the member for Durham, (Mr. M. A. Taylor,) whose suggestions have ever been found most beneficial to judicial proceedings, introduced the great improvement of short-hand writers in our committees, and abridged the delay and expense of those inquiries incalculably. I 233 would have them, if introduced into our courts, take full notes of the proceedings; at the same time I would not hold their notes as conclusive; they might be subject to the correction of the judge on any important matter misapprehended; for he, of course, would take his own note, but only of the principal and the more delicate things, likely to be misunderstood by one ignorant of law. He would soon find where he could trust the short-hand writer and where not; he would be relieved from much labour, merely mechanical, and left free to regard all the bearings of the case, and to take a commanding view of it, so as to bring on a more speedy decision of its merits.
But, Sir, I cannot leave the subject of trial without saying somewhat of the general principles regulating Real Actions, sinning as they do against all sense and justice. In other cases the plaintiff begins the attack, and on him it rests to prove his case, to stand or fall by his proof; but, in a Writ of Right, the person in possession fifty-nine years and three-quarters must, according to the existing law, expose his title, pedigree, and all to his opponent, who can lie by and pick holes in them to his own advantage, without being even asked on what ground he relies, until his adversary has proved his case;—a great benefit, whatever be his ground; for the Jury must give the property to somebody, and it is likely that the party in possession having failed, the claimant may get in. In Ejectment, though the plaintiff may have held possession for almost twenty years previous to the cause of action arising, yet, if he has been out of possession for one single day, it is incumbent on him to prove his title, and the defendant is not bound to budge if he fail. In this case, too, the plaintiff must pay costs if he fails, even though the person he attacks has been but a day in possession, and cannot have been in above twenty years. In the real action, where the possession may have been near sixty years, the claimant pays not one shilling of costs, for making you prove your title, though he fail entirely in impeaching it.
Nor let it be imagined that these evils never occur; I have seen them fully exemplified twice within the last eighteen months. We had a writ of right at York in the spring of 1826, to try the title to many thousands a year, On the eve of the trial we, for the demandant, discovered 234 a defect in the proof of taking the esplees, and were forced to withdraw the record. It came down for trial at the next assizes, when we were astonished to find the defect we had reckoned upon in the tenant's title removed, and on asking where the document produced had been discovered, we were told that it had come to light on searching the Bishop's chancery, at Salisbury, some weeks after the Spring assizes, in which he would have been defeated had we gone to trial. Only see by what an accident the possession of this large estate was saved. Our client was defeated on the freehold as not being the eldest son; he afterwards brought a plaint, in the nature of a real action, in the Court of Lambeth, as youngest son, for the copyhold, which was descendible by borough English. He again failed; but, of course, he paid costs in neither suit.
vii.—The Trial being had and the Judgment pronounced, there follows the Execution; and in this most important branch of the law, which may be emphatically called the law of Debtor and Creditor, I feel perfectly justified in declaring our system to be the very worst in Europe, departing the most widely from the principles which ought to regulate a creditor's recourse against his debtor. Those principles are abundantly plain. In proportion as before the debt has been proved, the person and property of the party charged should be free from all process not necessary to prevent evasion; so after judgment, ought the utmost latitude be given to obtain satisfaction from all the defendant's property whatever—land, goods, money, and debts—for to himself they no longer belong. To allow any distinction between one kind of property and another seems the height of injustice. No consistent reasoner can maintain the propriety of exempting land more than chattels; no honest debtor can claim the privilege which he waived when he contracted the debt. In case of a person deceased, all kinds of debts and all creditors should come in equally upon an insolvent estate; and preference only be given in the case of mortgage or other lien. The chattel itself sued for should be returned, and damages only given where it has been lost. The person of the debtor should not be taken in execution unless there is either a wilful concealment of property, or there has been criminal or grossly imprudent conduct in contracting the debt; or the two objects 235 should be kept carefully distinct, of what is done to satisfy the creditor, and what is done to punish the debtor. Lastly, the former should obtain his satisfaction as speedily as may be, and as conveniently for the latter as is consistent with the creditor's security. How widely does our law depart from these obvious and natural principles, by dint of refinements, blunders, and openly avowed injustice!
First of all, there are only two actions for recovery of chattels, in which we are expected to give the thing specifically sued for, replevin and detinue; yet in neither can the party compel a delivery in kind; and detinue is besides useless, because the defendant may wage his law. In all others the claim is avowedly for damages only. A horse is taken from me, and I sue for it; yet I only obtain damages for its detention; but suppose I want the horse and not the money, the law will not aid me: nay, it will give me not a farthing in consideration of being thus compelled to part with it; I only receive what it would fetch in the market if I chose to sell it. Equity and common law differ widely here; the former always performs in specie; the latter looks to damages only; unless, indeed, where it is inconsistent with itself, as in the summary process to make parties perform awards, and attornies and other officers of the courts deliver up deeds, and pay monies, by means of attachment. But all these are comparatively trifling, and rather absurd in principle, than of extensive injury in practice. What is quite substantial, and of hourly occurrence, is the frustration of a creditor after he has obtained judgment, and taken out execution. His debtor has a landed estate; if it be copyhold, the creditor cannot touch it in any way whatever; if it be freehold, he may take half by elegit, and receive the rents and profits, but no more in the lifetime of his debtor. The debt for which he has received judgment may be such that the rent of the land will not even keep down the interest; still he can take nothing more; he cannot turn the land into money;—so that, when a man sues for a thing detained unlawfully, you give him money which he does not ask; and when he asks for money by suing for a debt, you give him land which he does not want. But if his debtor dies before judgment can be obtained, unless the debt is on bond, he has no remedy at all against any kind of real property of any tenure; nay, though 236 his money borrowed on note or bill, has been laid out in buying land, the debtor's heir takes that land wholly discharged of the debt.
