COUNTY COURTS.

HC Deb 09 February 1841 vol 56 cc472-81

Mr. Fox Maule

felt great diffidence in approaching the subject of County Courts, on which he had given notice of a motion to ask for leave to bring in a bill to establish them, when he considered that the question had formerly been undertaken and discussed by such men as Lord Althorp and Lord Brougham; and his diffidence was in no way lessened when he considered the deep importance of the subject, and the humble powers of the individual who had now undertaken to bring the question before the House. He was sure that the House would agree with him when he stated that in the situation in which he was placed—connected with that department of the Government which had the surveillance of the administration of justice throughout the country—that it was impossible for him to shut his eyes to the demand which the public had made for legislation on that subject. Year after year petitions had been presented to the House, and he believed there was scarcely a district in England from which petitions had not been presented to the house for private bills, in order to enable them to establish some better sys- tern for the recovery of small debts. But he did not approve of such piecemeal legislation. He thought it desirable that one general system should be established by Act of Parliament to extend to the whole of England and Wales. It was unnecessary for him to enter into any long statement to the House in order to convince them of the evils attendant on the present system for the recovery of small debts. It was, in fact, a total denial of justice to the poor, and to all persons a heavy expense. He could only refer the House to the fifth report of the law commissioners on this subject; they would there find all the grievances of the system, and most of the clauses of the bill, in the shape of suggestions which he was about to propose to remedy those evils. The inconveniences of the present county courts were admitted on all hands. The measure which he was about to introduce was the same as that which had been brought before them two years ago. The first principle of it was to extend the jurisdiction of the county courts to sums amounting to 20l. Whether this was a proper limit they were not there that night to discuss, for the point would be reserved for an after stage of the bill. In establishing the courts, he proposed that they should be perambulatory, not merely confined to the central town of the district, but to be held from time to time, and in such other places as her Majesty's Council might be pleased to appoint. He proposed, in the next place, that the judges to be appointed should be paid by a fixed salary—that they should be permanent officers appointed by the Crown, and removable by the same power which appointed them. He proposed, also, that their salaries should be paid out of the proceeds of this court; and when the fees should not happen to be sufficient to remunerate the judges, instead of paying the deficiency out of the county rates, as it was once suggested to do, he proposed that it should be paid out of the consolidated fund. He next proposed, in reference to the proceedings of these courts, to render their proceedings more simple, so that the meanest capacity might at once understand their nature. He proposed to do away with all the written pleadings which at present existed in the county courts, and that the pleadings should commence with a simple summons, calling on the defendant to appear and answer. If the defendant failed in the first instance to appear, judgment in absence would be given against him: but if he could afterwards show good cause why he had not appeared in the first instance, he proposed that the judgment in absence should be annulled, and a new trial granted. It was also proposed, in order to avoid vexatious delays, that if the defendant appeared and entered his defence, with a special plea for making it attached, and if he failed to sustain his defence, the judgment would go peremptorily against him in absence, but at the same time it was thought advisable that the judge should have an unlimited discretion in every such case either to refuse or to grant a new trial. It was proposed that the judge should sit alone in certain cases; that he should, by himself, decide all cases under 5l., but in cases above 5l. and under 20l., it was proposed to leave it to the option of the parties whether they should be tried by the judge alone, or by a jury, to consist of five individuals. In reference to the costs, he had no doubt but that they would be greatly reduced. He had next to propose, what might be objected to by gentlemen learned in the law, but what appeared to him to be an essential part of any system for the easy and speedy recovery of small debts—he proposed that the parties themselves should be examined if found necessary, and that all witnesses might be examined without reference to any interest they might have in the case. He proposed nothing new, he merely proposed to extend to such newly-created judges the powers which the present judges had under the 1st and 2nd Victoria. There was no doubt but that the patronage which the Crown would receive by the power of appointing the judges to these county courts would be great. He anticipated that for the purpose of disposing of the business under the present measure, the number might possibly amount to twenty-five; but there was one circumstance to which he wished to call the attention of the House. It was, that almost an equal amount of patronage existed at the present moment, without the House being aware of it; for since the measure was first introduced, no less than twenty-two local bills had been framed, very similar in their provisions to the present measure. To every one of these localities, the power of appointing the judge was vested in the Lord Chancellor, and the House would observe that these twenty-two local courts would all be merged into the present general measure. The patronage under the present measure could only be made to vest in the Crown. It would not be safe to place it in any other source than one, which was responsible to both Houses of Parliament. In reference to the patronage which at present belonged to the manorial and other courts, he did not propose to do away with the jurisdiction of any of these. His object was merely to improve the administration of justice in the county courts, and such courts as the courts of requests would still be open to the public, if they chose to make use of them. He proposed that the salary of each judge should be, in the first instance, 800l. per annum; and that it should increase as the business increased, but in no case should it exceed 1,500l. per annum.

