COMMON LAW PROCEDURE BILL. (Hansard, 29 June 1854)

§ SIR ERSKINE PERRY
said, he believed this was the proper moment to move the addition to the Bill of the Instruction of which he had given notice. He regarded this as the most important measure on the subject of law reform ever submitted to the House of Commons, and as embodying all the principles of reform contended for by law reformers during the past twenty or thirty years. Its first and leading feature was the fusion of law and equity, Now this and other principles of the Bill were of general application, as properly bearing upon the Supreme Courts of Law at Calcutta as at Westminster; in fact, proper to be applied to all similar courts throughout every part of Her Majesty's dominions. True it was that the courts of law in India possessed powers of self-reform considerably greater than those held by the same tribunals in 870 England; but then the delays and difficulties in the way of introducing improvements, arising out of the necessity of constantly requiring time for the sanction and approval of the supreme authorities, were so great as to nullify, in great measure, the advantages to be derived from such powers being vested in the Judges. He thought, then, that if they could hit upon a practical mode of arriving at the same result much quicker, it would be wise legislation to require its adoption; and he believed that by the addition of this simple Instruction to the Bill they would have attained that object. The Supreme Courts of India differed in no way either as regarded the character of the proceedings or nature of their jurisprudence from the Courts at Westminster; he could see no reason, therefore, why the same rules should not be applied in both cases. If these rules were good for Westminster, surely they would be equally good for Calcutta. The Supreme Courts were introduced into India by the authority of Parliament, and in opposition to the wishes of the Court of Directors; but, nevertheless, they had progressed satisfactorily, and obtained the approbation and good wishes of all the inhabitants of India who had come under their control. They had adopted all the improvements which had been introduced into the courts of this country in later years, and carried them into effect with perfect success, and if an opportunity existed of making those courts still more useful, that opportunity ought not to be neglected. And he would have I the House to recollect that it was not alone the natives of India that were interested in the introduction of a system of cheap and quick justice into that country—a commercial community of some 2,000,000 of persons, representing what he might call the élite of India, and engaged in transactions to the extent of 40,000,000l. annually, were, if possible, much more concerned in the attainment of that object. And the hon. Gentleman the Member for Liverpool (Mr. Horsfall) well knew that that great commercial emporium was as I much interested in the proper reform of the Supreme Courts of India as were the inhabitants of either Calcutta, Bombay, or Singapore. He hoped, then, that he should have the support of all anxious for the welfare of commerce, and, likewise, of those who wished well to the native population, whom it was scarcely in their reach to benefit in any other direc- 871 tion than that of giving them the cheap and efficient administration of justice. He trusted the right hon. Gentleman the President of the Board of Control would not oppose the proposition, but that, for the sake of justice in India, he would consent to allow the matter to be considered in Committee.

§ MR. PHINN
seconded the Motion.
Motion made, and Question proposed— That it be an Instruction to the Committee on the Bill, that they have power to extend the provisions thereof to Her Majesty's Superior Courts in India.

