MR. AYRTON, in rising to move for a Select Committee "to inquire respecting the expediency of establishing Tribunals of Commerce," stated that he had, in deference to a suggestion which had been made to him upon the part of the Government, consented to enlarge the terms of the Motion by the addition of the words "or otherwise improving the administration of Justice in causes relating to commercial disputes." The subject of the Motion was one he might observe which had been pressed upon his attention by a body of gentlemen occupying most respectable positions in the city of London, who had, to the number of 1500, signed a petition in reference to it, and had requested him to bring it under the notice of the House of Commons. Those gentlemen, in the petition to which he had alluded, stated that they considered the present mode of administering justice in commercial cases to be extremely unsatisfactory, both as respects the manner in which it was administered and the delay which it entailed. They, moreover, drew attention to the fact that in foreign countries justice in such cases was administered through the medium of courts which were called 'Tribunals of Commerce," and prayed that the House of Commons might take into its consideration the question whether a system which was found to work satisfactory in foreign countries might not with advantage be extended to our own. He was not desirous of pledging the House to adopt the views of the petitioners, nor, indeed, could he do so himself. His object in making this Motion was to induce the House to consider whether their complaints were well-founded, and, if so, how they could be redressed. It was true these gentlemen did not furnish any details showing how the administration of justice was defective or unsatisfactory; nor did they point to any remedy which they wished to see adopted; but it should be remembered that they were in the
position of a person suffering from some disease, the nature of which it required technical science to discover, and consequently he could not help thinking that it constituted no valid objection to the consideration of their complaints that they were not enabled to point out in a specific shape the evils for which they sought a remedy. They felt they were labouring under a grievance; they perceived that the objects which they desired to attain when they entered upon the prosecution of a suit in a court of justice were not satisfactorily accomplished; but they were willing to leave it to professional men to explain the causes which led to so unsatisfactory a result, and if possible to devise some means by which the inconveniences of the present system might be obviated. Those inconveniences might have their origin in the proceedings to be taken at the very commencement of a suit, whereby the real point at issue might be so involved in unnecessary technicalities as to lead to considerable difficulty in its determination when it came on for decision before the tribunal to which it had ultimately to be submitted. A considerable improvement in that respect had, indeed, recently been introduced into our system of procedure, and a man might now in a comparatively short time—about twenty days in a simple case—arrive at the stage when his suit was ripe for adjudication. But it was sometimes an object of the utmost importance to merchants that their grievances should be disposed of in as many hours as it now took days to investigate them, and in accordance with the system of the "Tribunals of Commerce" twenty-four hours constituted the limit within which parties interested in a suit were compelled to appear, in order that a preliminary inquiry might take place respecting the nature of the case, in order that any emergent question might be brought under the notice of the Court. Under the existing system, when a controversy had arrived at the point when a judicial decision could be taken, it frequently happened that such decision could not be obtained for five or six months, owing to the length of time which elapsed between the visits of the Judges to provincial towns, and even when it came to a hearing it might not be finally decided. In the metropolis the inhabitants could not complain of this delay to the same degree; yet in important commercial cases, even in London, if a special jury was required, before it could be summoned, they might have to wait three months.
