Mr. Secretary Peelrose to make the Motion of which he had given notice respecting the Reform of the Courts of Law. Before he proceeded, he begged that so much of the Royal Speech at the opening of the Session as related to the measures for the improvements of the Courts of Law might be now read.
The Clerk of the House then read as follows:—"His Majesty commands us to acquaint you that his attention has been of late earnestly directed to various important considerations connected with improvements in the general Administration of the Law. His Majesty has directed that measures shall be submitted for your deliberation of which some are calculated, in the opinion of his Majesty, to facilitate and expedite the course of Justice in different parts of the United Kingdom; and others appear to be necessary preliminaries to a revision of the practice and proceedings of the Superior Courts. We are commanded to assure you that his Majesty feels confident that you will give your best attention and assistance to subjects of such deep and lasting concern to the well-being of his people." The right hon. Gentleman then proceeded to say, that in moving, pursuant to notice, for leave to bring in a Bill for ascertaining the Fees and Emoluments of Officers in the Courts of Common Law, he thought it might be convenient and advantageous to the House that, at an early period of the Session, he should avail himself of an opportunity of presenting to it a general outline of the measures connected with the improvements in the Administration of the Law referred to in his Majesty's gracious Speech from the Throne at the commencement of the present Session. He was quite aware that each of these measures would require a separate and deliberate consideration, but still he considered it of importance, that previously to entering upon the separate consideration of each of them, the House should be in possession of the views and objects of his Majesty's Government in a connected form, for the purpose of enabling it to form a judgment with respect to the 651 general scope and tendency of the proposed measures. He was convinced that his Majesty's confidence in the House, (which he had graciously expressed in his Speech from the Throne), and his reliance upon the disposition of the House to lend every attention and assistance in the progress of these measures, had not been misplaced, and would not be disappointed. He was himself confident, whatever shades of difference might exist in the opinions entertained by Members of that House upon political questions, however different their views as to the precise extent of the distress mentioned in the Speech from the Throne, and which was unfortunately more or less prevalent throughout the country—whatever difference might exist on the subject of our foreign or domestic policy, he was confident, however, the attention of the House might be occasionally occupied with these considerations, that hon. Members would not be so exclusively engaged in them as to allow such matters to withdraw their attention from the perhaps less interesting und animating discussion of legal improvements, which were, however, far from being of slight consequence to the permanent welfare of the country. He alluded to the intended measures for the improvement of the general Administration of Justice. He felt confident that Members would indulge him and favour him with their attention while he stated the general outline of these measures. He had no doubt that they would make allowances for his want of professional education and professional experience, a circumstance that might render some of his explanations less intelligible than they would otherwise be upon such a subject. He was also satisfied that the House would take into account the necessary occupation of his time in other matters, which the peculiar duties of his office rendered still more pressing than the present subject, (important as it was) and that they would overlook any errors or oversights which he might commit. The technical details of the subject he left to the discussion of others who were better qualified than he was, by their habits and education, to deal with them; but he considered it to be a part of his duty to present to the House, in a popular form, the great and general principles of the improvements to be proposed, so as to render them intelligible to others who, like himself, did not 652 possess the advantage of professional knowledge and experience. The House was aware that, some short time since, his Majesty, in compliance with an Address of the House, had appointed two Commissions of Inquiry—the one for the purpose of inquiring into the practice and proceedings of the superior Courts of Common Law—the other to inquire into the state of the law relative to real property. He must give credit to the hon. and learned Gentleman opposite for a great share in the appointment of those commissions which he had suggested in the able, learned, and comprehensive speech delivered by him in the Session before last, upon the subject of Legal Reforms. Though there was a qualification of the proposal with which that speech concluded in the course subsequently taken, it was apparent that the object of the speech was the appointment of Commissions of inquiry into the state of the law, with a view to its improvement. The House was aware that reports had been made by each of those Commissions, which in each case did the highest credit to the views of the Gentlemen who composed them, and to the mode in which they proceeded to fulfil their duties and accomplish the intentions for which they had been appointed. With respect to the report of the Common Law Commissioners, it embraced several matters of the highest importance to the due administration of Justice and to the despatch of business in the Superior Courts of Common Law, and the increased activity of those Courts. The second report of the Common Law Commissioners would be presented to his Majesty in a few days. It was a report embracing objects of much higher consideration and importance than the first. From the communications he had had with the Commissioners of Inquiry into the practice of the Common Law he could inform the House, that the second report, which he trusted shortly to have it in his power to lay before the House, would embrace—First, the expediency of investing the Superior Courts with new powers of a summary and equitable kind, calculated to economise time and money in legal proceedings, and prevent the too frequent resort to the aid of Courts of Equity. The second point adverted to by the Commissioners was a subject of great importance —it referred to the verification of written documents before trial. The 653 third recommendation related to compulsory arbitration in matters of accounts. The fourth to an abridgment and simplification of the obsolete and useless forms of pleading. There were also other matters introduced in the forthcoming report, which were of scarcely less importance to the due administration of the law, but he had mentioned these, deeming them of the highest consequence. The Commissioners appointed to inquire into the state of the Law of Real Property had also made one report, and he trusted he should be able to announce at an early period the production of another in continuation of their labours upon that important subject. With respect to both Commissions, every Member, who had turned his attention to the subject, would freely and readily admit the great importance of our being enabled to consider the whole question of legal reform simultaneously and in a systematic manner. We ought not to attempt partial reforms, but endeavour to effect a general improvement in the practice and administration of the law. The whole subject of the law, the subjects of inquiry before each Commission, were so intimately connected and interwoven together, that until we were in possession