—I have now, Sir, to call the attention of the House to a subject which I brought under its notice upwards of two years ago; and I ought, perhaps, to begin by explaining why I did not renew the consideration of it at an earlier period than the present. In consequence of the motion I then made, two Commissions were issued for the purpose of instituting inquiries into the state of the Common Law and of Equity. Both commissions have since made reports on the subjects referred to them. The Equity Commissioners have made one report, and a second may, I understand, soon be expected from them. The Common Law Commissioners have made two reports. If I had pursued the subject after the first Report had been published, I should have done it under every disadvantage; for the commissioners then disclosed their doubts and difficulties on several questions, and announced their second Report, in which they said that many of these questions would receive their decision. Of course it was impossible for me to know what to do, till I knew what course they would adopt. Let it not here escape notice, that I am anxious to express my perfect and entire satisfaction at the manner in which the commissioners have discharged their duty—They have proceeded with the greatest possible deliberateness, and although much remains to be performed, the portion of the subject they have investigated is unquestionably of paramount importance. I therefore do not complain that they have treated the question before them too lightly, and certainly I do not complain of the inadequate execution of the duties imposed upon them. I hold their inquiry to have been conducted in. a proper spirit, pursuing a middle course between rashness and subserviency—neither setting too much at naught the long-pondered decisions of authority, nor evincing that overstrained respect for existing institutions which too often de- 244 generates into a veneration for existing abuses. They brought to the inquiry not only great theoretical learning, but long experience as practical men; and their second Report, especially, contains suggestions well worthy the most anxious consideration. That Report is full of profound thought and of most ingenious invention (if I may so speak), upon the science and practice of the law, and it has received from the profession at large—and, indeed, from all who are not of the profession, and who are capable of understanding the question, the most unqualified approbation. I will venture to say, that not within a century and a half has been produced in this country anything like a document containing so much important matter, consisting partly of the suggestions of the commissioners, and partly of the facts they have been enabled by evidence to establish. This being my deliberate opinion of the merit of the commissioners, and of the importance of their labours, it cannot be supposed for a moment that I bring forward this subject in any spirit of hostility. On the contrary, I go hand-in-hand with them: I take up the part of the question they have left untouched; and if, in the first place, I saw any prospect (I mean any prospect within a reasonable time), that their inquiries would be directed to the residue of the subject; or if, in the second place, that residue, which is what I propose to bring under the consideration of the House, were inseparably connected with the duties they have already discharged, I should be at least willing to defer my motion, in order to prevent the evil of a double discussion, if I did not leave it entirely in their hands. After the best consideration I have been able to apply to the matter, I do not think that their attention is likely to be directed to that part of the subject which I have in view, within a reasonable time; nor do I see that it is inseparably and essentially mixed up with the remainder of their inquiries, so that I ought to abstain from, calling the attention of the House to it. If a man were told that there was a country, in which, in order to recover a debt of 6l. or 7l., it was necessary that the creditor should begin with the expenditure of 60l. or 70l. of his own money, thus running the risk, according to the old saying, of "throwing good money after bad," I think the man who was so told would at once assert, that whatever other advantages such 245 a country might possess, it was unfortunate in its system of law. But if he were farther informed, that after spending this 60l. or 70l. for the recovery of 6l. or 7l., the creditor would be subjected to long delay—to great anxiety—to no little uncertainty,—that he must endure being bandied about to and fro, from court to court, and from province to province, before he could obtain a verdict, the envy of such a country and its legal institutions in a man so informed would be still further diminished. If, to this information, it were added, that, in the same country, after having spent 60l. or 70l. the adversary of the creditor would have the power of keeping all his property out of his way, so that after this expense, all this delay, and all his anxiety, it was doubtful whether he could obtain a single farthing: of his debt;—if, furthermore, it were added, that in the same country, were the debtor solvent, and willing to pay what the law required from his hands, the creditor would receive, it is true, his original claim of 6l. or 7l., but not the whole of what he had expended to recover it, by about 20l., so that on the balance he would be some 14l. or 15l. out of pocket by success; the individual to whom this strange information was given, if he supposed it possible that such a country existed, would at least pronounce it to be one of the most barbarous and unenlightened of the world. That it must be a poor country, he would think quite obvious—of no commercial power—of no extent of capital—of no density of population, because those circumstances would necessarily produce, from hour to hour, transactions involving important and valuable interests—nevertheless, I need not remind the House, for every man who hears, or does not hear me, must be aware of the fact, that such a country, so unfortunately circumstanced, is no other than that in which I now speak—England. Then arises the question, how is this admitted evil to be remedied? and in order to know how the remedy is to be applied, the first point is to ascertain whence proceeds the evil? I am thus entering at once into the middle of my subject, and I am persuaded that such is the most convenient and expedient course, because it enables me at once to see and grapple with the real difficulties of the inquiry, to which, far be it from me for one moment to shut my eyes. That part of the mischief which can be got rid of I call upon you to remove. I formerly took the op- 246 portunity of stating a kind of experiment I made at one of the Lancaster assizes, when my hon. and learned friend (Sir J. Scarlett) was present. I requested the Prothonotary to furnish me with a list of about fifty verdicts recovered during that assize, and the average amount of those verdicts, I found to be under 14l.—13l. odd shillings each. I do not mean to represent that there were not three or four actions in which the damages were nominal; some of them actions of ejectment, and other suits to decide rights; but the bulk of the verdicts were on actions of debt, or of the nature of debt, and the average was less than the sum for which by law a creditor may hold his debtor to bail. I am far from saying that such is an accurate picture of the average result of actions, tried either at the assizes or in London; but it is not much out of the general course. Taking the average of the five years ending 1827, the number of actions annually brought in all the Courts of Westminster is something under 80,000: I believe that the precise amount is 79,800. The number of these brought to trial is only about 7,000, for many, after they have been commenced, are not pursued on account of the cost, delay, and vexation to which I have already directed attention. But passing by this topic, because it is not with a view of illustrating the denial of justice which is involved in these heavy expenses that I state the fact, I observe, that if hon. Members wish to form some estimate of the sums for which actions are generally brought, they will be enabled to do so from a document upon the Table. I will not go into its details, but what I am about to state is at least a near approximation to the results. A return was made in 1827 of the number of affidavits of debt in the Courts of King's Bench and Common Pleas for two years and a half. The number of those affidavits for sums above 10l. was 93,000 odd hundreds, but in round numbers we will call it 93,000. These 93,000 affidavits were made the foundations of 79,000 actions; for an affidavit of debt, as every body knows, is the earliest proceeding in the commencement of an action. Let us see, then, in what proportion the affidavits were for small sums, moderate sums, and large sums. 29,800 were for sums between 10l. and 20l., and no more; 34,200 were for sums between 20l. and 50l., making together 64,000, out of 93,000 for sums not exceeding 502, For sums not 247 exceeding 100l., and of course including the 64,000, the number of actions was no less than 78,000. Thus the House will observe, that of the whole number of 93,000, there was no less than one-third for sums not exceeding 20l.; no less than two-thirds for sums not exceeding 50l.; and no less than five-sixths for sums not exceeding 100l. The House will pardon me for not going more into details—what I have stated is the result of recollection, but I can venture to pledge myself for its accuracy, and it will be perceived at once that it leads to a most important practical conclusion, viz. that the vast bulk of the litigation of the country resolves itself, as far as actions of debt, and of the nature of debt go, into actions where the sum in dispute is not more than 100l. I now beg to draw the notice of the House with greater particularity to what a creditor is exposed who undertakes to prosecute an action; I have hitherto dealt only in a general description of his expenses and sufferings. In their first Report, towards the close of their appendix, the commissioners have inserted some valuable tables of costs, and to one of them, applicable to an action in the Court of King's Bench, I beg leave to request especial attention. First, I should state, that these are real bills of costs; and next, that they are reduced to the very lowest scale of expenditure. One of them was an action from Lancaster, tried in London, and the bill clearly shows, not only that the costs are set down at the lowest possible rate, but that in the proceeding there was no incident at all out of the ordinary course, and therefore, the circumstances were most favourable, both as regards cheapness and expedition. The costs, in order to obtain the verdict (and before any thing was done upon a special case, reserved for the opinion of the Court), were 86l. odd shillings. The whole costs, including the further proceedings necessary before the plaintiff could derive any benefit from his verdict, was 110l. but of that sum is to be deducted no more than the sum of 10l. odd shillings, for the delay of a term in hearing the argument, and of 6l. for the delay of a sitting in bringing the cause to trial. I will suppose, however, that all the recommendations of the commissioners, which I admit are most proper and important, and when carried into execution by legislative enactments, will be productive of great practical good—I will suppose that they had been carried into effect, that 248 we had derived all the good from them that could be expected, and what would be the consequence in respect to this case? We should have to deduct 6l. as a diminution of the expense in the first stage, and 4l. as the diminution of expense in the second stage, leaving 80l. as the expense of obtaining the verdict, and 100l. as the costs, the indispensable costs, of the entire case, which must be incurred even after the recommendations of the commissioners shall have come into full operation. I admit that a considerable part of the costs was occasioned by the attendance of witnesses—I do not mean to say that I admit it—I assert it—I maintain it—for it is to be one of the principal grounds on which I rest the proposition I am about to submit. True it is, the cause was a country cause, brought to be tried in London; and equally true it is, that if, instead of being tried in London, it had been tried at Lancaster, or at York, the same expense must have been incurred according to all ordinary calculations of chances. The witnesses were an architect, a master-carpenter, and labourers; and in taxing costs, 2l.2s. a day are allowed for an architect, or surgeon, physician, or any person of skill and science, 15s. a day are allowed for a master-carpenter, and 5s a day for a labourer, to which are to be added travelling expenses, which I perceive, are at the rate of 8d. per mile. Then, as to delay, let me remark that the delay in trying a cause at the assizes is often much greater than in trying a cause in London; and there can be no manner of doubt that this very circumstance was one of the causes operating upon the plaintiff in inducing him to prefer London to the country. In London, by making the case a Special Jury case, his attorney and witnesses would only have to wait one, or at most two days; while at York or Lancaster, they might be detained for four, five, six—aye, and I have known it, for ten, twelve, or-fourteen days before the trial was brought on. Attornies are allowed 2l. 2s.. a day if they have only one cause at the assizes, and 1l. Is. a day if they have two; and a plaintiff is not answerable if it should happen that his attorney has only one cause; all his witnesses are to be paid, not only going and returning, but while they arc in the Assize town; and as long as the present system continues, I look upon this as essential to, and inseparable from it—as 249 necessary a part of the expenditure as the retaining of counsel or the employment of an attorney; indeed, I am not sure if it be not even more necessary. Now, I will call the attention of the House to the difference between the costs inclined and the costs taxed? That is to say, after obtaining the