The Lord Chancellor
said, that as he had stated on several occasions before what was the nature of this Bill, it would be now unpardonable in him to occupy the attention 308 of their Lordships an instant. He would, therefore, simply move, That the Bill be now read a third time."
§ Lord Wharncliffe
rose to move, as an Amendment, that the Bill be he read a third time that day six months. He said, that as this was a bill emanating from the first Law-officer of the Crown, and from Commissioners appointed to inquire into the state of the law in this country, he thought it more advisable not to offer any opposition to it in its former stages, but to wait until it had received all the amendments which were to be made in it, in order to see what shape it would assume before it became a law. He would now state his objections to the measure. He hoped, that neither he nor their Lordships would be actuated by any improper feeling on the occasion, although great pains had been taken on several occasions to throw odium on their Lordships, and they had now been over and over again warned, that the eyes of the people were upon them—that the people were jealous of their proceedings, and thought that they did not Wish to give the poorer classes the relief those classes required. It was the duty of that House to be actuated by no improper feeling; it was its duty to carefully watch the provisions of every measure that was to pass into a law, and if their lordships saw that the measure was not good, but, on the contrary, tended to do hurt to any portion of society, they were bound to do their duty, no matter what might be the construction put upon their conduct. He was of opinion, though a different doctrine had been held, that that House was peculiarly well qualified to pronounce an opinion on a bill of the nature then before them, containing, as it did, so many eminent persons who had been educated in the profession of the law. The House of Lords was more capable than any other assembly of pronouncing an opinion upon the efficacy of the proposed Bill, and its applicability to the present state of society; and he, for one, would not shrink from the performance of that duty. He had examined the Bill as attentively as he could, and the result of the consideration which he had given it, was a conviction that their Lordships ought not to pass it. Amongst the objections which he entertained to the Bill, there was this—that it was presented to them, as it were, under false pretences. He was as ready as any man to admit that the state of the law, so far as it related to the recovery of small debts, did require amendment, and 309 did demand, perhaps, the immediate interference of the Legislature; but the Bill before them, instead of effecting the Amendment which confessedly was wanted, went to create new Courts, and did more, in his opinion, to disorganize the Administration of the Law, than any single measure that he could recollect. Let it be admitted that there were some faults in our system of jurisprudence, he would say, let those faults be removed, but do not introduce new institutions. Nothing was more easy, when a grievance seemed to press with undue severity, than for any one to say, I will remedy this grievance by removing it altogether, overlooking all the while the chances of other and worse evils which the removal would inevitably introduce. It was very easy for any one to say, I will remove existing institutions—I will make the whole as a sheet of white paper; and when I have done that, I will write my own scheme thereon. That might be all very easy; but was it safe? Had they not much better adhere to the institutions of the country as they found them established, and preserve the principle of those institutions in its full integrity, only adopting such modifications in the true spirit of the ancient establishments of the land, as might effect improvement without producing essential alteration? In looking at the Bill then upon the Table of their Lordships' House, it should be borne in mind, that many of the counties, especially in the North of England, were very large; and it was a strange way of giving cheap and speedy justice, to send men from the remotest parts of Yorkshire or Lancashire to the county town, for the trial and settlement of their disputes. Perhaps it would have been better if the Assizes had been made more frequent; and now that there were enough of Judges, he saw no reason why there should not be more frequent circuits. It was stated further, that the proposed alteration of the law would lead to the reduction of fees. It was not necessary to have a special Act of Parliament for that purpose, seeing that the Judges at Westminster had full authority to regulate fees to any extent necessary. Again, great stress was laid upon the bene cial effects which the Bill would produce in the introduction of speedy justice. He confessed himself one of those who very much doubted the utility of enabling people speedily to settle their personal quarrels with attorneys at their elbows; and the profession contained amongst some of the 310 most honorable, some of the basest of mankind; through the agency of such men litigation beyond calculation would be created. In his opinion, some part of the delay had a beneficial tendency, as leading to the compromise of suits. One of the evils which could not fail to arise from the Bill was, an immense increase of vexatious litigation. In all cases of assault, libel, slander, or personal quarrels of any kind, parties well knowing that they had at their hands the ready means of commencing actions would be always sure to do so, and petty suits would be multiplied without end. The Bill proposed that no action could be brought in these Courts for any sums above 50l.; but why, he would ask, should not suitors for that amount have an opportunity of availing themselves of the professional services of respectable men, instead of the low persons that would be sure to infest the several County Courts if this Bill were passed into a law. His noble and learned friend, the Chief Baron of the Exchequer, had told them only a few nights since, that almost all the bar were opposed to the Bill, and so likewise were the Judges of the superior Courts. They were opposed to it on various grounds, and amongst others on this—that it would tend to lower the high character of the profession. At present, the advocate in any cause pleaded that cause before a Bench, which he held in the highest veneration, and in the presence of a bar whose vigilance and rivalry he must fear. Under the Local Courts Bill, he would plead his causes before a Bench necessarily of an inferior order, and opposed to perhaps the very lowest amongst the attorneys. Was not such a change calculated to produce effects not only derogatory from the character of the profession, but seriously injurious to the interests of the public? Let him ask, also, how would the Bill affect the bar, as to its immediate interests? He wished their Lordships would look at the effect of this Bill in connexion with the measure which had changed the constitution of the Bankruptcy Courts. By that measure, offices of considerable importance were created; not similar in value to the abolished Commissionerships, which were scarcely worth the acceptance of any but those just rising in the profession, but places of considerable consequence, which it might be an object of ambition and desire with persons having practised for a long period at the bar, to obtain. Their Lordships were now asked 311 to sanction a measure which would enable the Crown to create as many more places of equal importance as it might deem lit. There were fifty-two counties in England; and whether or not it was intended to provide each of these counties with a Local Judge, he did not know; but it would be evident to their Lordships, that from the provisions of the Bill, the appointment of a considerable number of Judges and Registrars was contemplated he did not mean to attribute the introduction of this measure to any desire of patronage on the part of the noble and learned Lord; but he requested their Lordships to consider what must be the power and influence of the Chancellor for the time being, if, besides possessing the appointment of the bankruptcy Judges, he should be enabled to dispose of the places created by this Bill, which the noble and learned Lord had valued at 2,000l. a-year each? He confessed, notwithstanding the great respect he felt for the talents, the dignity, and disinterestedness of the bar, that he was afraid that this Bill would have a tendency to lower the character of that profession. He would ask the House also, in what way could such a bill as that benefit the poor man? In what way did the rich tyrannise over the poor from any lack of ability on the part of the former to go to law." He would affirm, that the rights of property were never better protected than at the present moment; and, as to talk of benefiting the poor man by promoting the recovery of small debts, he should only say that, in writs for small debts, the poor man was generally the defendant. It had been said, that some analogy was to be found in the Scotch system with that which the present measure proposed to establish; perhaps there might be such an analogy, but with him that was no recommendation, since it was one of the objections to the Bill that it tended to encourage useless litigation, and the Scotch had shown themselves a people much more ready to go to law than the English, as the frequent appeals before their Lordships fully testified. His Lordship concluded by moving, that the Bill be read a third time that day six months.
The Earl of Rosse
said, that the Bill was no experiment; that forty years ago a similar measure had been introduced into the Irish Parliament which had been in full operation from that time to this, and produced most beneficial results. The Law Commissioners appointed to investigate 312 the proceedings of the Courts of Law in Ireland, expressed the strongest approbation of the effects of the measure in that country. The Registering Barristers in Ireland were, in his opinion, of the same sort of character as the Local Judges to be appointed under the present Bill, and their services in Ireland had been eminently beneficial. It had long been to him a matter of great surprise, that something of the sort had not been set on foot in this country. Noble Lords seemed to say, that the Bill would render justice cheap and speedy and near, and that that formed an objection. Did they mean to say, that justice ought to be slow, and dear and distant?
The Earl of Wicklow
said, that the noble Earl who spoke last was quite mistaken in supposing that the Irish Assistant Barristers at all resembled the sort of Judges who would be appointed under the new Bill. The Assistant Barristers were not stationary—they practised in the Courts above, and had about them all the good influence of metropolitan practice—each year acquiring fresh knowledge, and gaining from day to day upon the confidence of the people. If their Lordships, therefore, supposed that this Bill had the sanction of forty years' experience, and voted for it under that impression, they would be totally deceived. The courts in Ireland did not resemble the Courts it was proposed to establish in England. He agreed with the noble Earl, that the Assistant Barristers were of the greatest utility, and he should very reluctantly oppose the Bill, if the Judges under it were to resemble the Assistant Barristers; knowing, however, that no such resemblance existed, be should have no difficulty in supporting the Amendment which had been moved by his noble friend near him.
§ Lord Lyndhurst
thus early presented himself to the notice of their Lordships, that he might fairly and candidly state his objections to the Bill. Out of doors he had been charged with party motives; but his noble and learned friend on the Woolsack, when he introduced it, said expressly, that it was not to be viewed as a party measure, and that it rested entirely on his own responsibility. He (Lord Lyndhurst) had sent a note from the Circuit, stating his dissent; and his noble and learned friend must, therefore, have known of his intention to oppose it. If it had since been adopted by Ministers, that was no reason why he should shrink from the opposition 313 he had before avowed, or hesitate to express with openness and confidence the reasons which he thought should induce their Lordships to reject the Bill. He would first direct their Lordships' attention to the very-commencement of the Bill, which, on principle, seemed liable to the strongest objections. The first clause gave an unlimited and undefined power to his Majesty, or rather to his noble and learned friend on the Woolsack, to create any number of offices he might think fit—Judges, with salaries of 2,000l. a year—an equal number of Registrars, with salaries of 700l. or 800l. a year—and any number of subordinate officers which he might think fit to attach to those Courts. He would venture to say, without the fear of contradiction, that such a principle of legislation as this had never before been adopted by the Parliament of this country. He was well aware that, personally, his noble and learned friend bad no wish for this unlimited power; his noble and learned friend did not desire this vast patronage; and, if given, it would be safe in his hands; but the Great Seal might be placed in a different trust. His noble and learned friend had observed, that he had endeavoured to find out some quarter in which he could place this patronage; but he had not been successful in his search, and had, therefore, been obliged, as a dernier resort, to place it in the bands of the Lord Chancellor himself. He was ready and willing to give his noble and learned friend credit for the most patriotic views, and the most disinterested intentions; but their Lordships were not, on such a subject as the present, to legislate for individuals. His noble and learned friend might not always hold the office which he now so honourably and usefully filled. It might be filled by a person of very different views, motives, and intentions. He could suppose a person possessed of the popular talents, of the commanding eloquence, and of the transcendant abilities of his noble and learned friend, but not possessed of the moderation and disinterestedness for which his noble and learned friend was so distinguished, holding the office which his noble and learned friend now filled—he could imagine such a person, anxious to devote the whole of his power to the purposes of personal aggrandizement and ambition, and indisposed towards those institutions of the country, which appeared to him calculated to check him in his career—he could fancy such a person, about to bring forward a 314 new system, fully sensible of the fleeting nature of popular support and applause, and anxious to establish and consolidate his power upon some securer and more substantial foundation. Should there happen to be at any time such a person of such a character filling the high office of Lord Chancellor of England, the patronage which such a measure as this would vest in him would give him ample means so to consolidate his power and to establish himself in almost unlimited and permanent authority in tills kingdom. Let their Lordships for a moment advert to the patronage and consequent power which the Lord Chancellor at present possessed. The Lord Chancellor had the disposal of Church patronage to an immense extent, and he thereby possessed immense influence among the clergy of the country. He appointed to the magistracy of the country, and he, in that way, possessed a strong influence over the whole of that powerful body of persons. In addition to all this, their Lordships should bear in mind, that the Lord Chancellor had the direct nomination of thirteen out of the fifteen Judges of the land—that he had considerable influence and control over the appointment of the other two—that he had also, almost absolute influence over the appointment of the two equity Judges, and that he held in his hands the sole appointment of the Judges in the new Court of bankruptcy, with all the subordinate officers attached to that Court. The Lord Chancellor had also the power of selecting, for the honours of the profession, those whom he might be most disposed to prefer at the Bar, which gave him enormous influence and power over the profession at large. But this very great influence existed, merely, as things were at present. Now, if, in addition to it, their Lordships were to throw into the scale the appointment of thirty or forty new Judges (as proposed by this Bill), with thirty or forty new Registrars; and, at the same time, an immense influence was to be established over the commercial classes by the creation of an unlimited number of official assignees (all of which appointments would be at the disposal of the Lord Chancellor)—if, in addition to the power already possessed by the Lord Chancellor, their Lordships were to add the powers of this Bill—would they not make the office of Lord Chancellor of more substantial power than any other in the State? Suppose the office of Lord Chancellor to be filled by a person possessing 315 the popular talents of my noble and learned friend, but prepared to take a course of which he was incapable—suppose a Lord Chancellor, anxious to pervert the influence he possessed to private purposes and personal aggrandizement, what more desirable means could any such individual wish to unite in his own person, in order to extend and consolidate his power, than would be afforded to him by the Bill which his noble and learned friend on the Woolsack (with, no doubt, the most honourable and disinterested motives), now proposed for their Lordships' adoption? This was one of the grounds, amongst others, which induced him to oppose the Bill. He objected to it because it would place, in the hands of an individual, powers which would be inconsistent with the Constitution of the country; and which might, in the hands of a crafty, able, and designing Minister, he employed for the most unconstitutional purposes. He gave his noble and learned friend full credit for having endeavoured to divest himself of that patronage—he had wished to vest it in the Judges of the land—but he found, that no where could it be so properly lodged as with himself: he had judged rightly; and no man acquainted with the Constitution could decide otherwise. Leaving this point, however, he would call the attention of their Lordships to the expenditure that would be occasioned by the Bill. By means of an Act lately passed, he was able to state, that the cost of the Court in which he (Lord Lyndhurst) presided, was 35,000l. per annum; each of the two other superior Courts of Westminster-hall might be stated at the same amount; so that the expense of the whole three Courts of Westminster-hall did not much exceed 100,000l. a year. For this sum the whole body of the criminal and civil law of the country was administered; but the new system of judicature of his noble and learned friend would cost not less than 150,000l. a year, or one third more than the three superior Courts of Westminster-hall. He agreed, that where it was certain that a new system was a good one, the cost ought not to be taken into consideration; but, if the change were of doubtful policy, like the present, the expenditure of such a sum seemed the excess of extravagance. He would next proceed to his great objection to the plan—that which had been stated by the noble Baron, viz.