of the entire views of the Commissioners in relation to them, it would be desirable to postpone partial reforms in the law, and wait till we had the whole question fairly before us. Perhaps there were parts of the system, which, under circumstances of peculiar urgency, we might venture to touch; but, generally speaking, the whole was so interwoven, the several branches of inquiry were so closely connected, and the inconvenience of partial legislation was so great, that he fully concurred with the Commissioners in deprecating the adoption of partial and isolated measures, and in waiting till we could deal with the whole subject at' once. He must advert to another Commission that had been recently appointed, not in consequence of an Address to the Crown, but directly on behalf of his Majesty; it was instituted for the purpose of inquiry into the present state of our Ecclesiastical Law, with a view to revising the proceedings had in suits in the Ecclesiastical Courts from the commencement of a suit till its close. So much for what he might call the preliminary proceedings that had been adopted for the furtherance of legal reform. He purposed, at a future period, to present 654 to the Legislature the views and opinions of the Commissioners—the results of the inquiries of those intelligent, disinterested, and dispassionate men, on the subject of the Superior Courts—of the Laws of Real Property—and of the practice and proceedings of the Ecclesiastical Courts. The immediate object of the Bill which he was then about to ask leave to introduce was, to facilitate the future promotion of legal improvement—to lay the ground-work of reform in the practice and proceedings of our Courts. Its principle would be to regulate the appropriation of fees now received by individuals holding patent offices for life, or a specific term of years. His experience of legal reforms had satisfied him that the existence of patent offices formed one of the greatest obstacles to improvements in the law. It therefore became absolutely necessary to look at the whole question, and devise a measure by means of which the establishment of vested interests in Courts of Justice should be brought to an end. In almost every attempt to introduce partial reforms in the law, we were met by vested interests, which impeded our operations. The usual course in such cases was to provide the means of compensation for the holders of patent offices; having enacted the abolition of their fees, we ascertained their value, and gave the parties a claim on the consolidated fund for their amount. But it frequently happened that the effect of taking away the fees of one officer in a Court was directly and materially to increase the fees receivable by another officer; and when, at a subsequent period, we came to deal with the interests of the second officer, a claim was raised for compensation, not only to the amount of the original value of the office, but to the extent of the increased profits which he had derived in consequence of the previous reform. He feared that this had been the case more particularly in Ireland, in consequence of the adoption of partial measures of reform. The public had thus been exposed to considerable inconvenience and great pecuniary loss. He was therefore for looking all at once at the whole question of vested interests, with a view to provide a mode by which, without any act of individual injustice, officers should in future hold all legal situations of a subordinate nature in dependence upon those by whom they were appointed, so as to enable Parliament to proceed to 655 legal reforms and alterations, without giving to individuals who might be affected by them a claim to compensation. The immediate object of the Bill he meant to introduce would be to provide, in the first instance, that no officer who should be appointed after an early day, to be named, should have any claim to compensation, on the ground of proceedings in Parliament to alter or amend the practice in Courts of Justice. As for existing vested interests, he proposed to provide for them in the following manner. He proposed, that Commissioners (say those already appointed, in order to save expense) should be empowered to institute inquiries to enable them to ascertain what had been the amount of fees received in a given number of years by the several patent officers in Courts of Justice, and by those possessed of vested interests in legal offices, either for life or a term of years. He would confine the inquiry to the amount of legal fees (without committing himself to matters of detail) which had been received for the last ten years, believing that to be the fairest period upon which to take an average: for if we took a shorter period—say one of seven years —the increase which took place in some species of fees in 1825, in consequence of changes then made, would swell the average beyond what it ought to be. Having ascertained the amount of legal fees accruing to the holders of patent offices within the last ten years, he proposed, in future, to have all such fees received on the public account, and that those individuals having a vested interest in the offices from which they arose should be paid respectively according to the average of their receipts for ten years. When we came to the consideration of alterations in the practice and proceedings of our law Courts, we might see whether the amount of fees now receivable might not be materially reduced in several branches of those proceedings. Still it would be open to Parliament to decide whether it would be expedient, in consideration of the fees now paid, to provide a fund sufficient for the compensation of persons who possessed vested interests in offices—that would be a subject for after consideration. At present he merely proposed that the fees in question should be received on the public account, and that they should constitute a fund for the payment of the officers in the manner sug- 656 gested. He saw no reason for imagining that such a fund would not be sufficient to discharge the claims of these individuals, estimated upon an average of ten years. In 1828 the number of causes tried in the Superior Courts considerably exceeded the average of the preceding-five years, from 1823 to 1827, both inclusive; so that there was a probability of an increase rather than a decrease of fees. The question of fees once set at rest, Parliament would be at liberty to deal with every question of legal reform in future according to its own merits, without being influenced by other considerations. He had brought in a Bill to facilitate the recovery of Small Debts, by improving the mode of process in County Courts and reducing the charges upon legal proceedings for the recovery of such debts. That was a measure which he considered one of very great importance; but it became necessary to investigate the situation of certain officers, whose interests would have been injured by the operation of the Bill, and he was afraid to provide a compensation for these parties, lest, by so doing, he should increase the profits of others, and so throw an impediment in the way of future reforms by affording such individuals grounds for claiming additional compensation upon another occasion. Among the measures which it appeared to him possible to adopt, without waiting for the period of full and final reform, was one which at a former period had excited much attention in the House, and in those parts of the country to be immediately affected by it—he alluded to the proposed abolition of the separate and local jurisdiction in Wales, and the assimilation of the jurisprudence of that country with the legal practice and proceedings of the English Courts. He was satisfied that those Gentlemen who felt most desirous of upholding the independence and dignity of Wales would enter upon this consideration calmly and dispassionately, for the purpose of discovering