But not only is land thus sacred from all effectual process of creditors, unless the debtor be a trader; the great bulk of most men's personal property is equally beyond reach of the law. Stock in the public funds—debts due in any manner of way—nay, bank notes, and even money—are alike protected. I may owe a hundred thousand pounds in any way, and judgment may have passed against me over and over again; if I have privilege of parliament, live in a furnished house or hotel, and use hired carriages and horses, I may have an income from stock or money lent, of twenty thousand a-year, and defy the utmost efforts of the law; or if I have not privilege, I may live abroad, or within the rules (as some actually do,) and laugh at all the courts and all the creditors in the country. So absurd are our rules in this respect, that if I have borrowed a thousand pounds, and the creditor has obtained judgment, the Sheriff's officer appointed to levy upon my personalty may come into my room and take a table or a desk; but if he sees the identical thousand pounds lying there he must leave it—he touches it at his peril:—"For this quaint reason," says Lord Mansfield, "because money cannot be sold, and you are required by the writ to take your debt out of the produce of goods sold." It is true, that great judge, whose merits as a lawyer were never underrated, except by persons jealous of his superior fame, or ignorant of the law, (among whom was a writer much admired in his day, but of very questionable purity, and certainly no lawyer,) leaned to a contrary construction of the creditor's powers, and might have somewhat irregularly introduced it. But Lord Ellenborough afterwards denounced such attempts as perilous innovations on the fundamental principles of our jurisprudence; and the law is now settled on this point. And here, Sir, let me step aside to ask who is the innovator,—he who would adhere to such rules in violation of the manifest intent and spirit of our old law, or he who would re-adjust them so as to give it effect? In ancient times there were none of those masses of property in existence, which are exempt from legal process. When the law, therefore, said "Let all a man's goods and 237 chattels be amenable for his debts," it meant to include his whole personalty at the least. Things have now changed in the progress of society; trade has grown up; credit has followed in its train; money, formerly only used as counters, has become abundant; banker's accounts have been invented; paper currency and the funds have been created. Three-fourths of the debtor's personalty, perhaps nine-tenths, now consist of stock, money, and credit; and the rule of law which leaves those out of all execution, no longer can mean as before—"Let all his personalty be liable"—but let a tenth-part of it only be taken.—Can there be a greater change effected upon, or greater violence done to, the old law itself, than you do by affecting to preserve its letter? The great stream of time is perpetually flowing on; all things around us are in ceaseless motion; and we vainly imagine to preserve our relative position among them, by getting out of the current and standing stock still. The stately vessel we belong to glides down; our bark is attached to it; we might "pursue the triumph, and partake the gale;" but, worse than the fool who stands expecting the current to flow down and run out, we exclaim—Stop the boat!—and would tear it away to strand it, for the sake of preserving its connexion with the vessel. All the changes that are hourly and gently going on in spite of us, and all those which we ought to make, that violent severances of settled relations may not be effected, far from exciting-murmurs of discontent, ought to be gladly hailed as dispensations of a bountiful Providence, instead of filling us with a thoughtless and preposterous alarm.
But the imperfect recourse against the debtor's estate, although the grand opprobrium of our law, is by no means its only vice: the unequal distribution, in case of Insolvency, is scarcely a less notable defect. Only traders, or those who voluntarily take the benefit of the act, are compelled, when insolvent, to make an impartial division of their property. All others may easily, and with impunity, pay one creditor twenty shillings in the pound, and the others sixpence or nothing. So, when a man dies insolvent, his representatives may, by acknowledging judgments, secure one creditor his full payment at the expense of all the rest. Then, lax and impotent as the law is against property, wide as are its loop holes for fraud 238 and extravagance to escape by, utterly powerless as is its grasp to seize the great bulk of the debtor's possessions, against his useless person it is equally powerful and unrelenting. The argument used is, that the concealed property may thus be wrung from him: the principle, however, of the law, and on which all its provisions are built, is, that the seizure of the body works a satisfaction of the claim; and this satisfaction is given alike in all cases—alike where there is innocent misfortune, culpable extravagance, and guilty embezzlement. Surely, for all these evils the remedy is easy; it flows at once from the principles I set out with under this head. Let the whole of every man's property, real and personal—his real, of what kind soever, copyhold, leasehold, freehold; his personal, of whatever nature, debts, money, stock, chattels—be taken for the payment of all his debts equally, and in case of insolvency, let all be distributed rateably; let all he possesses be sifted, bolted from him unsparingly, until all his creditors are satisfied by payment or composition; but let his person only be taken when he conceals his goods, or has merited punishment by his extravagance or his crime. This line of distinction is already recognized by the practice of the Insolvent Courts; but the privilege of the Rule is inconsistent with every principle, and ought at once to be abrogated as soon as arrest on mesne process is abolished.*
viii.—The last subject which presents itself to our notice is the Appeal from judgments recovered. Here, as in every other branch of our jurisprudence, the Courts of Law and of Equity proceed on opposite principles, though dealing with the same matter. In the former, you can only appeal on matter of law appearing upon the face of the record, or added to it by bill of exceptions, and never in any case before final judgment. In the latter, you can appeal from any interlocutory order as well as from the final decree, and upon all matter of fact as well as of law. So it is in the Ecclesiastical Courts, where a grievance (or complaint upon interlocutory matter) is as much the subject of appellate jurisdiction as the appeal from the final sentence; and* This arrest, the end of which, it is to be hoped, fast approaches, was not generally given by the common law. The capias ad respondendum is given in debt and detinue by West. 2 (13 Ed, 1.) cap. 11, in case only so late as 19 H. 7. c. 9.239 the Court above sits on all the facts as well as on the law.