Even when a tribunal was attained, objections might be raised to the manner in which suits were tried. When a cause came before a Judge and jury the Judge took upon himself to determine many of the questions which arose and left only part of them to the jury. One of the questions which Judges took on themselves to decide was the effect of written commercial instruments. Now a Judge might be a very good interpreter of a legal instrument, but it was very different when he came to deal with those instruments, often obscure and ungrammatical, which were in use among mercantile men, who might read them in a sense different from their strict grammatical construction; and although, in cases where technical terms were used, juries were required to interpret such terms, it was said the Judge trenched too much on the province of the jury. He did not say whether this system was right or wrong, but it involved a serious question, whether the administration of justice in commercial cases could not be improved. Then, again, the delays which occurred greatly increased the cost of litigation; and, moreover, when a decision was pronounced it was not certain that it would be final. In consequence of these evils there was a tendency on the part of persons engaged in commerce in various parts of the country to send their causes for trial in London. Such a system might be agreeable to the legal profession and convenient to the Judges, but it could not be otherwise than unsatisfactory to suitors, whose costs were increased, and to the jurymen of London, whose duties were enhanced by this practice. To such an extent had the tendency to transfer the commercial controversies of the country to the metropolitan courts advanced that he found in one year no less than 1,248 causes were tried in London, while those tried elsewhere throughout the kingdom only amounted to about 1,100. That was not the natural proportion of litigation in London to that of the country, as was shown by the returns of the business in the local courts, for out of a total of 297,000 causes only 55,000 were tried within the metropolitan area, and of 4,000 causes for sums between £20 and £50 only 400 were tried within the metropolitan district. This undue infliction of business upon London jurymen was a real grievance, and tended to bring the institution of a jury itself into disrepute amongst them. Moreover, he was informed that the merchants in the city
were so harassed with the duties they had to perform in this respect that they actually preferred to pay £40 or £50 a year in fines rather than serve upon juries. That was not a proper state of things, and, therefore, the inhabitants of London had a great interest in seeing that justice should he properly administered throughout the country, so that the jurymen of the metropolis should not he called upon to try causes which belonged to other districts. It was needless to remark that suitors also must suffer from the present practice. Indeed it was very distinctly shown in the Report of the Common Law Commission, that the trial of a cause before a distant tribunal was more expensive than a decision obtained upon the spot. The proportionate expense was stated in the Report of the Common Law Commissioners as follows, £30 for a trial when the cause of action arose at an Assize Town, £67 when it arose at a distance of thirty miles, and £87 when at a distance of 200 miles. Another of the evils to which merchants were particularly subject was, that when their causes came to what they hoped would be an ultimate trial it was found so difficult to dispose of them by means of an ordinary sitting of a court and jury, that they were told that they could not be satisfactorily decided, and that it would be better to take them to arbitration; a course which was in fact compulsory upon them, and the expense had thus to be incurred over again, the arbitration was only the beginning of a new suit. Why should they not be remitted to arbitration at the outset? Mr. Rowcliffe, a member of the distinguished firm of Gregory & Co. solicitors,, said in his examination before the Commission on this subject—
My firm belief is that merchants frequently give up disputed accounts when they would have a fair hope of recovering. They abandon their claims in preference to being subjected to the annoyance, expense, and loss of time occasioned by travelling long distances to courts of law and waiting there until their cases come on for trial, with very little prospect of anything but a reference to arbitration.
§ An HON. MEMBER moved that the House be counted. It having been ascertained that forty Members were present,
§ MR. AYRTON
resumed by acknowledging the dulness of the question. It was one, nevertheless, on which he thought he was justified in offering a few explanatory observations to explain the object for 1146 which the Committee was to be appointed. Many hon. Gentlemen had asked him what he meant by a Tribunal of Commerce. It was nothing more than a body selected by the Crown in France, consisting of a Judge, who was generally of the legal profession, and the chief merchants of the district — who very much resembled our special jurymen. To them was given the power of dealing with all cases arising out of commercial transactions. Where the inhabitants of a district were very few, the same power was given to the ordinary local Judge, who very much resembled a County Court Judge. The proceedings were very summary. The Court decided a case upon what they understood to be its broad merits. If the claim exceeded £60 an appeal might be made to the superior courts of the country. He did not say that that system could be introduced with all its forms into this kingdom, but he thought that an approach to something of the kind would be an improvement on the present system. There was one place in England — namely, Liverpool, which enjoyed the privilege of a local tribunal of unlimited jurisdiction over cases that might arise within that town. Liverpool had a local Judge who sat four times in the year (more frequent sittings would probably be an improvement), and the merchant of that town had, therefore, four opportunities in the year of bringing his claim before a court, whereas if he commenced a suit in one of the superior courts the trial might not be heard until the expiration of seven months. Why should not the merchant of every other commercial town have the same advantage, instead of having to wait for the time he had mentioned, or being forced to come to London, if he desired a speedier trial. It was of the utmost importance that this question should be settled without further delay, because if a general system of improved local tribunals were not now established they would have individual towns applying for the establishment of special courts under local Acts. When these had become too diversified, some one would propose a grand reform to sweep them all away, and introduce a uniform system, then compensation would have to be given to every one connected with them. He wished to see a general law passed at once, under which the Crown might have the power by charter to establish local tribunals in any place to meet the conve- 1147 nienee of the commercial community. He would, therefore, conclude by moving—That a Select Committee be appointed to inquire respecting the expediency of establishing Tribunals of Commerce, or of otherwise improving the administration of justice in causes relating to commercial disputes.