whether the time had not arrived when, for the accomplishment of the great object of assimilating the legal jurisdiction of the two countries, and for the interest of Wales as well as England, the English system might safely be introduced into Wales. There were four separate and independent jurisdictions in Wales, and eight Judges to administer justice, who enjoyed judicial offices, which might be held 657 in conjunction with a scat in that House, and who were further enabled to practise as barristers in this country. It was also the custom that the Welsh Judges should be attached permanently to one circuit, instead of varying the places of administering justice, as in England. He was aware that at present there was only one Welsh Judge who occupied a seat in Parliament, and he was also aware that it would be impossible to name any one who possessed more honourable or independent feelings than that Gentleman, but at the same time he thought, generally speaking, that it would tend greatly to the maintenance of the dignity of the judicial station, if our salutary, wise, and prudent distinctions between the political and judicial character were adopted with respect to the Welsh Judges. It would also be a great improvement in the jurisdiction of Wales to prevent the same Judge from going permanently and invariably the same small circuit. He had the highest degree of confidence in the honour and integrity of the Welsh Judges, but it was impossible for any gentleman to avoid forming local and personal connexions when he was in the habit of going the same circuit for several years: sure he was that such local and personal connexions would not be allowed by these gentlemen to act on their conduct or character unfavourably to the due administration of justice, but the House might depend upon it, that it was not enough that the administration of justice should be merely impartial—it was important to prevent the existence of any impression to the contrary—it was important to establish a conviction in the public mind that no personal motives could by possibility influence a Judge in the discharge of his duty. He therefore thought that it would be of the greatest advantage to Wales, and to the general administration of justice throughout the country, that the judicial institutions of Wales should be placed upon the same footing as those of England [hear.] Heretofore there was a question whether the legal proceedings of Wales were not more economical in some respects than ours. Doubts had been entertained on the subject; and it was said that there existed in Wales a form of action more economical than existed in this country. If there were, we could have no difficulty in adopting it [hear], provided the change seemed advantageous. If there were any process, by which, following the 658 example of Wales, we could expedite and cheapen justice, there could not be a fitter consideration than that relative to its adoption—we need not deprive Wales of any advantages which she enjoyed at present, at the same time that we conferred additional benefits upon her. The whole object of the Law Commissioners was to curtail every merely formal proceeding, every practice which was obsolete, antiquated and purely technical, and not necessary to the right administration of justice. The extension of similar advantages to Wales would hardly be objected to. There was another point to which he wished to refer: on account of the present augmented state of business in the Courts of Common Law, it was his decided opinion (adopted upon considerations wholly apart from the situation of Wales), that it was necessary to add to the number of Judges in the Superior Courts, with a view to prevent the continuance of the present arrear of business. The Commissioners proposed not to add to the number of Judges who sat together in banco in each Court, the present number of four appearing to afford great advantages over every other number that could be adopted; because, in a court where the majority was to decide, there could be no better majority than that of three to one. They had also considered the inconvenience which would result from multiplying the number of the Judges in the same tribunal, and it was not their wish to make the number of Judges five. In proposing, therefore, to add one Judge, they did not intend to add to the number sitting in banco, but to make him sit as a Judge by himself, who should preside over the trial of such matters as might be committed to one Judge. But if, on grounds apart from the administration of justice in Wales, an addition was made to the Judges, the House would be in a condition to consider whether, when a part of the Judges were unoccupied, the eight Welsh Judges should be retained. To retain both would be to entail a great expense upon the country, on the supposition that the increased number of Judges could perform the Welsh business. These two considerations, therefore, must be combined. If it could be shown that the Judges could perform the Welsh business, then, no doubt, considerations of economy were in favour of such an arrangement. The salaries of the eight Welsh Judges were 9,800l. Looking towards the assi- 659 milation of the jurisprudence of Wales to that of England, in the last appointments to Welsh judgeships, it had been notified to the individuals nominated, that they would have no claim to compensation in the event of the Legislature revising or abolishing the offices they held. By this means there would be an ultimate saving of 9,800l. a year to the country, and, to Wales, an ultimate saving of the four separate judicial establishments attached to each circuit. The saving thus effected would very nearly provide for the salaries of the new Judges who would be appointed, if the House should agree to the proposition which would be made on that subject. Again, in that spirit of economy in which he trusted the House would give the Ministry the credit of looking at this, as well as at every other subject that came before them, they had adverted to the act by which the salaries of the Judges had been raised to 5,500l. They had taken into their consideration the objections which had been urged against that statute, considering that it was perfectly open to public men to review and to reconsider any measure, whatever part they might have taken in it. The result of their consideration was this—that a salary of 5,000l. for all Judges hereafter to be appointed would be quite enough to provide for the maintenance of the dignity of the office, and apportion the salary to the retiring allowance. It was the intention of his Majesty's Government therefore to bring in a Bill which would fix the salaries in future at 5,000l. a-year. He mentioned this circumstance only for the purpose of showing that there was no unwillingness on the part of the Government to assign due weight to all practicable propositions for reduction. And now, as he was upon the subject of the administration of justice, he might, perhaps, be allowed to avail himself of the opportunity of calling the attention of the House to a matter which was not immediately connected with the Bill which he was then moving for leave to bring in. With the permission of the House he would state the amendments which it was proposed to make in the Criminal Law. This subject had now for some years occupied the attention of the House. In 1825, an Act passed, the object of which was to consolidate the laws relating to criminal offences. This Act, among other things, removed many technical difficulties, re- 660 gulated the expense of prosecutions, as well as rewards for the apprehension of offenders, and it regulated the proceedings in estreating recognizances. This was followed by four other Acts. The first abolished what was called "benefit of clergy," and certain other forms, and provided that a pardon under the sign-manual should have the same effect as a