The principal evil of Courts of Error, is the stay of execution which they effect, thereby giving the losing party in possession an interest in prosecuting groundless appeals. The Bill of the Right Hon. Gentleman (Mr. Peel) being a partial measure, while it intended to remedy this evil, has rather increased it; because another more costly mode of obtaining the same delay being left open, the parties by defending actions in themselves without defence, avail themselves of it, to the enormous multiplication of frivolous defences. The true remedy I take to be this. Let the party who obtains a judgment be so far presumed right as to get instant possession or execution, upon giving ample security for restitution should the sentence be reversed. This is the rule in the Cape and other of our Colonies; in the Cape, two sureties each in double the amount, are required. It would also be an excellent modification of this principle, to vest in judges the discretion of ordering the execution to be levied by instalments, upon reasonable security being given. Hurried seizures, and sales for next to nothing, would thus be avoided; as would the destruction of many valuable concerns, to the ruin of the debtor and the loss of the creditor also. The reasonable delay thus safely granted would further tend to prevent groundless appeals and frivolous defences, for mere dilatory purposes. The details of this measure would be easily arranged; I am sure that it well merits inquiry, if I shall obtain a Commission.
I have now followed the proceedings in our Courts through their whole course; and it will be observed, that I have said little or nothing of Costs—an important subject; perhaps, taken in all its bearings, the most important of any; but which has so far been disposed of, in its principal relation, by the discussion of whatever tends to shorten litigation. A great, perhaps the greatest, evil of our system, as at present constituted, is the excess of the costs which a party succeeding is obliged to pay, over and above what he can re cover from his antagonist. This is so certain and so considerable, that a man shall in vain ask me to recommend him either to bring forward a rightful claim, or to resist an unjust demand for any such sum as twenty, or even thirty pounds—at least, upon, a calculation of his interest, I 240 should presently declare to him, he had much better say nothing in the one case, and pay the money a second time in the other, even if he had a stamped receipt in his pocket, provided his adversary were a rich and oppressive man, resolved to take all the advantages the law gives him. I have here before me some samples of taxed bills of costs, taken quite at random, and far from being peculiar cases in any one respect. There is one of 428l., made out by a very respectable attorney, and from which the Master deducted 202l.; of this sum, 147l. were taken off, which had been paid for bringing witnesses. In this other, amounting to 217l., 76l. were taxed off; and in a third of 63l., there were nearly 15l. disallowed; it was an undefended cause, to recover 50l.: had the defendant been obstinate and oppressively inclined, he would have made the extra costs a good deal more than the whole debt, although the suit was in the Exchequer, where the taxation is known to be more liberal. We had lately in the King's-bench, a bill of above 100l. to recover 19l., and, probably of that 100l. not above 60l. would be allowed. As things now stand, a part of this master evil is inevitable; for if practitioners were sure of receiving all their bills, they would run up a heavy charge wherever they knew the case to be a clear one. But as the fundamental principle for which I contend is, to alter no part of the law by itself, or without considering all the other parts, there can be no difficulty, consistently with this doctrine, to enlarge the allowance of costs as soon as other amendments have prevented the abuse of litigation by professional men.
Some erroneous rules of taxation may, even in a partial or insulated reform, be altered. Whatever is fairly allowed as between attorney and client, should be allowed between party and party, except only such needless charges as have been ordered expressly by the client himself. There can surely be no reason for disallowing, as a general rule, all consultations, often absolutely necessary for the conduct of a cause, generally more beneficial than much that is allowed; nor can it be right, that so little of the expense of bringing evidence should be given, and that the cost of preparing the case by inquiries, journies, &c, should be refused altogether. The necessary consequence of not suffering an attorney to charge what he ought to receive for certain things, 241 is that he is driven to do a number of needless things; which he knows are always allowed as a matter of course, and the expense is thus increased to the client far beyond the mere gain which the attorney derives from it. I have a great doubt whether benefit would not result from leaving the costs more in the discretion of the Court which tries a cause than they now are: in equity, they are always so in the fullest extent; at law, almost all is fixed by statute.
Sir, in casting an eye over the wide field which we have been surveying, I trust the House will perceive that, although I have, for the most part, arranged my observations under the different stages through which causes are carried in our superior courts, I have yet been enabled to discuss the greater and by much the more important parts of our municipal jurisprudence. Indeed, with the exception of Commercial law, I am not aware of having left any branch untouched that seemed to require amendment. I stated, in the outset, the reason why that formed no immediate part of my plan. A great portion of it is common to all trading countries, the law-merchant, and is extremely well adapted to its purpose, being of comparatively modern growth, and framed according to the exigencies of commerce. Some other parts, however, are exceedingly defective. It would be difficult to point out greater uncertainty or more caprice in any branch of the system than are to be found in the law of Partnership. A man can hardly tell whether he is a partner or not; being a partner, the extent of his liability is scarcely less difficult to ascertain; and he will often find it in vain to consult his lawyer on these important matters.* The distribution of estates under the Bankrupt law is likewise capable of very great improvement. After all that was lately done in arranging and simplifying this code, it re-* The execution of judgments on partnership property is a remarkable example. The Sheriff must sell an undivided share, say a moiety of the whole: and the purchaser becomes tenant in common with the solvent partner, who may find the East India Company or Government his co-tenant, and be still liable to account to the other partner for his share of the profits; because the very effect of the execution which has let in so disagreeable a co-tenant of the stock will naturally be, to avoid a-going to prison (the only involuntary act of bankruptcy), and thus prevent a dissolution of the partnership.242 mains full of contradictions, and the source of innumerable frauds and endless litigation. But into these things I abstain from entering. I must, however, once more press upon the attention of the House, the necessity of taking a general view of the whole system in whatever inquiries may be instituted. Partial legislation on such a subject is pregnant with mischief. Timid men, but still more blind than they are timid, recommend taking a single branch at a time, and imagine that they are consulting the safety of the mass. It is the very reverse of safe. In the body of the law all the members are closely connected; you cannot touch one without affecting the rest; and if your eye is confined to the one you deal with, you cannot tell what others may be injured, and how. Even a manifest imperfection may not be removed without great risk, when it is not in some wholly insulated part; for it oftentimes happens that, by long use, a defect has given rise to some new arrangement extending far beyond itself, and not to be disturbed with impunity. The topical reformer, who confines his care to one flaw, may thus do as much injury as a surgeon who should set himself about violently reducing a luxation of long standing, where nature had partially remedied the evil by forming a false joint, or should cut away some visceral excrescence in which a new system of circulation and other action was going on. Depend upon it, the general reformation of such a mechanism as our law is not only the most effectual, but the only safe course. This, in truth, alone deserves the name of either a rational or a temperate reform.