THE SOLICITOR GENERAL
said, he had listened with great interest to the speech of the hon. and learned Member, not only on account of the importance of the subject in itself, but also on account of the nature of the proposition he made, with the view of remedying what he considered was a great want in our system of jurisprudence. He was anxious to hear from one so competent to inform the House what were the precise grounds on which he thought inquiry was necessary, and the benefit which the commercial community would derive from tribunals of commerce. Although he should not oppose the Motion, he was anxious to state the grounds upon which he should give his assent to the proposition for an inquiry, and at the same time to state the view which he took of the matter. The hon. and learned Gentleman stated that he had presented a petition from a number of persons—no doubt competent to judge of the subject—in London, praying the House to take into their consideration the subjects of Tribunals of Commerce. He admitted that the name in itself was very attractive, and that men engaged in commercial affairs were naturally anxious to see a cheap, easy, and effectual mode of settling their disputes. He could very well understand that they might suppose that a great benefit would accrue to them from the establishment of such institutions. Hon. Members must not, however, be led astray by names—they must consider the amount of the evil complained of, and how those tribunals were to remedy it. The hon. and learned Gentleman stated distinctly and forcibly what he conceived to be the evils of the present system—that cases were constantly occurring in which a speedy decision was the very essence of the case—namely, cases in which perishable property was involved, or in which ships about to sail were in question. Delays in such cases were no doubt very serious, and led, sometimes, to irremediable mischief. Now, in reference to the evil of delay in regard to those proceedings, he would beg to remind the House of one or two facts. There was established in this country, during late years, a very important and most successful improvement in our courts of justice. He alluded to 1148 the County Courts, which were scattered throughout the kingdom, and to which Parliament had given a very extensive jurisdiction. The success of those Courts no man could for a moment doubt. They afforded a speedy and cheap mode of settling disputes involving sums up to a considerable amount. In addition to these Courts, they had lately modified their proceedings at common law, first under a Royal Commission, and afterwards by means of discussions in that House. By these means the proceedings in the Court3 of Common Law were vastly improved, and had been rendered as speedy as was deemed consistent with the interests of the parties concerned. In addition to this, they had within the last two or three years passed an Act on the subject of bills of exchange, whereby a system of more speedy execution was established in reference to those documents than existed in regard to other subjects of commerce. He well recollected the debates on that measure, and the anxiety that was then evinced to reduce procedure on bills of exchange to the shortest time possible. The consequence, however, was this, that notwithstanding the great desire expressed on this point by the House, they were unable to reduce the proceedings, even in an unopposed action or a bill of exchange, to a shorter time than three or four weeks. In these three different classes of measures the object of the Legislature had been to remedy the evils that sprung from delay in the settlement of disputed cases; and if his hon. and learned Friend was able to show that these proceedings could be still further shortened, he, for one, would be glad to lend his assistance in carrying out so desirable an improvement, and he was sure the House would be prepared to give it their sanction. But when his hon. and learned Friend spoke of cases that required the consideration of a special jury being brought into court and fully stated and disposed of within twenty-four hours, he was afraid he was more sanguine than experience would justify him in being. He feared that his hon. and learned Friend would be disappointed if he ever expected to establish such a state of things as that. He must remember that the Court he proposed to establish must be either a tribunal from which there was an appeal, or a thoroughly independent Court from which there was no appeal. Now, as to a Court of the latter character, he ventured to say that if it were to dispose of cases within the space 1149 of twenty-four hours, it would not enjoy the confidence of the country, to say nothing of those persons whose interests were involved in its decisions. On the other hand, if it were to he a Court from which there was an appeal, his hon. and learned Friend must be aware that its decision would be suspended while the appeal was being determined. The case would be taken before one of the higher Courts; but if so, he was entitled to ask why they could not go to the higher Courts in the first instance? He would now take the other head, on which his hon. and learned Friend had impeached the present system in our Courts of Common Law. He said that the mode in which the mercantile cases were handled by the Judge and the Jury was most unsatisfactory; because questions of fact were left to the Jury, while the Judges were in the habit of putting their own construction on questions of law: and he added, that the Tribunals of Commerce in France decided questions both of fact and law. Of course, in the case of any commercial document that had a peculiar meaning, from the nature of the words employed, the evidence of witnesses would be taken, and upon that evidence the jury would be required to decide upon the peculiar meaning of the document. But did he mean to say that a document springing from the proceedings in a commercial transaction was to be adjudicated upon in a manner different from documents arising out of other matters, he ventured to say, that any innovation of that kind in our system