—that it established local Judges to administer the law. Nothing could be more pernicious than the establishment of 316 such local Judges, subject to local influences, partialities, and feelings. He begged their Lordships to consider the immense number of such local Judges which this measure would spread throughout the kingdom, and the danger of their being influenced by the prejudices of the narrow districts in which they would be placed. His noble and learned friend stated, that four of these Judges would be established in one of the Ridings of Yorkshire; in a comparatively narrow district, permanently residing there, subject to the influences arising out of the private friendships and private partialities which they must naturally form in their neighbourhood. They would be exposed to the charge of partiality, and liable to that which was as bad—the suspicion of it—in the discharge of their public and official duties. That would be the case with all the other local Judges which it was proposed to establish in the other districts of the country. It was, as he had stated in a former discussion, on the principle, that local jurisdictions were liable to such abuses, and had generated such evils, that the local judicatures which formerly existed were abolished. It was the abhorrence of such abuses which should induce their Lordships now to resist the establishment of such local judicatures. The principle, indeed, formerly existed in the jurisprudence of this country, but it was abandoned, to use the words of Sir Matthew Hale, on account of the "brocage and partiality," to which it gave rise. Would it not then be folly—would it not be wickedness, to re-establish a system exploded for such a reason? Several Acts of Parliament had been passed to prevent a Judge administering the law even in the county where he was born, and the preamble of the 33rd of Henry 8th expressly set out, that it was intended to remedy the evil that might be occasioned by the residence of Judges in the country. It said:—'Since the making of which good Act and law, divers justices and men learned in the law of this realm, for their own commodity and ease, have obtained, contrary to the form of the said Act, to be justices of assize, in the counties where they were born, or where inhabiting, whereby some jealousy of their affection and favour towards their kinsmen, alliance, and friends, within the said counties, hath been conceived and had against them by the King's most loving subjects. For reformation, &c., that no justice nor other man learned in the laws of this realm shall use nor 317 exercise the office of Justice of assize within any county where the said justice was horn or doth inhabit.' He admitted, that this law was afterwards repealed, but the ground of the repeal was, that practically the Judges never did reside, excepting occasionally, anywhere but in the metropolis. The principle of our law was, therefore, against the administration of justice by local Judges. Another objection, of considerable importance, was, that there would, in the course of a short time, he a material distinction—a marked separation between the practice and the law of these Local Courts and the superior courts of Westminster-hall. Supposing that men of legal practice and of high consideration in the Courts of Westminster-hall should be selected to fill the situations of these local Judges, he would take upon himself to affirm, with confidence, that by being removed to a distance from the great centre of law and legal information, and residing constantly in their local judicial districts, without competition—without motives to exertion—without the constant watching of an independent and jealous Bar—they would, by degrees, become incompetent to discharge the duties which would devolve upon them. In stating this opinion to their Lordships, he did not rely upon his own unsupported authority. He would direct their Lordships attention to a very high authority upon the point—to a passage in an article contained in a publication, of great celebrity, which was for many years conducted by a learned Lord, now a Member of the other House of Parliament, and to which his noble and learned friend on the Woolsack, if he had not been greatly belied, had, from time to time, contributed the aid of his powerful pen. The article from which he was about to quote appeared ill the Edinburgh Review; and he the more readily quoted it as it referred to those very local tribunals in Ireland, which had been appealed to by a noble Lord, that evening, ill support of that Bill. The writer, in reference to these tribunals, thus expressed himself:—'The objects of legal research, the occupations that quicken the faculties for the transaction of legal business, are among the least attractive exercises of the human mind; and it may be safely asserted, that nothing will keep the mind habitually exercised them but the pressing stimulus of a present necessity. A retired anatomist may cling with fondness to the inquiries of his past life— a superannuated astronomer will often 318 think of the stars; but there is no such thing in natures a Platonic affection for the Term Reports—no such variety of the human species as a middle-aged or elderly lawyer soothing his hours of legal ease with endearing recollections of Vesey junior.' That extract read as if it had proceeded from the powerful pen of his noble and learned friend on the Woolsack. The writerded:—Take a barrister from the superior Courts, and place him on provincial bench—detach him from a scene in which every motive of gain, of ambition, of personal responsibility, are incessantly exciting him to keep himself in a stale of intellectual fitness for the details of legal business, and transplant him to one upon which the two first of these motives cease to operate, and where his character as a lawyer, has little to apprehend from the criticisms of a rural auditory—do this, and the probable result will be, that the process of professional deterioration will immediately begin; that, relying upon his store of present knowledge, he will take little pains to continue or increase it; that much of that knowledge will rapidly and imperceptibly fade away.' He objected then to the establishment of these local Judges, on the grounds and for the reasons so well stated ill that extract, and the authority of which his noble and learned friend on the Woolsack would hardly question. But there was another consideration to which he desired to direct their Lordships notice, namely—as to the mode in which the appointment of these local Judges must necessarily be made. With regard to the appointment of the superior Judges in Westminster-hall, there was little or no room for the exercise of improper influence or partiality in their selection or appointment. Those appointments were subject to the vigilant control of Parliament, and were made under the scrutinizing eye of a vigilant Bar. Public opinion was always alive as to the manner in which any vacancies might be tilled up; and no man, in the situation of a Minister of the Crown, would dare to appoint improper persons to the situation of Judge of the superior Courts, lint will the case be so with respect to these provincial Courts of Judicature. Had not their Lordships and the public heard, not many years since, of the abuses which existed respecting the provincial judicature in Wales? Who could forget the vehement denunciations which his noble and learned friend on the Wool- 319 sack—then a Member of the House of Commons—poured forth against that system of provincial judgeships in Wales, which was, a few years ago, finally abolished? He would not make any personal allusions in discussing this measure, he would suppose that, in the distribution of these appointments, the Ministers would be guided by the best and purest motives; but what reason was there that their successors—that all Ministers hereafter—should have intrusted to them the appointment of thirty or forty Judges in different parts of the country? He would ask whether it was not likely that these appointments would be turned into parliamentary jobs, to extend the influence and promote the objects of the Ministers of the day? He would next proceed to another leading objection which he took to this Bill. People were very generally accustomed to say—referring to the expense of legal proceedings—that it was a monstrous thing to be obliged to go to a court of justice for the recovery of a small sum, at the risk of incurring, comparatively, enormous costs. Now, to argue the subject thus, was to look at it in a very confined and partial point of view. One great object of the law was, to prevent litigation; and the law had, therefore, been laid down so precise and so certain, in this country, that a man, in the great majority of instances, was enabled to know and ascertain his rights without litigation. He would take upon himself to say that, comparing the system of law that was established in this country with the law established in other countries, the certainty and precision to which the law here had been brought would appear to the greatest possible advantage. The consequence was, that when a man conceived himself to be aggrieved, he went to his counsel and asked his opinion. He was enabled to ascertain his rights almost with certainty, and thus was not obliged to resort to a court of Justice but in comparatively rare cases. Therefore, he could not bring himself to believe that the system was radically bad, in consequence of the expenses attending the going into Courts of Justice, when, such good results flowed from it. Since he had last addressed their Lordships on this subject, a fact had been mentioned by Mr. Park, the professor of the London University, which was of great importance on this point; he had said, in one of his lectures, that Mr. Preston had given opinions on move than 40,000 cases during his life, and that 320 not more than one in thirty had been made the subject of future litigation. On a former occasion his noble and learned friend had adverted to the right of appeal, which he contended, would make the system work perfectly well; but an appeal could only be had in plain and broad cases of error; and he little understood the operation of the plan who thought that it would he kept free from all objection because a right of appeal was given. No man was more anxious than he was to facilitate the recovery of small debts: he should be most happy to co-operate with his noble friend in any plan to accomplish such an object. When he did co-operate, his noble and learned friend knew that he neither wanted zeal nor industry; but when, on a former night, his noble and learned friend had applauded the system prevailing in Ireland, and the jurisdiction then existing, he must know that it was as different from the present proposed plan as possible. The jurisdiction of 20l. in Ireland only applied to cases of Bills, bonds, or notes, not easily liable to dispute, but in other cases it was of a much less amount. In personal torts there was not the remotest similarity, although in some eases between landlord and tenant the jurisdiction of the Court of the Assistant Barrister extended to 50l. But the main distinction on which he relied was, that by this Bill the Judges were to be local, while in the Irish system that vice did not exist. On a former night something had been said regarding the Bar, and he must refer to it again in spite of the denunciation of his noble and learned friend. He came from that Bar, and to that Bar he owed a duty which he was determined to discharge. In times of difficulty and danger the Bar had never been wanting. Its Members were the foremost supporters of freedom and the most resolute opponents of oppression; and never did a poor man stand in need of assistance that it was not instantly volunteered. The effect of the Bill upon the Table would be to degrade, and, ultimately, to destroy that Bar. Their Lordships were peculiarly bound to vindicate and protect it, for to it many of them owed their justly acquired honours. When he saw his noble and learned friend on the Woolsack, who had so lately emerged from that Bar—his noble and venerable friend on the floor, who had for so many years been the ornament of that House—his noble and learned friend opposite (Lord Plunkett), who was one of its brightest lights—and 321 his noble and learned friend near him Lord Wynford), who had been one of its most brilliant examples, he could not doubt that the bar would scarcely stand in need of his advocacy. Many rivals, opponents, and successful competitors were still at the bar, and deserved, as they ought to receive, the support of his noble and learned friend on the Woolsack. From him (Lord Lyndhurst) they should ever obtain that meed of praise to which they were entitled, as far as his humble abilities enabled him to express it. He was convinced that more than one-half of the present business would be taken from the bar by this Bill; and in proof of this point, he begged to refer his noble and learned friend to the Report of the Commissioners. Besides, a number of provincial counsel would be encouraged by the Bill in the different districts: they would obtain the principal part of the business, and the junior portion of the bar would be deprived of that course of education which fitted them to mount the ladder of preferment. The plan would also operate destructively to attorneys and solicitors. His noble and learned friend had been cautious not to affix any schedule of fees to the Bill, or to give any verbal explanation of them; but it was quite evident, that no man of education or respectability would transact business in these Local Courts, so that the business in them would be left to the lowest retainers of the law, with all the other consequences of degradation. He had, on a former night, referred to the operation of a similar system in America and France: regarding the latter he would then only speak in general terms, from deficiency of information; but he was now furnished with the authority of an unexceptionable witness, M. Royer Collard, who had called what were here termed Local Courts, a deplorable system which the Empire had bequeathed to the Restoration. With the leave of the House he would read the opinion of that eminent and eloquent advocate—Such is the deplorable system the Empire has bequeathed to the Restoration. The necessarily-resulting evils have developed themselves, and never, perhaps, has France possessed a more inefficient and less respected Magistracy. It is now easy to understand the weakness of the bar. The Courts have little taste for questions of law; their whole art consists in avoiding cassation. The consequence is, that the advocate only studies to present his case in such a manner as to conciliate the Judges, and despises a 322 science which would be rather prejudicial than useful to him. I repeat, learning is almost as rare at the bar as on the Bench.' There was also another authority, that of Lord Hale, to which be would refer. It was true, that the Commissioners themselves had quoted that authority; but they must have read, almost in the same page to Which they referred, that to which he should now call their Lordships' attention. Lord Hale was quoted as an authority for a cheap mode of recovering small debts, as an authority for the establishment of Local courts in certain fixed places in each county. He should read the opinion of Lord Hale; but, before he did so, he wished first to mention that it was a part of his noble friend's Bill that these Courts should have jurisdiction in matters to the amount of 50l. That was the limit at which the jurisdiction was to be fixed and what did Lord Hale say on the subject? "The greatest danger imaginable in this is, that it may give a handle to the erecting of country judicatures, to the countermining of the kingdom. And I must confess, were this to be the effect of it, I think it were the most pernicious thing imaginable. If men, indeed, will be giddy and unsteady, and if we should suppose Parliaments not to be wisely sensible of their own and the public concern, men may suppose that 5l. may in time arise to be 50l. (that was the amount in the present Bill); and so the Courts of Westminster be destroyed. He that supposeth this, may suppose things yet more dreadful." Such were the opinions