Then, what ground can there be for taking alarm at the course I recommend of amendment, and proceeding by careful, but general inquiry? It is, indeed, nothing new, even of late years, in this country. We appointed a Commission to investigate the whole administration of justice in Scotland; and it ended in altering the constitution of the Courts, and introducing a new mode of trying causes. Yet Scotland, to say nothing of the treaty of Union, so often set up as a bulwark against all change, might urge some very powerful reasons for upholding her ancient system, which we in England should vainly seek to parallel. She might hold up her Statute-book in three small pocket volumes, the whole fruit of as many centuries of legislation, while your table bends beneath 243 the laws of a single reign—and of your whole jurisprudence, it may be said as of the Roman before Justinian, that it would overload many camels. But I do not merely cite, against alarms or scruples, that bold, and wise, and safe measure of Lord Grenville; older authority, and in the Courts of Westminster, are with me. I will rely on Lord Hale, whose celebrated Treatise "Of the Amendment of the Law," (far less studied, I fear, by our jurisconsults, than that of Fortescue*), well exposes the folly of such fears, with their origin. "By long use and custom (says he) men especially that are aged, and have been long educated to the profession and practice of the law, contract a kind of superstitious veneration of it beyond what is just and reasonable. They tenaciously and rigorously maintain those very forms and proceedings, and practices, which, though possibly at first they were seasonable and useful, yet by the very change of matters they become not only useless and impertinent, but burthensome and inconvenient, and prejudicial to the common justice and the common good of mankind; not considering the forms and prescripts of laws were not introduced for their own sakes, but for the use of public justice; and therefore, when they become insipid, useless, impertinent, and possibly derogatory to the end, they may and must be removed." Such is the language of Sir M. Hale. After Lord Coke and Littleton himself, there is no higher authority in the law than Shepherd, the author of the "Touchstone," who, in another of his works, called "England's Balm, or Proposals by way of Grievance and Remedy, &c, towards the Regulation of the Law and better Administration of Justice," reminds his legal brethren, that "taking away the abuse of the law will establish the use of the law—stabilit usum qui tollit abusum—and that rooting up the tares will not destroy the wheat†." If the House require further authorities upon this point, I can refer them to one of the ablest and most instructive books published of late years, that of Mr. Parkes, a* De Laudibus Legum Angliæ.† There is certainly a notion of Mr. Justice Doddridge being the author of this excellent book, or at least standing in the same relation to it as that C. B. Gilbert does to Bacon's Ab.; for the works cited in it make it impossible he should have written it all.244 respectable Solicitor in Warwickshire, who, in giving the history of the Court of Chancery, has collected most of the authorities upon the subject of Legal Reform.
But our predecessors, members of this House in the seventeenth century, an age fruitful of great improvements, most of which were retained in more quiet times, undertook the amendment of the Law systematically, and with a spirit and a wisdom every way worthy of so great a work. In 1654, a Commission was formed partly of the House, partly of learned strangers. At the head of the former, I find my Honourable Friend the Solicitor General's less learned and more martial predecessor, called in the Journals Lord General Cromwell. But in front of the latter stands "Sir Matthew Hale," afterwards the Great Chief Justice, whose name is ever cited amongst the most venerable supporters of our Civil and our Religious Establishment. With them were joined all the great Jurisconsults and Statesmen of that illustrious age. They sat for five years, and proposed a number of the most important and general reforms. I will read the titles of a few Acts, the draughts of which the Commissioners prepared:—
The House is aware that till much later in our history, by the great wisdom, justice, and humanity of our ancestors, it was provided, that the witnesses for a defendant should not deliver their testimony upon oath; until the time of Queen Anne, the prosecutor only was allowed to prove his case, by sworn evidence; and the communication of the same right to the defendant, may be looked upon by some as a rude invasion of the ancient system, and a cruel departure from the perfections of the olden time.
- 1. For taking away Fines upon Bills, Declarations, and Original Writs.
- 2. For taking away Common Recoveries, and the unnecessary Charges of Fines, and to pass and charge Lands entailed as Lands in Fee-simple.
- 3. For ascertaining of Arbitrary Fines upon Descent and Alienation of Copyholds of Inheritance.
- 4. For the more speedy recovery of Rents.
- 5. For the better regulating of Pleaders and their Fees.
- 6. For the more speedy and easy recovery of Debts and Damages not exceeding the sum of Four Pounds.
- 7. For the further declaration and prevention of Fraudulent Contracts and Conveyances.
- 8. Against the Sale of Offices.
- 9. For the recovery of Debts owing by Corporations.
- 10. To make Debts assignable.
- 11. To prevent solicitation of Judges, Bribery, Extortion, Charge of Motions, and for restriction of Pleaders.