of jurisprudence would be eminently unsatisfactory to the country—it would be so abnormal in itself, and so serious in its consequences, that he believed the House would never give its assent to such a proposition. The fact of Tribunals of Commerce adopting the course referred by his hon. and learned Friend only proved that those tribunals sprung out of a state of things loss civilized and less enlightened than we enjoyed in this country. They were the remnants, he would not say of barbarous ages, but of a less enlightened civilization than existed in this country; they were tribunals very far inferior to those we enjoyed, and in no respect more than in this, that the mercantile men who composed them, without stating the grounds on which they interpreted written documents, mixed up in their verdicts questions of law and facts together. His hon. and learned Friend had, however, made a complaint which he was ready to admit was perfectly just. He 1150 said it was a very unsatisfactory state o things in this country, that when suitors came into one court they were handed over to another—namely, from a court of equity to a court of law, or from a court of law to a court of equity. That was, no doubt, a serious blot in the jurisprudence of the country, which had been remedied to some extent already, but which required to be remedied to a greater extent still. Indeed, he would ask his hon. and learned Friend to give his support to a bill which he (the Solicitor General) meant to introduce that night, and which he hoped would go far to remedy one or two of the mischiefs to which his hon. and learned Friend had referred. His hon. and learned Friend then addressed himself to another head of complaint of a different kind, in respect of which he was at a loss to comprehend the remedy which Tribunals of Commerce would supply. He said the jurymen of the city of London had a very unfair amount of business thrown upon them, because it was the habit to send country cases to London to be tried. But how did this happen? In the first place, because the courts in London sat for a greater number of days in the year than the courts in the country did. In the next place, because they had courts sitting in Guildhall, presided over by the most eminent Judges, and because these courts were celebrated for the manner in which mercantile cases were decided. In the third place, because the mercantile men who were jurymen in London were eminent for their skill and intelligence which they brought to bear on mercantile subjects; and it was always the fate of those who were able to discharge their business well, to get more business than others, simply on account of their competency. Those were the evils of which his hon. and learned Friend complained. Let him now consider how the system of Tribunals of Commerce would remedy those evils. In reference to the question of speed in the decision of cases, it would be found, he thought, that they could not materially expedite business in regard to important cases in courts of common law, more than they had done already, without endangering the interests of the parties concerned. If they attempted to do so, it would be only by means of a greater number of circuits in the country, or by some extra means for the trial of these cases. He thought, however, that his hon. and learned Friend was mistaken, if he imagined it would be satisfactory to those who had 1151 causes, particularly commercial causes, to be tried, if they had an inferior kind of tribunal to that which they now possessed, for the numerous causes which were brought to London from the country showed the desire which prevailed amongst the commercial community upon the subject. But he wanted his hon. and learned friend to tell him what the proposed tribunals were to be? Were they to be paid tribunals, or were they not? If they were to be paid tribunals, then he asked his hon. and learned Friend whether he thought that Parliament would sanction the institution of a new staff of tribunals, at a very serious expense, throughout the length and breadth of the land—for they must be established wherever commerce was carried on, and there was no corner of the country in which it was not carried on. If they were not to be paid tribunals, what was the probability that gentlemen would be found to discharge the duties of the office with willingness, and to the satisfaction of the public? Again, he wished to know if they were to be courts with or without appeal. If they were to have an appeal, then that appeal must be to the common law courts already in existence? And in that case why not go to them in the first instance. On the other hand, if they were to be courts without appeal, it was clear that they would resolve themselves into nothing more or less than a system of compulsory arbitration. His hon. and learned Friend had referred to the discredit which formerly attached to our system of common law—that when a complicated case was brought before a jury, and it was found that the time occupied was such that the jury could not decide it, it was thereupon sent by the Judge for arbitration; and his hon. and learned Friend read the evidence which had been given before the Commission which sat two years ago, by an experienced solicitor, who spoke of the expense incurred in bringing a case of the kind before a jury, and the hardship of having it withdrawn and sent for arbitration. His hon. and learned Friend, however, had omitted to state that upon the report of that Commission, an Act of Parliament was founded which provided that if a cause were commenced in one of the superior courts, and either party chose to go before the Judge and satisfied him that the case was one of complicated account, or otherwise proper to be decided by reference, the Judge should have power to insist upon the parties incurring no further expense in pleading or evidence, but 1152 going at once before arbitrators. By that Bill, therefore, the very evil of which complaint was made, was attempted to be cured, and he believed, to a great extent, that it had been cured by that measure. He had taken the liberty of