pardon under the Great Seal. The next consolidated the laws relating to burglaries, to embezzlement, and to other criminal acts against property. The third consolidated and amended the Acts relating to malicious injuries to property, and regulated actions brought against the hundred. The fourth related to offences against the person. Thus considerable progress was made in the amendment of our criminal jurisprudence. By the Acts which he had introduced, he had the satisfaction of stating, that no less than two hundred and seventy-eight Acts had been repealed, and that all the provisions of these two hundred and seventy-eight Acts worth retaining had been included in eight Acts. He thought he might say that, practically, no inconvenience had resulted from the repeal of these two hundred and seventy-eight Acts, and the substitution of the eight in their place. In the present Session he hoped, with the assistance of his right hon. friend, the Master of the Mint, to introduce a Bill which would consolidate and amend the laws relating to the Coin of the realm, in which it was his intention to propose the removal of the penalties of high treason from the offence of coining. He should also introduce a Bill consolidating and amending the laws relative to the office of Justice of the Peace; and a Bill to consolidate and amend the laws relating to Forgery. If these Bills should meet with the approbation of the Legislature, and pass into laws, he thought that he should not be overrating the progress that had been made in the amendment of our jurisprudence, when he said that nine-tenths of the cases which came before the Courts would have been brought within the laws consolidated since 1825. There was only one other subject to which he was anxious to call the attention of the House. It related to another part of the kingdom. The House would recollect that, in the last Session of Parliament, a measure was proposed which had for its object to increase the salaries of the Scotch Judges. 661 At that time it was impossible not to perceive that it was the general wish of the House that the consideration of the subject should be postponed. There appeared to be an impression that other measures relative to the jurisprudence of Scotland were called for; that such measures ought to be speedily brought forward, and that they should be disposed of before any steps were taken to increase the Salaries of the Judges in Scotland. Since the period at which that debate had taken place, much of the time and attention of the Government had been devoted to a general review of the Scotch jurisprudence; and he trusted that he—or, he should rather say, his learned friend, the Lord Advocate—would be able, in the present Session, to propose measures which would materially improve the administration of justice in that country. It was their opinion, an opinion which had met with the concurrence of the highest legal authorities, that the time was now arrived at which the Jury Courts should be abolished, and trial by jury, in Civil cases, transferred to the Court of Session. In proposing the transfer of Jury Trials to the Court of Session, the object was to facilitate the adoption, and to secure the maintenance of trial by jury. The time must come at which trial by jury must be ingrafted on the administration of justice in Scotland, and, in their opinion, the present was the best time. The jury system had been tried now for fifteen years in that country, under the Chief Commissioner of the Jury Court, and, so far as he could form an opinion on the subject, he thought that great advantages had resulted to Scotland from that mode of trial. On the abolition of the Jury Court, the present Chief Commissioner would be entitled to a large proportion of his salary, as a retiring pension; and they proposed, therefore, to retain his services, by transferring him to the Court of Session, to give his assistance in Civil trials. The next alteration they proposed to make was, to abolish the separate jurisdiction of the Admiralty Court in Scotland. They proposed to transfer to the Court of Session all the Civil part, and to the Justiciary Court all the Criminal part of the jurisdiction at present exercised by the Admiralty Court. They thought that the Sheriffs might perform all the duties of the Admiralty 662 Court, and that by these arrangements no inconvenience could possibly result from the abolition of this Court. They also proposed to alter the Consistorial Court. The proposition was, to reduce the number of Judges in that Court from four to one, and to send the original jurisdiction, now exercised by that Court, in cases of legitimacy, marriage, and divorce, to the Court of Session. By these alterations in the Admiralty Court and the Consistorial Court, it would be seen that the business of the Court of Session must be considerably increased. In the Court of Exchequer, too, alterations would be proposed. They should propose that the number of Barons in that Court be reduced by two. They thought it in the highest degree desirable to retain that Court, not only in conformity with the articles of the Union, but in consequence of its acknowledged utility; but, at the same time, they were of opinion that two Judges, instead of four, would be quite sufficient to transact the business of the Court. From these reductions it would be seen, that ultimately a very considerable saving would be effected, and yet he hoped that the reductions would not stop at this point. Notwithstanding the vast increase of business which would be thrown upon the Court of Session, in consequence of these alterations, he hoped—but he would not pledge himself on this point— he hoped that they should be able to effect a reduction in the number of the Judges of this Court. He hoped that they should be able to reduce the number of the Lords of Ordinary from seven to five. He trusted, therefore, that in consequence of these reforms and reductions, the House would not oppose the proposal for an increase in the salaries of the Scotch Judges, since he apprehended that the effect of the meditated alterations would be a saving to the country of many thousand pounds. He must also add, that he trusted he should be enabled to reduce the number of principal clerks in the Court of Session by two. He believed that he had now presented to the House in a general manner all the subjects which at a future period would be submitted to them in detail. He had purposely abstained from entering into detail on the present occasion. Avoiding all technical expressions, he had endeavoured to offer a popular view of these matters, and to give such an outline of the proposed 663 alterations as would be intelligible to those who had not had a professional education. The time would of course come at which all the proposed measures must be discussed separately and in detail. He trusted he had said enough to show that the Government had considered these subjects solely with a view of making the administration of justice equal, impartial, expeditious, and as little expensive as possible. [hear] Whatever might be our attachment to the free institutions of the country, sure he was, that there was no part of those institutions more intimately connected with the comfort and happiness of Englishmen than that which enabled individuals to protect the rights which belonged to them, and to obtain redress for the infliction of wrongs. The earnest desire of the Government was to secure comfort and happiness to individuals, and prosperity to the country; and when they approached the administration of justice in the country, with the view of amending it, he thought they could not give greater evidence of the sincerity of that desire, than by making justice as cheap and as expeditious as possible. He had now only to move "for leave to bring in a Bill for regulating the Payment of Fees to Officers in the Superior Courts of Common Law."