An hon. Member asked if the judges were to be allowed to practise as barristers.

Mr. Fox Maule

said they would not be allowed to practise. He had now sketched the outline of the measure, the great feature of which was that which went to establish throughout the country local perambulatory courts, to which the poorer creditors would have immediate access. Instead of a court which obliged both them and their witnesses to travel an inconvenient distance to attend, they would now have one near to their own homes, and one that would give them cheap and speedy justice. He hoped that the measure would be the means of giving to the lower classes a confidence in the good intentions of Parliament towards them. He had witnessed the beneficial effects of a similar system in that part of the kingdom with which he was more immediately Connected. Three years since, a measure passed through Parliament, which attracted little notice; but which gave a power to her Majesty to declare in what part of any county in Scotland the sheriff should hold his small debt court. That measure had worked, and was still work-king, greatly to the benefit of the people of Scotland, and he sincerely hoped that this Session would see a similar measure bestowed on the people of England. Thanking the House for the attention with which they had listened to his statements, he begged leave to move for leave to bring in "a bill to improve the practice, and extend the jurisdiction of county courts."

Mr. Ewart

hoped he might be allowed to express an opinion on this subject, having been solicited by individuals in that part of Lancashire to which he belonged, to introduce a similar measure. These courts existed, and were found very beneficial in Scotland and Ireland, and he hoped they would soon be established in England. He, however, thought it would be better not to prevent the judges practising as barristers. There was one innovation in the bill worthy of all praise,—namely, that the evidence of witnesses was not to be limited by technical rules. Let a witness be sifted as much as possible, but let his evidence be taken quantum valeat. He should be glad to see, by way of supplement to this measure, one for introducing a system of stipendiary magistrates throughout the country.

Colonel T. Wood

hoped, that the measure would not be made instrumental in undermining the jurisdiction now exercised by county magistrates. It appeared to him that the Government intended to reserve the power of appointing the existing magistrates in the metropolitan districts to act under this bill. If this principle were acted on in the metropolitan districts, he considered that it would be highly objectionable. It would be much better, in his opinion, to keep the criminal and the civil business distinct, as was the case in the higher courts of judicature. Care, therefore, should be taken so to limit the appointments as not to render them instrumental in mixing up the administration of criminal justice with the adjudication of debts and other civil proceedings. Provision being made against such a result, he considered that the establishment of such courts would tend greatly to serve the poorer classes, whilst at the same time the expenses of the courts would be borne by the suitors. He would again advise those who had united with him in endeavouring to prevent the police courts from being also made courts for the recovery of civil debts, to avoid the same danger of a double jurisdiction from the present bill.

Mr. Hume

could not conceive how the adoption of the measure could lead to the danger that criminal and civil jurisdiction would be confounded by its provisions. He completely coincided in the views expressed by his hon. Friend, the Member for Wigan, and his only regret on that occasion was that the bill did not go fur- ther than was proposed. The cheap and easy administration of justice was an object of the utmost importance to the community at large; and he certainly felt that the measure just introduced would tend very materially to secure that object.