submitting these observations to the House, only in order that the House might not think that any great benefit was likely to be derived from the establishment of Tribunals of Commerce, or that it would be found upon investigation practicable to have Tribunals of Commerce in this country at all analogous to those which prevailed in foreign countries. In countries where Tribunals of Commerce existed, they had been found from the earliest times, never having been superseded by more formal and regular courts; and if we were now to adopt them he believed that in place of advancing, we should be retrograding, and that it would be found if those tribunals were established upon the system prevailing abroad, they would not be satisfactory to the country. At the same time he would admit that the subject had been largely ventilated in commercial circles, and had obtained a certain amount of favour in the minds of those who felt, as he himself did, that all litigation was an evil, and who gladly and readily grasped at any proposition which would relieve them as they thought from that evil. When a feeling of that sort prevailed, and prevailed among a class of persons whose complaints were entitled to the greatest weight, it was certainly advisable that the question should be investigated, and he thought upon the whole that there was no better way of investigating it than the one now suggested, of appointing a Committee to look into the matter, and endeavour to find out exactly what was the constitution of Tribunals of Commerce abroad, how far that constitution would be applicable to this country, and how far it might be improved. He candidly confessed he did not think it would be found to be an improvement, or that it could be introduced into this country with advantage or with satisfaction to the public. True, he might be mistaken. Therefore, he should be glad to see the subject investigated, and should not offer any opposition to the appointment of the Committee. He was anxious, however, that his hon. and learned Friend should understand that the Government did not anticipate that any useful result would ensue beyond this—that the subject would have been inquired into, and that those 1153 who took an interest in it would know all that could be said for and against it, and he expected then that they would see that, so far as the present system was concerned its effects must be remedied by the discovery and adoption of some other measure than the establishment of Tribunals of Commerce.
§ LORD JOHN RUSSELL
—I am glad that the hon. and learned Gentleman the Solicitor General has consented to the appointment of this Committee. I am not much more sanguine, certainly, than he is as to the result of that Committee; but I think that very good results may arise from an investigation of the subject. I am much of the opinion of the hon. and learned Gentleman with respect to these Tribunals of Commerce. In this country commercial men are used to the privilege of bringing their cases before superior courts of law, where they find Judges highly instructed, and in possession of a code of laws which has grown up during many ages, and who arc perfectly able to give a clear and enlightened exposition of that law in any cases that may come before them. It has been pointed out that in many cases of libel Judges are not allowed to direct the jury as to the law, but that juries have the power of deciding both the questions of law and fact; but that power has arisen from political matters being mixed up with this class of cases. It was natural, therefore, and quite right, that the people of this country should insist upon juries being allowed to judge of the law; but with regard to commercial questions, in which no political considerations are involved, juries cannot do better—and I am sure it is what they would wish—than to listen to the opinions of the learned Judge who presides—to decide the question of fact for themselves; but to take the law from him. If, instead of a decision from so high an authority, you had, as I am afraid you would be liable to have—a somewhat confused opinion from men who have not that great knowledge and experience of the law, there would be less content and more discontent with those decisions: I cannot think, therefore, that the specific remedy proposed is exactly the one which would be likely to meet the evils which are complained of. No doubt it is a great evil that commercial men, in many cases, should be obliged, when they wish to close their accounts, to give up debts because of the delay which must take place before their claims can be heard. It is a great grievance, too, that special jurymen 1154 should be so often called on in the city of London to decide questions which come up from the country. I do not think that this altogether arises from the desire to obtain a better tribunal, as the Solicitor General argued; the reason very often is that parties have no chance of getting a decision of equal weight in the country without a considerable delay. This, together with other reasons, leads to a conviction which I certainly entertain, that, having made considerable progress of late years in the establishment of local tribunals—to the efficiency of which the Solicitor General is a witness — we shall have to make further progress in that direction. We shall have to improve and extend those local courts, either by having a greater number or by separating some of the smaller causes from them, in order to secure a more speedy administration of justice. There is no complaint as to the excellency of the administration of justice in these courts; but if that justice is not speedily done injustice is often done. A nation cannot possess a greater benefit than to have justice speedily as well as impartially administered, and every investigation tends to show that more may be done by us in this direction. In other questions besides this these local courts might exercise a beneficial jurisdiction, for there are many men who would prefer to have a speedy decision before a competent tribunal than delay a decision in order to get it from a higher court.