§ SIR CHARLES WOOD
said, he was happy to find that his hon. and learned Friend (Sir E. Perry) approved of the principle of the Bill, for his opinion was one worthy of much weight and consideration. He (Sir C. Wood) was fully sensible of the value of that opinion in reference to the desirability of extending its provisions to India, and although he felt it his duty to oppose the Motion, he did so, not so much because he disapproved of the object of the hon. and learned Gentleman, as that he objected to the mode in which it was proposed to carry that object into effect. In the very first place, although Parliamentary history afforded precedents for inserting in an Act upon one subject clauses relating to a totally different matter, yet he believed that such a course had never yet been taken with regard to India. All the changes and improvements in the law of that country had been kept in separate and distinct Acts of Parliament, and thus a special code existed relating to a special subject. The present Motion proposed to break in upon that uniformity for the first time, and thus the simple addition of an Instruction in an English Bill would introduce uncertainty and confusion into what had hitherto been plain and straightforward. Again, in the last Session of Parliament it had been a principle laid down and agreed to on all hands, that the internal arrangements of India should be left to India to legislate upon. But here it was proposed, directly in contravention of that principle, to extend a most complicated and minute measure of internal regulation to that country. If, however, it were possible to extend the principles of this Bill to India, without taking the course suggested by the hon. and learned Member, he (Sir C. Wood) would perhaps not be disinclined to overlook those objections. But in truth the very contrary was the fact, and it was perfectly possible to intro- 872 duce into India all such of the principles of this Bill as were applicable to that empire, although the Motion of the hon. and learned Member might not be carried. It was with a view to such a fit amelioration of the law that the Commission, to which the hon. and learned Gentleman referred, had been appointed. The hon. and learned Member found fault, it was true, with legal Commissions, but he should remember that this very measure, of which he approved, issued from such a body. He therefore objected to the proposed course of proceeding because he thought it wrong in principle to introduce, by a single clause, a new code of laws into India. India ought to be legislated for in India, and in his opinion they would stultify themselves by taking the matter out of the hands of the Commission.

§ MR. COLLIER
said, he hoped his hon. and learned Friend would withdraw his Amendment. Without entering into the question whether or not the laws of England should be applied to India, he thought that if that was to be done at all, it should be by means of a separate measure. He trusted the measure would not be endangered by the Amendment being persevered with, for he ventured to say it was one of the most important measures that had been introduced for centuries, and in his opinion it was the most important measure of the present Session.

§ MR. NAPIER
said, he had intended to move the extension of this Bill to Ireland, but he had refrained from doing so from a fear of retarding its progress. He therefore pressed on the hon. and learned Gentleman to follow the same course and withdraw his Motion.

§ MR. V. SCULLY
said, he would take the opportunity of stating, that he regarded it as very prejudicial to the public interests to have separate legislation for different portions of the empire in reference to such matters. Indeed, he must confess, paradoxical as it might appear, that on the whole, he infinitely preferred to see Ireland sharing bad legislation with England than that she should occasionally enjoy all the advantages of good measures, when the sister country was not so well dealt with; and for this reason—it was very certain that when anything was wrong in England a remedy was sure to be found, sooner or later; not so, however, with Ireland—there things might be very badly ordered indeed, without provoking the slightest attempt at amelioration. As an instance of the 873 strange working of the present system, he might point out the fact that while he found on the notice paper mention of no less than twenty-five measures, all more or less of a reformatory character, only nine of them were applicable to Ireland; while, in twenty out of the twenty-five cases, legislation might be most usefully extended to her.

THE ATTORNEY GENERAL
said, he wished to state, in reply to what had just fallen from his hon. and learned Friend, that the Bill was only not made applicable to Ireland from an assurance which he received from several members of the Irish bar, that there were differences in the practice of the courts of the two countries which might interfere with such an object. Had it not been for this reason, he should have been anxious to extend the measure to Ireland.

§ SIR ERSKINE PERRY
said, he would consent to withdraw the Motion, though with regret.

§ MR. PHINN
said, he would take that opportunity of calling the attention of the First Commissioner of Works to the state of the law courts. Nothing could be more filthy or horrible than the Bail Court, or the little Exchequer Chamber. The stifling heat and scanty accommodation in most of the courts made it almost impossible to transact public business in them. The Judges had complained over and over again of this state of things, and he thought it was high time some better accommodation was provided.

§ MR. HENLEY
said, he would suggest that it would be better to postpone this clause until some information was obtained as to the number of jurors who would be available. At present he was inclined to think that to raise the qualification of jurors, and, consequently, to limit their numbers, would, in many counties, lead to very great difficulties.

THE ATTORNEY GENERAL
said, this clause was the result of a very general feeling among all persons acquainted 874 with the course of things at assizes, that while in the large towns a class of jurors was easily obtained of considerable intelligence, in the agricultural counties there was considerable difficulty in getting jurors whose education and intelligence were of sufficiently high standard to fit them for the discharge of their very important functions.