Mr. Hawes

was glad that the bill had been brought forward. He hailed the measure as a bold effort on the part of her Majesty's Ministers to endeavour to lessen the costs of the law, and facilitate the administration of justice. Numbers of small debt bills had been formerly passed, almost every year, through the House, each rendering the law more perplexed by introducing new principles. At present there were innumerable small courts, with various degrees of jurisdiction, the patronage of which was placed in the hands of private individuals. He thought such a system extremely injurious to the due administration of justice; and he hoped the rights of patrons would not prevent the passing of the measure then before them. The hon. and gallant Officer had given no reason for his opinion, that the giving to these judges criminal and civil jurisdiction would act injuriously. If in the metropolitan districts they had competent judges under the Police Act, why should they not have additional duties imposed upon them, if they had time to discharge such duties? He saw nothing injurious in such a plan, and he thought the public, having gone to a very great expense in the establishment of those courts, were entitled to have them made as beneficial to the people as possible. The vesting the appointment of judges of these courts in the Lord Chancellor or the Lord Chief Justice, would remove all objections that could be made an the score of political patronage. That was a subject which had been much discussed in the committee, and he understood the right hon. Baronet, the Member for Pembroke, to say that he had no objection to give the patronage of those courts to the Lord Chancellor, or the Lord Chief Justice, but that he would prefer the Lord Chief Justice. He also understood the right hon. Gentlemen as having given up the rights of the existing patrons. Now, if a great and useful measure of this nature were opposed by the other House, merely for the sake of preserving private patronage, it would give great support to the opinion that that House existed more for private purposes than for public benefit. He hoped too, that when the question was next discussed in that House, they should hear a great deal less about the loss of patronage by private individuals, and a great deal more of the necessity of securing a good administration of justice than they had done on former occasions.

Mr. O'Connell

thought that the want of the connection in the measure which had been deprecated by the hon. Member for Middlesex, constituted its great evil. The judges of these courts ought to possess both civil and criminal jurisdiction. Let them look at the anomalous state of the law regulating these courts in the different counties. In England by this bill the judge of the county court had civil jurisdiction only. In Ireland he might possess both civil and criminal jurisdiction, and in Scotland, where he had originally only criminal jurisdiction, civil jurisdiction had been recently superadded, so that in the three different countries there were three different methods adopted in the administration of justice. In many cases of civil trial it was necessary that the judge should have criminal jurisdiction, and nothing could be more anomalous than this judge half dead and half alive, this paralytic judge, who was alive on one side only—alive on the civil, but dead on the criminal side. What the hon. Member opposite was afraid of was, that they would interfere with the jurisdiction of the magistrates. In Scotland, the magistrates had very little to do he believed, and that was just what they were fit for—and it would be for the benefit of this county if the magistrates here had also the opportunity of indulging in dignified leisure extended to them. An unpaid magistracy was a perfect anomaly which had no existence in any other county. The magistrates' court could not, at all events be considered as a poor man's court, at all events he had never known an instance in which the being rich had been a disadvantage to a man before the magistrates. He thought it would be better in all cases to leave the administration of justice to paid and responsible authorities. He was sorry to see that the bill proposed to give patronage to the judges. The Lord Chancellor was one of the Ministers of the day, removable with the Ministers, and, therefore, the giving patronage to him was, in fact, giving it to the Ministry—but if they wished to derive a method for spoiling the Lord Chief Justice, they could not possibly invent one more effectual or more calculated to degrade him into a political partisan than the giving him the appointment of the judge of those courts. The Bar at present was quite subservient enough to the Bench. [Mr. Sergeant Talfourd—No, no.] Not subservient enough? Now if they gave the Lord Chief Justice the appointment of these judges, they would have the entire rising Bar subservient to him. Not a junior barrister would express an opinion or take a part in any political discussion until he had ascertained the opinion of the Lord Chief Justice. He hoped, that in the progress of the bill some clause would be introduced to give the judge of the county court criminal as well as civil jurisdiction, in the same manner as was now exercised by the judges in the higher courts, and he felt convinced that the public would be highly benefitted by having the criminal as well as the civil jurisdiction brought home to their own doors.