of that great, that learned, and constitutional Judge. It had been said, by his noble friend, who commenced this debate, that this had been described as the poor man's Bill. Why, there was not a morning on which he did not find the same doctrine instilled into him, in one of those documents which it was not necessary more particularly to mention. It was said, "You must have some underhand motive for opposing a measure of this description." The statement was not true. Never was there a bill less a poor man's Bill than this. It was a bill to enable a man of property to obtain judgment, to sue out execution, and to seize the property of the poor man, to assign it to the Registrar, to sell it, to turn him and his family into the streets in six weeks. It was emphatically a bill to oppress the poor. It was a bill to satisfy the creditor, by compelling a poor debtor to render him more speedy payment than could be obtained from a wealthy debtor 323 —it wan a bill to give the wealthy every possible menus of oppressing the man in an humbler station of life. The operation of the Bill would be this—tradesmen, shopkeepers, and others would allow the poor man to run into debt to the extent of his property, and if he failed to make instant payment, they would destroy him without mercy let their Lordships refer to the evidence of Sir John Cress, who was examined by the Commissioners:—Sir John Cross was asked: "Have you found any inconvenience from the facility with which small debts are recovered in the Court you have mentioned?" he answered, "I had frequent occasion to observe that the facilitating the recovery of small debts tended much to facilitate the contracting of them by the poor and improvident, and to the consequent increase of litigation and poverty. It was a frequent practice for publicans to allow drink to their customers upon credit to an extent which I thought they would not have done if there had not been a Court in which they could recover the amount of the debt so contracted; and I observed, in a great many instances, that small shopkeepers who dealt in provisions dealt largely in credit to the poor, The wives and even the children of workmen, who were from home engaged in their occupations, could go to one of those shops and obtain what they wanted., which was charged as a debt to the absent muster of the family; and the account would run on in this way as long as the shopkeeper thought it safe to risk his property upon such credit. He would go on with a great many customers of that description at the same time, and at a convenient season he would sue out in one day summonses against twenty or thirty of such customers, and carry his accounts into the court of Requests against them all at once." That was the testimony of a Gentleman who had presided for several years of his life over one of these small Tribunals in the town of Manchester, which was one of the best administered of the small debt Courts in the kingdom. In his Judgment, implicit reliance might be placed; and after that, it might be asked, whether this was to be considered as the poor man's Bill? He should wish to direct their attention to the nature of the evidence on which the Bill had, been founded. It was called the poor man's Bill. Were the poor, then, the witnesses who had been examined? No the witnesses were wholesale tradesmen, shopkeepers, and sometimes bankers. One 324 man said, there was nothing so abominable as the law of debtor and creditor in this country; that there ought to be a power for the creditor to imprison the debtor, and compel him to work till he had discharged the debt, or a percentage upon it. Another said, that there was no such abominable system in the world as that of the Insolvent Debtors' Court. Another, that these Courts should be without attorneys, and without professional men altogether. And if their Lordships were to read the evidence, they would find that the chief object of those who were examined seemed to have been to have a law which would enable the creditor to oppress, to grind, to destroy, with the utmost facility, his poor debtor. Let not this Bill be called the poor man's Bill; for, of all other Acts, it was the most oppressive towards the poor man. He should now direct their Lordships' attention to the provisions of this Bill. He should not go through them all in detail—he bad touched upon them in the observations he made when the Bill went through the second reading, because he thought they were capable of being amended in Committee. He had attended the Committee, and made suggestions for their amendment; but he was constantly told, that this Bill was brought in as the result of five years' deliberation—that such a Bill had once before passed one of the Houses of Legislature—that it had been amended—made the subject of examination by the Commissioners—reported on and amended again—and could not be further altered, and accordingly none of his suggestions were adopted. He had in the first instance, objected to the principle of the Bill—he had discussed it on principle—and he should now call their attention to its provisions. These courts would absorb all the cases of personal tort. Every case of personal tort would be taken from the Superior Courts: and for this reason—their jurisdiction was to extend to cases of the amount of 50l. Where the damages were uncertain—where they must depend on the caprice of a Jury—he who had to bring the action would not, on the chance of getting a verdict for more than that sum, bring it in one of the Superior courts. He had looked into the cases of this kind, and he found that there were twelve or fourteen in which the verdict was for a sum below 50l., for one case in which the verdict was for a sum exceeding that amount. The result, therefore, would be to transfer to these Local Tribunals ail actions for libel, for malicious trespasses—in 325 short, all actions for person torts. What would be the consequence? Why, that all such cases would be decided before the day of trial. Before then the merits of the whole question would he discussed and determined; and would the noble and learned Lord introduce a bill which would have such an effect? He had suggested that some remedy should be applied to this evil. The noble and learned Lord had undertaken to find a remedy, and let them mark what was the effect of that remedy. It was this—the defendant might remove the case to the Superior court. But on what terms? Why, that he should give security for the damages and costs which might be awarded in the action. The wealthy man would be able to give such security. The Bill in this, as in other respects, was in favour of the wealthy man, but the poor man could get no such security. What, then, was his situation? Why, that if the circumstances attending the trial were such as to preclude the hope of its impartiality in the Local Courts, he must suffer all the inconvenience of such a result. And were they so destitute of understanding as to be told after this that the provisions of this Bill were in favour of the poor. The noble and learned Lord said, that the Bill followed the recommendation of the Commissioners. It did no such thing—they recommended twenty pounds as the limit of the jurisdiction of these Courts, the Bill raised it to fifty pounds. The former Bill was for one hundred pounds—it might be easy hereafter to advance the jurisdiction. If it were raised to the sum originally proposed, the King's Bench would be ousted of nineteen-twentieths of the causes which now came before it. And let them observe the consequence with regard to the suitor. A man might have a good cause of action for a sum exceeding the limit of the jurisdiction of the inferior Court, on submitting his case to Counsel he might be so advised, and his demand might be most just. If he went into the Superior Courts, the absence of a witness, the impossibility to procure a certain document, might reduce the verdict to a sum within the jurisdiction of the Local Courts, and then he would be mulcted of his costs. Besides questions of the greatest importance and difficulty often occurred whore the real sum in dispute in that action did not exceed 2l.; where a balance of accounts, according to the decision of an important principle, did not exceed 10l., and many most important 326 questions of insurance had depended on a claim of less than 10l. Yet on this Bill a man must go into the Local Courts to have these questions decided, instead of having them decided by the first law authorities of the country. Here again, the Bill departed from the recommendation of the Commissioners, who said, that the costs should be in the discretion of the Superior Courts, though the sum recovered might be within the jurisdiction of the Local Courts. Again, with respect to the venue or the place of trial. The venue was arbitrarily fixed in the district of the defendant, provided the plaintiff or one of the plaintiffs resided in the same district. But it frequently happened, that the partners of mercantile houses were resident in different parts of the kingdom, and if it should so happen, as was by no means improbable, that the partners of one of these great houses should become plaintiffs in a cause within the jurisdiction of the Local Courts, and one of them should be resident in the same district as the defendant in a distant part of the kingdom, the defendant would have the power of fixing the venue there, and the plaintiffs, under this cheap system of justice, might have to carry their witnesses 200 or 300 miles. Hero again the recommendation of the Commissioners was departed from. He had a right to discuss these matters in this stage of the Bill, and to ask their Lordships whether they could adopt this Bill, the result of five years' deliberation, as a specimen of sound legislation. There were no means to give the party aggrieved by an unjust; verdict the benefit of a new trial. A new trial could not be had without a reference of some important point of law to the Judges. But any man who was conversant with courts of justice, knew that jurymen sometimes gave verdicts against the opinion of the Judge, and against the manifest weight of evidence. The remedy was in the hands of the Court who granted a new trial. He would put a case of this kind. Suppose an action brought against a man for charging another with an infamous crime—a justification pleaded, and the Jury, contrary to evidence, and to the opinion of the Judge, find that the justification was made out. What would be the result? A record of infamy would exist against an innocent man. And that was the specimen of the legislation of the Lord High Chancellor of England, after five years' deliberation. Then again, in other actions, wherever the plaintiff resided, the defendant might compel him to come up 327 and be examined, and if he neglected, he was to be forthwith fined. A Bill to the same effect bud been proposed by a noble and learned friend near him (Lord Wynford), with an infinite variety of bars, indeed, which were not to be found in this Bill; but that Bill was deemed so unjust and oppressive, that the noble and learned Lord opposite (Lord Plunkett) took horror at it, and urged him (Lord Lyndhurst) to oppose it, which he had done. Then again, with respect to Juries. He had read lately an opinion to this effect on Juries:—"Juries, no doubt, may be got rid of, and ought to be got rid of, in the Local Tribunals, as a cumbrous and troublesome piece of machinery, for which, in the Superior Courts, the only argument is, that in cases between the Government and individuals, they are not so liable to be biassed as Judges. In all other cases, a Judge is to be presumed a better instrument than a Juror." Such was the language of one of those journals which espoused the cause of the Whig Government of this country. By this Bill the Local Judge was to sit, assisted by a Jury of six persons. The Local Judges would be men of influence in their neighbourhood, and the more they diminished the number of the Jury, the more they increased the power of the Judge. Was it right, therefore, in cases affecting the property and character of all men, that any one man should be the exclusive administrator of justice, and that, too, without the power of review, except in the case of the grossest error in law. But that was only a small part of the matter. How were the Jury to be summoned? He prayed their Lordships to mark this provision of the Bill. In the Constitution of the country the greatest possible caution had been used as to the summoning of Juries. The Judge had nothing to do with it. He went down and met the Jury, and possessed no influence over them except that which his character and station justly gave him. The case in this Bill was very different, and in respect of Juries it departed widely from the most wholesome principles. Who did their Lordships suppose was by this Bill to be intrusted with the summoning of the Juries? The Registrar of the Court—the travelling companion of the Judge—a person selected by the Judge himself. If the Jury were to be selected by the Judge himself, it would be far better, for he would be a responsible person; but to allow the Registrar, who was not a responsible person, and was the friend of the Judge, to select the Jury was a monstrous 328 violation of principle. The Jury besides, were to be taken from the immediate neighbourhood, so that the Registrar, to please a wealthy acquaintance, might pack the Jury; and yet that was what was called the poor man's Law. Throughout this Bill, the poor man was bound and fettered—he must take such law as they pleased to give him; but the rich man could evade the law with ease. It was said, that if the Judge was wrong in point of law, the party might appeal. The appeal was to be on a case settled by counsel on both sides, and if they disagreed, by the notes of the Judge. But the counsel always would disagree; and suppose the Judge to alter his notes so as to evade the point, how then could any appeal be made? It might be said, that an alteration in their notes could now be made by the Judges in Westminster-hall. That was true, but there was this difference; the Judges in Westminster were watched by an independent and enlightened bar, and if the bar did not like to trust the Judge, they need not appeal in that form, but might tender a bill of exceptions, make him seal it at the time, and if the Judge were in the habit of misrepresenting his opinions, the bar would cease to trust him, and would invariably have recourse to that method of proceeding. There was no analogous provision to that in this" Poor Man's Bill" in his favour against a partial Judge, and suffering as he was now said to suffer under the scourge of dear and uncertain law, this Bill would only add to his misfortunes by making his oppression certain. He could point out more objections of a similar kind; but he thought that these were a sufficient sample of the whole measure. The noble Lord had, on a former occasion, mentioned Lord Somers—clarum et venerabile nomen—and had described that nobleman as having to struggle in an attempt to improve the law against petty and paltry objections. There never was, however, a more cautious man than Lord Somers, nor any one more attached to the ancient institutions of the country. His character had been thus described by a contemporary:—"He was very learned in his own profession; he had a great capacity for business, with an extraordinary temper; so that he had all the patience and softness, as well as all the knowledge, the justice, and equity becoming a great magistrate. He had always agreed in his notions with the Whigs, and had studied to bring them to better thoughts of the King." Lord 329 Somers was a most cautious man, and caution was marked in every line of the Bill of that noble Lord. Lord Somers, too, was warmly attached to the institutions of that country, and the principles of those institutions were carefully adhered to in his great measure. If his noble friend, by referring to Lord Somers, meant to compare his Bill to that of Lord Somers, he must say, that no two measures could be more opposed to each other, both in principle and in their details. With reference to the general principles of Law Reform, he would trouble their Lordships with one extract more from Lord Hale's writings. "The truth is (said Lord Hale) if upon the discovery of some inconvenience in lawes the business were only to provide a plaister for that sore, the reformation of any law was very easy; but the great business of a Reformer is, not only to see that his remedy be apposite, but that it doth not introduce some other considerable inconvenience, or at least with the inconvenience that it remedies takes not away some other considerable convenience, which the former Constitution, before the alteration, brought with it." That was the true principle of Reform which their Lordships should adopt; and having thus described it to them in the words of that great lawyer, he would ask their Lordships whether this Bill proceeded upon that principle, or was characterized by that spirit which actuated the conduct of Lord Somers, and prevailed in the writings of Lord Hale. "He had, in stating his opinions, discharaged the duty he owed to the country, and to the station which he had the honour to fill, his duty to their Lordships, and to that profession of which he was proud to be a Member; he had stated the arguments which, in his mind, were sufficient to condemn the Bill; and had endeavoured to lay before their Lordships the reasons which would make him vote against the third reading of it, and the decision, he confidently left to their Lordships' wisdom. He had no personal ends to answer—he had no private motives whatever to gratify. To their decision—whatever it might be—he should cheerfully bow, although his own opinion was decidedly against the measure. He had only, therefore, in conclusion, to declare his assent to the Amendment proposed by his noble friend.