costs recovered from an adversary as the consequence of the verdict, how much is a plaintiff out of pocket? It may be remembered that I formerly produced to the House four bills of costs, all from the offices of most respectable attornies; in one of 400l., about 200l. (or half) was deducted on taxation; in another, one-third was taxed off, 70l. being deducted from 210l. or 220l.; in a third instance, which was the lowest of the whole, because the action, for 50l., was undefended, 15l. out of 60l. (or one-fourth) was deducted on the taxation of the bill. If the defendant had been litigious, and, with the aid of a long purse, had resisted the claim, the expense would have been raised to 80l. before the plaintiff obtained his verdict, according to the plan recommended by the commissioners, and 100l. before he obtained his final judgment. In point of fact, I might take it at 120l. before obtaining a verdict, and 150l. before obtaining the final judgment. Out of this 150l. 50l. would be struck off for extra costs, and he would be allowed only 100l., and being also the gainer of the sum in dispute he would have that, making the sum allowed him by the law, as the expenses of the suit, and the debt he had recoverd exactly equal to the sum he had expended in prosecuting his just claim. The result of the whole is, that the party would gain exactly nothing by recovering his verdict for 50l. In addition, he would have been exposed to all the vexation of delay, and to the distress of uncertainty, and if he be a man who, for the first time, has brought an action in a Court of Justice, it is most likely to be his last experiment of the kind. I am here taking an instance most favourable to the other side of the question, and it is needless to say that it is anything rather than an average case; in general, those who succeed have to pay more than they receive, and are often considerably out of pocket. What is the result but this? that no man in his senses would think of proceeding in an English Court of Justice for such a sum as 20l. or 30l., or I should say for any sum under 40l. or 50l., and a wise man would almost put up 250 with an extortionate claim to that extent, rather than incur the hazard of resisting it, even though he might have the plaintiff's stamped receipt in his pocket. If a party succeeds, he cannot gain, and if he is defeated, he is sure to be a great loser. I had very lately occasion to speak with an attorney of extensive practice, residing only twenty miles from the Assize town, upon this point, and he agreed with me that no plaintiff ought to think of seeking redress, even at the distance of only twenty miles, for a smaller sum than 40l. This was a solicitor's private opinion, for which probably he had never charged his client 6s. Sd. To be sure a man is sometimes justified in bringing an action for a small sum, or in resisting an extortionate demand, on other than mere pecuniary grounds; but with reference to money alone, a man is not now justified in endeavouring to recover, by means of an action, any sum less than 40l. I am well aware that it is not only always easier to point out defects than to apply remedies; but he that propounds a cure for mischief of the widest extent, and for intolerable oppression—for such they are according to the unanimous admission of all persons of all ranks, exposes himself—and gives an opponent a decided advantage; he is always more or less in the predicament of an inventor; he always seems to be a person who sets his wits above those of other men, and affects to be wiser than those who have gone before him; and I therefore unfeignedly avow that I feel much distrust of myself, in bringing forward that which appears likely to be a remedy. I am perfectly sensible that something will be done when the recommendations of the commissioners are carried into effect; I know, and I rejoice to know, that some of the great evils will be removed, as the result of their inquiries; but I am equally certain, that still much will remain to be done, and I trust the kind of remedy I shall propose will be one which, while it carries further the design of the commissioners themselves, will be found most accurately and nicely to chime in and harmonize with, instead of being repugnant to their principles. I have stated the principal causes of the evils we all see and suffer; and I now proceed at once to the remedy. The great evil arises out of the distance to which parties are necessarily dragged, in order to obtain a decision upon their rights. For many, many ages it has been the system of English jurisprudence, 251 that justice should be administered in the centre of the kingdom, or what is politically, though not geographically, its centre. The metropolis has been made as it were the great mart of justice, from whence all process issues, and to which all process is returned. This is not of itself the cause of the expense of which I complain; because the mere difference of sending to town for a writ is not of itself worth considering in point of expense, for it would be little less were it sent from York or Lancaster. Out of this fact, however, arises another part of the system to which the same observation is not applicable. The Judges come from London, as well as the writs, and a plaintiff must wait until the Judge visits the country, before he can have his cause tried. The Judge arrives in the provinces once in every half year, and in the interval no redress can be had. But that is not all; when the cause is tried, the party must go perhaps to the remotest corner of the county where the assize town is situated, and there he must be attended by his legal agents, advisers and witnesses, and perhaps they may be detained during the whole assizes, for there is often a race between the agents as to who shall enter his cause latest, in order that he may have the longest bill. Witnesses must be paid for their time, and must, besides, be maintained; and as there is a great deal of competition and corruption always going on, if an attorney behaves shabbily to his witnesses, he is sure, from one or other of them, to pay for it before the conclusion of the cause. All these consequences are the necessary results of compelling the parties to go twice a year to the assize town for justice. Then comes another stage of the proceeding equally attended with expense; if any point be reserved, or an appeal made from the decision at Nisi Prius, it must be discussed in London, and to London the agents must be sent with great delay, and a great and unnecessary expense. Now what is the obvious remedy for these evils? To that I shall presently come: but I wish to steer clear of the objections to which he is liable who prescribes remedies. In the propositions of the Law Commissioners some remedy is contained for a part of these evils. The proposed alteration, for example, in the mode of issuing process will effect a diminution of expense, which will also be effected by another regulation for lessening the arrears of the 252 Courts, and thus preventing delay. As I have already stated, these two alterations will lop off the bill of costs 10l. and 6l. I expect, from other excellent proposals of theirs, that there will be much facility in respect of time, much satisfaction in respect of certainly, and somewhat of diminution in respect of costs. In particular, I allude to that improvement which will be brought about by having documents proved by subscribing witnesses in certain cases, without the cost of bringing them down in attendance upon the Court at the time of trial—from which I anticipate a very considerable saving of expense. In the class of cases, however, to which I am requesting the attention of the House, there are no written documents, and in them no decrease of expense by this improvement, even should it prove in practice as successful as I trust and believe it will be. I think, also, that the system of pleading will be most materially improved by the suggestions made in the Report of the commissioners, they being some of the happiest thoughts—some of the most ingenious contrivances—I will say, some of the most profound suggestions for promoting convenience and dispatch,—with which the science of pleading has yet been enriched, well worthy the attention of the learned lawyers particularly engaged in the practice of that part of the profession, and well worthy of the learned lawyers from whom they have proceeded. Important as arc dispatch and certainty, these propositions do not tend to remedy the evil occasioned by the removal of suitors and causes to a distance from the ordinary residence of the former to the assize town or to the capital, where I am willing to admit certain causes should be heard in the last resort. I hope the House will pardon me if I remind it that the great and crying mischief in this matter arises from causes involving amounts between 20l. and 100l., not being capable of being brought to trial in that cheap, easy, and speedy manner which suitors have a right to expect. In order to make my views better appreciated, I would fain solicit attention to what was our old scheme of jurisprudence. Let me not, however, be misunderstood. I regard with too much admiration and attachment that principle which recognises the seat of justice to be in the capital, as the heart from which all the members of the judicial body circulated twice a year throughout the kingdom, 253 conveying from Westminster-hall justice in its purity and full vigour to the remotest parts of the country, to attempt to make any alteration in that. I feel as fully as any man the great and manifest advantage of that practice. But long antecedent to it there existed in this country a practice much more simple, no doubt, and more likely to have arisen in a backward state of society, while, at the same time, it was a much more convenient mode than any now in use: I speak of the mode of trial by the County Court. Antiquaries differ not a little as to the origin of this Court, and as to its early constitution and jurisdiction; but that County Courts were, in the days of our Saxon ancestors, the great tribunals of the country there can be no doubt. My own opinion is, though I know that in holding that opinion I differ from very high authority, that the County Court was originally a Court of criminal as well as of civil jurisdiction—at all events there can be no question that in Saxon times it had jurisdiction of all causes, ecclesiastical as well as civil, and that the Bishop sat in it as well as the Earl, the civil ruler of the county. We learn from Kennett, that the Bishop and the Earl were to meet the county—the one to state the law of God, the other the law of the land; or, as he expressed it, the one to teach the people the law of God, and the other the law of the land. At that time then, and the practice certainly continued down to the Conquest, every man in all ordinary causes, in the first place, was to seek justice at home, and when he had been refused it, then, but not till then, he was to seek it of the King. He was in no case to seek it of the King until he had failed to obtain it in the County Court. On this point nothing can be more satisfactory than what is said by Sir Harry Spelman. No man, he says, shall seek justice from the King till he has first endeavoured to get his burthen lightened by the Sheriff, because he shall not be obliged to go far to obtain justice. In the 6th of William the Conqueror there was a celebrated cause in the County Court of Kent, at which the Archbishop, three Bishops, the Earl, the Sheriff, and all the principal persons of the county attended. Lanfranc was the Archbishop, one of the parties to the suit was Odo, half-brother to the King, and the Earl of the county presided. It was a meeting which lasted rather longer than some late meetings of that county have lasted; it 254 continued during a period of three days, and matters of great importance were settled at it, and manors of great value were disposed of by its decision, which was afterwards confirmed by Parliament. This was the state of the County Court at the time of which I am speaking. By degrees, however, the authority of the Sheriff came to be limited from the extensive civil jurisdiction which he had formerly enjoyed, and an inferior description of suitors was assigned to him, it having been found, perhaps, that what had been extremely well adapted to a more simple social system, was not so well suited to society in its further progress. By the Statute of Gloucester, in the 6th of Edward 1st, the exclusive jurisdiction of the Sheriff's Court was limited to cases under the value of 40s. Perhaps in a century, or a century and a half, that sum became the maximum as well as the minimum of the jurisdiction of the Court; but at the time the exclusive jurisdiction of that Court was fixed at 40l. I say exclusive,, for it might entertain causes of larger amount in common with other Courts. This Court was essentially English, whatever changes it may have undergone in the lapse of ages. I shall now, with the permission of the House, call its attention to the history of the County Court in the sister kingdom of Scotland. I am far from saying that we should be too easily led by precedents, but when there is a good example, when the precedent is safe and the example good, I can understand no reason why we should be slow to take advantage of it. In considering whether or not we ought to adopt a new system, or recur to an old one, we should act prudently in looking to see how it has operated in any other country or time in which it might have been introduced or preserved. I presume I need not remind the House, certainly I have no occasion to remind any lawyer, that however widely our present systems of jurisprudence may differ—I mean the systems of England and of Scotland—time was, when they were one and the same; their origin was exactly identical. The best illustration I can give of this is, that the oldest laws of both are so closely allied that while in England it was contended that the book called Regiam Majestatem was copied from Glanvil's book, in Scotland it was asserted that the latter was copied from the Regiam Majestatem. 