COMMON LAW PROCEDURE BILL. (Hansard, 8 August 1854)

§ MR. I. BUTT
said, he did not wish to oppose this Bill, but he would make an appeal to the Government to expunge the 13th clause, which would disturb the old established law of the country as to the unanimity of juries. He might be allowed to remind the House that the clause embodying a most important alteration in the law was carried in opposition to the opinion of the Attorney General for England, the Solicitor General for Ireland, as well as in opposition to the opinion of the Commissioners, in accordance with whose views the rest of the Bill was framed—namely, the Common Law Commissioners, who distinctly declared that unanimity on the part of juries ought not to be dispensed with. And to this he might add that the opinion of the right hon. and learned Gentleman the Recorder of London (Mr. S. Wortley) was decidedly to the same effect; while he had learned from a private conversation with the hon. and learned Attorney General that he remained of the same opinion which he had origi- 1433 nally expressed, and that he certainly did not think so important a change ought to be made without the completest discussion. What he felt bound, therefore, to ask the Government was, that at so late a period of the Session, and in the face of an understanding that the discussion as to the merits of this clause was to be postponed until the third reading, they would not press the measure this Session. For, he must say, if they were to carry it through in a House so thinly attended as the present, the public would not fail to conclude that so important a change had been made without that deliberative solemnity and discussion so eminently to be desired. And he might here observe that the clause was not at all essential to the Bill; in fact, one of his arguments against the clause was, that it did not at all properly belong to it, for it was a Bill regulating the practice and procedure of the common law courts. Now, a measure of that kind was hardly one in which provisions dealing with an institution so essential to the working of English society as trial by jury could be introduced. For himself, he believed if the clause were accepted it would lead to the abolition of trial by jury altogether; but, at all events, whether the changes it proposed were right or wrong, he felt sure all would agree that it ought not to be passed except in a full House. He thought, then, that the most equitable course to take would be to expunge the clause altogether from the Bill—or, at least, that part of it which went to establish the verdict of ten jurymen as admissible; and if it was judged advisable to introduce so important a change as that, let it be done by a distinct and separate measure next Session. If that were done he was free to acknowledge that this Common Law Procedure Act would be a very valuable improvement upon the law as it now stood, and on that account there was the more reason for regretting that the Bill had been embarrassed with such extraneous matter. There was also a few other clauses in the Bill altering the law of evidence generally, to which he was disposed to take objection. Hitherto the law of evidence had been the same in England and Ireland. Now, he thought it would be introducing a very dangerous principle, and it would lead to confusion, if they sanctioned a difference in the practice of the courts of England and Ireland on the subject of evidence. Still, he was not 1434 disposed, as he had previously stated, to oppose the further progress of the Bill on that ground, should he obtain an assurance that the Government would not press the 13th clause.

THE SOLICITOR GENERAL
said, he readily admitted that the opinions of his hon. and learned Friend the Attorney General and of the Solicitor General for Ireland (Mr. Keogh) were not favourable to that portion of the 13th clause which authorised the reception of the verdict of ten jurymen in lieu of an unanimous decision. On the other hand, the Bill came down to them samctioned by the high authority of the House of Lords. On the whole, however, he would recommend the House not to insist upon that part of the clause objected to by the hon. and learned Gentleman (Mr. Butt), but to defer the introduction of the principle it embodied to a future Session. With regard to the other objection of the hon. and learned Member, namely, that there ought to be one rule as to evidence for both countries, he thought there could be but one opinion on that subject, and therefore he would at once undertake that all the clauses having reference to that subject should be made applicable to Ireland as well as to England.

§ MR. J. G. PHILLIMORE
said, he hoped the House would on no account accede to the suggestion thrown out by the hon. and learned Solicitor General. The principle of unanimity on the part of a jury was founded upon the most flagrant absurdity, and he would tell the hon. and learned Member for Youghal (Mr. Butt) that, though the Bill had been framed in defiance of the opinions of the hon. and learned Attorney General and the Chief Justice of the Common Pleas, there were authorities at least equal to theirs in favour of the principle of the clause. His own opinion was, that the verdict of like jurymen given in after a lapse of twelve hours, backed by the authority of the Judge who tried the cause, ought to be conclusive, and was at least equal to the unanimous verdict of twelve jurymen. At all events, that was the recommendation of the Common Law Commission. He, for one, would not consent to this clause being struck out of the Bill; and he trusted that his hon. and learned Friend the Solicitor General would never be induced to consent to abandon a provision of so beneficial a nature, and which would tend to rescue the law of trial by jury from a charge of the grossest absurdity.

§ VISCOUNT PALMERSTON
said, he thought the argument of the hon. and learned Gentleman (Mr. J. G. Phillimore) went much beyond what he intended; for his argument went to this, that every juryman should be allowed to vote exactly as he pleased, and that then the verdict should be taken according to the opinions of the majority. By limiting the number assenting to a verdict to nine, in place of twelve, they did not get rid at all of the question of principle. Now, the course which his hon. and learned Friend had proposed did not decide the question; because, by disagreeing to this portion of the Bill, a discussion between the two Houses would be involved, and thus the matter at issue would remain open. He, therefore, thought that upon a question of such very great importance, and in reference to which such a variety of opinions prevailed on both sides of the House, it would be far better to leave the law as it stood during the few months intervening between this and the next Session of Parliament, than act in a headlong manner in regard to the extensive change proposed by the Bill. He would, therefore, suggest to his hon. and learned Friend (Mr. J. G. Phillimore) to waive his objections, and next Session a Bill might be brought in dealing specifically with the subject.

§ MR. MALINS
said, he highly approved of the course proposed by the hon. and learned Solicitor General. He perfectly coincided in the opinion that the clause contemplated one of the greatest alterations that could possibly take place in the administration of justice in this country. He thought that, so far as that House was concerned, the greatest caution and consideration were necessary, and that the provisions of the clause eminently merited being dealt with in a separate enactment.

MR. HUME
said, he had always thought it absurd to compel unanimity on the part of twelve jurymen. That was a conclusion in direct accordance with the dictates of common sense, and did not require many hours' discussion, either in the morning or the evening, to be arrived at. He, therefore, thought the hon. and learned Gentleman (Mr. J. G. Phillimore) was perfectly justified in urging the necessity of this change; at the same time, he would recommend him not to press his objection at present, lest it might endanger a measure in other respects also so beneficial.

§ MR. J. G. PHILLIMORE
said, he would 1436 consent to allow the particular provision to be expunged from the clause, lest, by his opposition, the passing a measure otherwise of so excellent a character should be endangered.