could not but express his admiration of the very able, eloquent, and masterly speech of his noble and learned friend who had just sat down; and in 330 doing that he must also express a hope that their Lordships would not suppose that he came forward in the hope of answering his noble and learned friend, or with the intention of following him through the great variety of matters on which he had so ably and amply dilated. It neither suited his place, nor the scope of his information, to enter into a great portion of the subjects which the noble and learned lord had introduced; and, indeed, he should not conceive himself warranted in addressing the House at all upon this subject, except upon that part of it which related to the country of which he had some local knowledge. Following the example of his noble friend upon the Cross-Bench, he ought, perhaps, to confine himself solely to a statement of what experience and observation had taught him of the working of these inferior jurisdictions in Ireland; but he could not entirely pass over all the topics which had been adverted to by his noble and learned friend. A great proportion of his noble friend's speech was occupied, not in discussing this particular Bill nor in reference to the patronage which might be exercised under it by the Lord Chancellor, put upon the Chancellor's general patronage—a subject on which his noble friend had spoken with a great deal of warmth. That part of the speech, if it had any application at all, would go to the total abolition of the office of Chancellor; seeing that it was directed against his present patronage in the appointment of the superior Judges and in bestowing the preferments of the Church quite as much as against the patronage to be given by the Bill. His noble friend had described the character of individuals who might exercise the patronage attached to the high office of Chancellor, improperly; but as the noble and learned Lord on the Woolsack stood acquitted on the admission of his noble and learned friend himself from any such imputation, it was unnecessary to dwell upon that topic. He should merely observe, that no man had ever ventured to cast blame upon his noble friend on the Woolsack, for the manner in which he had exercised the patronage, legal or ecclesiastical, at present vested in him by law. With respect to the latter, he believed that the right reverend Bench would be ready to admit, that the Lord Chancellor had paid a proper deference to their opinions on this subject. It was true that, in reference to the framing of the Bill, it was fair to examine its provisions in the abstract, without adverting to 331 the individual by whom its patronage was now to be exercised. He admitted, with his noble and learned friend, that Lord Brougham was not to be Lord Chancellor for ever, although he did not precisely know what date his noble friend had assigned in his own mind to the Chancellor's tenure of office. His noble and learned friend had asked him, with somewhat of a smile, whether the noble Lord who had moved the Amendment, had not adopted his lesson? His noble and learned friend, did him an honour to which he was not entitled. He recollected that the noble and learned Lord (Lord Wynford) introduced two Bills, to which the public attention had not been very much called; and it was his misfortune to differ from the noble Lord upon both those Bills. He had, however, the good fortune to call the attention of his noble and learned friend who addressed their Lordships, to the latter of those Bills; and, in consequence of that, the first Bill was withdrawn, and the other postponed. But the ground upon which he opposed those Bills was totally different from the ground upon which the present Bill was attacked. He conceived that one of those Bills was taking a liberty with the freehold property of the country somewhat hastily—however he did not wish to involve himself in a discussion of those Bills again—whether right or wrong they were totally different from the present measure. His noble and learned friend (Lord Lyndhurst) was partly indebted to him he believed for the zeal which his noble and learned friend showed for the public interest on that occasion; but he could not compliment his noble and learned friend on his zeal in opposing the course of legal Reform, of which the Bill before their Lordships was a part. The object of the noble and learned Lord (Lord Wynford) was not to establish local jurisdictions; he was not for removing causes from Westminster-hall, but was for drawing additional practice to it; and though he was doing a thing which, in principle, was extremely good, (so good that if it had been brought forward with proper modifications, he should have been happy to have offered it his humble support), yet as it was not so brought forward, he could but oppose it. He thought that in considering this Bill their Lordships were hound to look to the actual state of the country, and determine what might be most useful to be done; this course was preferable to going into the former state of the law, and groping after precedents. If 332 however they were to be guided by precedents, they would find, that the ancient administration of justice in this country rested entirely on local jurisdictions, upon which the establishments of Courts in Westminster-hall was an innovation and improvement. Did he (Lord Plunkett) say, that that reformation was not of a valuable nature, and that we must abandon it, and go back exclusively to the old and exploded system? No such thing. No man revered the system more than he did. But he thought that in like manner, as great men had formerly made alterations in the then existing system, with a view to suit it to the wants and circumstances of the times, the Legislature was now bound to follow their example in the course of improvement. The noble Lord had rested his case a good deal on principle and authority: first, with respect to authority, he had quoted Lord Hale that night and Judge Blackstone on a former occasion, but in doing so the noble and learned Lord had not acted with his usual candour and fairness, for if he had taken into account the spirit of the whole passage from either authority, he must have seen that the objections made by Blackstone and Hale to local jurisdictions were not applicable to Courts such as it was proposed to establish under this Bill. Those learned persons, in reference to the general administration of justice, had contrasted the system of local jurisdictions with the Courts in Westminster-hall, and they gave a preference to the latter; but they made no comparison between the propriety of having Local Courts for the recovery of small sums, without trenching on the authority of the superior Courts, and the plan of devolving all upon the higher jurisdictions. Their main objection to Local Courts arose out of their dislike of permanent local residence on the part of the Judges. He was free to admit, that objections might reason ably be taken on that point; and that in reference to residence, the measure was susceptible of improvement. He would venture to call this the "poor man's bill," notwithstanding the somewhat whimsical and sarcastic observations of his noble friend on that subject, and he trusted that the House would do its duty by supporting the measure as one calculated for the advantage of a class which was peculiarly entitled to protection. His noble and learned friend on the Woolsack proposed to introduce one or two of the new jurisdictions in the first instance, partly with a view to an ex- 333 periment as to their operation and effect when a greater number of Courts should be established it might be prudent to transfer the Judges from one district to mother, in older to obviate the objection to local residence, which might be justly made. That ought not to prevent their Lordships from assenting to the Bill, for it was only one of the imperfections which time and a little arrangement would be sure to remedy, The object of the measure was not merely to cheapen justice, but to expedite it, by relieving the superior Courts in Westminster of part of the business by which they were now overwhelmed, transferring it to a summary and speedy jurisdiction. The commencement of a system of this kind in Ireland was even more ancient than many noble Lords might imagine. It was to be dated from the 2nd of Geo. 1st (about the year 1717), when a portion of their jurisdiction was taken from the superior Courts in Dublin, and given to the Judges going the Assizes, at which they were empowered to decide causes of a certain amount in a summary form, and not according to the established principles of the superior courts. This system was continued down to the year 1796, with some trilling variations. It should be borne in mind, that the Act of 2nd George 1st went the length of taking away the system of pleading bills of exceptions, and the power of carrying causes to the House of Lords, which his noble friend seemed so much to desire for the poor man. Undoubtedly their Lordships' jurisdiction was very satisfactory to the parties who could pass through it, but it was exceedingly troublesome and costly to get their Lordships' decision. Desirable as it was to have the power of making such an appeal, it would he a proceeding still more desirable if it were a little less expensive, if their Lordships looked at the preamble of the Act of 1796 they would perceive that, after an experience of seventy or eighty years, the jurisdiction established by 2nd George 1st was found to be so burthensome and expensive to the people, that it became; necessary to take it away from the Judges of Assize, and give it to assistant barristers. By taking away a cumbrous mode of proceeding, and afterwards transferring the jurisdiction of the Judges of Assize to the assistant barristers, whose Courts were established on the principle of the present Bill, the whole proceeding in Leland, which had been attended with many advantages, was a precedent for the measure of the 334 noble and learned Lord on the Woolsack, The noble Earl (wicklow) had said, that the assistant barristers' Courts were different from the jurisdiction new contemplated in the amount relative to which the courts could decide, and also in the circumstance of the Judges not having fixed Circuits. It was argued by the noble Lord, that the Irish assistant barristers were shifted from one Court to another, but in this the noble Lord was misinformed From 1796, down to the period of the passing of the Reform Bill, no change had been made in the locality of assistant barristers, and, during all that time, no complaint, or hint of complaint, had arisen out of the circumstance. After the passing of the Reform Bill, it was said, that as assistant barristers had considerable power intrusted to them with respect to the registration of voters, it might be desirable to change their position, with a view to prevent the possibility of local prejudice or prepossession: accordingly a change was made in some cases, but not universally. So far as the experiment in Ireland was a test of the soundness of the principle of the present Bill, he was entitled to rely upon it. Justice was well administered under the system, which had proved itself the "poor man's system; "and the character of the Bar had not been degraded by it he felt no apprehension that the Bar would be degraded in this country by the adoption of a similar system, which he was persuaded would be found beneficial to the community, and not injurious to the interests of individuals. His noble friend had fallen into two errors—he under-rated the existing mischief, and over-Stated the inconveniences of the proposed remedy. Had his noble friend read the Report of the Common Law Commissioners when he extenuated the evils of the existing system? The Report stated, that 'The mischief arising from delay is particularly felt in the great commercial districts at a distance from the metropolis. Where a cause of action arises previously to the summer Assizes, but not at such an interval as to admit of the cause being tried at those Assizes, a defendant is often able, at a small expense, to set his creditors at defiance for nine or ten months; the plaintiff cannot go to trial till the next spring Assizes, nor obtain execution, in the ordinary course, before the following April. In other cases, the delay may amount to nine, eight, or seven month, and it may be stated that, on the average, judgment cannot be obtained through the 335 medium of a trial at the Assizes in less than six months.' Delays such as those could not but prove very inconvenient and burthensome to the poor man, for though a creditor, a man might be still but poor. His noble friend had adverted to passages in the newspapers (in which he appeared to concur), that vulgar attempts were made to arouse the feelings of the people by describing this as the poor man's bill, and by characterising all opposition to it as unjust to that class of the community Certainly his noble friend was not liable to any accusation of an attempt to gain popularity by his proceeding upon the present occasion, unless he were in search of popularity amongst debtors, when he talked of "the oppression of creditors," forgetting that, in nine cases out of ten, the creditor, and not the debtor, was really the injured man. However, his noble and learned friend appeared greatly disgusted at the summary process contemplated by the measure, and he very pathetically observed, "you call this the poor man's bill, which enables a creditor to have execution within six weeks!" That was the grand enormity of the Bill. It was a monstrous thing in the eyes of his noble and learned friend, that a plaintiff should not only get a verdict, but, within a short period, obtain execution and payment of his demand, instead of having to wait some twelve months for it. He should trouble the House with another extract from the Report on this subject:—'The average expense incurred by a plaintiff in prosecuting a suit to judgment and execution cannot be estimated at less than 30l., and of the defendant at not less than 20l., independently of the costs of conveying and maintaining witnesses, which, in a country cause, constitute, with the expense of passing the record and of entering the cause for trial, the most considerable part of the costs. These are the more serious where the places where the Assizes are held are situated at a considerable distance from the populous parts of the county. When a witness from Manchester or Liverpool is taken to the Assizes of Lancaster, the costs of conveyance and maintenance do not average less than from 7l. to 8l.; it, therefore, frequently happens, that the costs of a plaintiff, when three or four witnesses are necessary to make out his case, amount to at least 50l. or 60l., but often, we believe, to a much larger sum. The combined effects of delay and expense are necessarily very 336 injurious to the interests of the creditor who sues for a debt to the amount of 20l. or 30l., or even to a much larger amount. If he sue in the County Court, the defendant may remove the cause as of course, without entering into a recognizance, into a superior Court, where the plaintiff has to encounter as great an expense, and greater delay, than if he had sued at first in the higher Court. If he sue in the higher Court, he cannot proceed to try the cause at the Assizes without incurring the risk of extra costs to the amount of from 10l. to 20l.; to these he is liable, even though he should succeed, not only in obtaining a verdict, but in levying execution. But the defendant may, pending a litigation of several months, have become bankrupt, insolvent, or have removed himself and his property beyond the reach of legal process; other more pressing creditors, by successive arrests, may have swept away the whole of the property. In any of these cases, the creditor would not only lose his debt, but a much larger sum in costs. The very probability that a creditor will be debarred by the apprehension of trouble and expense from prosecuting an action at law affords an additional inducement to a fraudulent debtor to set his creditors at defiance; and thus, whilst the law offers to the creditor a mode of remedy which is often only delusive, it in effect encourages the debtor to make a vexatious and fraudulentresistance. The Commissioners added, We think it probable that nearly one-half of the causes tried at the Assizes, are for causes of action not exceeding 20l. each, and that the expense of litigating them is equal to at least four times the aggregate amount actually recovered.' And they concluded that part of the Report by saying, 'Upon the whole it is our duty to represent to your Majesty, that the inadequacy of the present Courts in causes of action from 40s. to at least 20l., amounts almost to a denial of justice; and that we believe the complaints made by numbers whose evidence is stated in the Appendix to this Report to be just, that creditors are, from want of sufficient means to obtain redress, obliged to abandon their just demands; that debtors are from the same cause tempted to a dishonest resistance, and that the result is great injury to public morals and to private rights.' That was a state of things which ought not to exist; and could it be said, that a Bill which went to remedy it was not a poor man's Bill. His noble and learned friend could not have 337 read the Report of the Commissioners, nor did he appear to be very correct in his recollection of what had been said by Lord Hale, when he quoted the authority of that learned Judge as against Local Courts. Lord Hale, whose words were quoted by the Commissioners, said, and he would beg leave to read the whole passage from the Report. The Commissioners observed, 'That the change in the value of money and the gradual depreciation of the coin through many centuries, have tended still further to abridge the ancient Local Jurisdictions. At the time when 40s. was made the limit to the jurisdiction of the Ancient Local Courts, that sum was probably fixed upon from the proportion which it bore to the expense of a suit in the superior Courts and would amount to at least 25l. of present money. From these causes the jurisdiction of the Local Courts has been gradually reduced from above 25l. to 40s in present money, and to the same extent has the jurisdiction of the superior Courts, in point of amount, been extended. The inconvenience resulting from the want of inferior Courts with competent powers to administer justice has long been felt. Sir Matthew Hale bestowed great attention on the subject, and the result of his consideration was, that the limit to the jurisdiction of the inferior Courts should be extended to 10l. This conclusion of Sir Matthew Hale was founded on the principle, which we think a safe one to adopt, of restoring—He begged their Lordships to remark, that this was not innovation, but restoration.—the local jurisdiction to the ancient limit, regard being had to the change which has taken place in the value of money since the time when 40s. was fixed as the proper limit. After stating this, the Commissioners then quoted the following words of Sir Matthew Hale:—By the true and wise Constitution of this kingdom, suits where the debt or damage amount not to 40s. were not to be determined in the Courts of Westminster unless a title of land came in question, but they were to be determined in the County Court, Hundred Court, or Court Baron. And this was the ancient law; vid. Stat. Gloucest. 6th Edward 1st. At that time 40s, was a considerable sum first, in respect of the intrinsic value of the coin, for then 20d. made an ounce of silver, and at this day it is 5s., viz., 60d, and upon that single account, 40s. then ariseth now to 6l.; but second: that 338 was not all, for, as I may say, money was at that time dearer than it is now, because there was not so much, and hence it is that the prices of all things at this day are much dearer now than they were then, because money is much more plenty now than it was then.' Nor was this all, for he further said, 'That it was the wise constitution of the Common-law to keep small suitors from the great Courts of Westminster.' That was the opinion of Lord Hale, and so far from the opinion being in favour of the opinion of the noble and learned Lord, it was directly the reverse. But there was still a higher authority in support of the principle of the Bill; it was that of the Judges of the present day who had unanimously decided, that whatever might be the merits of a case in an action below 20l., they would not grant a now trial, except upon some point of law, which the Judge who tried the case might have reserved at the trial, and this was on the principle, that it would be better for the party seeking it to give up his case of 20l. rather than risk the costs of a second trial. Was not this, in effect, an admission that the superior Courts were not the places in which actions for such small sums could best be brought.? His noble and learned friend had laid some stress on the fact, that some of the merchants and traders who had been examined by, or who had sent statements of their opinions to the Commissioners, had sought to do away with the jurisdiction of any Law Courts in some cases of debt, and were anxious to have such cases decided by a certain number of merchants, without any reference to the ordinary legal proceedings. Now, supposing the fact to be exactly as his noble and learned friend had put it, did it not show the sufferings of that class of men from the operation of legal proceedings in such cases, and their willingness rather to have their causes adjudged by a tribunal where the enormous costs of such proceedings might be avoided? Was it in favour of the present system that the parties most interested should rather give up all law, and have the matter decided by members of their own body, than by legal process in the superior Courts? His noble and learned friend had argued as if these Courts would be presided over by unfit persons, but they were to be appointed by the responsible servants of the Crown, and to be chosen from that profession which his noble and learned friend had so justly eulogized. He believed that these circum stances would ensure the respectability of 339 the persons who were to be chosen as Judges under this Bill, and would be a guarantee to the parties who might come to sue in the new Courts. At the same time it should be considered that even this feeling of confidence on the part of suitors, would not bring away the great business from the superior Courts; for even if the new Courts were to be in full operation, still more than half the causes of action would be tried by the courts in Westminster. His noble and learned friend had said, that it would be no relief to the poor man to have his cause removed by certiorari to the superior Courts, where, besides the security for costs and damages, there might be damages to an unlimited extent; but his noble and learned friend forgot that the cause of action was limited to 50l. and that there would be no necessity for taking out a certiorari. He would not delay their Lordships with any further remarks. His noble and learned friend on the Woolsack had already gone into the merits of the measure, and would, no doubt, fully answer any remaining objections that might be might to it.