255 Though proceeding for a long time together, and in close resemblance with each other, and though England may have effected vast improvements, far surpassing any adopted by Scotland, yet something possessing a good deal of value too might have been preserved in Scotland, which was lost in England. With all my prepossessions in favour of the law of England, I cannot help thinking that Scotland may yet have retained some portions of the ancient system, common to both countries, which we have lost, and which it would be advantageous to restore. In both countries the constitution of the County Court was originally the same, and in both its jurisdiction appears to have been unlimited. The original County Court in England was that at which the Bishop and Earl, or Alderman, with the Viscount or Sheriff presided. In Scotland the Sheriff's Court took cognizance of the four pleas of the Crown, with the permission of the Justiciar; and in all civil suits the County Courts were of unlimited jurisdiction. The appointment to the office of Sheriff soon took a different turn in the two countries; the office of Sheriff, originally elective, was then made an appointment for years, and afterwards for life; it then came, in Scotland, to be conferred in fee—this led to heritable jurisdictions—the Earl became hereditary, and the Viscount, or Sheriff, a privileged individual well known to the laws of that country. It was not until lately, at the abolition of the heritable jurisdictions, that the County, or Sheriff's Court as it is called in Scotland, was put upon its present advantageous footing. The number of forfeitures in the rebellions of 1715 and in 1745 vested almost all those jurisdictions in the Crown. There are no heritable jurisdictions not open to serious objection, except, perhaps, the hereditary jurisdiction vested in the Peers of this realm of England, to which the objections made to other heritable jurisdictions do not apply. In the year 1746 an Act was passed abolishing all the heritable jurisdictions, and vesting all the shrievalties in the Crown; and the first step taken thereupon was to appoint Sheriffs Depute in each county. The persons appointed to that office were for the most part gentlemen of some professional standing at the Bar, and the Court over which they presided took cognizance of all matters to which a very extensive civil jurisdiction could be applied. Those 256 officers were paid a moderate, reasonable salary, and their appointment was attended with the best effects to the administration of justice in that country. I should be happy to witness a still further improvement; I should be glad to see the Sheriff Depute residing within his county, constantly holding his court himself, and not leaving it to be held by his substitute; and this is the system which I think, in its main principle, could be introduced into this country with the highest advantage. Those courts are found to have worked well in Scotland, and have afforded to the people a means of obtaining cheap and convenient justice. The Sheriff's Court in Scotland is competent to entertain nearly all ordinary causes of actions—all actions of debt to any amount—actions of damages on almost any cause of complaint—actions of defamation, assault, false imprisonment, malicious prosecutions, criminal conversation, trespass, trover, seduction, and almost all actions of tort. Now let us look to the working of this Court. During an average of three years—the years 1821, 2, and 3, there were 22,000 some odd hundred causes tried in the Sheriff's Courts in Scotland in each year, for the amount of 5l. and upwards—this was of course exclusive of such matters as had been tried before justices of the peace. Now, taking a comparative view of the wealth of England and Scotland, and assuming that the wealth of the one was between six and seven times as great as that of the other, we should, had we similar courts in England, have had between 120,000 and 130,000 causes tried in England in the same time. But that is a far greater number than the causes actually tried in England, for of the number of actions commenced, not one-eleventh are brought to trial—not, perhaps, 7,000 out of the 80,000 placed on the records of the court. Of the 22,000 causes brought before the sheriffs in Scotland, about 12,000 were disposed of without the defendant appearing, or were undefended causes, and about 10,000 were disposed of foro contentioso. From the decision of these courts there is an appeal to the Court of Session; but the number of appeals is small, being one in 117 of the actions commenced, and one in 53 of the actions brought to trial. The House will see, then, how much satisfaction this system gives in Scotland; and from that I think I may draw the conclu- 257 sion, not a fanciful one, that the only cases in which the decisions of the Sheriff's' Courts are not allowed to be final, are those in which the property involved is very considerable, or which give rise to difficult questions of law. The Sheriffs' Court I regard as one peculiarly well calculated to afford satisfaction to suitors; and to those who may be dissatisfied, there is always the appellate jurisdiction open; and to those who may have more difficult or complex questions to decide, and graver causes of action to bring forward, there will always be the superior court. The Sheriffs' Courts of Scotland appear, from the small number of appeals, to dispose in a manner perfectly satisfactory to the great mass of the inhabitants, of a great number of causes, and a great amount of property. In the district of Lanark, which includes Glasgow, one year with another, property to the amount of 50,000l. is adjudicated on, and taking this as one-sixth of the whole, we shall find that cases concerning property to the amount of 300,000l. are annually disposed of by the Sheriffs' Courts of Scotland. Considering the relative wealth of England and Scotland, it may be inferred, that similar courts, if established in England, would annually decide causes to ten times the amount or 3,000,000l. Have we then in all this nothing to induce us to recur to our old law—the English law, the Saxon law of our ancestors? Scotland has still kept it up, and has found it answer. I do not desire you to do the same merely because Scotland has clone so; but we have in this country grievous and crying mischiefs which the people of that country have not. Let us try if, by the adoption of that system, we may not, in some degree, remedy the evil of which we have so much reason to complain. Before coming to the proposition with which I mean to conclude, I shall briefly advert to the expense of the Sheriffs' Court in Scotland. On a claim of 12l., when there is no litigation, or what in this country would be called an undefended cause, the expense is 10s.; when the sum amounts to 25l. the cost is 15s.; when it amounts to 50l. the cost is little more than 15s.; and when it amounts to 100l. the cost is only 20s. There are cases concerning which there is no litigation—the causes are undefended—but even when there is litigation, the expense is trifling compared with what it is in this country. Even in a contested case, where 258 the matter in dispute amounts to 12l. if may be recovered for costs of 5l. taxed, and the party recovering is only put to an expense, or actual loss, of 5s.; when the amount is 50l. it may be recovered for 10l. or 12l. with a loss of 10s. or 12s.; and even on a debt of 100l. the costs would not be above 13l., which, on being-taxed, would not be reduced below 12l., so that the successful party would not lose more than 20s. Now with all my prejudices in favour of English judicial establishments, and the English system of jurisprudence, I must be allowed to say that I do envy Scotland the possession and enjoyment of that tribunal—that cheap and convenient justice; and cheap I may venture to call it, when 100l. can be recovered for an outlay of 13l., and an ultimate loss of 20s., when in this country 100l. can seldom be recovered without a man first incurring an expense far greater than it, and the ultimate sacrifice of half the sum. It now remains for us to consider how we can extend the County Courts to this country, and adapt that jurisdiction to the system of making the capital the source of general justice for the realm at large. I feel that I am trespassing much upon the indulgence of the House by thus entering into detail, and I should gladly avoid doing so if I could accomplish the object which I have in view without entering into those minute particulars. In considering how we may improve our County Courts, I must first observe, that it is the greatest possible error to imagine that inferior suitors ought to have inferior Judges; that when questions are to be decided respecting persons of superior rank, wealth, and intelligence, men of superior intellect and station should be provided for that purpose; that when a matter of 100l. or upwards is to be decided, a high and distinguished Judge should be employed for that purpose; but that in a matter only involving two, three, five, or six pounds, any thing will do for a judge; a Sheriff", or Sheriff-assessor, or whatever name he may bear, any one will answer to preside in a court for the decision of such petty concerns, whether he be a man qualified or unqualified—a man of sense or a man of no sense; for the poor man, it seems to be the opinion of the Legislature, that it does not signify what sort of judicature he has to decide his causes. To my mind no notions appear to be more crude than these. 40s. are of more im- 259 portance to him than the sum for which the great man litigates: and the poor man contests not only for the sake of the sum at issue, but that he may not be subject to wrong and oppression; and he feels that oppression the more grievous and intolerable, seeing that it is an evil reserved for the class to which he himself belongs. It is not always for the sum disputed that he goes to law; he proceeds in resistance of wrong and oppression, and he sues as readily for 2s. as for 40s. In this frame of mind, then, he goes away from court as much dissatisfied as the wealthier suitor who has lost 1,000l.; and, give me leave to say, he has a right to be dissatisfied, and his is a dissatisfaction which will not be appeased otherwise than by a full supply of that justice hitherto denied him. I know these judges in the Courts of Request do good—I say they do good by comparison, better something of justice than nothing—it may be slovenly justice, but so precious a thing is justice, that I should rather have even slovenly justice than the absolute, peremptory, and inflexible denial of all justice. It happens that tradesmen, who know nothing of law, and who may not have much occupation in their own business, preside in these Courts of Request, and administer justice as well as might be expected. I say it is better to have these courts and these judges than to have none. There are 240 of those Courts of Request, with jurisdiction of from 40s. to 5l.; but that is not enough—the system of cheap justice must be more widely extended. I shall now advert to another prevailing error—that which goes to recommend the use of a local appellate jurisdiction, which is, I think, open to this, among other objections—that it would lead to one system of law for one district, and a different system for another. I may here step aside to observe, that I wish the appellate jurisdiction received more attention in the quarter that ought to attend to it than I find it does; and while upon this subject, I cannot help expressing a desire, with reference to Colonial appeals, that there were upon the Privy Council some Judges, who, by their knowledge of, and residence in, the Colonies, have acquired some acquaintance with their laws and regulations, instead of that body knowing nothing, as at present, of the feelings of the people whence those appeals come. I have thrown out, in passing, these few observations on the nature of the appel- 260 late jurisdiction, and the evils which in it seem to me to require remedy, although that branch of the administration of justice is not immediately connected with the question before me. While, however, I am on that part of the subject, I may as well say a few words on the nature of the appellate jurisdiction, as it operates on our brethren of Scotland, who have, in my opinion, very great reason to complain of the practice which sends them, in all cases of the last resort, to the House of Lords in this country. I do think that the anomaly which this practice presents in the case of our brethren of Scotland—an anomaly which has existed ever since the Union, affords them very reasonable ground of complaint; and the patience with which they have borne the evil of being compelled to bring all their appeals in the last resort to this country, and very frequently before men who were not acquainted with the peculiar nature of the Scotch law, on which the decisions of the lower court were founded, has always appeared to me quite unaccountable. Our neighbours of Scotland seem to be well aware of the nature of their rights, and to be by no means unwilling to enter into litigation, as, indeed, all persons are bound and have a right to do, who feel that they are wronged; and I confess, I can only explain their patient endurance of the evil I have described, and which must be so great an obstacle to their attaining cheap and substantial justice, by supposing it to have been owing to a concurrence of accidental circumstances. In the first place, there were not many appeals immediately after the Union; and in the next place, there happened just subsequent to the time, when appeals began to increase, to be a succession of Lord Chancellors in this country, who, to the very highest fame as lawyers at the English Bar—who, to a reputation paramount above that of all their cotemporaries, and which at once pointed them out as the more fit to be raised to such an eminence—added that other—it appears a most essential—qualification, a thorough knowledge of the nature of the practice concerning Scotch appeals, from having been for many years of their lives employed in them as Advocates before their elevation to the Woolsack. First, there was Lord Hardwicke, who in addition to the highest qualification for the performance of the duties of Lord Chancellor as an English 261 lawyer, possessed the reputation of being thoroughly well acquainted with the law of Scotch appeals. Then there