Mr. Broughamexpressed his satisfaction at what had fallen from the right hon. Gentleman, and agreed that the present was not the fit opportunity for discussing in detail the matters to which the right hon. Gentleman had alluded. He thought it right that the proceedings should commence by such a Motion as the right hon. Gentleman had just made, because the evil of fees was at the root. In many instances, the cutting down of the emoluments of larger offices had been attended by this consequence, namely, throwing inordinate increase into the emoluments of lower offices. In this way, some of the very reforms, which had had reduction for their object had in reality produced increased salaries. With respect to the other parts of the right hon. Gentleman's speech, if he should have occasion to differ from him on a future occasion, it would only be, because he thought the right hon. Gentleman did not go far enough. As to the Welsh jurisdiction, when the time was come it must be put an end to. To the abolition of it there were two objections—the first was, that 664 there would be an increase of expense; the second was that there were some peculiar advantages in the system. Now, to the first the answer was ready. The right hon. Gentleman proposed to reduce the salaries of the Puisne Judges by 500l. a year. This reduction, there being nine Puisne Judges, would amount to 4,500l. Add to this the salaries of the Welsh Judges, namely 9,800l., and they would have ultimately a saving of 14,300l. a year, exclusive of what would be saved in the salaries of clerks, prothonotaries, and so forth. He thought therefore, that the right hon. Gentleman had completely met this objection. The other objection was answered without difficulty. If there were, which he must be allowed to doubt, any peculiar advantages attaching to the Welsh system, there could be no reason why Wales should have the monopoly of them. Let them be extended to the whole country, and Wales would have no reason to complain. Thus much, if such advantages did really appertain to the Welsh system; if there existed no such advantages, there was an end of the question; and in either case, therefore the second objection fell to the ground. But there was one light in which it was very important that this question should be viewed. Pf they abolished the eight Welsh Judges, and substituted for them two or three Puisne Judges, see the vast difference in point of patronage. Did the Government receive equal patronage for that with which they parted? Was the appointment of two or three Puisne Judges equal to the giving away eight places to persons who might be, and some of whom were, Members of Parliament, but who, above all, might be chosen for qualities other than those which fitted men for the bench? In the appointment of the Judges of Westminster-hall, he had never had any fear of the Ministry; no, not even those Ministers upon whom he had looked with the most deeply-rooted distrust; because he did not believe that any Minister would dare to face in Parliament the representatives of a watchful people, after having jobbed in the appointment of Judges. He would not, however, say so much of the appointment of Welsh Judges, for to such appointments the eyes of the country were not directed in the same way, and Welsh Judges, therefore, might be ill-selected, and improperly chosen. He thought, therefore, that this patronage was dangerous in the extreme. 665 In Westminster-hall, the men who were Judges must be such as the community and the profession pronounced to be fit for the office; but a Welsh Judge might be a man of whom neither the profession nor the community knew any thing, and who might be indebted for his promotion to family connexions, or to something else rather than the qualities which fitted men for the bench. This, then, he repeated, was a dangerous though a valuable patronage. Moreover, it tended more or less to diminish the independence of the bar. Men there were in Westminster-hall who, in the hope or expectation of a Welsh judgeship, were led, not to the expression of opinions which they did not hold, but to the suppression of opinions which they did hold. For the purity, therefore, of the administration of justice, for the sake of the independence of that class of men out of which the Judges must come, and for political reasons of no small importance, he could not help regarding this subject as one of the highest concern. The next point of the right hon. Gentleman's speech was that which related to Scotland. He could not help thanking the right hon. Gentleman for the reductions he proposed, though, in his opinion, they might be carried further. When the comparatively small bar of Scotland was compared with that of England, and when the amount of the legal business of the two countries was contrasted, was it not strange that Scotland should have twenty, and England only twelve Judges? The necessary consequence of such a system was, that the salary of a Judge in Scotland was less than an advocate in extensive practice could afford to take. If the House were of the same opinion, the obvious course would be to reduce the number of Judges, and to make the salary of those that remained such as would induce persons of skill and reputation to take upon them the judicial office. He thought, that by the reduction proposed, and the consequent saving to the country, the right hon. Gentleman had made out a very strong case for the increase of the Judges' salaries. He agreed with the right hon. Gentleman that every possible means should be taken to uphold the trial by jury in Scotland. For this purpose, nothing could be of greater importance than to consider the constitution of the Courts. He meant to impute nothing to the 666 Judges, nor, indeed, to any one else, when he said that they had come but slowly in to the institution of trial by jury in Scotland. From this fact, however, it became the more necessary to support the system with a firm and steady hand. If trial by jury had nothing else to recommend it, but the expense it saved by shortening the proceedings, it would still be of the utmost importance to the people. While he was on this subject, he could not help expressing a hope, that one great impediment to the extension of trial by jury in Scotland would be taken into consideration. Every body knew that the rules of evidence acted upon in Jury Courts were at variance with the practice of Scotch Advocates. Hitherto, the evil resulting from the circumstance had not been felt in the Jury Court in Scotland, and for this reason, namely, that in the Chief Commissioner were united the Scotch Advocate and the English Barrister. The nomination of Judges was restricted to the Scotch bar, but his hon. and learned friend to whom he had alluded happened to be a Scotch Advocate as well as an English Barrister. His hon. and learned friend, therefore, carried with him the necessary qualification, and to this he added his own experience in the Jury Courts of this country. Should the office of his learned friend, however, by resignation, or some other cause, become vacant, in that case they must have, as Judge, a Scotch Advocate who might never have witnessed a trial by jury in his life, except now and then during the few years that trial by jury had existed in that country. Surely this was not a desirable occurrence. He could not help thinking that nothing would go farther toward extending trial by jury in Scotland than the assistance of some English Barristers, who, thoroughly versed in the rules of evidence, and in the practice of our Jury Courts, would open their minds to the manners, the habits, and the usages of the people of Scotland. In a word, he thought it would be extremely advantageous to remove the restriction which now confined the nomination of Judges to the Scotch bar. In the Scotch Court of Exchequer that restriction did not exist; but although all the Judges of that Court might have been English, it had happened that since the Union, there had never been more than one of them appointed from the bar of this country, the others had been 667 taken from the Scotch bar. Now since the Government had voluntarily restricted their power of appointment to one, though they might have appointed four from the English bar, he could not but think it would give rise to no complaint, while he was quite sure it would be attended with great benefit to Scotland, if one of the Judges of the Jury Courts were always taken from the English bar. As to the projected changes in Westminster-hall, the House could not, as the right hon. Gentleman had very justly observed, enter upon the discussion of them at that time. He might, however, generally state, once for all, his views on that subject. The right hon. Gentleman greatly deceived himself if he expected that by adding one Judge to each of the Courts in Westminster-hall, by throwing open all the Courts—by destroying the monopoly of barristers in the one, and of attornies in the other—by allowing all kinds of business to originate indifferently in all the three Courts—nay, even if the right hon. Gentleman could make the bar in each Court, the attornies in each Court, and the Judges in each Court of equal ability, which was of course impossible, but even if the right hon. Gentleman could do all this in addition to what he proposed to do, the right hon. Gentleman would still greatly deceive himself if he supposed that, without some compulsion, he could equalize the business of the Courts; and for this plain reason—the Court of King's Bench was in possession of the business; it was the favourite Court; the suitors would betake themselves to that Court, and because they did so, the Court contained the best practitioners, while, for the same reason, it usually had the best Judges.