§ Lord Wynford
was surprised to hear from noble Lords opposite an assent to propositions which they had opposed in a Bill which he had introduced on a former occasion. He had introduced a clause for the examination of parties to the suit, by which much time and expense might be saved, but that was objected to by noble Lords who now supported an examination of parties to actions under this Bill, which was more extensive in its nature. He could not account for this inconsistency.
begged to interrupt the noble and learned Lord, what he said, was, that he objected to the noble and learned Lord's measure on two grounds. First, because the interrogatories established by it affected freehold property; and secondly, because Courts of Equity would not have a proper check on the decisions of other Courts.
§ Lord Wynford
would not pursue the subject, but come at once to the merits of the Bill. The noble and learned Lord said, that his noble and learned friend might as well object to the office of Lord Chancellor as to his patronage. The patronage which this Bill would give the Lord Chancellor was undoubtedly very great, and if that were the only patronage at the disposal of that noble and learned Lord, it would form no great ground of objection to the Bill, and would not make the office of that noble 340 and learned Lord extremely dangerous; but it should be recollected that the patronage which the Bill would give was united with other patronage already too extensive, and that the addition would make both dangerous in one individual. This was a matter which, in a constitutional point of view, ought not to be lost sight of. Their Lordships should look at it as the patronage of the Government after the Revolution was looked at, when it was said, that though the country had got rid of the government by prerogative, they had not lost the government by influence. Indeed, his noble and learned friend (the Lord Chancellor) seemed at one time at a loss how to dispose of this patronage, and was inclined to vest it in parties to whom he (Lord Wynford) should, on principle, object to its being given, but at last his noble and learned friend decided on vesting it in the Crown. If the patronage were to exist at all, he did not object to its being so vested, at least he would prefer that mode of disposing of it to others which had been suggested; but he thought it was a fair ground of objection to a measure of this kind, not called for, as he contended, by any great necessity. But let their Lordship consider what would be the extent of the patronage thus accruing, supposing those Courts were to be spread over the country. There were to be some forty or fifty Judges at 2,000l. a year, an equal number of registrars at 700l. a-year, besides a large number of clerks and other officers. This was an extent of patronage which, united with that already held by the Lord Chancellor, was a power vested in the hands of one individual which could not be contemplated with satisfaction by any man attached to our Constitution. At the same time he would say, what he had said on a former occasion, that he had no objection to try this Bill as an experiment, the operation of which was at first to be limited to two or three counties, but when his Motion in the Committee for making it necessary to apply to Parliament for a further extension of the measure was negatived, he felt himself bound to oppose the whole measure, for he could not consent to leave in the hands of the executive government the power of extending the provisions of the Bill all over the country. If the Bill were to pass in its present state, though avowedly as an experiment to be confined at first to two or three counties, but leaving to the executive the discretionary power of extending its operation, what security had they that in 341 three months there would not be appointed Judges, and registrars, and clerks, with the salaries he had mentioned, in every county in the kingdom? That was a power which he was not disposed to leave in the hands of any Ministers, however good might be their intentions (and he did not dispute those of the present Ministers with reference to this Bill); but, admitting the goodness of those intentions to the fullest extent which could be claimed, he did not think, that Ministers were the very best judges of the application of such patronage. Every man might express his indifference to patronage, but there were, he believed, few who would deny the advantage of possessing it. He him self was not aware of them in his own person, for he had never had any to dispense, but he knew, that men in general were not insensible to the advantages which resulted from it. Local Courts, however, had been tried of yore, but it was found then, and was ever found in modern times, that justice could not be administered in them. It was for that reason, that Judges in Eyre were appointed to bring justice nearly to the point that it was intended to be brought by the present measure. All the evils attendant on the appointment of these Local Courts would be obviated if the two or three clauses he proposed in Committee had been agreed to. A Bill with a somewhat similar aspect had formerly been introduced into the other House by the noble Lord, now the Chancellor of the Exchequer, and he was sure, that the machinery of that Bill, which was for the better recovery of small debts, was much less complicated, and would have been much less expensive in its operation, than the machinery of the present measure. On comparing the provisions of the Bill with those of the Act for establishing the Courts of Assistant-barristers in Ireland, he was persuaded, that the advantage was much greater from that Act than could be expected from this Bill. In Ireland the Assistant-barrister was not resident in the county; he generally resided in Dublin, and had the advantage of a constant attendance in the Courts there, and by that means a thorough acquaintance with their practice; but of this the Judges under the Bill before the House would be deprived by their residence in the counties in which their Courts were situated. There was, then, he contended, no necessity for such extensive machinery as was proposed by this Bill. The same results might be produced by a new modification of the Court of 342 Quarter Sessions. If the proposition that had been made in the Committee to assimilate the proceedings and fees in small actions to those in the Courts below had been assented to, the whole object would be gained, for then the public would have that which this Bill proposed—cheap and easy justice, and have it too from those Courts in which they had the greatest confidence, for it was idle to say, that the public had full confidence in those small Courts. These Local courts, he repeated, had been tried; they existed in former periods, but fell into disuse. Local Courts existed still in all the great towns of the kingdom. They existed in the metropolis. There were in it the Lord Mayor's Court, the Sheriff's, and the Palace Courts, in which, actions under 20l. might be tried. Yet, though the gates of those Courts stood gaping wide, no suitors could be tempted to enter scarcely, as was proved by the fact, that 300 cases that might have been tried in those Courts, were carried to the superior Courts. They were found to be expensive—that was the chief reason; and he appealed to the noble and earned Lord, if, by his Hill, the expense of the inferior Courts on the subject of witnesses, would not be as great, if not greater than they were at present in the other Courts. These Local Courts were not popular; the public in general had no confidence in their decisions, but the public would be satisfied with the superior Courts if they found, that their proceedings were carried on at a less expense. Let it be recollected also, with reference to the Courts at Westminster, that if law was dear in those Courts, it had the effect of deterring men from entering heedlessly into actions, and that, in this respect, it was sometimes a protection to the poor man, for few men would be disposed to go to the expense of an action against a poor man, when they knew, that in the result they could obtain nothing but the imprisonment of his body. Another objection which he had to this Bill was, that it was not the measure recommended by the Commissioners. They had never contemplated carrying actions for seduction and for libel, and actions of that kind, before these Courts. They confined themselves to a certain relief, which they thought might be afforded for the recovery of small debts. What sort of a bar would exist in these courts." There was nothing so essential to the proper administration of justice as a good bar. Now, it was impossible, that in the Courts created by this 343 Bill you could have a good bar. The framers of the Bill saw that, and therefore determined to let attornies practise in them as barristers. There were not more respectable characters in the world than many attornies; but it ought not to be forgotten, that there were not worse characters than many of that profession. In these small Courts it required no witch to foretel with which class of attornies the local Judges would have to deal. He repeated, that if this experiment were fairly tried, and if Parliament had to decide upon its success instead of the Government, and if some clauses were added to protect the characters of those who sued and were sued in them, he should not oppose it; for he had always been of opinion, that for the recovery of small debts the remedy in the superior Courts was worse than the disease. He was ready to correct the abuses of the superior Courts, and to propose other Courts in aid of them; but he could not assent to the third reading of a Bill to the details of which there were so many objections as had been stated by his noble and learned friend the Lord Chief Baron. Neither could he assent to the principle of the Bill, as it confined the administration of justice to Judges living constantly in the midst of a society whose claims they had to try, and whose prejudices he thought they must contract.
The Lord Chancellor
assured their Lordships, that he rose with great anxiety to address them, and that anxiety was occasioned by the vast importance of the subject, admitted to be important by all their Lordships who had spoken upon this Bill in its former stages, and universally felt to be so, though in different ways and from different motives. It was a question which had excited great interest within the walls of Parliament, and which had excited no less without; and he said this without having the slightest intention to have recourse to any one of those topics, of which his noble friend the Chief Baron had forbidden the use with so much anxiety on this occasion—a prohibition which, as far as he (the Lord Chancellor) was concerned, was entirely superfluous. The fact, however, of the paramount interest of the subject was sufficient to impress on his mind no ordinary anxiety, intrusted as he was with the success of this measure. In addressing himself to the arguments of his two noble and learned friends, he would occupy as short a space as the length of their speeches, and the respect due to their 344 remarks would permit. He promised not to trespass upon their Lordships attention more than was necessary; and if he should exceed their patience, he trusted that their Lordships would impute it to the real cause—a sense of the importance of the subject. First, with regard to the remarks of his learned and noble friend who had just sat down, and to whom he should address but a few observations, not from any want of respect to his noble and learned friend, but because it appeared to him (the Lord Chancellor) that his noble friend laboured under such gross ignorance of the question from inattention to its details, and that he had so mistaken, not the principle of the Bill, not the provisions of the Bill, not the grounds on which the Bill rested, not the arguments by which the Bill was supported, but the documents which were to be found on the Table, the papers which he held in his hand, including among the rest his own Bill, that he could not impute the hallucination of his noble and learned friend, and the proportional errors which had arisen from his mistake of the premises, to any ether cause, except to his having been deficient in that attention, that acute attention, which his noble and learned friend was in the habit of giving to all other matters which came before their Lordships. His noble and learned friend had said, that the county Courts—and he took this argument in the outset, as going at once to the root of the question—were not wanting in the country, but were to be found in almost every district of it. "Hardly a country or a city," said his noble friend, "is without them; but the fact is, they are not beneficial—the people do not like them. The doors of them gape for suitors, but they will not enter, and therefore no causes are tried within them." His noble and learned friend then proceeded to mention the Palace Court, the Sheriff's Court, the Lord Mayor's Court, and various other provincial Courts. Now, he (the Lord Chancellor) held in his hand a return from the Steward of the Palace Court, the deputy of his noble friend the High Steward, which showed, that in the year 1832, he had himself tried 921 causes. [Lord Wynford: Was not that the number of writs issued?] He was going to answer that very question. The number of writs was 7,189. So much for the observation that the Palace Court exists—that the process is cheap—that its doors yawn for suitors, but that no suitors can be persuaded to enter them.
§ Lord Wynford
—I said no such thing; I said, that there were not 300 causes tried there which could be tried in the superior courts.