came Lord Mansfield, who, in addition to the highest name as a lawyer, was himself a Scotchman, and long employed as an advocate in Scotch appeals. Then there followed Lord Loughborough, who was also an eminent Scotch lawyer; and to these eminent men succeeded Lord Eldon—a man who, besides standing as high in reputation as an English lawyer as any judge since the times of Lord Coke himself; who, besides, I say, being marvellously-supereminently skilled in every branch of English law, added to his extraordinary acquirements, that of being prodigiously learned in every part of the law of Scotland, and had actually been employed for full fifteen years of his life in almost every appeal which was heard before the House of Lords. It is to a succession of these great men in England, as Lord Chancellors, that we are doubtless to look, when called on to account for the patience with which our brethren of Scotland have hitherto borne the inconvenience of the system of appeals. But if the time should ever come when a person should fill the situation of Judge in the last resort, who, to a moderate acquaintance with English law, gained his first knowledge of Scotch law from being called on to decide on the merits of an appeal from the decision of the courts of Scotland, then the anomaly would be seen in its full force; but the means of accounting for it would be gone. I cannot, indeed, avoid—let it give offence where it may—expressing my opinion on this occasion, that the nature of the arrangements, with respect to the disposal of Scotch appeals, is a subject infinitely worthy of the best, the most serious, and the earliest, consideration of his Majesty's Government. I have been somewhat drawn aside from the question before me by the observations I have felt it my duty to make on the nature of the appellate jurisdiction; but having said thus much, I shall now proceed to explain in what manner I propose to carry into execution the principles I have laid down, and to show how a tribunal may be constituted, through which the people of this country may be able to obtain that most desirable object, cheap justice, in the speediest manner, in a cause of a moderate amount. What I suggest then is, that 262 there be appointed in each county, or district, as the case may be, a lawyer of a certain number of years' standing, who is to be the Judge in the last instance, in causes under a certain sum, and in the first instance, under certain regulations, in causes above that sum. In the first case, I would enable this Judge in all cases when the sum in litigation is under 10l., to call the parties before him—to examine both the claimant as well as his adversary—to dispose of the claim—to give judgment—to award execution—and to specify the time when, and the amounts in which the instalments in furtherance of that execution are to be paid. Above the sum of 10l. I would give the parties power to go before the same Judge, who would be authorised to call on the adverse party to answer, both parties having power to employ professional assistance if thought necessary,—and to determine the matter in dispute by the examination of witnesses if he so think fit. I would limit the jurisdiction of the officer, or Judge I may call him, in this instance to the sum of 100l. in point of value, but I would not limit him with respect to the nature of the causes to be tried—for I would give him jurisdiction over all causes except those relating to freehold or copyhold property I would give him jurisdiction in all matters of tort, as well as of debts, but I would make his decision in these cases open to appeal; it should be final in all matters of less than 10l.—open to review in all causes from 10l. up to 100l. I now proceed to show in what way I think the appeal from such a court should be managed, and I cannot but think that it would be a great relief to the suitors if this appeal lay to the Judges on circuit, and not to the superior courts of Westminster Hall. There might, however, be good reasons in some cases for not bringing the appeal before a particular judge going circuit, and I should therefore remedy that inconvenience by allowing the option of an appeal to Westminster Hall, with certain restrictions only as to costs, I would allow, therefore, an appeal either to Westminster Hall, or to the Judges on circuit; but if the party carried the cause to the more distant and expensive tribunal, I would allow the opposing party double, or, in some cases, perhaps, treble costs. I think it right to add, for the satisfaction of those professional Gentlemen who may hear me, that 263 by these appeals—I mean motions for new trials in all cases where the Judge may have ruled a disputed point of law, or be supposed to have decided contrary to the evidence—in those cases I would allow a motion to be made to the Judge going the ensuing circuit for a new trial, notice being given to the other side that it is intended to make the motion, in order that he may be present at the Assizes, and have counsel ready to argue the case if he thinks fit. I do not mean that this is to be according to the practice usual in the Court of Common Law, in which the party, without notice to the other side, obtains a rule to show cause, and the matter is afterwards heard upon that rule being served on the other side, but I mean it to be according to the long established practice of the Equity Courts, where the notice is served before the hearing, and the Judge has an opportunity of knowing the whole merits of the case by hearing both parties on the first motion being made. I am now giving an outline of the measures which I think necessary to accomplish my object, but I have not yet mentioned the necessity of having recourse to Trial by Jury. Far be it. from me to say that there are not many cases in which the trial by jury might fairly be dispensed with; but when in connection with the question of trial by jury, the name of Mr. Jeremy Bentham is forced on my recollection—a man whose merit as a philosopher, and as a benefactor of mankind is above all praise—a man who has the transcendent merit—I say it without hesitation—of being the founder of all legal reform, and who must go down to future ages with the reputation of having been the only great and effectual purifier of our judicial system—when I pay to him the tribute of my admiration and my gratitude for the eminent services he has rendered to his country, and to mankind during the course of his long, laborious, and useful life—I retract no praise, I qualify no admiration, when I say, in connection with this subject, that. I am far from agreeing with him in the whole of those reforms which he has at various times proposed. I differ from him in degree—he going much further in some instances than I am disposed to go; and I differ from him also in the kind of reform which he proposes—but in nothing more than in that which he suggests with respect to trial by jury. I do not mean to say that he is an enemy to trial 264 by jury, but I think he undervalues its importance in cases to which I believe it to be peculiarly applicable. On all points where conflicting testimony is produced—whenever many witnesses are examined—whenever a great variety of documentary and parole testimony has been produced—whenever the circumstances of the case are such, that no direct testimony can be brought forward to show on which side lies the truth—I say, then, that in these, and in all the variety of cases connected with them, trial by jury is of incalculable value in ascertaining to which party belongs the right in dispensing rigid and impartial justice. And I contend that there were never any means so perfectly well fitted to that end as the assembling twelve men of various habits—of different degrees of experience—of different kinds of feeling—of different forms of understanding, and bringing them all to bear upon the same case; and make their minds, however differently constituted, weigh the nature of the evidence brought before them. It may seem a little paradoxical; but it is true, that the making their concurrence compulsory has always appeared to me to be one of not the least important of the peculiar advantages of this method of trial. If the question before a jury were once allowed to be decided by a majority, then the result would be, that those who were anxious to get through the business would commence disturbing the deliberations of the others by just some such cries of "Question" as we sometimes hear impatiently urged in more polished and intellectual assemblies, and there would be no possibility of any question being thoroughly and fairly discussed. It may seem paradoxical, but I repeat that this kind of compulsory unanimity has always appeared to me to be a very great advantage. F have already said that I would give the tribunal I propose to erect power over all civil actions under 100l.; and among these I would have all actions for assault, for false imprisonment, and all cases of injury to property, all cases in which damages were to be assessed, all cases of tort, as well as debt decided by a jury; but there are cases in which I think that form of trial might be dispensed with; and I trust, if the plan I propose be not carried into full effect at once, that at all events I shall have the satisfaction of seeing an experiment take place in some parts of the country; and I can have no doubt that the 265 effect will then be such as to lead to its universal adoption. I must say, however, that I have found it extremely difficult to determine what cases should or should not be left for trial by jury; not for want of attention—for I have long and frequently deliberated upon the subject—but I confess I am unable to specify precisely what cases should or should not be tried by a jury. In all cases under 10l. I think it may be left to the Judge immediately to say whether or not the case shall go before a jury. All cases above 10l. I propose to leave in some measure dependent on circumstances. The pleadings in a cause will now, by the suggestion of the Law Commissioners, be brought within a moderate compass. They will now, as of old, tell the very story of the plaintiff and of the defendant. They will tell what the cause is which is to be tried. The defendant will know what the plaintiff demands from him, and the plaintiff will know what is the real defence to the action. The commissioners, in their second Report, have recommended various alterations in the pleadings, and I have no doubt, that by the adoption of others better fitted to the local judicature, all difficulties in that way might be done away with. With the case then clearly stated in the pleadings, I apprehend there can be no difficulty in a Judge being able to say at once that this is a case that ought not to go to a jury: "I can decide it without their assistance" I would, however—although I permit the Judge to make this declaration—impose a restraint upon its exercise. If the Judge says there is no necessity for a reference to a jury, and if the parties themselves are willing to admit that it should not be referred to a jury, then I say no mischief can be done by allowing the Judge and the parties to dispose of the case in a manner which may seem most agreeable to them. Having now stated the kinds of action which I would allow to be brought in these courts, and having stated the nature of the judicature which I think Parliament are bound to give their sanction to, for the attainment of that most desirable object—the speedy, cheap, and convenient administration of justice—I now come to that upon which I shall be expected to say a few words; namely, the expense attendant on the system I would wish to introduce. That this Judge or Officer must be a man of skill, learned in the law, and of weight in 266 his profession is beyond all doubt; and I think, therefore, it will be admitted that he ought to have a salary adequate to the rank he may hold. For this salary I am also ready to admit he should work constantly: the sittings should be at least once in the month, for ten months in the year. Six of these sittings should take-place in the principal town in the county, and two in each of the two principal towns in the county, so that he may be able to carry redress to every man's door; and so that those who are situated in remote parts of the district may, twice a year at least, have an opportunity of bringing their cases before a competent tribunal, without going far from their own homes. In Ireland, the Assistant Barristers, a class of Judges instituted in 1796, and found of essential service to the country, and in Scotland the Sheriff Courts, have long acted without the intervention of a jury, on a principle resembling that which I now wish to introduce; and although I have not heard that any inconvenience has resulted from the practice, even when the sum in dispute has frequently amounted to 20l. or 30l., yet I think it more eligible to have the benefit of a jury when it is considered desirable. I have said that the parties are to be at liberty to move for a new trial before the Judge on circuit. I think it necessary that the minor Judge should attend on such occasions; and that he should therefore be in the Commission of Assize. Sitting with the Judge, reading his report of the trial, when the point reserved comes to be considered, it must be highly advantageous to have his assistance in the course of the argument. That he should have no voice in the decision, experience and reason combine to satisfy us. I say it without prejudice to any of the judges, that though it has proved very convenient, when motions for new trials are considered, that the Judge who tried the cause should be present, yet the fact of that Judge having a voice in the decision, and sitting therefore to support it, although it may be erroneous (Judges sometimes are wrong) sitting, therefore, I say, to support his own opinion, to bolster up error, and to back the prejudices which he may have conceived at the trial, I know that it has operated injuriously, and does frequently lead to misdecision; and I have myself frequently witnessed cases in which I was morally certain the decision would have been different if the cause in which the 267 application was made had come out of a court in which one of the Judges then sitting to hear the appeal had not presided. I