§ MR. HENLEY
said, he felt certain that the adoption of this clause, as the Bill at present stood, would lead to considerable difficulty and confusion. As the provisions of this clause were not to extend to the jurors summoned for Crown trials, the sheriff would henceforth have to make up three separate lists of jurors without having any means afforded to him from the document from which he at present made out the lists of knowing what was the particular qualification of each juror. He thought some machinery ought to be introduced into the Bill by which the sheriff would be able to obtain this information.

§ MR. PHINN
said, it was admitted on all hands that it was desirable to raise the qualification of jurors. For his part, he thought that a mixture of jurors of different classes would be exceedingly valuable.

§ MR. NAPIER
said, he would suggest that these provisions relating to jurors should be embodied in a separate Bill.

§ MR. STUART WORTLEY
said, he was of opinion that it would be of great advantage if jurors of a higher class of intelligence were brought to bear upon criminal trials.

THE ATTORNEY GENERAL
said, he quite agreed with the right hon. and learned Gentleman that it would be exceedingly advantageous to employ, to a certain extent, a higher class of jurors in criminal cases. He would propose to omit these clauses relating to jurors, promising at the same time that a separate Bill should be introduced relating to this part of the law.

§ MR. HENLEY
said, he wished to suggest that in any Bill on this subject regard should be had to the feelings of the great mass of the people, who came within the scope of the criminal law. At present the theory was, that a man should be tried by his peers, and he should be very unwilling to consent to any alteration which would lead to the poorer classes being tried by persons removed from their own condition in life.

§ MR. STUART WORTLEY
said, he 875 must beg to explain that his desire was not that criminal juries should be composed entirely of the higher classes of jurymen, but that there should be a certain mixture: for instance, that country gentlemen, eligible to serve on the grand jury, but not actually engaged in serving, should sit along with their poorer neighbours on common juries. He wished to ask the hon. and learned Attorney General whether there was any prospect of a measure being introduced this Session with regard to the grand juries of the City of London. At present, twelve times a year, there were forty-eight gentlemen summoned, to whom an exemption for three years from serving on common juries was then given, and the effect of this practice was, that the intelligence of the jury list was exhausted, and the juries in the City became little better than those in the agricultural districts.

THE ATTORNEY GENERAL
said, he was not prepared to introduce any Bill on the subject referred to by the right hon. and learned Gentleman during the present Session. The subject was under consideration in connection with the important question of a public prosecutor, with regard to which he might say—as he was not present when a question referring to it was asked by the hon. and learned Member for Leominster (Mr. J. G. Phillimore) the other day—that he had given to it his most serious and anxious consideration, but he had found it so surrounded with difficulties that he had not been able to draw up such a measure as he should feel justified in submitting to Parliament. If we were remodelling our whole judicial system, the matter would not be so difficult; but to adapt such a new institution to our existing institutions, with a due regard to existing interests, was one of the gravest problems which the Legislature could be called on to solve. So difficult, indeed, I was it, that the present Lord Chief Justice (Lord Campbell) had stated that, the matter being brought under his consideration when he was Attorney General, he had reflected upon it. but he had not been able to satisfy himself as to any scheme for carrying out the desired object. He (the Attorney General) was still seeking about for information on the subject, and he hoped by next Session to have some scheme matured which he might think worthy of being submitted to the attention of Parliament. Without some such insti- 876 tution as this it would be impossible to carry out the object referred to by the right hon. Gentleman—the abolition of the grand jury system.

§ MR. STUART WORTLEY
said, his anxiety was not for the abolition of the grand jury system so much as to see it modified, and the number of attendances retrenched. Four times a year, he thought, would be sufficiently frequent attendance.

§ MR. V. SCULLY
hoped, that if a separate Bill were to be introduced, regulating the grand jury system of England, its provisions would be extended to Ireland also.