- 12. An Act for all County Registers, Will, and Administrators; and for preventing Inconvenience, Delay, Charge, and Irregularity, in Chancery and Com-
245 mon Law (as well in Common Pleas as criminal and capital Causes).
- 13. Acts for settling County Judicatures, Guardians of Orphans, Courts of Appeal, County Treasurers, and Workhouses, with Tables of Fees and Short Forms of declaration.
- 14. An Act to allow Witnesses to be sworn for prisoners.
This is not the only measure prepared by that celebrated Commission which has been since adopted, as the House will see by the enumeration I have given.* But steps were taken immediately after the Restoration, for prosecuting its plans more systematically. A Committee was appointed by this House to examine the state of the Law and its practice; Sergeant Maynard and other eminent lawyers were members of it. From their numbers, fifty-one, I presume they subdivided themselves, for the convenience of inquiring separately into different branches of the subject. Upon their reports several Bills were brought in for the general reform of the Law; but in tracing their progress through the House, the prorogation appears to have come before any of them were passed. A long interval has elapsed of various fortune, and filled with vast events, but marked, from age to age, by a steady course of improvement, when we are again called to the grand work of surveying and amending our Laws. For this task, it well becomes us to begird ourselves, as the honest representatives of the people. Dispatch and vigour are imperiously demanded; but that deliberation, too, must* Sir S. Romilly's valuable MSS. contain the exposition and discussion of many reforms in the law, written thirty years ago. More than one-half of his proposals have, of late years, been adopted by the legislature; a strong presumption in favour of his plans generally.246 not be lost sight of, which so mighty a matter requires. When we shall have done the work, we may fairly challenge the utmost approval of our constituents; for in none other have they so deep a stake.
In pursuing the course which I now invite you to enter upon, I avow that I look for the co-operation of the King's Government. And, on what are my hopes founded? Men gather not grapes from thorns, nor figs from thistles. But that the vine should no longer yield its wonted increase—that the fig tree should refuse its natural fruit—require a miracle to strike it with barrenness. There are in the present Ministry, men whose known liberal opinions have lately been anew proclaimed to the world, and pledges have been avouched for their influence upon the measures of the government. With them, others may not, upon all subjects, agree; upon this, I would fain hope there will be found little difference. But, be this as it may, whether I have the support of the Ministers or no—to the House I look with confident expectation, that it will control them, and assist me; if I go too far, checking my progress—if too fast, abating my speed—but heartily and honestly helping me in the best and greatest work, which the hands of the law-giver can undertake. The course is clear before us; the race is glorious to run. You have the power of sending your name down through all times, illustrated by deeds of higher fame, and more useful import, than ever were done within these walls. You saw the greatest warrior of the age—the conqueror of Italy—the humbler of Germany—the terror of the North—account all his matchless victories poor, compared with the triumph you are now in a condition to win—saw him contemn the fickleness of fortune, while, in despite of her, he could pronounce his memorable boast, "I shall go down to posterity with the Code in my hand!" You have vanquished him in the field; strive now to rival him in the sacred arts of peace! Outstrip him as a lawgiver, whom in arms you overcame! The glories of the regency will be eclipsed by the more solid and enduring splendour of the reign. The praise which fawning courtiers feigned for our Edwards and Harrys, the Justinians of their day, will be the just tribute of the wise and the good to that monarch under whose sway so mighty a 247 work shall be accomplished. Of a truth, sceptres are most chiefly to be envied for that they bestow the power of thus conquering and ruling thus. It was the boast of Augustus—it formed part of the lustre in which the perfidies of his earlier years were lost—that he found Rome of brick, and left it of marble; a praise not unworthy a great prince, and to which the present reign is not without claims. But how much nobler will be our Sovereign's boast, when he shall have it to say, that he found law dear, and left it cheap; found it a sealed book—left it a living letter; found it the patrimony of the rich—left it the inheritance of the poor; found it the two-edged sword of craft and oppression—left it the staff of honesty and the shield of innocence! To me, much reflecting on these things, it has always seemed a worthier honour to be the instrument of making you bestir yourselves in this high matter, than to enjoy all that office can bestow—office, of which the patronage would be an irksome incumbrance, the emoluments superfluous to one who had rather, with the rest of his industrious fellow-citizens, make his own hands minister to his wants; and as for the power supposed to follow it—I have lived half a century, and I have seen that power and place may be severed. But one power I do prize: that of being the advocate of my countrymen here, and their fellow-labourer elsewhere, in those things which concern the best interests of mankind. That power, I know full well, no government can give—no change take away!
I move you, Sir, "That an humble Address be presented to his Majesty, praying that he will graciously be pleased to issue a Commission for inquiring into the defects, occasioned by time and otherwise, in the Laws of this realm of England, as administered in the Courts of Common Law, and the remedies which may be expedient for the same."
The Solicitor General
said, that at that late hour the House would little expect of him, that he should follow his hon. and learned friend through the patient, long, and elaborate, detail, into which he had entered. It seemed to him that the House would arrive—if not at as speedy, at least at a more safe conclusion—if it allowed itself time for reflection, by a short adjournment of the present debate. It would be an ill compliment to his hon. and learned friend, if he were to affect to be 248 prepared to answer what had been so ably and so eloquently advanced on subjects of such vast extent and such deep importance. By allowing time for meditation, and for collecting and marshalling their thoughts, the House would be better able to come to a correct conclusion on a future day. It would not be supposed for a moment that he meant to contend that the law in this country had arrived at such a degree of perfection, as to be incapable of further improvement; but he hoped that hon. members would keep their minds in suspense, until the time for discussion arrived. He would therefore move, that the debate be adjourned.