repeat, therefore, that it is not consistent with experience to allow the new Judge to have a voice, although his presence may be of advantage; and I apprehend that these appeals, even when not carried into execution, will have an excellent effect in superintending, as it were, the whole administration of the law; and that they will have the effect of preserving the same law throughout the country, and avoiding those differences which might grow up, and which might give us one law here, and another there, if there were not some general tribunals to regulate the differences of opinion. I come now to the expense which must be incurred by this system. That these Judges must have competent salaries will be admitted, and that their court must possess an officer somewhat in the character of a registrar, an assistant-clerk, and one or two ushers, cannot well be denied, because, if we create these courts at all, we must do it in such a manner as to render them competent to the end proposed. Looking, therefore, at the expense in the most economical point of view, I think 1,500l. a-year would not be too much for the salary of such an officer. That he must be a man of eminence in his profession is. plain; and so far from thinking that sum too large, I have some doubt whether it is not too little. Taking the whole expense of the whole of those courts on such a scale, and including all the necessary officers, I think it will amount to something about 120,000l. or 130,000l. a-year for the whole kingdom. Let those who consider this sum to be large, look to the amount which France pays for a cheap and convenient administration of justice. In France there are between 3,500 and 4,000 local magistrates scattered over the country, called Juges de paix, whose duty it is to decide on cases to the amount of 100 francs, which is about 4l. sterling, but looking to the difference in the value of money in the two countries, it may, perhaps, be more fairly estimated at double the amount. For this portion of the administration of justice, France pays the sum of 121,000l. sterling yearly. After these come the Courts of Premiere Instance, of which there are between three and four hundred for Arrondissements. The Judges of these amount to 1,600, and 268 they are supported at an expense of 125,000l. a-year. Then follow the Courts of Appeal, which cost 70,000l. a-year; and lastly, there is the Cour de Cassation, being the court of ultimate appeal, the expense of which is 25,000l. a-year. The whole civil administration of justice in France, costs, therefore, something above 300,000l. a-year: the whole civil and criminal cost 525,000l. a-year. But again, considering the difference in the value of money and cheap living in the two countries, this may be reckoned at something not much short of 800,000l. a-year of our money. That France has thought unwisely,—that there is any price too high—any sum too great to be paid for a speedy and effectual administration of justice—and that we can possibly grudge 130,000l. or 150,000l. a year for the same inestimable advantage, I shall never believe until I am taught it by a vote of this House. Why, the 150,000l., if it amounted to so much, really would not amount to one three-weeks of the extra expenditure of the last year of the late war.—I do not mean the ordinary expenses of the country, or the interest of the debt, or any other of the settled burthens—nor do I mean to say that we spent only 50,000l. a-week during that period of the war; what I say is, that we spent a sum in any three weeks of the last year of the war sufficient to have purchased in perpetuity the whole annuity required now for a cheap, speedy, and certain administration of justice. I do not mean to say that the functions of these officers are to be wholly confined to litigious cases. I conceive they can be employed with great effect as arbitrators, and that many causes can, by their assistance, be settled out of court, without the necessity of a trial. If it be allowed that the Judge appointed has merit enough to deserve the confidence of the Government, and therefore possesses the character of an able lawyer and upright man, then it must be admitted that he is as competent to decide between parties as an arbitrator, as any person who could be chosen. What would be so likely to satisfy parties disposed to enter into litigation, as that the same persons who were qualified to sit as Judges in their cause, should be empowered and prepared to act as arbitrators between them? Sir, there is still another subject on which I wish to say a few words; but as I am unwilling to trespass longer 269 on the patience of the House, I will merely treat it generally and cursorily, I allude to Courts of Conciliation. The advantage which must result from an impartial man, deserving of consideration, talking a matter over calmly and privately with litigant parties; to tell a plaintiff that it was foolish for him to proceed, for that it was clear he must lose his cause—or tell a defendant that it was foolish for him to continue his defence, as he must be saddled with costs, must, it would appear, be occasionally attended with the greatest advantages. It is indeed the line which a good, a faithful counsel always takes when he is called upon for advice. Nevertheless, the fact is, that in several cases the experiment has failed. It has failed wherever the resort to Conciliation Courts has been compulsory. In France it has signally failed. M. Levasseur, a distinguished French writer on legal subjects, has stated in his Manuel that the cases of reference to a court of conciliation, in which the differences between parties have been amicably settled, were always extremely rare, and that of late years those courts have become a dead letter. In the Netherlands and in Holland the same thing has been experienced; so much so, that it is not intended to renew those courts in the remoulding of the tribunals of those countries, which is at present going on. I understand, however, that in Sweden the result of the establishment of courts of conciliation has been more favourable. In Denmark the advantages have been greater than any where else; and there I understand it is left optional with the parties, whether or not they will settle their cause by conciliation. In Switzerland, from which country I have the most authentic information, the experience of two districts has been different. In the one, in which it has been compulsory on contending parties to go in the first instance before the court of conciliation, and to receive the advice of the Judges of that court, being prevented from commencing an action in a court of law without the previous possession of a certificate of non-conciliation from the first court, the cases of benefit have been few. But in Geneva, where the resort to the court of conciliation is more of an optional nature, I find from returns which I have received for three years—1825, 1826, end 1827—that from one-third to one- 270 fourth of the whole of the actions brought into the court of conciliation have terminated either by withdrawing the proceedings or by the conciliation of the parties. I do not exactly know what proportion the one of those modes of termination has borne to the other; but I imagine that they are nearly equal, and consequently, that from a seventh to an eighth of the cases brought into the court of conciliation, at Geneva, has been settled by the conciliation of the parties: but then it is if the parties please to bring them. It is not compulsory on either party to do so. When, however, the cases do come before the court of conciliation, the result has been that which I have described. Such being the fact, I have a right to maintain that this is no impracticable measure; I have a right to maintain, that the suggestion to establish similar courts in this country is a suggestion founded on the success of those courts elsewhere. I propose, therefore, to add to the functions of the new Judge the power to call the parties, if he please, before him,—that is, if one party be desirous, and the other has no objection,—that he, as a Judge of conciliation, should be empowered to hear and determine the matter. I will tell the House why I regard this measure, which is founded on sure and practical experience, as desirable. Why is it that we frequently find a man go into a court of justice with a case which turns out to be wholly unsupportable?—Because he has, more or less, been misled by advice: not frequently by his banister; not frequently by having received from his counsel an opinion, that an action is maintainable which is not maintainable. God forbid that I should suppose any such thing. I well know that a counsel is more apt to dissuade from litigation than to encourage it; that he is disposed rather to throw cold water upon a litigious disposition—to express doubts, where there seems the slightest foundation for them. This I well know to be the common course of the profession, in at least ninety-nine cases out of a hundred. I need hardly say, that it is the course adopted by all respectable men; I need hardly say, that where it is not adopted, the man is not respectable. But, Sir, great as is my leaning towards the profession of the law—highly as I estimate the honour, the integrity, and the other valuable qualities of the great mass of its members—sincerely as I believe that in- 271 stances of a departure from just principle are exceedingly rare among them, I will not say that there are no such departures even in that branch of the profession to which I have the honour to belong. I will not say that it is absolutely impossible to find a man at the Bar who may occasionally give an opinion, the effect of which is to encourage his client to proceed, when he ought to give an opinion, the effect of which would be to discourage him. Still less will I say, Sir, that there may not be found men in the other branches of the profession who will go to such a man to get that identical opinion; and who, if they do not succeed in getting it, will substitute an opinion of their own, and tell their client he is sure to gain, what they ought to know, and what they do know, he is sure to lose. This I know, that men come every day to consult counsel, and that when those counsel have heard their case, they lift up their hands and eyes, and wonder who could have advised them to go to law. It does happen in some instances that parts of a case are kept back from a counsel. Now, in all cases, the man who is the most ignorant of the chances of success or failure is the unfortunate client, who it is not surprising, therefore, is sometimes enticed to go on by those who should put him upon his guard, and is dragged, or to speak more accurately, is coaxed into a court, until he finds too late that he has been deceived. The men who deceive their clients ignorantly and unwittingly are, perhaps, not a few; the men who deceive their clients wilfully and knowingly are, I hope, very few. But my respect for those branches of the profession which comprehend solicitors and attornies, any more than my respect for my own branch of the profession, will not allow me to deny that cases are frequent where an attorney will draw his client on to a desperate and uncertain litigation, and also frequent where an attorney will involve his client in a suit which he well knows he must lose. In such cases, if the client could only be seen and talked to by men of knowledge, integrity, and station, apart from his attorney; and if he could be told that his case either was one of a desperate character, or was one in which he must be inevitably defeated, I am persuaded that the utter ruin of the client would often be averted. This, Sir, is an opinion founded on reason, and founded also upon observation and experience. I am con- 272 vinced that the appointment of persons of great knowledge and integrity, to whom such a reference could be made, would be attended with the most beneficial consequences. I am convinced that the appointment of local Judges, for this and the other purposes which I before described, would give cheap justice to the whole country. Whether or not my opinion on that subject will be the opinion of those whose opinion is most influential in this House I do not know; but this I know, that they who reject my proposition are imperatively called upon, by the state of existing circumstances, to point out some other proposition, the adoption of which may be productive of equal benefits. I care not for the names of institutions; nothing is so useless, or indeed absurd, as to preserve the name of an institution when its substance has disappeared. Let them, therefore, call their proposed institution by what, name they will—let them arrange the details of that institution as they will—that it is imperative upon them to propose something—that the circumstances of the present time are so exigent, that we can no longer go on without an extensive amelioration of our legal system—are facts, of the reality of which I am not less persuaded than I am of my own existence, or that I stand here addressing the House of Commons. Sir, the people have a right to this amelioration—they are crying out, they are impatient for it. It is for want of it that they distrust the intentions of Government; it is for want of it that they distrust those who are desirous of introducing other descriptions of reform. Sir, I have heard it said, when any one has raised his voice against abuses, that he was clamouring against our existing establishments; that he was attacking our venerable institutions; that he was endeavouring to subvert the ancient law of the land: but I clamour against neither, I only join with the general voice in clamouring against an enormous abuse. And, Sir, that where there is abuse there ought to be clamour; that voices ought to be raised where grievances prevail, is a principle for which I have no less an authority than that of Mr. Burke—no friend of popular commotion, no inciter of popular delusion, no hot-headed and visionary reformer, no impugner of the wisdom of our ancestors, no foe to established institutions. Mr. Burke has said, in words that deserve to be inscribed in letters of gold, 273 over the door of every legislative assembly—"Where there is abuse there ought to be clamour. It is better to have our slumbers broken by the fire-bell, than to perish in flames in our beds." Sir, in my attempts to produce some beneficial change in these matters, I have been exposed to two classes of antagonist objectors. By the one who have no objection to clamour I have been told, that the reform I propose is insufficient, unavailing—that it is merely a mock reform. From others I learn, that what I propose is rashly dangerous, that I am reckless of consequences, that I shall risk institutions which are the objects of the attachment and veneration of all good men. I deny both the one and the other of these imputations. As on the one hand I have no intention to confine myself to a nominal reform, so on the other hand, I am satisfied that what I do propose will not endanger any thing which deserves to be preserved. I disregard the condemnation of those who do not know my motives; but, above all, I disregard the base slanders of others, some of whom, I will venture to say, are perfectly conscious of the falsehood of the charges which they launch against me. Because I have not proceeded more rapidly in the course which I have prescribed to myself, because I have not proceeded in it hastily, because I have not proceeded in it rashly, I have lived to see myself charged with being engaged in a secret and corrupt league with those who are fattening by the abuses which I am anxious to abate; and engaged in it from the desire of promotion!I have been so charged! I!