The Lord Chancellor
—No! I beg my noble and learned friend's pardon. His statement was, that no suitors could be induced to enter these Local Courts, and that therefore Local Courts ought not to be encouraged. He did not exactly recollect the number of causes tried in the Sheriffs Court over which his learned friend Serjeant Heath presided, but he believed, that the number was stated in the Report of the Commissioners; but of that he believed his noble and learned friend know nothing, for his noble and learned friend had shown himself quite impartial in his ignorance—that is, be knew as little of the appendix to the Report, as he did of the Report itself. Serjeant Heath, in giving an account of his jurisdiction, said, that, 9,000 causes were tried in it in one year. He might also be permitted to inform his noble and learned friend, that in some of the provincial local and district courts 9,000 or 10,000 causes were tried within the year. He did not recollect the exact numbers for Manchester and Liverpool; but in one of them—he forgot which—10,000 causes, and in the other 20,000 causes, were disposed of annually, by a local jurisdiction. The Courts at those places were, however. Courts of the best kind; the Courts in other places might be of the worst. He had before stated, that those Courts, if they were ill-regulated, were held to be any thing but an advantage by the people; but that those Courts, even when ill-regulated, were resorted to, was undeniable; and it was as true as it was undeniable that the evidence taken before the Commissioners, though it did not show the opinion of the witnesses as to the remedy to be applied to the evil, established the fact that the evil existed—that it was wide-spread—that it was deep-rooted—that it was sorely felt—and that even the badness of the jurisdiction did not prevent suitors from availing themselves of it on account of its proximity and cheapness. Whatever other disadvantages might attach to these Courts, they had this advantage at least—they were near and cheap, and therefore the oppressed suitor gladly resorted to them. Another instance of the marked inattention with which his noble and learned friend had treated this Bill astonished him still more. His noble and learned friend had said that this Bill had not been recommended by the 346 Commissioners. Now, it had been referred to their consideration in consequence of the recommendation of his noble and learned friend the chief Baron. It had been postponed in order that it might undergo investigation by them. They had investigated its principles and its details, and in the course of their investigation had amassed a collection of evidence which was now before their Lordships. After that investigation they came to a conclusion. Was that conclusion favourable to his Bill or not, was at that moment the question. He said, that it was favourable and nothing but favourable, to the principle of his Bill; and that his Bill, altered as it now was from its original form, was, in all its essential principles and details, the Bill in favour of which the Commissioners had reported. "But," said his noble and learned friend, "that is all a mistake; you have not the authority of the Commissioners on your side. You have gone further than they recommended. They have not gone your length. Your Bill is not their Bill." Upon that point his noble and learned friend and himself were at issue, and the trial was now before their Lordships. The evidence was the Report which was at that moment in their Lordships' hands. That Report proved, that he was correct, and that his noble and learned friend, innocently enough—for he had either not attended to the Report, when he read it, or, if he had read it, he had forgotten its contents—had misstated, and that grossly, the opinions of the Commissioners, and had stated them to be exactly the reverse of what they were. "They only recommended," said his noble and learned friend, "that actions of debt should be tried by these Local Courts. They said, that they were only to be small debt Courts, and I have reason to know that the commissioners do not approve of the Bill as extended by the Chancellor." Now, he (the Lord Chancellor) held in his hand a record of the Report, which he again repeated that his noble and learned friend had read as inaccurately as he had read the appendix. The language of the Report was as follows:—"It appears to us that the jurisdiction of the Local Courts should extend to all personal actions where the demand does not exceed 20l., except cases in which any right or title to freehold or copyhold, or to tithe, toll, fair, market, or any other franchise, or any title under commission of bankruptcy, is in question." These were the exceptions in his Bill; 347 to everything excepted in them his proviso extended, and he had not deviated from them by the diameter of a single hair. He had confined the jurisdiction of these Courts to personal actions in tort as well as in contract. If his noble and learned friend wanted to refresh his recollection of the Report—if, indeed, his noble friend had ever read it—he had the Report ready for his noble friend's inspection. He supposed, that a king's Serjeant and four other gentlemen of high character in their profession could not doubt that actions in tort as well as actions in contract were personal actions. But if his noble and learned friend had any doubt on that point, let him look at page 24, where he would find the notice of plaint proscribed to be used in all actions of trespass to the person in the Local Courts, of which the Commissioners had recommended the erection, and had extended the jurisdiction to all cases of tort. "But," said his noble and learned friend "actions of trespass and assault the Commissioners allow you to try, but they do not allow you to try actions of tort in which injury is done to character." Now, let his noble and learned friend end his doubts on this subject by passing quickly over the three nest pages of the Report to page 27, and there he would find for a defendant in slander a plea of justification, that the words spoken were true. Need he go further to elucidate the ignorance of his noble and learned friend upon the question which he had thus incautiously ventured to discuss." Need he show further, that he had, in favour of this Bill the authority of the Commissioners, which he valued much, which he prised highly, and which he would not permit to be wrested from him, because of their high professional character, their great abilities, their long standing and experience in the pursuit of the law as a profession, and because they were the last men in the world to let their opinions on a question of Law Reform be biassed either to the right or to the left even by an inclination of their political opinions? Political opinion! Both his noble and learned friends knew well enough that, if the political bias of those learned persons had interfered at all it would not have been in favour of any plan of sweeping Reform. No man who had the honour of knowing the Commissioners would attribute to them any such unworthy motives [Lord Lyndhurst had not imputed any such motives to the Commissioners.] 348 He had not said that his noble and learned friend had imputed such motives to them, but his noble and learned friend must forgive him for alluding to such an imputation, especially as his noble and learned friend was not the only party to this discussion. He was also a party to it He was put upon his defence by his noble and learned friend (Lord Lyndhurst) in the first instance, and by his other noble and learned friend (Lord Wynford) in the second, who had shown a degree of knowledge and accuracy and correct attention, which explained the reason why he had been so eager to enter second into this affray. He was put, he repeated, upon his defence by his two noble and learned friends, and in his defence he had a right to avail himself of the authority of the Commissioners. His noble and learned friend the Chief Baron took credit for not having attacked those Commissioners, but he could not give his noble and learned friend credit on that score, as the Commissioners were placed far above even his attacks. In addition to their talents and professional learning, he had much pleasure in stating, that they were above exception on the score of political bias—for if they had any bias, it was as he had before said, against sweeping Reforms; and if they had any political opinions—and in these stirring times who had not—they were wedded—some of them more and some of them less—to the opinions of his noble and learned friends, and not to his opinions or to those of the Government. There was one of them, he believed, who agreed with him in politics, but the rest differed from him widely, especially his hon. and learned friend the member for Huntingdon (Mr. Frederick Pollock), who was at the head of the Commission, and who deservedly held a very high place in the other House of Parliament. No wonder, then, that he should be jealous not to have wrested from him the stall which the Commissioners had placed in his hands. The fact was, that he had stopped short of, instead of going beyond, the recommendation of the Commissioners. They had recommended one kind of action, to which he had not thought it right to extend the jurisdiction of these Courts—he meant to cases of ejectment between landlord and tenant, where the annual value of the premises did not exceed 20l., and the tenant was alleged to hold over. They had also recommended that the jurisdiction should extend to the recovery of pecuniary legacies where 349 the estate was of small amount. Both these recommendations were, to be found in the 19th folio of the Report. His defence then, was complete, that he had stopped short of the recommendation of the Commissioners. But no marvel that his noble und learned friend had so short a memory as to the contents of records drawn up by other people, when he had treated his own Bill of last Session with the same inaccuracy. Their Lordships would recollect—for they had cheered loudly when his noble and learned friend mentioned the circumstance—that his noble and learned friend had taunted the Chancellor of Ireland with gross inconsistency in supporting this Bill, which sanctioned the examination of the parties, when he had opposed a bill with a similar clause of which the noble and learned Lord was himself the author. And why had the Irish Chancellor opposed that Bill? Because it affected the title to freehold property. "No," said his noble and learned friend, "that was not the case with my measure of the present Session." Now, the very first clause of that Bill was, that any plaintiff should have a right to examine the party in "any action and afterwards there was another clause, enabling the Judge to order judgment to be signed for such lands and hereditaments as should by affidavits be proved to be unjustly withheld. Now, he (the Lord Chancellor) had supported the second Heading of his noble and learned friend's Bill, and had even assented to its going into Committee. His language had been this—"Let it go into the Committee; I do not think it will be made good there, but do not strangle the poor bantling at its birth. Let it breathe a little while, and let us see whether it is worth educating." But no, his noble and learned friend, the Chief Baron had called it an abortion, had treated it as a mere embryo, and had prevailed upon their Lordships to fling it out. He (the Lord Chancellor) had stated at the time, that the proposal of trying the title to land by affidavits, and of taking land from a man without viva voce evidence was sufficient to stagger him a little. [Lord Wynford: That was no proposition of mine.] He would suggest to his noble and learned friend the propriety of looking at his Bill again before he ventured upon giving an explanation of it, else he would get further into error and flounder on from one blunder to another. Leaving his noble and learned friend for 350 the present, he would now remind their Lordships of the remarks which had been made by his other noble and learned friend, and also by the noble Baron at the table, who, very much to his surprise, had made the Motion that this Bill be read this day six months. Two great objections—and the two most relied on by all the noble Lords who had taken part in the debate—rested on the local residence of the Judges in ordinary, and on the expense of the system as connected with patronage. These objections had also formed a large proportion of all that had been said on the other parts of this question. He was in the recollection of their Lordships whether he had ever done otherwise than confess, that there were many reasons why he should prefer, if it were possible, that the Judge in ordinary should not reside in his district, if it were a narrow one. That consideration would prevent him from trying this Bill as an experiment any where, except in a populous district. This difficulty, which he had never concealed, was felt also by the Commissioners, but they, after considering it, came to the same conclusion with himself, not binding themselves to the contrary conclusion drawn by persons who thought that individuals residing in the country should not try actions of tort brought by and against individuals of their own vicinity. They felt the difficulty, but they said, On a balance of inconveniences, the advantage of having a local judicature, where justice can be brought to men's doors at all seasons, and where their complaints and their defences can be promptly and cheaply heard, counterbalances the evils of a continued residence in the country, and therefore we unhesitatingly report in favour of this provision of the Bill." A balance of evils and a choice of difficulties were incident to the present as well as to every other measure of legislation, and he only wished that he could see the measure in which men did not from the inevitable lot of human infirmity expose themselves to some counterbalancing disadvantage. The question being which path was least beset with danger and with difficulty, he trusted that their Lordships, when they had sifted the arguments and the facts, would find them operate in favour of his conclusions. "But," said his learned friend, the Chief Baron, "the Assistant Barristers in Ireland [...] locally resident in their counties but reside in Dublin, and practise ill the four Courts." It might be true that the Assistant Barrister was not a local 351 resident, but then he always went to the same county, and, except in ease of promotion, went it for life. He went it six times in the year, besides going to the ordinary Sessions. The Assistant Barrister's visits to his county would be as frequent as those of the Judge in ordinary to any part of his district, save that town which was his headquarters, and which, in all probability, would he the metropolis of the district. The objection which his noble and learned friend, the Chief Baron, had raked up out of the debates on the Welsh judicature was important in another point of view. First of all, he must remind his noble and learned friend of the principle in which all the alteration in the system of Welsh judicature was made. He admitted, that much was said respecting their always going the same circuit, but that was not the only, much less the principal argument for changing the Welsh judicature. His noble and learned friend must recollect how much stress had been laid on two other particulars by the authors, as well as the advisers, of the change. One was, that the Welsh Judges were practising barristers—that they one day acted as counsel, and the next sat as Judges in the same cause. They could not tell when their opinion was asked upon an anonymous case, as between A and B, whether it might not be a trap to get extra-judicially the very opinion which they might afterwards be called upon to deliver judicially. That circumstance, and the impolicy of allowing a man to practise as counsel in Westminster-hall one day, and to sit upon the Bench the next, was one of the main reasons for impeaching the system of Welsh judicature. Another reason was, that those judicial offices were considered political patronage, because the Welsh Judges were entitled to sit and vote in Parliament. When noble Lords talked as if it was so clear and certain, that no resident local judicature could be an impartial judicature, let him ask them which of these two classes of judicial tribunals required the greater impartiality, and the more complete removal of the members above the sphere of the parties and their petty disputes and prejudices—that which decided actions of debt where the cause of action did not exceed 20l., and actions of tort and slander, where the damages in the declaration did not exceed 50l.; or that which exercised those most important functions which were exercised by the magistracy of counties, by justices of peace, whether acting singly in 352 their own mansion-houses, and despatching matters of no slight importance, or acting by pairs, or threes, or fours, at petty Sessions, and disposing of matters still more important; or acting at quarter Sessions on all but matters of the highest importance, on matters of party and political feuds, which made men enemies to each other, bitter in proportion to their vicinity, and trying men for felonies punishable by transportation for life? And yet this tribunal, by the practice of the law of England, was that part of our judicial system against which no man, who had any regard to his character or station, would venture, in any assembly, much less in that assembly, to breathe a suspicion, so general was the idea of its perfect purity and its appropriate fitness to perform all functions which the law had invested it with. Those justices were locally resident Magistrates; they exercised a jurisdiction daily in their own parlours and studies. Out of that jurisdiction, be their county large or small, be it as extensive as Yorkshire or as confined as a Welsh county—out of that jurisdiction they had no power; yet, within it, among their neighbours, their friends, their tenantry, among those with whom they might, in friendship or in enmity, or in a dubious state of neutrality—among and over all those with whom they might be committed