Mr. Warburton

hoped the provisions of that bill would provide for the proceedings and practice of the court. He should wish to see the same proceedings adopted in these courts, as were adopted before the commissioners of bankrupts, where both litigant parties were brought before the judge and examined.

Mr. Fox Maule

—It is so; such are the provisions of the bill.

Mr. Warburton

—Oh, very well; then I have nothing more to say.

Mr. G. Knight

contended that this bill, if altered as recommended on the other side, would be an attempt to introduce the narrow end of the wedge, so as in time to take the whole administration of justice, especially in the country, out of the hands of magistrates, by whom it was at present satisfactorily administered. If criminal justice, as well as civil, were put into the hands of stipendiary magistrates, it would strike at the root of the welfare and prosperity of the nation. Nations did not depend for their prosperity so much on the habits and usages of the country as upon the laws; and what had made England superior to other countries was the mixing and blending together of the different classes of society, thus promoting that good understanding which was necessary to the prosperity and happiness of every community. He consi- dered that the present system of appointing magistrates tended to produce this state of things, and on that account he should be extremely jealous of every thing that was at all calculated to remove from the hands of the existing magistracy the administration of the justice of the country. It was true that the bill now before the House had nothing in it of that character, and he hoped it would not be followed by any measure similar to that recommended by the hon. Member for Wigan and other Gentlemen.

Mr. C. Villiers

observed that the hon. Member for Middlesex, (Captain Wood) had admitted, that this was a measure that would do a great deal of good; that there was a defect in the administration of the civil justice of the country, that it was dilatory and expensive, and that the present measure would make it cheap and speedy. But the hon. Member was afraid it might encroach on the criminal jurisdiction of the present magistracy, if that were the case he should consider it an additional benefit. He believed that many of the magistrates were anxious to be relieved from their present duties, and would gladly see them performed by competent officers acting in public and having in a bar and all the officers of a court the surest guarantees for proper decisions. Far therefore from looking on the objections made by the hon. Member for Middlesex, as reasons why he should not support the bill, there were on the contrary reasons why he should vote for it in all its stages.

Mr. Cresswell

apprehended that some insuperable objections would be found to the intended scheme, although personally he should be glad to see the cause papers of the different courts cleared of paltry cases, on which even success was attended with ruin. If parties, like those contemplated by the bill, had no appeal, injustice would often be done; and if an appeal were allowed, they would probably fall into the hands of the lower practitioners of the profession. At the same time he was most anxious that a measure should be perfected that would relieve some of the existing evils of the present system. As to the question of patronage, he cared little whether it were placed in the hands of the Lord Chancellor, or of the Chief Justice. Let it be where it would, he did not at all apprehend that the integrity of the bar would at all be affected by it. The hon. Member for Dublin had indeed said, that the bar was already "sufficiently subservient:" if by those words he meant to cast any imputation on the bar, he defied him, or any other man, to substantiate any charge of want of independence in the bar of England. It was the glory of the English bar, that while it treated the judges of the land with all respect, it maintained most perfect independence as regarded the interests of suitors. He had seen no change in the character of the bar, notwithstanding the judges had had the appointment of revising barristers; and notwithstanding the number of commissions established by the present Ministers, the Whigs at the bar were not more numerous than they had been, from the hope of preferment from the judges, or from any other quarter.

Mr. F. Maule

added, that he wished to put an end to any expectation, if it existed, that the proposed bill was intended to give the new judges jurisdiction in cases where the sum in dispute was above 20l. At present, in the county courts, by suing out a writ in the Queen's Bench, and by a different form of pleading, as he was instructed, any amount might be recovered. With that power it was not his intention to interfere.

Leave given.