—I!—who had refused the very highest judicial stations, and refused them because of my principles—I! who at the very moment when these infamous slanders were propagating upon political and public principle, far more than upon personal considerations, was taking effectual steps to prevent the renewal of such offers. But did I regard the slander? Was I silenced by it? Did it make me change colour? Did it make me falter in my course?—Not I indeed—False honour charms, and lying slander scares,Whom? but the false and faulty.It has been the lot of all men, in all ages, and all countries, who have aspired to honour by endeavouring to instruct or benefit mankind, to have their path beset by real adversaries or false friends. By the one no quarter is shown them; by the other no kind or charitable construction 274 is put on their actions. They are placed in this dilemma, if safe and prudent, they are held up to ridicule as feeble and insincere—if bold and firm, to execration as rash. But truth will survive when calumny has had its day. For my own part, I have regarded with equal indifference the censures of those who have thought me too hot and rash, and of those who have thought me too cold and slow. I acknowledge the great truth—"Woe unto you when all men shall speak well of you." Whether, however, I may be considered too timid or too adventurous, I shall go steadily forward, pursuing the principles which have been laid down for us by those who have gone before us, and who have left us their example and their success; the one for our imitation, the other for our encouragement; in the hope that I may be eventually able to establish the system of local jurisdiction, that is of cheap and speedy justice, from which I expect benefits so unspeakably valuable to the country. I now move, Sir, for leave to bring in a Bill to establish Local Jurisdictions in certain districts in England.
The Attorney General
said, he did not rise to oppose his hon. and learned friend's Motion, but to make a few observations on what had fallen from him in the course of his able and eloquent speech. In the first place, he begged to disclaim any participation in the charges which his hon. and learned friend stated had been brought against him for the course which he had thought proper to pursue. Though he was not aware that any such reproaches had been cast on his hon. and learned friend, he was sure that no man in the House was less deserving of them, or more deserving the gratitude of the country, on account of his zeal and discretion in promoting reform, than his hon. and learned friend. The House would not expect that he should follow his hon. and learned friend into the ample field which he had entered on the present occasion, more particularly as he did not come prepared, by the terms of the notice, to hear so profound and learned a discussion. The proposition submitted to the House appeared to him very important, and he thought it was due, both to the subject and, to his hon. and learned friend, to allow him to introduce his Bill. His hon. and learned friend's object appeared to be, not to alter, but to add to the Constitution; and to add to it by re- 275 viving ancient institutions, which ancient institutions his hon. and learned friend considered indispensable to meet the exigency of the present times. In all that his hon. and learned friend had stated respecting the history of Sheriffs' Courts, he entirely concurred. He went further than his hon. and learned friend, however, and would advert to the courts which were held by Lords of Manors. In fact, in remote periods, the whole face of the country seemed to have been divided into small local jurisdictions. Was it not probable, however, from their discontinuance, that they were found to be less advantageous than his hon. and learned friend supposed? Was it not probable that these petty local jurisdictions were found to be beset with inconveniences and prejudices? Would it not be very difficult to obtain, in such limited districts, either impartial juries or impartial judges; advantages which our present system secured to us? The more uniform our law was, undoubtedly the better. He was far from saying that much was not wanted to meet some of the cases to which his hon. and learned friend had adverted. He was a warm advocate for new tribunals, if necessary, or for an amendment of the old, in order to uphold the cheapest and most efficient administration of justice. Some years ago he had himself brought in a bill which met with the approbation of his noble friend opposite (Lord Althorp), who had distinguished himself so highly on subjects of this nature; and of his right hon. friend near him (Mr. Peel), and which had passed that House—for placing the County Courts of the County Palatine of Lancaster on an improved footing; and for facilitating the administration of justice in them. At that time he had stated, that if the bill were adopted, and proved salutary, it might be made a model for amending the County Courts throughout the kingdom. The proposition of his hon. and learned friend, therefore, though of great importance, was not altogether novel. In many of the principles which had been laid down by his hon. and learned friend, he entirely concurred, and in none more cordially than in his adherence to Trial by Jury. Whatever philosophers might say, he trusted the people of England would never depart from that institution. It was the best tribunal ever devised for determining on litigated facts, and awarding 276 compensation for injuries; it placed the powers of administering justice in the hands of the people, and to part with it would be the first step towards the abandonment of all their civil and political privileges. How were local jurisdictions to be reconciled with having impartial juries? He did not make this remark as an objection to his hon. and learned friend's Bill, but to call his attention to the difficulty of applying it, consistently with the preservation of Trial by Jury. So far from his being influenced in his remarks by any fear of subverting ancient institutions, he should be ready to concur in whatever he could find of real and practical benefit in the proposals; and he was equally as far as his hon. friend from any disposition to yield to any clamour that might be raised on the subject. He however maintained, that the possession of a thing, until it was found inconvenient, was itself an advantage, and change, for the mere purpose or sake of change, was never to be desired. To seek practical good without the least regard to those who cried out against a subversion of ancient institutions, and against change, was his own fixed determination. In the state in which the House was, he could not be expected to follow his hon. friend through his laborious, long, and meditated discussion. Suffice it to say, that he rose to support the proposition, at least as far as respected an examination into the measure.
Mr. Cutlar Fergusson
said, that his hon. and learned friend had prefaced his admirable address by an apology to those who had acted with so much credit to themselves in the commission of law inquiry, and stated, that he had taken up this subject because they had not touched upon the points which formed the main subject of his address. It was not competent for them to enter into the subject of any new courts, but to examine into the old; their attention being solely confined to measures for improving the practice of the superior courts of law. In their second Report those learned persons had made several suggestions for improving the practice in the common-law courts, to which, if the learned Gentleman opposite (the Attorney General) would turn his attention, he would find that they would tend much to render the practice in those courts more efficient, and less expensive than at present. He concurred with the 277 learned Gentleman as to the general principle of the measure which he proposed to introduce. The proposition was, not to supersede the jurisdiction of the superior courts, but to devise a means to administer more readily justice to the people. The poor had a right to have their questions litigated before the same learning and the same ability as the rich; and it was, therefore proposed, that a Judge should be appointed in every county, perfectly capable of deciding, by his habits and his learning, the various causes which might be brought before him, with benefit and satisfaction to the public. There never had been, in any country, so equitable an institution as the Sheriffs' Courts in Scotland. The only fault now to be found with them was, that they had adopted the machinery which encumbered the Court of Session itself. With one proposition of his hon. and learned friend he could not agree. Part of his plan was, that the Sheriff should be obliged to reside within the county. If this were to be enacted, the House had discussed with little advantage the question of Welsh Jurisdiction, where the objection was, that the Judges officiated where they acted on circuit as Barristers, and where they were necessarily intimate with certain persons, and in some measure dependent on them for employment. The less the Judges resided in the county where they dispensed justice the better. He conceived that the Judge who should be appointed to each particular court which it was proposed to establish, should not have his business confined to it, but he should be permitted to attend to the business that was done, and the precedents which occurred from day to day, in the superior courts, in order that he might shape his judgments according to them. If that were not the case, they would see Judges deciding differently, and putting forth contradictory precedents, because they had no means of knowing what was decided from day to day in the courts at Westminster Hall. The hon. Gentleman proceeded to advert to the observations which had fallen from Mr. Brougham, as to the manner in which appeals from the decisions in the courts in Scotland were decided in the House of Lords. There never had existed, he said, a court of appeal in any country where the men who had to pronounce judgment in the last resort, were without any knowledge of the law on which they bad to de- 278 cide. The Peers and the Privy Council took upon themselves to decide upon questions of which they knew nothing, and which had been previously decided by persons fully competent to the decision. The Privy Council, he knew, had in ten or fifteen minutes reversed the decisions of Judges who were at least as learned as any of the members of the Privy Council, and who had only pronounced a judgment after deep research and long deliberation. He had known cases remitted back to India, at a vast expense, which had previously been decided by Judges conversant with the law, in conformity to all precedents, and which, in the opinion of every lawyer acquainted with India, ought never to have been sent back. This was a subject of great importance, and in his opinion, the tribunals of the last resort required great amendment. Cases of appeal should not be decided by the Lord Chancellor, with the assistance of two Lords, who took the case in rotation, hearing on one day the proceedings, whilst other Judges heard them on the next; thus leaving the case to be decided by rotatory Judges, not one of whom heard the whole case through. There could not be a more able judge than the nobleman who now held the Seals; but there ought to be associated with him, in cases of appeal, some persons who understood the law of Scotland. He had known the unanimous decision of all the Judges of the Court of Session to be overruled by two or three Peers, and overruled by an appeal to the law of England, which was totally dissimilar to the law of Scotland. He was determined to bring this subject before the House, on some favourable occasion, by a special motion. He was ready to acknowledge, that the right hon. Gentleman opposite (Mr. Peel), had not only done good positively by his measures, but relatively, by affording support to the Law Reforms proposed by others. Twenty years ago, any Gentleman who had proposed such alterations of the law as had lately been effected, would have been stigmatised as a Jacobin. Until the right hon. Gentleman was in office, the country had heard nothing but that the laws of England were the envy and admiration of the world; and yet, in all the reform propositions of the right hon. Gentleman, he came forward to show the opprobrium of the law, which, instead of being the envy, was the ridicule, not only of nations, but 279 of all foreign jurists, and of all persons capable of forming an opinion. There could be no better method of improving it than that of bringing justice to the doors of the people, and he was disposed to let the Local Courts take cognizance of cases to the extent of 100l. He should certainly, therefore, give his cordial support to the Motion.