Mr. Secretary Peel
said:—I cannot, Sir, allow the present occasion to pass without offering a few words. I rejoice that the hon. and learned member concurs in the propriety of the proposal for an adjournment; and it will render it unnecessary for me at present to enter into any detailed discussion. Independently of those difficulties, under which, under any circumstances, I must have laboured, from want of professional knowledge and professional habits, I am sure the House will readily believe, that the occupation in which I have been engaged for the last few days, has tended still further to incapacitate me for the task of discussion at present. I can only speak, therefore, rather of the spirit in which the proposition is made, than attempt to follow the hon. and learned gentleman, who has gone through his great subject with such patience and investigation, and such ability of illustration. I fully concur in the opinion, that it would be unwise to arrive now at a precipitate but conclusive vote; and I think the hon. and learned gentleman must himself perceive, that the terms of his motion are so general, that it is impossible from thence to form any precise notion of the nature of the reforms which he would introduce. I do not mean to quarrel with the generality of those terms; but until the explanation of to-night, speculation as their precise object was rather calculated to mislead. Hence an additional reason is afforded for not calling upon the House at present to express any distinct opinion. The hon. and learned gentleman's notice referred to certain reforms in the law, and its administration in the courts, as time had rendered necessary 249 or as experience had shewn to be expedient; and to the principle of such reforms, I am almost the last person in the House to object. I have myself attempted to proceed upon it in the amelioration which I have attempted of the Criminal law. I found benefit of clergy and various other institutions—no doubt, wise at, the time they were introduced—unfit for present circumstances, and that a change was necessary. I did not hesitate to propose that change; and for this reason—I could not hold prescription as a sufficient ground, why we should not inquire, calmly and deliberately, what alterations experience had proved to be expedient.
Into all the latter part of the hon. and learned member's speech, I profess myself wholly unable to enter: but upon one or two points connected with the constitution of our courts, I will say a few words. I am now prepared to express my approbation of the principle of much that fell from the hon. and learned member. He adverted, among other things, to the propriety of equalising the business in the three courts of justice; and he pointed out the advantages to be derived, if the courts of Exchequer, Common Pleas, and King's Bench, could be really and practically put on an equality, as to the transaction of business. Surely, every one must concur in the principle, if it can be carried into effect. As to the mode in which that principle can be so carried into effect, I am not prepared to express an opinion. The hon. and learned member also referred to the sort of monopoly established in the court of Common Pleas, by confining the practice to Serjeants. I believe that point has engaged the attention of the present lord Chancellor, and that the eminent judge who presides in that court is not indisposed to a change.—Again, as to the Exchequer, where, it seems, the power of instituting a suit is confined to the clerks of the court—guarding against injury to vested interests, it may be very fit to inquire whether it would not be right to open a more extensive system of practice. I am quite sure the House will perceive, that the fear of doing injury even to vested interests ought not to prevent it from adopting important improvements. Compensation may be granted, or the vested interest may be permitted to expire with the life of the present holder of any appointment; but this consideration ought not to obstruct any necessary or wholesome 250 reform. Still less am I inclined to shew any peculiar attachment to the number "twelve" for the judges; or to resist any proposition for an inquiry whether they ought not to be increased, for the better administration of public justice. I believe there have been periods when the number of judges was more than twelve, and it may, for aught I know, be very fit to revert to that practice. The hon. and learned gentleman certainly mistakes my view, if he supposes I am disposed to shew peculiar attachment to the particular number at present existing, even if in former times that number had not been greater. But I am unwilling, Sir, that the House should now express any positive opinion upon this point. If I understand the hon. and learned gentleman right, he would add one judge to the court of Common Pleas, and one to the court of King's Bench, making five to each court; and he would cause the judges who did the out-of-door work to be placed in rotation. If this was not the case, I should have a strong objection to any measure which went to make any one judge less respectable than another; and I could never consent to make, in any manner, one of those judges who are to preside in a criminal court less respectable—[Mr. Brougham said, across the table, it was his intention that the judges should take the out-of-door work in rotation]. I therefore, Sir, shall not object, if the judges cannot now get through the business, that it should be facilitated by having five judges in a court.
There is another point to which I will refer, and one on which, I am afraid, I should be induced to differ from the hon. and learned gentleman. He recommends that the judges should be paid by fees; but I much doubt the wisdom of this opinion. The learned gentleman says, he would control the fees, and give the judges only a certain and a qualified interest in them, but sufficient to secure their attention to their duty, and to promote the despatch of business. But I am disposed to think, that much of the deference paid to the judges depends on their dignity; that much of the impression which they make on the public mind, much of the respect paid them by the people, particularly by the lower classes of the people, depended on the opinion of their purity. I should be sorry to hazard this, by giving them an interest in despatching causes; 251 and I think the advantages which might be obtained by procuring a little more despatch of business, would not be compensated by the evil arising from giving the judge an interest, of any kind, in causes. The judge would either be induced by it to do more business, or he would not; if he were not induced to do more business, no advantage would result from the change; if he were induced to do more business, it might be suspected that he made too much despatch, and that impression of respect which he now excited might be lost. Might not the party who was dissatisfied with his decision think his case had not been sufficiently inquired into?—that it had not engaged enough of the judge's attention, who had been more eager to obtain fees by the despatch of business, than to do justice? I think, Sir, under the present system, the substitution of fees for a salary to the judges, would not answer the learned gentleman's expectations; and that the only advantage arising from it—the despatch of a little more business—would not compensate the evil of the impression which would be made on the minds of the public by the judges taking fees.