§ MR. J. D. FITZGERALD
said, he believed that the existing state of the law in respect to commercial matters did admit of very large improvements, and he hoped in this inquiry measures for carrying them out would be suggested. Thirty years ago they would have been startled to hoar the speech of the Solicitor General. It was then supposed that our administration of law was the essence of human wisdom; but looking back at the reforms which had since taken place, they were surprised now that they could so long have tolerated the anomalies which had been corrected. The hon. and learned Gentleman the Member for the Tower Hamlets (Mr. Ayrton) had referred to the Act for altering the procedure upon bills of exchange. That Act did great credit to his hon. and learned Friend the Member for Reading (Sir H. Keating) who introduced it. He (Mr. FitzGerald) was a member of the Select Committee by which the Bill was finally settled, and he thought at the time that the same system of summary procedure 1155 might be applied to some other contracts in writing as well as bills of exchange. It was one of the evils in our commercial law which this Committee -might afford the means of remedying. Another was the division of the systems of law and equity. Some steps, though very imperfect ones, had been made during the last few years towards abrogating the distinction between those systems, and he was happy to find that the hon. and learned Gentleman the Solicitor General, by the Bill which he would presently move for leave to introduce, promised a further advance in the same direction. He would ask any gentleman, merchant, or lawyer, whether there was any sound reason why commercial transactions should be investigated in two courts—one of law and the other of equity; or why the court of law, or the court primarily appealed to, should not administer both law and equity. Another subject which very much interested the public was the jurisdiction in bankruptcy. It was conceded that our bankruptcy system was cardinally defective. He had read articles, and heard from all sides that it was a discredit to the ago, that parties were frightened from the court by the great expense and delay, and that the percentage of working a fiat was something incredible. There was another topic which might well be considered by the Committee. He had himself introduced last year and carried through Parliament a Hill for the reform of the law of bankruptcy in Ireland, but though a great advance, it was by no means an approach to perfection. He believed that the result of the Act had been to reduce the expense one-fourth and to increase the business fourfold. He did not agree in one statement of the learned Solicitor General, namely, that they could not beneficially expedite the decision of questions arising upon commercial transactions. He believed that those decisions could he very much expedited with advantage to the public and economy to the suitors. He did not entertain any hope that they would be able to import Tribunals of Commerce into this country, though they might be able to adopt some other simple procedure. He had heard that these tribunals were established in Spain when the commercial transactions of that country were widely spread, thence imported into France, and gradually extended over the other States of Europe. Probably, by an investigation of the principles of those tribunals, they 1156 might discover something which would materially improve our own administration of commercial law. He thought that the Solicitor General had fallen into an error when he supposed that the hon. and learned Member for the Tower Hamlets had suggested that by means of Tribunals of Commerce questions of magnitude might he decided within twenty-four hours, he understood the hon. and learned Gentleman's statement to be that by means of the procedure of those tribunals cognizance might be taken of matters in dispute in such manner that the parties might within twenty-four hours be in a position to act safely in the disposition of property, instead of being obliged to act at their own peril. Upon these grounds he should support the Motion, and he believed great benefit would arise from the appointment of the Committee.
§ COLONEL SYKES
said that with reference to the statement of the Solicitor General, that these tribunals originated in a rude and comparatively uncivilized state of society, he had received a paper from Calcutta only yesterday, headed, "Draught of an Act and outlines of a Code for the organization, procedure, and jurisdiction of Tribunals of Commerce in Calcutta." He had not had time to go through it deliberately, and therefore could not speak to the whole of the details; but it was proposed to establish tribunals for the decision of all commercial questions, consisting of twenty-four Consuls, elected by the foreign and native merchants—two out of the twenty four to sit monthly for reference in all immediate cases. If a merchant bought goods on sample and rejected them on the ground that they were inferior, the Consuls would determine, he presumed, within twenty-four hours, whether they were according to sample or not; and he thought a commercial man would be much more likely to determine correctly than a learned Judge of the Supreme Court. The Consuls, being elected by the merchant community of Calcutta, would have their confidence. No doubt, these decisions would be acquiesced in and there would be very few appeals to the ordinary tribunals. The hon. and learned member for the Tower Hamlets was perfectly justified in bringing forward his Motion, and he should cordially support it.