Mr. Secretary Peel
only wished to address a few words to the House upon the main subject under consideration. It could not be necessary for him to say that it was not his intention to offer any impediment to the introduction of the Bill proposed, for he had placed on record his concurrence in so much of the principle and detail of the proposition, that it was quite impossible for him to dissent from the Motion, though the hon. and learned Gentleman's plan differed in some respects from the considerations he had submitted to the House. The hon. and learned Gentleman went farther than he had been disposed to go, but both measures were based on the same principle; and in the principle of the proposition he cordially concurred. The time had arrived when it was desirable to facilitate the recovery of small debts, and bring justice in this respect as near as possible to the homes of the people. Expenses should be lessened, and he felt no objection to the establishment of Local Courts. He was aware of the objections which applied to exclusive and corporate jurisdictions, but it would be very easy to establish Local Courts to execute the general law of the land, and to steer clear of the evils which applied to local jurisdictions guided by local rules. Much had been said with reference to the inexpediency of cheap justice. If by cheap justice they were to understand bad justice, he acknowledged that nothing could be a greater evil than to make that cheap; but the introduction of cheap and good justice was not open to the objections by which cheap and bad justice might be assailed. He was well aware that it was desirable to keep down a litigious spirit amongst the population, but there was much less evil in that, than in a total denial of justice, for the purpose of preventing such a spirit. It was difficult to define what was a litigious spirit. The sums trifling to one man might be important to another, and he who appealed for the recovery of his wages, the amount of which might appear to some of little concern, might feel the loss of seven 280 or ten shillings more severely than those who legislated might feel the loss of 100l. There was as much reason to facilitate the recovery of a just debt of a few shillings as of 100l. It was a grievous injury to the poor, if they could not recover small stuns on account of the expenses of the suit; and to measures for facilitating the recovery of such sums, he was decidedly a friend. He would tell the House what was worse than a spirit of litigation; it was that spirit of discontent which was engendered by being told that the injured had no protection, and no alternative but an acquiescence in injustice. He hoped he might be allowed to refer to the bill for the Recovery of Small Debts which he had introduced last Session. It was entitled "A Bill for the more easy Recovery of Small Debts in England and Wales, and for the establishment of Local Jurisdictions for that purpose." Although his bill did not go to an equal extent with the Bill now proposed to be introduced, yet there was not a single clause of it that might not be inserted in the Bill of the hon. and learned Gentleman, consistently with the principles of his speech that evening. He (Mr. Peel)' took no credit to himself for introducing that bill, for the merit of it was entirely due to the noble Lord opposite (Lord Althorp), and it was only because the bill could not be brought forward with sufficient advantage by any but an official person, that the noble Lord had delivered over to him the task of proceeding with the measure. He would beg leave to mention a few of the details of his bill, to show how far they agreed with those of the hon. and learned Gentleman. He would first say, that he had a great objection to the establishment of new tribunals, if the purposes for which they were intended could be accomplished by improving the old tribunals already in existence, and making them more conformable to the spirit of the times and the wants of the country. If, in such a case, it were possible so to improve the old tribunals as to meet the ends which the House had in view, it would have all the advantages attendant upon them which were derived from prescription and name. There already existed in this country an institution called the County Court, which was capable of answering many of the objects of the new tribunal. He would propose to improve that court by giving to it a more extensive jurisdiction, and with that view, all that his 281 bill intended was to increase the powers and jurisdiction of the County Court. The names of these courts were familiar to the people of this country, and would claim for them a greater influence than if the House were to establish new tribunals. If, moreover, County Courts were not specially abolished, they would continue in existence, and there would be two separate jurisdictions. All his bill had proposed to effect was, to increase the amount of causes in the County Courts from 2l. to 10l. He agreed with the learned and hon. Member in excluding from the County Courts all cognizance of cases of freehold. The County Courts were held at fixed periods, and he had specified the smallest number of Sessions which should be held; but with reference to the extent of different counties, there was a great difficulty in introducing any general measure which would suit the circumstances of all counties, and therefore he had given the Quarter Session the power of dividing large counties into different districts, and of specifying where County Courts should be held. The magistrates of the Quarter Sessions could require the Judges of the County Courts to hold their Sessions more or less frequently, if they thought that necessary. He had allowed by his bill parties having cause of action above 10l. to waive their right to the surplus, and to proceed in the County Courts for the remainder. He had proposed that both plaintiff and defendant should be examined in open court, and no objection should be made to a witness on the ground of incompetency, leaving his credibility to be judged of by the jury. He had required the Trial by Jury, but he doubted much the necessity of unanimity in their decisions in these courts. He believed that persons in the County Courts at present acting as jurors, decided cases without coming to a unanimous decision. The question then was, whether the majority of the jury should not, in the proposed measure be made capable of deciding whatever case was brought before them. This was a question for future and grave consideration. If unanimity were to be required on the part of the jury, the right of challenging them should then be allowed, and that was a machinery of rather a cumbrous nature, which he thought it would be well to exclude from such courts. He (Mr. Peel) also proposed to give this court the power to order the defendant, in case the 282 suit was decided against him, to pay the amount awarded, if the court should so think fit, by instalments. He did not propose that in a case where an honest defendant was anxious and willing to pay out of the earnings of his labour, that he should be driven at once to execution, but he would afford him time to satisfy the demand awarded against him. Another provision he had made was, that in no case should the remedy lie against the person, but against his property, and he proposed that execution against the property should issue in whatever county it might be situated. Nothing could be more simple than the process by which these provisions were to be carried into effect. [Here the right hon. Gentleman read from the draft of his bill the wording of the plea, which was confined simply to the cause of action, the defendant being limited to a denial of the debt, or a proof of payment.] The fees of Court were limited by a table in the Appendix, and a debt of 10l. could be recovered, so far as the Court was concerned, for the expense of 4s. or 5s. The expenses of witnesses it was impossible to regulate by any such means, and they would remain the same as at present. The greatest difficulty had been, to deal with the courts of exclusive jurisdiction in corporate towns. He had not abolished these, but he had given to the County Courts a concurrent jurisdiction, being perfectly sure that the cheaper and better process in the new courts, would induce all persons to resort to them, and that the exclusive courts would die out. of themselves. The greatest remaining difficulty was, who should be the Judges, and from whom the appointment should proceed; for objections had been made to increasing the patronage of the Crown. If the residence of the Judges within their counties were a sine qua non, the appointments would be objects of local patronage: but if resident, a lower salary would tempt them to accept office; and the whole object might be effected at a smaller sum than had been imagined, and certainly at much less than 130,000l. a year. It was not necessary that the expense should altogether fall upon the Consolidated Fund; for the fees, though not taken by the Judges, would form a fund, out of which their salaries might be paid. As to the tenure of office, the question was, whether the Judge should be a local barrister or not? If he were a practising barrister, his practice in 283 the superior courts would give him a knowledge of the daily progress of the law, which is improved as science advances; and to make him acquainted with every improvement must be esteemed a great advantage. Besides, his residence in that seat of law from which its ramifications, as the hon. and learned Gentleman had truly stated, extended to all parts of the empire, must also be considered as a circumstance which would entitle him to greater weight in the court in which he presided, than he could otherwise hope to possess. He thought he had now said enough to show that degree of concurrence in the proposition of the hon. and learned Gentleman, which would naturally preclude him from any other course than that of voting for his Bill. He trusted he might be allowed to consider himself the associate of the hon. and learned Gentleman in these reforms, and he accordingly most cheerfully offered him his assistance; and if the hon. and learned Gentleman's Bill were such as would enable him to dispense with his own, he would most heartily rejoice in such a conclusion of his labours.
§ Lord Althorp
remarked, that the difficulty attending his hon. and learned friend's proposition was peculiarly this, that a Judge ought always to act in the face of a large and intelligent bar; for thus was a pure and correct administration of justice best secured to the suitors in a court. The suggestion of an appeal to the Assizes, from the decision of this local Judge, was different from any he had ever heard, and he thought it presented many advantages. It was not an expensive appeal; it was within the reach of any of the suitors; and the consciousness that his decisions might be examined and revised by the Judge of Assize, was likely to exercise a salutary influence upon the local Magistrate. It would prevent partiality, and even the suspicion of partiality, from the Judge being in the neighbourhood, and removed all the objections which had been made to the plan, from its analogy to the Welsh system. He was of opinion that this Judge ought decidedly to be a practising barrister; and he thought, that the disadvantages which might result from any diminution of practice would be recompenced by the reporting of cases to the superior courts, by which his knowledge of the law, as it actually stood, would be always kept alive. For these various reasons, he trusted the 284 objections offered to his hon. and learned friend's measure, would not be found insurmountable. There was another point of the plan, which, in his mind, was of great advantage—namely, the establishment of Courts of Conciliation, in which the Judge was to act as arbitrator. From his own experience of the duties of a Justice of Peace, he could undertake to say, that infinite good might be done by this Judge's delivering those opinions, which might prevent people from proceeding with their quarrels at a great expense. And he thought, that if such a measure could be introduced into the Session Courts, it would be attended with the greatest advantages.
