STANNARIES COURTS BILL. (Hansard, 19 August 1836)

§ Mr. Freshfield

Sir, I agree with my hon. and learned Friend and Colleague, that some of the alterations made in the 1326 Bill, and which we are now called upon to consider, are not improvements; but I cannot agree with him in thinking that there are others which deserve our approbation. I think the clause introduced to confirm the jurisdiction in equity as exercised by the vice-warden, has been most injuriously interfered with; and I am at a loss to account for, and still more to justify, the changes it has suffered. My hon. and learned Friend is disposed to consider the appeal to the House of Lords from the decisions of the Stannary Court as an improvement; but I regret to be compelled to differ from him. It has been the policy of the very few persons, who in private have excited an opposition to the Bill, to withdraw as much as possible of the proper business of the court from its jurisdiction, and at least in the same proportion to increase the expense of the machinery for the administration of justice. Thus, while the opponents of the measure would confine the subjects of litigation to matters of small importance, they have succeeded in introducing an ultimate appeal to the highest judicial tribunal; not to substitute the House of Lords for the Court of Appeal, originally provided by the Bill—namely, the Lord Warden, assisted by three members of the Judicial Committee of the Privy Council—but, retaining that appeal, they have added an appeal from that tribunal to the House of Lords; so that a litigious (and still more if he be a wealthy) man may harass and oppress his opponent, by carrying him through these expensive and dilatory Courts of Appeal, at a cost greatly exceeding, in ninety-nine cases out of a hundred, the object to be attained. Sir, I feel this objection so strongly, and I have so much confidence in the justice of the other branch of the Legislature, that I should resist this amendment if there had been time to enter into explanations upon the subject; but my justification with. those respectable individuals in Cornwall, deeply interested in the objects of this Bill, for now submitting to an alteration so objectionable must be, that the known discretion of the House of Lords, and its just discrimination between fair subjects of appeal and those of a frivolous and vexatious character, afford the strongest reason for believing that the conduct of litigious persons will be restrained by the habit of making them subject to the payment of exemplary costs where the power 1327 of appeal is improperly used; and thus the vice of the provision will be cured by the soundness of the practice. The new clause, which stands Section 8 in the print I now hold in my hand, is conspicuously objectionable. It proposes to confer upon the vice-warden a power to grant new trials, which could not be necessary, as it must be incident to the authority of the sole judge in a court of record to consider the question not ripe for a final decision until an effective trial has taken place, and therefore to subject the question to one or many inquiries before the jury, until that end is attained; but this unnecessary provision is followed by serious and extraordinary circumstances, as the same clause provides that the orders of the vice-warden upon an application for a new trial shall be subject to such appeal as in the Act is before provided, as to other decrees, orders, and acts of the vice-warden. In other words, the party against whom the vice-warden may have awarded a new trial to take place, or the party to whom he may have refused to grant a new trial—that is, the unsuccessful party—will have a right to argue before the Lord Warden and three members of the Judicial Committee of the Privy Council, the propriety of the vice-warden's decision; and whatever may be the determination of that Court of Appeal, the defeated party may proceed to a second appeal before the House of Lords, not upon the merits of the case—not upon the extent of justice to which the respective parties may be entitled—but upon the mere question, whether a new writ shall or shall not take place; a novel question, surely, for the Privy Council and for the House of Peers. The same clause contains a power to the vice-warden to send a Nisi Prius record from his own county, under special circumstances, to be tried before the Judges of Assize for the county of Devon. I cannot say that such a provision appears to me very well supported in point of precedent, and not very complimentary to the judges of the superior courts. But I will not dwell upon this, or the injury done to the 6th Clause, the sense of which is destroyed; nor upon other alterations which, in my opinion, fail to effect the purposes intended by the framers. I repeat, that with more time before us, I would not recommend the House to accept the Bill in its present state; but seeing the impossibility of ob- 1328 taining any re-consideration of the subject, and at the same time having the deepest conviction of the necessity of re-establishing the Stannary Courts—of bringing within their jurisdiction, by express provisions, other metals and metallic minerals, in addition to tin; and believing that the great proportion of the landed proprietors and miners of Cornwall are strongly in favour of a local tribunal for the decision of questions affecting their interest, and especially for the means of compelling co-adventurers to do justice, as between themselves; and considering how very few persons are opposed to the Bill, I cannot hesitate, notwithstanding the defects I have pointed out, and of others not detailed, to support the motion of my hon. and learned Friend and Colleague, "That this House do agree to the Amendments made by the Lords."