§ MR. M'MAHON
said, he wished to suggest that if it were intended that the Committee should inquire into the questions of bankruptcy and the fusion of law and equity, the form of the Motion 1157 should be amended. He thought the Solicitor General was right in saying that Tribunals of. Commerce were a remnant of barbarous ages, not at all suitable to our jurisprudence; and there was the broad fact in support of that view that they had been tried in this country and failed. They had existed with regard to matters of assurance from the reign of Elizabeth to the close of the last century, when, in consequence of the partiality of the various gentlemen who had been called in to decide, they had fallen into disrepute. Mr. Justice Allan Park, one of the highest authorities on commercial law, used these memorable words: —It has been much the fashion of late years to insist upon the advantages which the trading part of the nation would derive from the establishment of some equitable and amicable judicatory for the trial of all disputed points in matters of insurance. This is only another proof of the weakness and fallibility of the human mind, which is never satisfied with the enjoyments within its reach, however excellent they may be, but pants alter those of foreign growth. Thus, a people who are possessed of a. species of trial the best calculated for the discovery of truth and the advancement of justice, and which has excited the admiration of the world, are desirous of parting with such an advantage for a mode of trial which is very unsatisfactory.He pointed out that the merchants of other nations who had these tribunals had resorted to London for the purpose of assurance, in order to have the benefit of any question on their contract being tried in London.It is universally agreed by all writers upon jurisprudence that nothing tends so much to the elucidation of truth and the detection of fraud as the open viva voce examination of witnesses in the presence of all mankind, before Judges who from their knowledge of books and men, acquired by long study and experience, are well qualified to discriminate and decide between right and wrong, and before twelve upright citizens who have an opportunity of observing the appearance, countenance, inclination, and deportment of those who are thus examined upon oath. Besides, the subjects of those States which have established these equitable tribunals, sensible of the superior advantages of the English institution, feeling that in great mercantile questions the greatest attention is paid to the external and immutable principles of reason, and that all men, whether natives or foreigners, here meet with an equal measure in the administration of justice, fly to this country to make their contracts of insurance, that in case of dispute they may have the benefit of its laws.He was satisfied it was impossible that any such tribunals would give satisfaction in this country. The Crown had already the power of trying prisoners, and to leave it to the decision of our civil rights also would be inconsistent with the nature of our laws and institutions. In the metropolis the 1158 superior courts held forty-eight sittings every year for the trial of civil causes. In Liverpool, Bristol, York, and Birmingham there were only two assize sittings in the year, so that parties in those towns were obliged to come to London, where so many more sittings wore held. He approved the suggestion that the number of assize sittings should be taken into consideration before the Committee, and if it were adopted he should not think it necessary to bring on the Motion of which he had given notice for Tuesday next.
§ MR. BLAKE
said, he spoke from experience when he said that Tribunals of Commerce worked most satisfactorily. One of these bodies had been in existence for six years in the large commercial city which he had the honour to represent (Water-ford), and was much resorted to by the merchants in cases of dispute. He agreed in the applicability of the principle, and believed that the extension and legalization of these tribunals would be of great advantage to the community. He should therefore support the Motion and he had no doubt that the results of investigation would lead to an adoption of that principle.
§ MR. COLLIER
said, he was glad that the Solicitor General had acceded to the Motion. Many persons among the commercial classes were of opinion that the grievances complained of would be remedied by the establishment of Tribunals of Commerce; but he was afraid that their expectations might be deceived, for he doubted whether such institutions would be found harmonious with the other legal institutions of the country. So far from adding to the number of these tribunals, he was of opinion that they had already quite enough, and it would be better to in-increase the efficiency of those they had than establish new ones. He concurred in the suggestion which had been made as to the propriety of amalgamating, as far as possible, law and equity. There were two other jurisdictions which it was equally desirable to amalgamate, the jurisdiction of the Court of Admiralty with that of the courts of common law. In the ease of an action for collision as the law now stood, a jury might award at common law a verdict for the plaintiff or the defendant; but the Court of Admiralty was empowered to determine the question whether both parties were not in the wrong, and apportion the damage accordingly. Such a jurisdiction was not only equitable but extremely salutary; and he saw no reason why it should 1159 not be granted to the superior courts, and if to them, to the County Courts also. He thought, also, that if this Committee were appointed, it might lead to the conclusion that the circuits of the Judges might be materially altered and improved. They might take place more frequently. Many towns not visited at present might become circuit towns; and by improving the jurisdiction of Judges at assizes, and extending the limits of the circuits, great improvements might be made in the administration of justice in this country. The jurisdiction of the County Courts might also, he thought, be extended so as to embrace cases such as those dealt with by Tribunals of Commerce in Franco. Indeed he was inclined to think that the courts might be constituted the real Tribunals of Commerce, presided over by competent lawyers. Taking into consideration the advantages which might be naturally expected to result from the appointment of this Committee, he was extremely glad the Motion had been acceded to, and thought that the hon. and learned Member for the Tower Hamlets was justly entitled to the thanks of the House.