The Solicitor General
acknowledged, that the evils arising from a variety of practice would be mitigated, by an appeal to the superior courts; but in most advantages there was some corresponding evil; and here if was evident that the poor suitor would not be able to prosecute his appeal, and therefore, that the administration of justice would not be altogether equal. He had already expressed his opinion against Local Courts, and he saw no reason to change it; still he had no objection to these Local Courts for the recovery of small debts. But then, as under all circumstances, the jurisdiction must be local, and therefore the Judge would be resident. Now this would at once let them into many difficulties. The Judge could not be a practising barrister, because, if he attended to his judicial duties, his practice must dwindle away; and if the contrary, his judicial duties must be neglected. In the next place, it was to be considered, that this officer would, if he might be allowed the expression, degenerate from year to year. And with respect to the appeal to the Judge of Assize, with whom he was to sit during the hearing, he thought nothing could be more objectionable, because nothing could more strongly tend to lower this local Judge in his own opinion, or in that of the persons amongst whom he administered justice. For suppose that any unfortunate gentleman, acting in this capacity, had fallen into errors, and that his hon. and learned friend were the superior Judge to explain to him what the law of the case was, in what a pitiable situation would not this local dignitary be? As to the amount of salary, he was of opinion it could not be less than 1,500l. a year; for if this Judge 285 were not a man capable of deciding important cases, he would be utterly useless; and a gentleman of such capabilities could not be expected to abandon his practice for a small consideration. He next contended, that a local Judge was objectionable, because it was impossible, from the fact of his residence, and from the habits of society he must form, that he could escape the charge of partiality, however unjust it might be, when the interests of opposing parties happened to be compromised. He also objected to his acting as arbitrator, because, after having given parties in this character an advice respecting the point of law which they were not bound to pursue, in what situation would he afterwards find himself, when this very case was brought before him? Would he not be actually a legislating party? Besides, he never knew a case in which an arbitrator gave satisfaction, since he was always rather disposed to cut the knot than to unravel it. And again, it was to be remembered, that he could do no good unless the parties altogether unlocked their bosoms to him; under which circumstances the future Judge would know too much. And lastly, it was to be considered, that acting as an arbitrator was likely to damage a man's judicial mind. In answer to the hon. and learned Gentleman, who had stated that the administration of justice by the Privy Council was a mockery, he observed that the Master of the Rolls attended at the sittings of this body, and that during the time of Sir William Grant, their decisions had excited the admiration of the empire. If, however, a better system could be devised for regulating the judicial concerns of the Colonies, he had no objection to receive it, but he decidedly objected to the application of such terms, when they were entirely undeserved.
explained, that he had a high sense of the talents of many of the Judges who sat in the Privy Council, but he thought it was a mockery when men professed to decide according to a law of which they were ignorant.
§ Mr. O'Connell
said, it was late, but as the subject was one of vital importance, he trusted he might be allowed to offer a few observations to the House. The alterations proposed by the hon. and learned Member were of undoubted utility. Their object was, to bring home justice to the door of every man in the country. 286 Locality of jurisdiction ought to be sought for by every body. The Judges of these local Courts ought to unite the powers of arbitrators and conciliators with their judicial authority. In his opinion, these Judges ought not to be practising barristers. The great objection to the local Judges in Ireland was, that they were practising barristers; and he thought it was unfit that men should be as Judges deciding on causes one day, and the next taking fees as advocates. He thought that was a bad principle, and ought to be avoided. The right hon. Gentleman opposite had spoken of the necessity of Judges residing in the metropolis, in order to keep up their knowledge of the laws. If there was any such necessity, it resulted from the want of a fixed code of laws. From the variableness of our present system of laws, our Judges were like a fashionable lady, and were obliged to study from day to day the varying changes of the mode. We had nothing but Judge-made law, and it was therefore never fixed in its principles. It was certainly a miserable thing that law should shift and alter in such a manner; but that it would always do unless we had a code. It was the glory of Bentham that he had been the first and the constant advocate of a code. The hon. and learned Gentleman had praised Mr. Bentham; but even his eloquence failed in conveying the praise that was justly due to that great philosopher. Besides, he had only praised Bentham for the machinery with which he proposed to carry on the system of law, and that was among the least of his great merits; for no alteration in the machinery of the laws would cure the evils now existing, without the making of a code. He agreed in the propriety of doing away with all objections to the competency of witnesses, and leaving only those to their credit; for objections to competency always prevented the decision of a case on its merits. What was it but these technicalities that prevented men of common sense from conducting their own cases, and compelled them to apply to those conjurors of the law, who, by a constant acquaintance with the magic of its forms, were enabled, if not to get them over its difficulties, to put 10,000l. or 20,000l. a year in their own pockets. To pretend to make law reforms, and not to make a code, was like leaving out the part of Hamlet, "by particular desire." The improve- 287 ments made in the law by the right hon. Gentleman opposite were themselves so many parts of a code. His principles were clear and plain; and it was only to be wished, that he could persuade his colleagues to bear him through all the alterations he must find it desirable to make.
§ Mr. C. Wynn
approved of many of the principles laid down by the hon. and learned Mover, but could not entirely agree with all his suggestions. Much had already been done, and more might be effected; but every thing could not be gained now and at once. The right hon. Gentleman, the Secretary for the Home Department, to whom he was happy to have that opportunity of expressing his obligations, was the first Minister of this country who had opened this career of improvement, and he trusted it would be followed until the whole body of the law was reviewed, and all necessary and proper alterations made in it. That was the only method of legal reform our institutions would permit. They could not be changed at once, but must be modified in detail as necessity required. The hon. and learned member for Clare had complained of what he called the constant alteration of the Judge-made law, but no codification could prevent that evil; for though the clearest rules might be laid down, it was impossible to make them applicable to every case that might arise. Their application must depend too on the individuals who administered the law. That was shewn to be the case in France.
§ Mr. C. Wynn
answered, that there was a code, but it did not meet, and it was impossible to make a code to meet every case. He was opposed to the establishment of local tribunals, for he feared the operation of partialities and prejudices on the minds of the Judges who must compose such tribunals; besides which, the want of emulation would operate powerfully upon them, for whether one of these Judges did well or ill he was not capable of advancement, and the system would not produce any eminent men.
in reply, said, that many of the observations which had been addressed to the House upon the difficulties 288 of his plans were entitled to considerable attention. Many things had been suggested as objections which he had before considered, and the result had been, that in some instances he conceived he could propose amendments which would obviate the difficulties, while in others he admitted he had not satisfied himself that he had any sufficient remedy, and indeed, he feared that he had but a choice of evils. One difficulty was the residence of the local Judges. That gravelled him the most of all. At one time the appointment of the Judges troubled him much. His difficulty was in vesting so large a patronage in the hands of the Executive Government; but the benefits of the measure he proposed were so great as to outweigh or over-balance the disadvantages of such an increase of patronage. As to the other point, he confessed he had but a choice of evils. The Judges must reside on the spot, but there were one or two circumstances that mitigated the effect of the evils of such a residence. They would not have to decide on causes arising among the society in which they moved. They would not have to try the validity of wills—they would not have to decide on great questions between persons whom they met in society;—they would only decide on horse-causes, petty assaults, and cases of common slander. The disputes between landlord and tenant would be under their jurisdiction, and this class of cases would certainly be an exception. In this respect, as in others, it might become a choice of evils; but he was not sure that the benefits of the plan could be at all counterpoised by its disadvantages. Something had been said of the Sheriff's Courts in Scotland, and Gentlemen might, perhaps, fancy that the evils which were sometimes said to result from the constitution of these courts would arise from the courts he proposed; but he thought the different manner in which they were to be formed would obviate that objection. The source of the inconvenience in Scotland was easily explained. The Sheriff-depute was generally a barrister of some eminence, or a person of some distinction in society, while the Sheriff-substitute, who decided the case in the first instance, was generally a writer, living on the spot. From his decisions an appeal lay to the Sheriff-depute, and all the arguments, and pleadings, and depositions of the witnesses being in writing, whenever a decision was appealed from, 289 these voluminous papers had to be transmitted to Edinburgh, where the Sheriff-depute generally resided, by the coach or the waggon. There being no person to overlook the Sheriff-depute, he not examining the appeal in any open and public court, it sometimes happened that he did not read over the depositions with the greatest care. In fact, he sometimes did not read them at all, being in general, content to affirm his substitute's decision. It appeared, in fact, from an extensive examination, that only one case out of 117 was reversed. Some anecdotes which he had heard on this subject might be worthy of the attention of the House, particularly as he could mention them without any allusion to the names of the parties. To one Sheriff-depute a whole bundle of papers was transmitted at one time, being twenty or thirty processes, the accumulation of a month or six weeks' trials; and he affirmed even' decision. The mode of doing that was, to write the word "Adhere" on the back of the decision, meaning that he adhered to the judgment of his substitute. But it so happened, that in one of the cases remitted to him, no decision had been given; and in this instance, the same principle was followed as in the other instances; and the word "Adhere," written on the back, plainly proved that the Judge to whom the appeal was made had not taken the trouble to inquire what the appeal was about; for in this case, there was no decision to adhere to. On another occasion a rose was placed within the folds of the papers in such a manner that they could not be opened without shaking it to pieces; but when they were returned, with the usual word written on them, it was found that the rose leaves had never been ruffled. Such things were much talked of in Scotland, and deserved consideration; but it would be obvious to the House, that in the courts he proposed, no such occurrences could take place. The appeal lay to a Judge of Assize, and must be made by viva voce pleadings in open court. He would not enter further into the objections which had been started, as there would be future opportunities for him to explain his objects more fully, and meet the statements of those who might be disposed to object to the Bill.
§ Leave given to bring in a Bill to establish Local Judicatures in certain cases in England.