THE ATTORNEY GENERAL
said, he wished to explain that the clause now before the Committee proposed to get rid, in all civil causes, of the present anomalous practice of shutting up juries without refreshment, for in future all necessary refreshments and accommodation were to be provided by leave of the Judge. It also proposed that juries should be discharged after twelve hours if they did not agree; and, lastly, that if only ten of the jurors were unanimous, their verdict should be of equal force as if found unanimously by the whole jury.

§ MR. HENLEY
said, he strongly suspected that if the refreshments were to be found by the public a great deal of the time of juries would be taken up in their discussion rather than in that of the issue which they had to try.

THE ATTORNEY GENERAL
said, he must explain that refreshments could only be had at the discretion of the Judge; and, as jurors were servants of the public, he thought it only just that the public should bear the expense of providing what was necessary for them.

§ MR. STUART WORTLEY
said, he wished to know what was the opinion of the Common Law Commission with regard to extending this provision as to taking the verdict of ten jurymen out of the twelve to criminal cases. It must be remembered that criminal offences were not unfrequently brought into issue in civil causes—such, for instance, as perjury, fraud, conspiracy, and even arson in assurance cases; nay, he had known an assurance case in which the verdict of the jury involved the 877 crime of murder; and there would then be this anomalous state of things, that on the civil side of the court a man might be found guilty on the verdict of ten jurymen, while on the criminal side the unanimous verdict of twelve jurymen would be required.

THE ATTORNEY GENERAL
said, he would readily admit that the clause was not in accordance with the views of the last Commission, who were unanimously agreed in favour of retaining the present system of unanimity in the jury. The provision was adopted by the House of Lords in conformity with the views of the Commission of 1831, who were of opinion that if nine of a jury were unanimous their verdict ought to be taken. The late Commissioners, however, held that such a practice must necessarily lead to general litigation, inasmuch as persons would be much more induced to sue for a new trial in case of any number of the jury having pronounced in their favour. He confessed his own views were most strongly in favour of the latter conclusion; and, therefore, were against the clause as it stood. Still, as the question had been much considered in the other House, he should be loth to disturb the settlement come to.

§ MR. I. BUTT
said, he had intended to have divided the Committee on the clause. He had no hesitation in affirming that to dispense with unanimity on the part of juries would be altogether to overturn the institution of trial by jury. He thought that a provision so important as that ought, at all events, to be made the subject of a separate enactment; and that in so thin a House as that was, sitting to discuss a Common Law Procedure Bill, its discussion ought not to be proceeded with. He objected to so great a change in trial by jury, which was interwoven with all the institutions of the country. However, he agreed in the wisdom of removing all coercion upon juries.

§ MR. MASSEY
said, he approved of the clause, holding it to be against human nature to secure in all cases the unanimity of twelve persons.

§ MR. NAPIER
said, he entertained a strong opinion in favour of the necessity of unanimity in the jury. He believed, if the proposed change were extended to criminal cases, it would be found impossible to carry out capital sentences where the verdict of "Guilty" had only been given by ten jurymen.

§ MR. COLLIER
said, that under the 878 present system the unanimity of juries was only apparent, but if the former part of this clause, which abolished coercion, Were adopted without the latter, there would no longer be any unanimity, either real or apparent. The consequence would be, that juries would be continually separating without coming to a verdict, and parties would be put to the expense of new trials.

§ MR. H. S. KEATING
said, he objected to the clause as it stood, on account of the anomalous state of things which would result from it. As the right hon. and learned Gentleman the Recorder of London had pointed out, a man might be found guilty of an offence by ten jurymen on one side of the court, while, on the other side, the verdict of the twelve would be required. He hoped that noble Lords in another place would not be so unreasonable as to insist upon this clause.

THE ATTORNEY GENERAL
said, he did not for a single moment suppose that the Bill would be rejected in another place, if this clause were struck out. His own opinion being in favour of requiring unanimity, he should certainly support the omission of the latter part of the clause.