There is another point, Sir, on which I cannot agree with the hon. and learned gentleman. He argues for a strict adherence to the rule, that a puisne judge should not be promoted to a higher seat on the bench. I agree with him, Sir, that as a general rule, it is a good one; but if it were invariably and rigidly adhered to, it would sometimes lead to the commission of great injustice towards individuals, and inflict a serious injury on the public service. To say that a puisne judge, however uprightly he may conduct himself, however high may be his character for independence and honour, however much he may adorn the judicial seat—to say that such a man was never to be promoted, is, in my opinion, neither wise nor just. I agree with the learned gentleman, that to promote a puisne judge, on account of his subserviency to the Crown, would be an erroneous proceeding; but I cannot agree with him, that we ought rigidly to adhere to the rule, never to promote a puisne judge. It does so happen, Sir, that in the speech which the learned gentleman has just delivered, the two judges on whom he has passed a just and well-merited panegyric—lord Tenterden, whom he has characterised as one of the ablest judges that 252 ever presided in the court of King's-bench, and chief baron Thompson, who has gained the respect of every man; it does so happen, Sir, that these two judges, the only two referred to by the hon. and learned gentleman, were promoted, from being puisne judges. Would it not have been an injustice to those excellent men, and would not the public service have suffered a serious injury, if those judges had not been promoted; particularly in the case of lord Tenterden, who had not risen to such eminence as an advocate, as to have necessarily inferred, that he was to become an eminent judge? The hon. and learned gentleman's own instances shew that an invariable adherence to the rule which he recommends would operate as a hardship on individuals, and be a detriment to the public.
With respect to fixing the terms, so that the holidays and the times of business shall recur periodically; there are two terms already invariable, and I do not know why we should not have four. I do not know why members of parliament should not be able to foresee when they must attend their business in the country. I see no reason for adhering to a system which makes two terms moveable, and two fixed; and I think it would be advisable to make all the four fixed. For why should we have two fixed, and two dependent on the moon?
Another point to which the learned gentleman has referred is the salary of the judge of the Admiralty court, which in peace is only 2,500l. per year, and in war, may amount to between ten and eleven thousand. Now, Sir, I do not know why the fees of these judges should not be abolished, and an equal salary given them, both in peace and war. The public will not suffer by that change, and the judge will not be injured. There is another point on which I will just say a few words; namely, the number of appeals before the Privy Council. No doubt the learned gentleman has drawn his information from papers laid on the table of the House; but I think he has drawn an erroneous conclusion, as to the delay of business, and the quantity of business not transacted, from those documents. He thinks that not more than forty cases out of the five hundred and ten appeals which have been made from the East and West Indies, and from Guernsey and Jersey, have been decided. The learned gentleman has collected this information from 253 the returns, but those returns include all the cases which have been compromised or settled abroad, and being left on the list, lead to an erroneous conclusion. The: five hundred and ten cases also included appeals from Guernsey and Jersey, which were only for summonses. In many of those which are sent from the East Indies to this country, there is no agent appointed to carry them on, and they cannot be brought forward for decision. I admit that the appeals from the East Indies are of very great importance; and the practice of carrying them before the Privy Council is one which may require examination. Out of the appeals made to the Privy Council since 1800, eighty-two have been from the East Indies, and in fifty-three of them no agent has appeared on either side. In sixty-seven instances no case has been drawn up either by the appellant or appellee; thus of the eighty-two cases nominally before the Privy Council, in sixty-seven there was no case submitted to it, and it was impossible that it should proceed to adjudication. When cases are not complete, the council has no means of proceeding. The native of India, perhaps, does not know that it is necessary, in sending an appeal to this country, that he should appoint an agent: he does not know, perhaps, the means of carrying on his appeal; which makes the whole subject of considerable importance, and deserving of attention and inquiry.
There is another point in the learned gentleman's speech, to which I wish to refer; namely, that which relates to the appointment of justices of the peace. The learned gentleman doubts the propriety of the appointment being made at the recommendation of the lord lieutenant, or rather of the custos rotulorum; to whom the recommendation, in fact, belongs. But it is not possible for any authority in this metropolis to appoint justices of the peace for distant places, without the recommendation of some local authority: and it does appear to me, that the nobleman who is custos rotulorum, being generally also lord lieutenant, is the most unexceptionable officer we can have to give such a recommendation. The duty must be devolved on some local authority, and I think no better than that of the custus rotulorum can be devised. If the opinion of one gentleman or nobleman, responsible like a lord lieutenant, could be obtained, in the 254 recommendation of magistrates for Ireland, that would, I think, be much better than the present method, by which the lord chancellor of Ireland has to collect the opinions of several individuals. Any member of the Privy Council may recommend us a gentleman as justice of peace in Ireland. Formerly, the lord chancellor asked the members of the county to recommend justices; but that practice is altered, and I am disposed to think, as we must have the recommendation of some local authority, that no better than that of the lord lieutenant and custos rotulorum can be devised.
With respect to the licensing system, to which the learned gentleman has referred, he does not seem to be aware that a bill was brought into this House last session, though it was not passed, for checking abuses in that system. It is generally found, I believe, that the abuses of that system are more prevalent in large towns and in their neighbourhood. The brewers, at least, generally reside in large towns; and there lies their influence. Now, one of the provisions of the bill, to which I have alluded, was to provide a remedy for this evil; which it did by giving, wherever the magistrates of such towns had an exclusive jurisdiction, the county magistrates a concurrent jurisdiction, as far as licensing was concerned. I admit, that the system requires correction; and the bill of last session was only postponed to give a fuller opportunity of discussing the measure and finding out the best means of facilitating justice, by introducing publicity into the licensing system.
The learned member, Sir, has referred to one of the bills which I introduced last session, which regulates the fees of the magistrates' clerks, and which he accuses of adding to contention. That bill gave direct authority to the magistrates on the bench to refuse costs in cases of assault. I abstained from giving expenses in cases of assault, precisely because I would not encourage frivolous proceedings. If it be right to give costs in cases of rape, I see no reason why they should not be given in cases of attempt at rape. The distinction which formerly existed was between felony and misdemeanour; and the bill gave authority to the magistrates to allow parties their expenses in such cases of misdemeanour as they might think fit. I have heard no complaints of that law. If 255 I had, I should have no objection to have it altered.