—He did not mean to say that the difference between the business of the Courts would continue, under the new arrangements, so great as it was at present; but he contended that the business would not be any thing like equalized if the suitors were left to themselves. The House probably was not aware of the increase which had taken place in the business of the Court of King's Bench. Notwithstanding the difficulty of getting through the business which, for some time past, had been brought before that Court, notwithstanding the pressure of the arrears of business both in banco and at nisi prius, the business of the Court had increased to the amount of between seven and eight 668 thousand causes in the last year. Now see what had happened in the other Courts. The Court of Exchequer, in which God knew there never were any arrears, in which there was so little business that one would have supposed it was impossible there could be less; so little, that it was a common joke in Westminster hall to say of the Barons of the Exchequer, that "they were no sooner down than they were up," for they often sat at ten o'clock and rose at a quarter past ten, and if it happened that they ever sat from ten to twelve, it was reckoned a very long sitting—in this Court, in such a Court, far from there having been any increase of business, there had actually been a falling-off, while in the King's Bench the causes had increased to the number of seven or eight thousand. If, therefore, the Courts should be made as equal as possible, still, unless there was some compulsion on the suitors, it would be utterly impossible to equalize the business of the Courts. The more he examined the subject the more he was led to believe that the thing would be impracticable, unless they resorted to compulsion. To be sure, it would be useless to make the attempt unless men of acknowledged talents and learning were found to preside in the other Courts; and indeed it would be cruel to force a suitor into a Court in the Judges presiding over which he had no confidence; for the suitors in the Courts at Westminster were not like those on a circuit, where they must take the going Judge. In Westminster-hall, however, if a suitor were compelled to go into a particular Court, he ought to have the Judges so distinguished for legal knowledge and talents as that it might be to him almost a matter of indifference into which Court he went; but again he would say, that unless some measures of compulsion were used, he did not see how the business of the Courts could be equalized. These were the points which suggested themselves to his mind at that moment; but of course he reserved to himself the power of objecting in future to any parts of the measures to be introduced, when they should come in detail before the House. As far as the right hon. Gentleman went, he most cordially concurred with him; but he would reserve to himself the power of protesting against any part of his course, if he should not think that he went far enough.
§ Mr. Fergusongave also his concur- 669 rence to most of the arrangements referred to in the speech of the right hon. Gentleman opposite; but he did not rise so much to state that concurrence, as to express his surprise that the right hon. Gentleman had not said one word about any reform in one Court, as important as any of those mentioned—or he should rather say the most important of all — he meant the Court of Privy Council. He had hoped that the right hon. Gentleman, in the progress of that salutary reform which he was about to introduce into our Superior Courts, would have brought under the consideration of the House some plan for improving the constitution of the Court of the Privy Council, which, though one of the most important, was, in his opinion, one of the most imperfect in the country. He would admit that it was usually presided over by a Judge of great talents, the Master of the Rolls taking his seat there on important occasions, and other Judges of eminence occasionally presiding, but then it was only when the business of his own Court did not interfere. The duty was in fact looked upon as a secondary office. It was, he presumed, unnecessary for him to point out to the House the importance of having fit persons to preside over a Court of which the decisions involved the property of millions of the subjects of this country residing in the colonies and in the East Indies. The Judge who generally presided in that Court, was, as he had stated, a man of eminent legal talents, but he was assisted, sometimes, by a Lord of the Admiralty, sometimes by a Paymaster of the Forces, sometimes by the Chief Commissioner of Woods and Forests, or some other individual under Government—all of them highly respectable in their several situations, but not, from education or habit the best qualified to sit as Judges in a Court where cases of such vast importance came for final adjudication. He did earnestly invite the attention of the right hon. Gentleman to this Court, and he hoped, that as that right hon. Gentleman's exertions had already been productive of such beneficial results to the judicial administration of the country, as would entitle him to the lasting gratitude of the public, he would add to the motives of that gratitude by directing his mind to a Court in which reform was so greatly to be desired. As he had taken the liberty to offer himself to the notice of the House on this point, he would, while he was on his 670 legs, venture to add a few words on that part of the right hon. Gentleman's statement, in which, personally, he was most interested,—he meant that which related to the proposed reform in the Courts of Scotland. He could state from his own knowledge, and could prove it by documents, that there were no Judges of any Court in the United Kingdom who were more constantly, more usefully, or more meritoriously engaged in the discharge of their judicial functions, than those who presided in the Court of Session in Scotland. He did not think that any reduction in the number of Judges in that Court should take place. In the remark made by his hon. and learned friend (Mr. Brougham) as to the necessity of promoting the extension of trial by jury in civil causes in Scotland, he entirely concurred. He knew that prejudices existed against it among many of the practitioners in that Court, but he also knew that that mode was the most effectual for coming at the truth incases of disputed facts, and that altogether it was the most free from faults. He would not go to the other points to which the right hon. Gentleman referred, but in passing would say a word as to the Consistorial Courts. No course was, in his opinion, more objectionable than that of having only one Judge in such a Court. There ought to be several. He would therefore venture to suggest that the Consistorial Court should be abolished altogether, and the business of it transferred to the Court of Session, rather than it should be continued with the presidency of only one Judge. He could state, on the authority of a venerable Judge, Lord Stowell, that never was the judicial power of any Court administered with greater ability or more sound discretion than by the Consistorial Court of Scotland. He also concurred with his honourable and learned friend, the Member for Knaresborough (Mr. Brougham), in thinking that it would be the wisest policy to place an English barrister at the head of the Court which should have to try civil causes by jury. In no other way could the country derive so much benefit from the establishment of trial by jury in civil causes. Of the great importance of the services rendered by the venerable Judge at the head of that Court, no one who had an opportunity of knowing the Court could doubt; and he also admitted that if the country should be deprived of his invaluable services, it would be extremely difficult to supply his 671 place. The appointment of an English barrister in the Court who had to try jury cases would have the effect of keeping the other Judges steady in the attainment of those important advantages which might be expected from an extension of the civil trial by jury in that country, and this had been already proved by the experience of what had been effected there by the appointment of an English Judge. When he spoke in what he considered as duly deserved terms of praise of the Judges of the Court of Session, he could not say the same as to the process of that Court. The written pleadings which had been regulated with a view to save the time of the Judges, and to shorten the proceedings, had not had that effect. The written pleadings were now longer than usual, and the proceedings in Court were not shortened by the law restricting them. Looking at the whole of what the right hon. Gentleman proposed, he thanked him for the great attention he had bestowed upon this important subject; and when each separate measure came before the House, he should be ready to give it his most serious consideration. With respect to the alterations in the Welsh Courts, he for one should wish to see a fusion, as much as possible, of English and Welsh judicial administration, but he hoped that in the changes to be made attention would be paid, as far as possible, to the feelings of the people in that part of the kingdom. He fully concurred with the right hon. Gentleman and with his hon. and learned friend, that no Judge ought to have a seat in that House. He would extend that principle to others holding judicial situations, as well as to the Welsh Judges, for example, to the Master of the Rolls, and to the Masters in Chancery. No Judge who had to decide in important questions, involving the property of others, ought, in his opinion, to have a seat in that House.