§ MR. G. BUTT
said, he was strongly of opinion that the clause ought not to stand in its present shape. It was impossible, if it were introduced into civil practice, that it should not be extended to criminal cases, and he did not think that in these cases the system of taking the verdict of ten jurymen out of twelve would give satisfaction.

§ MR. ELLIOT
said, he wished to point out to the Committee, that the system proposed to be introduced into the English law had long been in practice in Scotland, and had been found to give universal satisfaction there.

THE ATTORNEY GENERAL
But we have not here the intermediate verdict of "Not proven."

§ MR. CRAUFURD
said, he was decidedly for maintaining the clause as it stood. The plea as to the desirableness of securing unanimity on the part of a jury he regarded as an absurdity.

§ MR. WORTLEY
said, that the objection entertained by the people of Scotland was to trying civil cases by juries at all. They were formerly tried by judges alone, and the new system had never become popular, though he believed that one of the chief elements of its unpopularity was the anomaly which it created between the civil 879 and criminal practice with regard to this very point of taking the verdicts of juries.

§ MR. ATHERTON
said, he regarded the clause as the most beneficial feature in the whole Bill. Let them adopt it, and they would no longer have to witness the spectacle of jurors being starved into unanimity by the dogged obstinacy of stout men in top-boots, whose mastication was as tough as the leather from which their boots were made.

§ MR. HENLEY
said, he could not come to the conclusion that the ends of justice would be furthered by the adoption of the clause.

§ SIR CHARLES BURRELL
said, it was his decided opinion, if the clause were adopted, that the verdict of a jury would no longer be worthy of the same respect in the public mind.

§ MR. APSLEY PELLATT
said, he objected to the Judge who presided being the party to decide as to whether a person should be sworn or not; he thought that this decision ought to be left to a man's own conscience. He should move also, as to this clause, that the word "religious" be omitted, and the word "conscientious" inserted.

MR. DIGBY SEYMOUR
said, he was inclined to agree with the hon. Member for Southwark, for he considered that no man ought to be allowed to sit in judgment on another man's conscience.

§ MR. HENLEY
said, he thought the clause would act well as it stood; if, however, the Amendment of the hon. Member for Southwark were pressed, the best form of raising the question would be to move to omit the word "conscientious" and insert the word "religious."

§ MR. STUART WORTLEY
said, hon. Members appeared to be splitting straws about expressions, and he could not understand what conscientious scruples could exist except such as were founded on religious feeling.

THE ATTORNEY GENERAL
said, that this clause of the Bill had been most carefully considered, and by intermeddling with the wording of it, which had been adopted with every desire not to wound the 880 feelings of any parties, the Committee would destroy the effect of the whole measure.

§ MR. PHINN
said, he wished to call attention to the sytem of stamps upon bills of exchange and promissory notes, which he considered required considerable amendment, particularly as to their being refused as evidence under certain circumstances in courts of law, such as, for instance, a bill being drawn for a larger amount than the stamp would carry. This might be altered, he suggested, by imposing a fine in such cases, and, upon payment of the fine, allowing the bill to be received as evidence.

THE ATTORNEY GENERAL
said, that that subject was rather a question for the Chancellor of the Exchequer than himself, and he feared the hon. Member would find that there were a good many fiscal difficulties in the way. He would, however, consider the subject.

§ MR. ATHERTON
said, he should move the omission of the clause. In this clause the appeal was given to the party decided against as a matter of right, while by Clause 36 it was given on certain conditions. Owing to these circumstances he believed the 35th clause would be inoperative.

THE ATTORNEY GENERAL
hoped his hon. and learned Friend would not persevere with his Motion. He was sure that the omission of this clause would not meet with the approbation of the judicial authorities in another place, and would imperil the measure.

§ MR. ATHERTON
said, he was so anxious for the adoption of this valuable measure that he would not press his Motion.