by differences on county politics, or the still more bitter hostility of parochial feuds, they were authorized to administer justice; and nevertheless they had never been impeached, at least in that House, for partiality in administering it, because they administered it under two strong and efficient safeguards—the Court of King's Bench, the powers of which were rarely called in to exercise, because the misconduct of the magistracy was rare, but which might be appealed to if need arose; and public opinion, which was the best safeguard of all, as they exercised all their authority in the eyes and before the face of the community. For himself, he had no anxiety on either of the points adverted to by his noble and learned friend, the Lord Chief Baron. He neither apprehended that improper appointments would he made, nor did he think it probable, that the persons receiving the appointments would abuse the important trusts delegated to them. What Minister, who was responsible for those appointments to Parliament—what Minister over whom the eyes of the public were, he would not say glaring, but absolutely frowning, merely because he was Minister—what Minister 353 with the eyes of the public so upon him, would be insane enough to job away judicial places? What man would be so regardless of his own personal honour, of the voice of his country, of the censure of Parliament—what man would be so regardless not merely of his official existence, but of his personal safety (for safety from impeachment he could not warrant), as to appoint an improper person to a judicial office to serve a friend, or to promote a political purpose? But was there no watch over, no check upon, the Local Judge so appointed? He put that question frankly to his noble and learned friend, the Lord Chief Baron. Was there any town in which these Judges were likely to reside in which there were not one or two newspapers? He heard noble Lords laughing at the mention of a newspaper; but he would tell those noble Lords, that though he had never seen a judge who did not, like their Lord ships, laugh at the mention of a newspaper, yet he had never known one of them who was not very cautious of exposing himself, through the medium of a newspaper, to the animadversions of the public, by even a hasty or intemperate expression. He believed, that it would be impossible for a local judge, so long as there was a vigilant and able press watching all his proceedings, to commit himself so far as to do any wrong, show any partiality, mix himself up in any local disputes, give way to local prejudices, exhibit haste or ill temper, or be guilty of any of those corruptions, which, in former times, aye, not even 300 years back, stained the purity of the ermine. He treated it as a vague and groundless apprehension, that they would be led away by unworthy motives, or that they would abandon their duty, either from local partialities or from excited party feelings. He had already explained to their Lordships, that there was a necessity, that the judge should reside on the spot, in order that justice should be at once cheap, prompt, and accessible. It was desirable that their Lordships should come to a right understanding upon this point, for hitherto there had been no devices in any of the bills presented to Parliament, in which any substitute could be found which avoided the evils while it provided the advantages, derived from this local judge. In Lord Althorp's Bill, and in Sir Robert Peel's Bill, which was only an Amendment of Lord Althorp's Bill, there was a local Judge, with this difference, that he was not to be appointed by the Crown, but by the Sheriff. All these measures were attended 354 with two difficulties: one of them was, that the Judge would be on the spot. But then it ought to be recollected, that he would be respectable from his station, from his rank at the bar, from his rank on the bench. He would be removed from those associations which were likely to break in upon his respectability; he would have no temptation, and no time to meddle with party polities; he would be frequently away from his head-quarters in the districts, on visits to the less important parts of it; and, taking it for granted, that it would be in a populous district, that this Hill would be tried as an experiment, he thought that the difficulty was over-rated, and ought not to be put in competition with the advantage of obtaining cheap and speedy justice. The other difficulty connected with this question was the patronage, on which he would now say a word or two. The noble Baron at the table (Lord Wharneliffe) who began the debate, had surprised him not a little by his unsparing opposition to this measure. If the noble Baron had only opposed the details of it, he should have been less surprised, and should have reminded the noble Baron that he ought to have attended on the Committee to amend them; but, when he recollected that the noble Baron had expressed no objection to the principle of the measure on the second reading, and, that he had attended the Committee, and had proposed certain clauses as amendments, he was surprised that, after a short wavering as to the second reading, the noble Baron should come out of the Committee with no wavering at all, but with a decided spirit of hostility, not only to this measure, but to every measure of the kind. The argument of the noble Baron was as good against all bills for the recovery of small debts, for supplying the people with a means of obtaining speedy and cheap justice, as it was against this Bill. The degradation of the bar,—the perpetually going the same circuit,—the local residence of the Judge,—his liability to share in all the feuds and party differences of the county,—the increased patronage of the Crown,—these were all radical blemishes of universal occurrence, applying to all measures of this kind. He was exceedingly mortified at the opposition he had received from I he noble Baron, for his authority was most important, when it was recollected how long and how ably the noble Baron had been engaged in the administration of justice. But where had the eminent character of the noble Baron been formed? 355 He would not say, ask the gentlemen of the northern circuit, but, ask any barrister in Westminster Hull, who had the highest reputation for skill, and talent, and ability, and purity in the administration of justice in the Local Courts of the country, and they would point with one accord to his noble friend—for so he trusted he might call him—the chairman of the sessions in the West Riding; of Yorkshire. That any personal feeling ever crossed his noble friend's mind—that any antipathy to his neighbour ever interfered with the performance of his duty—that any knowledge of the parties, their barristers, attornies, or circumstances, ever intervened to cast even the shadow of a shade over the bright path of his career, was as monstrous a supposition as that he would ever be tried at his own bar by his fellow justices; and yet his noble friend, with all this pure and unsullied reputation, acquired in that capacity, must permit him to say, and to remind his two noble and learned friends, who had not been local Judges, but in whom freedom from all political bias was not more undeniable than it was in his noble friend—that lhs noble friend had been, and was, a local Judge,—in all respects a local Judge, and nothing but a local Judge. That he had been member for the county of York, after a contest or two,—that he had lived in that county, and in that district of that county, the West Hiding, which had been the scene of his judicial triumphs,—that he was known to entertain (like his two noble und learned friends, not local Judges) strong political feelings; and that he was as capable of personal affection, and, he must also add, of personal animosity, as any member of that bench of which he was so distinguished an ornament. Let him be talked to now of the impossibility of combining the purity of administering justice with a local resident magistracy. He had answered the allegation out of the mouth of him who had advanced it., by appealing to his long and useful judicial career, he wished to make no invidious comparisons, but he would repeat of his noble friend, who so highly valued the purity of general as contrasted with local Judges,—that that man at the table (Lord Wharncliffe) as a Judge,—a local Judge be it remembered,—was as free from bias,—but no freer,—as either of his noble and learned friends, though they had never been charged with any crime, nor sympathised with for the misfortune of being local Judges, administering 356 justice where they resided. He next came to the question of patronage; and, he would here say, that he did not much thank his noble and learned friends for having exempted him from the charge of creating patronage for himself. That charge they could not bring against him, and, therefore, could not with hold from him the credit which they had pretended to give him,—for he had framed this Bill for their benefit, and not for his own, when he introduced it in April, 1830, into the House of Commons. No one ever dreamt that this patronage would amount to 150,000l. Besides, if it had amounted to such a sum, it would have been for the benefit of his noble friend, the Lord Chief Baron, who was then on the woolsack he could not feel such gratitude as he might otherwise have felt for their allowing him the credit, which they had given him certainly, but he must say with rather a stingy hand. After that scanty and compulsory tribute, however, there came a cloud of sneers. They knew the subject to be dull, they knew the party to be attacked were Ministers, and the latter knowledge furnished the motive for enlivening the discussion with a few taunts, which they thought the former knowledge justified. He did not complain of that, but he did complain of their constant practice of misstating fads. Fancy was good to enliven facts, but though to be amusing-it might be necessary to draw a little upon imagination, it did not follow that it was right to get rid of facts, and the semblance of facts altogether, and soar into the highest regions of pure fiction. Unfortunately for him all the mistakes of his noble friend—all the fictions in which his noble friend had indulged—were favourable to his noble friend's views and injurious to those which he had sought to recommend to their Lordshihs. They all aided the point of his noble friend's sarcasm, and took away the shield by which he might be protected. Why did his noble friend say,—what right had his noble friend to say,—that there were to be four local judges for the West Hiding of Yorkshire? True, it was proposed to divide the West Hiding of Yorkshire into two districts, but then there was to be only one judge for each district; and thus, from over indulging his fancy, his noble and learned friend the Chief Baron had got into as gross an inaccuracy as would have done honour even to the late Chief Justice of the Common Pleas himself.
§ Lord Wynford
I have submitted to this for a long time, but I will not be held up to ridicule in this way any longer. [Cries of "order."]
The Lord Chancellor
my noble and learned friend, the late Chief Justice, is most disorderly certainly, but I do not complain of it. When I spoke of his inaccuracy and forgetfulness, I merely meant that he had forgotten, or perhaps had never read, though I have no doubt he thought he had, the contents of the Report. Therefore it was, that I spoke of him as misstating the recommendation of the Commissioners. I was not holding up to ridicule my noble and learned friend, the late chief Justice. It was no holding up of mine; and I hope my noble friend will remember what Dean Swift said of persons who were laughed at—
§ Lord Wynford
I will bear this no longer, [cries of "Order."] I rise, my Lords to order. The noble Lord has attacked me by name, and I therefore move that the fifteenth of your Lordships' Standing Orders be read, and I will then ask your Lordships if the individual who is charged with the preservation of order in this House, should be himself the first to break it.
The clerk read the fifteenth Standing Order, as follows:—'To prevent misunderstanding, and for avoiding of offensive speeches, when matters are debating, either in the House or at Committees, it is for honour sake thought fit, and so ordered, that all personal, sharp, or taxing speeches be forborne; and whosoever answereth another mans speech, shall apply his answer to the matter without wrong to the person: and as nothing offensive is to be spoken, so nothing is to be ill taken, if the party that speaks it shall presently make a fair exposition, or clear denial of the words that might bear any ill construction; and if any offence be given in that kind, as the House itself will be very sensible thereof, so it will sharply censure the offender, and give the party offended a fit reparation, and a full satisfaction.'
The Lord Chancellor
would confine himself, as far as modern usages would permit (for modern practice had somewhat modified it), to this order, and would avoid most carefully the example set by the other side, of making offensive, sharp, and taxing speeches. He trusted, that while he complied with one of the exigencies of the order, his noble and learned friend would 358 comply with the other exigency, namely, that as "nothing offensive is to be spoken, so nothing is to be ill-taken." He could assure his noble and learned friend that he meant him no offence. If his noble and learned friend supposed that he meant anything offensive by charging him with gross inaccuracy—[Lord Wynford: You said inaccuracy that would have done honour to the late Chief Justice of the Common Pleas.] All that he meant by it was, that his noble friend had not considered the subject. He had been himself interrupted in replying to a sharp and taxing speech of his noble and learned friend, the chief Baron. He had taken no offence at that speech, and was just in as ranch charity with his noble and learned friend as he was before his noble and learned friend made his very able and ingenious, but, he must say, not very fair nor conclusive speech. He repeated, he did not think it fair that his noble and learned friend should just double the number of Judges for the West Riding of Yorkshire. It was as unfair to state the amount of patronage at 1,50,000l. upon the authority of an answer which he (the Lord Chancellor) had given to a question asked him in the Committee as lo the number of these Judges, and the amount of their salaries. He had said, that the salary must depend upon the House of Commons, but that he thought that it ought not to be loss than 1,500l. a-year. Some of the noble Lords on the Opposition benches had prompted his noble and learned friend to say 2,000l. a-year; but all that he (the Lord Chancellor) had said was, that he thought that the salary of the Judges in ordinary should not be less than 1,500l., or more than 2,000l. a-year He had also to complain of what his noble and learned friend the Chief Baron had said, and, after him, his other noble and learned friend, as to the expense which the machinery of this Bill would require. His noble and learned friends—the one reechoing the misrepresentation of the other—had both said, that the Bill would cost 150,000l. a-year. Where did they get this estimate? Not from the Commissioners—not from him (the Lord Chancellor)—not from any authentic document; no, but from their own fancy, their own invention. And yet his noble and learned friends had propounded their scale of expense as though it had been a thing certain, and not possible to be disputed; and their Lordships had been good enough to cheer this part of the 359 learned Chief Baron's speech with great heartiness. He had slated, over and over again, that the expense would not be more than 60,000l. or 70,000l. a-year, probably not quite so small a sum as the first, nor so large a sum as the latter. This sum—a sum between 60,000l. and 70,000l., was, he admitted, a very large sum; but even the noble Lords who cheered his noble and learned friend so loudly must also admit, on their part, that it was not so large a sum as 150,000l. a-year. Those who heard only the speech of his noble and learned friend, the Chief Baron, would never have supposed that there had been an actual statement upon the authority of the authors and advisers of the measure, that the cost of putting it into full operation would not amount to half the sum mentioned by his noble and learned friend. These were matters which evidently had some weight with their Lordships when they heard the speech of the noble and learned Chief Baron; and, had perhaps, sunk deep into their minds, requiring an effort—an effort, however, which he had a right to expect, in justice to the measure, their Lordships would make—before they could get rid of the impression. On this part of the subject his noble and learned friend had suppressed one important fact while he had invented another. His noble and learned friend had omitted to state, that this expense would not fall upon the country. He had always been of opinion that the country, not the suitors, ought to defray the charges of the administration of justice; he thought this a sound principle, but the circumstances of the country rendered a deviation from it inevitable in this case and at this time; and he had invariably said, and he repeated now (he said it in the House of Commons, and he had said it in that House), that the expense of the machinery of this measure would be defrayed otherwise—would be defrayed without imposing any additional charge upon the public purse. It appeared by a return recently made, that in the Local Courts of Scotland there were annually tried 22,000 causes, for sums which would come within the jurisdiction of the Courts proposed to be established by this Bill. Supposing the number of actions for debts rot exceeding 5l. to bear in England the same proportion to the whole number of 360 actions for debts of all amounts, as in Scotland, the number of these actions would amount to 130,000. That was sufficient to show with how much ease, and with how small a cost to each individual suitor, a sufficient fund might be raised by fees, to defray all the charges incurred by the Bill. If left to