§ MR. BUCHANAN
said, that he doubted whether the range of inquiry proposed to be given to the Committee was not somewhat too large. If the inquiries of the Committee were to embrace the whole subject of law reform and the fusion of law and equity, those who looked to the establishment of Tribunals of Commerce for summary and speedy justice would be disappointed in the Report of the Committee. It was a great advantage that merchants should be able to look to a Tribunal of Commerce for a speedy decision upon their disputes. Tribunals of Commerce were not the product of the dark ages, or at any rate they were at the present day held in high esteem both in France and Germany, and from his own knowledge he could state that in Hamburgh the greatest advantage had arisen from the working of a tribunal of that nature. There were many cases in which it was most desirable they should have some legal tribunal to which they could resort, where they could give their evidence viva voce, and obtain a judgment in twenty-four hours. At present merchants were deterred from resorting to the tribunals, not from the expense, but from the enormous delay. When the Judge of the Court of Admiralty sat, a Trinity Brother occupied a scat on the bench in order to give the Judge the benefit of his practical knowledge. For the same reason 1160 a matter of mercantile usage was more properly submitted to the decision of mercantile authorities.
§ MR. HORSFALL
said, he wished to express his thanks to the hon. and learned Member for the Tower Hamlets, for the able manner in which he had brought this subject under the notice of the House. Although he was not himself very sanguine as to the results likely to accrue from the proposed inquiry, yet many of those whom he had the honour to represent took a different view, and he was glad therefore that the Solicitor General had assented to an investigation. The establishment of Tribunals of Commerce looked very well in theory, but he was afraid that it would assume a different aspect in practice. Nobody had yet ventured to answer the question of the Solicitor General, as to whether those who were to sit in the tribunals should be paid or unpaid Judges—a point of much difficulty, which would not be easily settled. The hon. and gallant Member for Aberdeen (Colonel Sykes) had produced a Report from Calcutta, as proving the necessity of Tribunals of Commerce, and had mentioned a case involving the question whether the stock corresponded with the sample. The case, according to the hon. and gallant Member, was speedily decided by being referred to a Tribunal of Commerce; but it would not be difficult to prove that? it might have been as expeditiously settled without the existence of such a tribunal. In all commercial communities in England, when a question arose which it was important should be speedily decided, the practice was to refer it to arbitration; and if the case mentioned by the hon. and gallant Member had been so referred, it would have been as quickly disposed of as by a Tribunal of Commerce. Liverpool had been referred to as having only two courts held in the course of the year where cases could be adjudicated upon, and allusion had been made to the Court of Passage. Now, there were four sittings of that court in the course of the year, in addition to two assize courts, so that in Liverpool justice was as speedily administered in commercial cases, as it possibly could be in courts of law. In conclusion, he was of opinion that if the County Courts were improved, and if their powers were extended, the mercantile community could do very well without Tribunals of Commerce.
§ MR. AYRTON
replied. With reference to the payment of members of these tribu- 1161 nals, he said that those tribunals in France consisted of retired Judges, assisted by persons engaged in commerce, who were not paid. The mercantile members of the Tribunals of Commerce in this country would discharge the duties they were now called upon to discharge as jurymen, and they would no more seek for payment in the one case than in the other. At the same time he was not pledged to the introduction of any foreign system, and he had thrown out suggestions for accomplishing the same object by improvements in our present system. He was willing to embrace the question suggested by the hon. and learned Member for Wexford (Mr. M'Mahon) with regard to the fusion of law and equity, and he thought his Motion was large enough to embrace that question.
Select Committee appointed,—
To inquire respecting the expediency of establishing Tribunals of Commerce, or of otherwise improving the administration of Justice in causes relating to Commercial Disputes.
§ Motion agreed to.