§ Mr. Humebegged to express the satisfaction he felt at the proposed changes, as far as they went; and as they had now been submitted to the consideration of the House, the sooner they were effected the better. He hoped, however, that in making them the country would not be put to any unnecessary expense. In making those changes, he did hope that the House would consider whether the number of Judges in the Court of Session in Scotland was not much greater than was required. The Scotch Judges had not one half the business 672 to perform which was done by the Judges in this country; for instance, the Barons of the Exchequer had not ten causes to try in a year. That was a sufficient reason for reducing the number of Judges in that Court, and in his opinion, the business now done by the four Judges might be effectually performed by one. The business of the Court of Session was not of that heavy nature to require fifteen Judges, and he thought that about half that number would be sufficient. They had, it was well known, not much to do, and they sat only for five months in the year; meeting at ten in the morning, and not sitting later than three. He would say, then, let those which were unnecessary be reduced, and let the reductions save the country the expense of the increase proposed to be made in the salaries of those that remained. The right hon. Gentleman talked of prospective advantage and ultimate saving. He (Mr. Hume) had often heard of those kind of savings, but he had never seen any of them realized. He would suggest, therefore, that a course should be adopted which would bring those savings about at once. While on this subject, he would observe, that in a few days he would make a Motion, to which he hoped the right hon. Gentleman would not object, for a return of the number of hours which the Judges in the Courts of Scotland sat in Court during the year.
§ Mr. Ferguson, in explanation, said that he had not expressed a wish that things should remain as they were in the Scotch Courts. He gave the right hon. Gentleman credit for what he proposed, but he was not a defender of the state of things as they now existed in those Courts.
The Attorney-Generaltrusted, that a the several subjects were not now before the House in detail, it would not be expected that he should then enter into a minute examination of those matters which hereafter would come fully before them. His right hon. friend (Mr. Peel) had only proposed to give the House a general view of the course to be hereafter pursued, and he trusted the House would feel that he was more entitled to credit for the extent to which his explanation had gone, than to blame for any omission of more minute detail of every part. He fully concurred with his right hon. friend in the remark that they owed much of those judicial reforms to the very able exposition given on a former occasion by his hon. and learned 673 friend, the Member for Knaresborough, to whose suggestions, in the progress of those measures, he should be disposed to pay that attention to which, from his extensive acquaintance with the subject, they were entitled; but he owned he could not concur with him in that which he threw out respecting the compulsory introduction of business into particular Courts—for he saw what appeared to him to be such strong objections to that course, that he could not resort to it, except in case of the last necessity. He had had some experience in the Court of King's Bench; and he must say, that though there was now an arrear of business in it, yet it was conducted with so much dispatch, that sometimes cases were disposed of in one term the actions in which had commenced in the preceding, which was as quick as the forms of law would permit. He would not go further into the subjects before the House, as more fit opportunities for discussing them would occur when each was brought separately forward. He would content himself with giving notice, that on an early day he should move for leave to bring in a Bill for assimilating the Administration of Justice in England and Wales. He was anxious to name a day on which he might hope to have the assistance of his hon. and learned friend (Mr. Brougham) for he should be unwilling to bring it on in his absence, and he hoped that this day week might be convenient to him.
§ Mr. O'Connellnever heard anything that gave him more satisfaction than the clear and distinct statement of the right hon. Gentleman; and instead of being surprised that he could not go more minutely into the technicalities of the subject, it was matter of astonishment that he had been able to compress so much in so short a statement. There was healing in what he said. It was a clear admission of the necessity for improvement—of the fact, that the Government are not hostile to a change—that it did not even oppose the vis inertiœ of a silent resistance, but that it wished for a reform of notorious and long felt abuses. He only regretted that when the Court of Admiralty was mentioned, something had not been said of another Court of Admiralty besides that in Scotland. No doubt it was not forgotten, although it had not been alluded to. He only meant at that moment to hint at the question of blending the 674 jurisdiction of the Admiralty with the Consistorial Court, and giving an equitable jurisdiction to the Courts of Common Law, with the hope that was held out that there would be a complete amalgamation of all the Courts; so that justice could be obtained by one simple and intelligible mode of proceeding, instead of a party being compelled to resort to several different modes of recovering his right. If a Judge were fit for one Court, he must be fit for all. As a proof, he might refer to the late Attorney General, who might have been Chief Justice of the King's Bench, but who was actually Chancellor—a fact which proved him to be fit for either Court. He did not wish to leave the Chancery as it now was. Its process was as cumbrous as possible; and if it were now to be created ab initio, there was no one who would venture to recommend such a vicious course of proceeding as it exhibited, and which was rather a nuisance than a benefit to the country. He asserted that there ought to be but one simple mode of proceeding for all people in the recovery of their rights. The next thing he should wish to see was the establishment of local tribunals throughout the country. Why a man in Cornwall or Cumberland was to be compelled, in order to obtain a debt there, to send up to London for a bit of parchment, and what magic there was in such a process, he knew not, and he should, therefore, wish to see the evil abolished. There were to be Courts for the recovery of Small Debts in every county. Why not Courts for the recovery of Large Debts? If the Judge were fit to decide on one, he was equally fit to decide on the other. Surely he should not be told in that House that the business of the rich and wealthy required a different Judge from the business of the weak and poor. He did not look to London for the establishment in one focus of a number of Courts, with great Lawyers and rich Judges—but he looked for the establishment of a number of tribunals that would dispense justice in the different counties in the kingdom to their various inhabitants. The third matter which he wished to notice was the subject of Special Pleading. He was most happy to hear that the technical system of pleading was to