I have heard, Sir, with satisfaction, that all the bills which I introduced have worked well; and I hold in my hand the five acts which I introduced comprised in one small volume; and it contains not only an enumeration of all the acts which those five acts repealed, but the substance of what was before spread over one hundred and thirty acts of parliament. In this, Sir, I find great encouragement to proceed; and I do not despair of effecting great good of the same kind, from seeing the small compass into which those hundred and thirty acts have been compressed. With the exception of the observation of the learned gentleman, I have never heard the least complaint of those five acts. They have now been in operation for nine months, and they have not given rise to any doubts concerning their meaning. I was told at the Home office, during the administration of lord Lansdowne, that no complaints had been made, and that there was nothing in those laws which called for correction. I say this, not taking credit to myself, but giving it to those gentlemen who were employed about the technical parts of the bills, and by whom they were, in fact, prepared.
The learned gentleman has also referred to the appeals from the magistrates. To his observations on this point, I reply that I gave the power of appeal from all convictions by one magistrate, however small the sum; and I gave a power of appeal from the decision of two, whenever the fine amounted to 5l., or the term of imprisonment exceeded one month. I have been desirous to make these few observations, Sir, on the more popular parts of the learned gentleman's statement. The remainder of his observations, relating to real property, and to the various legal points connected with it, is so full of technical details, that I am not prepared to enter into a consideration of it, and I wish to avoid pledging myself—I wish the House to abstain from pledging itself—to come to any conclusion, until after a few days consideration. It is necessary to take time for consideration before we can decide which are the most important points, in the many things to which the learned gentleman has alluded, for a commission to take up. If every thing mentioned by the learned gentleman were to be referred to a commission, I am inclined 256 to think that his object would not be obtained; for a commission would be confused and overwhelmed by the multiplicity of the objects. The learned gentleman has evidently brought forward his motion, not with the view to subvert, but to improve the law; he has taken the wise course of pointing out its evils,' many of which I do not deny, and he seeks a practical remedy. The manner in which he has brought forward his motion is well calculated to gain favour for his proposition: but, before I agree to it, I wish to have time to consult those who, from their station and attainments, are best qualified to judge—I mean the lord Chancellor and the Attorney-general; and I trust the learned gentleman will give us a few days to take into our consideration the various subjects which he has brought before the House. If he then finds that we are not prepared to go his length, he may appeal to the House. I can assure the learned gentleman, that in asking for delay, I do not wish to defeat his object, nor to deprive him of that honest fame which is due to him for having originated such a motion.
§ Mr. Wynn
said, that after so long and so laborious a speech as that which the House had just heard, it was but reasonable that time should be given for considering the various topics referred to. His object in rising was merely to enter into a short explanation. With respect to the appeals before the Privy Council, the reason why a greater number were not disposed of was, because there were no agents or parties before the Privy Council, whom they could hear. Now this, he apprehended, arose from the different manner in which appeals from the inferior courts of Judicature to the superior were disposed of in this country and in India. The course pursued in India was in every respect more summary than in this country. In India, the cause was removed altogether from the inferior to the superior court, the whole being embodied in the written pleadings and arguments of counsel, and out of these the court of Appeal made it a practice never to travel, without calling for any fresh lights upon the subject, whether the judgment given was right or wrong. Perhaps the inhabitants of India were a little disappointed that the same course was not pursued here in this country. Indeed he had reason to know that some discontent had been felt upon 257 that subject. But that such proceedings were in themselves a grievance, whether originating in ignorance or mistake, nobody could deny, and the sooner they were remedied the better. The attention of the Privy Council had been called to the subject, and a proposition had been made for the appointment of an officer, whose duty it would be, in all cases where there was no special agent, to conduct the cause, examine the papers, extract cases for the opinion of counsel, employ counsel, and by bringing the matters before the Privy Council, to obtain final judgment upon them.
said, he should be sorry to be understood as wishing to cast any reflections upon the Privy Council. Of the distinguished persons who attended there as professional judges, he was bound to speak in terms of the highest respect; and of the present Master of the Rolls, in particular, he would say, that there never was a man more anxious to do his duty with despatch. So it was before his time; for he had no objection to make against lord Gifford, or sir John Copley; and still less to sir William Grant, one of the greatest judges that this country ever produced. But the difficulty, known only to professional men, was, that you could not get judges and counsel together more than about eight or nine times a year. The Privy Council had no bar of its own. However numerous the appeals might be, they were obliged to await the convenience of the few who practised in the court. Of these, about four attended from the court of Chancery, and the same number from the King's-bench; but when those courts sat, these gentlemen could not attend. There was scarcely any thing done before the Privy Council, except upon holydays, such as the 30th of January, the Purification, or a few such days. Surely this was a state of things which ought not to continue. These appeal causes were of the greatest importance, few of them involving property under from 50 to 60,000l. Four years and a half was the average time that a cause took, from its being entered until its final decision. Now, how very beneficial it would be to the suitors, if, like the House of Lords, which now disposed of a Scotch appeal in six months, the Privy Council could be brought to use something like similar despatch. Upon an average of twelve years there had been only nine sittings a year; so that, with all the desire 258 which the judges and counsel felt to do their duty, it was out of their power to do justice to the suitors. With respect to the adjournment, he could have no objection to it. He was not so weak as to imagine that the House would take all his statements upon his showing, without due consideration. Of the mischief there was no doubt; as to the remedy, that he left to the wisdom of the House.
§ The debate was then adjourned till the 22nd instant.