be abolished; and that its forms were to be reduced to something like common sense. Such forms were an outrage to those who could 675 penetrate their meaning, while they were utterly unintelligible to the mass of mankind. The right hon. Gentleman himself had afforded a proof of their difficulty and unintelligibility, by having been himself unable to go into the minute details of technical knowledge. Why should there be anything in the laws with which that right hon. Gentleman was unable to make himself fully acquainted? Was it not disgraceful to the laws that a Gentleman of his talents and industry should be ignorant of a very material part of them? If it were thus, why not abolish the witchcraft of these forms, and make the law, which was to govern all, intelligible to all? Was it not disgraceful to a country like England that decisions should take place in her Courts upon the forms of the pleadings as contradistinguished from the merits of the case? [hear, hear.] He trusted he should live to see the day when a Judge would be ashamed to say he decided a case on forms, on those forms which a Counsel or an Attorney might mistake, but which could not affect the right or equity of the claim set up by the party himself. A great deal had been said on the subject of Fees. They ought to be abolished. There should be no turnpike tolls on the road to Justice. Under the present system, a man who was not able to pay the fees of the officers of Justice was deprived of Justice, for he could not go into the Courts to claim it, so that it was only given to those who could well afford to pay for its purchase. The first great reform in the law ought to be to make law cheap. The Judges and the officers ought to be paid by the public, and a man who wished to assert his right in a Court of Justice ought not to be stopped on his entrance there with a demand of fees, which, if he could not satisfy, would prevent him from recovering his right. The hon. Member near him had complained of there being only one Judge in a Court. He (Mr. O'Connell) thought that was quite enough; and he had the authority of England in his favour, since not only was there but one Judge in the Court of Chancery, in the Vice Chancellor's Court, and in the Court of the Master of the Rolls; but we had recently deprived the Chief Baron of the company of his learned brothers, and had made him a solitary Judge in an Equity Court of his own. There were few who recollected well what the Courts were, that 676 would not say one Judge was sufficient in each, and that the other three only delayed the party, God knew how long, before he could get his case decided. He threw out these ideas as preparatory to what he recommended the right hon. Gentleman to bring forward as a thing necessary above all others—he meant the formation of a Code for England. All other countries had Codes, and why should England be behind them in the simplicity of her laws? The principle of Codification was good. Many persons, no doubt, would object to a Code as not sufficiently comprehensive; but what the right hon. Gentleman opposite was now doing, and what he had done, in consolidating the principles of two hundred and seventy-two Statutes into eight, was Codification, and he ought to proceed until he had established a complete Code. It might be said that the cases likely to arise for legal adjudication in this country would be too numerous and too complicated to be comprehended in any one Code; but we had at present a law for almost every case that could arise, and where such a law did not exist, the matter was left to the discretion of the Judge, which was the worst of all law, because it must be an ex post facto law.
Mr. Peel, in reply, said, that he had avoided going into any detail as to the construction of the Scotch Courts, but referring to what fell from the hon. Member for Aberdeen, he should have no objection to such returns as those for which he intended to move, but he feared that the returns of the number of hours which the Scotch Judges sat in the Court of Session would not go far to establish the hon. Member's case — that the number could be reduced to half. Their attendance in Court would not show the amount of the business they had to perform. Great part of the business of the Scotch Courts was clone in writings; and besides the hours of attendance, the hon. Member should know how much of the time of the Judges was occupied out of Court in examining those written documents. Besides, it should be borne in mind that the Scotch Courts had much business in law and in equity, and that many matters connected with elections were brought before them. If, therefore, the hon. Member wished to see the whole extent of the business of the Scotch Judges, he should alter the form of the returns for which he had expressed his intention to move. He 677 would say a word on what fell from the hon. Member for Clare, and he must say that he was glad to hear the tone of temperance and moderation with which he had adverted to this important subject. The hon. Member had acquired fame and popularity by his conduct elsewhere, but he could assure him that he might acquire greater fame and greater popularity by giving his efficient aid to reform the state of the law of the country. With respect to the hon. and learned Member's suggestion about special pleading, he must observe that he was not prepared to go so far. This, however, was a subject into which he would not enter, as it was one with which he was not sufficiently acquainted. However, much information on that point would be derived from the report of the Commission on the Common Law Courts. The suggestion of the hon. Member as to Codification, was one in which he could not go with him. It was, no doubt, very popular, but the hon. and learned Gentleman should consider what had been the result where it had been adopted. Let him only see what had been the extent of the comments on the Code Napoleon. In short, the more concise any legal Code was made, the more its interpretation was left to the discretion of the Judge. Now he had often heard it objected to English judicial administration, that too much was left to the discretion of Judges, but the more we allowed general rules of law to form our Code, the more we must necessarily leave to the discretion of Judges, and thus the adoption of a Code would be open to one of the hon. and learned Member's strongest objections—that of an ex post facto law for a new case in the discretionary interpretation of the Judge. There was a medium to be observed between the system, too much in practice in former times, of making a specific act for each case as it arose, which produced that mass of legislation that we were now endeavouring to consolidate, and that of making a Code which would be too concise to embrace more than general principles.
§ Mr. O'Connellsaid, the right hon. Gentleman had misunderstood what he said about a Code. He was not for making now a new Code of laws for the country. We had already the materials in English law for an excellent Code, and the comments of the Judges would form so many philosophic experiments by which the fitness of certain parts of it might be decided. 678 The Code Napoleon was good as far as it went, but its fault was that it did not go far enough. It was not sufficiently comprehensive to embrace many subjects which it ought to have included.
§ Leave was given to bring in the Bill.