his own judgment upon the subject, he should certainly object to this mode of payment, on principle; but he had repeated, over and over again, that the House of Commons would most probably resort to it. So much for the expense which the imagination of his noble and learned friend had so magnified—so much for his noble and learned friend's care and generosity in desiring to relieve the public from a charge which he never once had proposed to put upon the public. He would now pass on to what his noble and learned friend bad said touching the patronage which this Bill would confer. His noble and learned friend, with his usual candour and smartness, had attributed to him no less than five years of meditation as to where this patronage should be vested, and had said, that all this meditation had ended in the conviction, that he (the Lord Chancellor) was the fittest person to be intrusted with it. This sneer of his noble and learned friend was received with great cheering by noble Lords near him, even on its repetition, while in its originality it was hailed actually with a shout of delight as clamorous as it was irrepressible. Now he should be sorry to disturb the pleasure which noble Lords must naturally take in the recollection of what had thrown them into such ecstacies when it first fell like music on their ears; but he must nevertheless take the liberty to remind them that he had stated distinctly in the Committee, and most of their Lordships had probably heard him make the same statement on many other occasions, that long-before he came into office he had arrived at the conviction, after much consideration, and with great reluctance, that this patronage could only be properly vested in the responsible advisers of the Crown. He stated, that in discussing the subject as far back as the year 1826, when Lord Althorp's and Sir Robert Peel's Bills were before the other House of Parliament, that he was one of those who felt the strongest repugnance to the increase of 361 the patronage—not of this or that Minister, but the patronage of the Crown; and he had said at that time that others, as well as himself, had suggested various expedients in order to avoid the necessity of giving rise to an increase of that patronage. Some, he had said, talked of giving it to the Lord Lieutenant of the county—some of giving it to the Judges of Westminster Hall—some of giving it to the Justices of Sessions—some of giving it to the Sheriff—some of giving it to two consecutive Sheriffs serving for two consecutive years—all these various plans, he had said, had been once and again proposed, and all had been rejected because, upon investigation, every one of them was found to be open to the strongest objection. He had added that, therefore, as a matter of necessity—as a matter of unavoidable and inevitable necessity—it became utterly out of the question to think of intrusting to any other hands than the Executive Government and its responsible advisers the execution of this power. To this conclusion he was necessarily driven, by the impossibility of placing it elsewhere. But then it was said, if this inevitable necessity existed, it was an objection, an insurmountable objection, to the present measure. Why, if it were an objection to this measure, it was an objection to all measures of this nature, because without these Judges it was not possible to have cheap justice, and without patronage it was not possible to have these Judges; the patronage must be vested in some hands or other; and, consequently, if the objection was to prevail against this Bill, it must prevail against every Bill that could by possibility be devised by man, for securing to the King's subjects the blessings of the administration of justice at a cheap, instead of an extravagant rate. It was said, that the Great Seal ought not to have this patronage, because it had too much already. His noble friend at the Table was pleased to say, that the patronage which the Great Seal had given up was in effect nothing, and that the patronage given by this Bill, added to the patronage it already possessed was infinitely more objectionable than any power which could be bestowed upon it. His noble and learned friend said, "What signified Commissioners of Bankruptcy? who cares for a Commissionership of Bankruptcy? who 362 has ever looked for, who has ever sought after, such appointments as these?" That observation argued a happy ignorance on the part of his noble and learned friend of this circumstance—of the daily, the nightly, the hourly persecution which he suffered who had the giving away places of that description. Commissionerships of Bankruptcy not pursued, not looked after, nor run after! If his noble and learned friend had held the Great Seal for twenty-four hours, his doors would have been darkened, his couch would have been disturbed, his meals would have been interrupted, his solitude would have been broken in upon, with applications for much less valuable places than the late Commissionerships of Bankruptcy; seventy placcs—seventy places, my Lords, in the absolute and uncontrolled gift of the Lord Chancellor; each of those places averaging somewhat between 400l. and 500l. a-year; each of those places compatible with professional practice; each of those places not only compatible with professional practice, but leading to professional advancement; and therefore pursued by men entering into the profession, and even by men who had been some time in the profession, as the most desirable acquisition which that profession could offer; and all these places to be given, not to distinguished individuals, with respect to the choice among whom the Chancellor was watched by the public, and watched by the profession. Could the Chancellor appoint an unfit Judge? He might not take the most efficient man, and within certain limits a license would be allowed; but that he could take a man who was unfit for the office—a man whom numbers would cry out against—that he could choose a man from private affection, from personal attachment, in breach of his public duty—that the Chancellor could put on the Bench one who was unfit to try prisoners, and to try causes in this country—was as impossible, as that a Judge should sit on the Bench and try his own cause or suit,—a case which in these days was not only impossible, but never entered into the imagination of man. But the patronage of appointing to office such as he had referred to, which were comparatively of little value; which had no responsible duties of a public nature annexed to them; with reference to which there was no jealousy on the 363 part of the people; such patronage was as absolute, as irrevocable, as the giving away of an exciseman's place. No Chancellor ever yet was accused of appointing an unfit Commissioner of Bankrupts, though it was in vain to deny, that every Chancellor must have appointed Commissioners not fit to manage the duties of their office. That was, therefore, a great and important branch of patronage—of patronage properly and strictly speaking, which was entirely lopped off from the Minister of the Crown who happened to hold the Great Seal. He persuaded himself that he then had given proof that he at least did not grasp at patronage, and that to him official power meant something more than the mere receiving and dispensing of official emolument. It was well known to not a few that it was contrary to his wishes or intentions that there were ten bankruptcy judges appointed under the new bankruptcy jurisdiction—that he had maintained that seven at most would be fully adequate to its functions. Practical men were, however, unanimous that a larger number was requisite; and he took the lowest number, ten—many contending that twelve or fifteen would be required. Then one of the same judgeships had since become vacant, and though eight months had elapsed, the vacancy had not been, and would not be filled up, so anxious was he to seize hold of every occasion to exercise the patronage and influence of his office. How greatly he had been misrepresented in reference to the patronage which the present Bill would confer on him, it would not be easy to estimate. His learned friend, for example, had asserted that he would have the appointment of fifty Local Judges at one slap, together with registrars and official assignees, though he had distinctly stated on a former occasion that there would be but twenty-five altogether; and that, as to the official assignees, it would be only in some ten or twelve of the larger towns, such as Liverpool, Manchester, Exeter, &c., that the office of Official Assignee would be worth holding. A word as to the appointment of the Official Assignees tinder the Bankruptcy Bill, which had been thrown in his teeth that evening as another instance of his love of patronage. He chose eighteen persons out of a list of thirty. How was that list of thirty 364 formed? He begged the House to recollect the circumstances. He had not less than from 1,100 to 1,200 candidates for these eighteen Official Assigneeships—many of them strongly recommended by friends and supporters, private, professional, and parliamentary; others with testimonials from some of the first merchants in the city; and this, too, though he had long before resolved and openly declared that he would not name a single person for the office—that he would exercise no influence, directly or indirectly, in framing the list of assignees, and that he should leave the whole matter to a Committee (to but one or two of whom he was personally known) consisting of persons, some official—such as the Governor or Deputy Governor of the Bank of England—or some of the leading merchants of London, and two of the Judges. Well, these gentlemen selected thirty persons as fit for the office, and all that he did was, to select the first eighteen, and this was the "head and front" of all his patronage-offending on that score. But then, said his learned friend, there was much other patronage annexed to the great Seal—there was the great patronage connected with the appointment of the magistracy. Of all men his learned friend was the last man from whom he could have expected so—he would say—absurd an insinuation. His learned friend had himself held the great Seal for upwards of three years, and could not but know that the jurisdiction of the Lord Chancellor, in reference to the appointment or removal of magistrates, was very little more than a formal sanction of the acts of the Lord-lieutenant, in whom the appointment to the magistracy practically lay. The cases in which the Lord Chancellor interfered with the Lord-lieutenant were extremely rare, and were limited to the appointment of such gentlemen as he, as Lord Chancellor, might think entitled to be raised to the magistracy, and whose claims it appeared to him had been overlooked. Even in these cases he, in conjunction with the Home-office, first applied to the Lord-lieutenant to show cause why such and such persons had not been recommended by him as fit persons for the magistracy, and it was only in very few rare instances that, on the Lord-lieutenant failing to show cause for overlooking the individuals that he the (Lord Chancellor) did place on the com- 365 mission, the gentlemen whom the Lord-lieutenant had neglected. But was this patronage? Was it not his bounden duty, and, as his learned friend well knew from his official exercise of the functions of the Great Seal for three years, that he should have neglected his duty had he acted otherwise? The knowledge of this fact, however, had not prevented his learned friend, for the purpose of inflaming the account of patronage against him, from prominently putting it forward, and in a tone not of judicial, but he would say of extra-judicial solemnity, dwelling on what he called the enormous amount of magisterial patronage annexed to the office of Lord Chancellor, as if there was something mysteriously awful in the charge. He owned that, coming from his noble and learned friend who had been himself Lord Chancellor, such an unfounded insinuation astonished him. With respect to the appointment of Judges, he need only remind his learned friend, that but one vacancy had occurred since his accession to office, and that in the filling up of that vacancy the choice was strictly limited to one of three persons. No matter whether they were enemies or supporters of the Government, whether they were his personal friends or his foes; the whole range of his patronage was tied down to those three persons, and, in choosing one, surely it could not be said he had abused his privilege. His learned friend had earnestly disclaimed being actuated by party motives, and had taken elaborate pains to appear in his most impartial, and, he might say, most judgment-seat aspect. He had told them, that he wished to be understood as addressing them in his parliamentary capacity only; that he had risen early in the debate, because, being a judge, he thought it right that he should take no part in the contentious portions of the discussion, and that, by confining himself to a calm statement of his opinions, by sailing, as it were, in the smooth waters of the debate, it would be clearly seen, that he was not actuated by the spirit of party. He was ready to believe, that his learned and noble friend sincerely intended to act up to his professions, though never did the matter of the charge less correspond with the preface. Though his learned friend's professions were thus elaborately solemn and calm at the outset, this speech was, as their Lordships well knew, that of a warn, and active, and powerful partisan 366 against the Bill. No artifice—no resource which his ingenuity and skill in debate could supply was left untried by him, and so far from his delivering a judgment with the calmness of retirement in his study—or with the impartiality of that most sacred function which he exercised as a Judge of the land, his noble and learned friend had not stopped to take advantage of the widest range of partisan tactics, so as to inflame their Lordships against the present Bill—such as quoting long paragraphs from anonymous books, with an insinuation, that he (the Lord Chancellor) must have read them, if not actually written them—taunting him with being-greedy of patronage and the sordid emoluments of office; in fact, stopping at no lengths which the freedom of debate permitted to curry his purpose, namely, under the disguise of specious motives, under cover of an elaborate disclaiming of mixing up the judicial with his legislative capacity, and of approaching the subject at all in the respect of party—of damaging or throwing out the present measure. All this his learned friend did as effectively, notwithstanding his disclaimer, in the spirit of party, as when, some year and a half ago, he avowedly attacked another judicial reform measure, not in his judicial, but his parliamentary capacity. His noble and learned friend was completely at fault in insinuating that he had read, not to talk of written, the article referred to by him touching the efficiency of assistant barristers in Ireland. He was not competent to speak on the subject, further than that he could well conceive how the circumstances of Ireland (the intemperate party feeling which there pervaded all the relations of society) might render it highly inexpedient for a Judge to be a local resident, while no such objection could obtain in the different circumstances in this country. With respect to the great objection of his learned friend of the tendency of the Bill to interfere with the certainly of the decisions of the law on which so much of its usefulness depended, all he need observe was, that the Bill furnished precisely the same machinery for insuring a certainty, und one-ness of legal decision, as was in force in Westminster-hall; namely, the power of appeal to a superior jurisdiction. The Bill provided, that the decision of a Local Judge might be appealed from by direct appeal or a certiorari writ to the Judges in Westminster-hall, us a ver- 367 dict in Westminster-hall might be appealed from to a new trial, or to their Lordships, as the highest Court of Appeal. But his noble and learned friend, in urging his opposition, said, that be should have no objection to a Reform of the law, provided it was based on proper principles. He could not help considering his learned friend as one of those Reformers who confined their exertions to starting objections to and detecting flaws in the measures of others—as one of those Reformers who, without proposing any plan of their own, were for ever expressing their dissatisfaction with the well-meant and carefully considered plans of others—objecting to this measure that it was too extensive—to that that it did not go far enough—to another that it was inconsistent with itself—and so on through all the moods and tenses of systematic opposition. His noble and learned friend had had for three years the custody of the great seal, and the noble and learned Earl (Eldon) had filled the same high office for upwards of a quarter of a century. Where was the fruit of their labours in improving the Administration of Justice? Nowhere. They had neither of them proposed any measure of legal Reform—neither of them attempted to open wider the doors of justice to the poor suitor—neither of them had attempted to make justice cheaper and less difficult of attainment. Yet now, without having done anything themselves, they were zealous in their efforts to thwart the endeavour to repair the consequences of their own negligence by their cavils and their exclamations of "this won't do," and "that won't do"—in fact, nothing would satisfy them; and when they were asked, "What, then, will you do?" their only answer was, "Oh! nothing at all; that's your business and not ours." A more certain mode of perpetuating legal mischief, and of perpetually precluding legal remedy than this—of perpetually opposing every plan of Reform without ever proposing one of their own, could not be devised. He asked, could either learned Lord deny, that the costs and delay in suits of law were excessive and unnecessary? He held in his hand two bills of costs in suits tried in the Court of Exchequer, over which his learned friend presided in the year 1832, during which the regulations of his learned friend for diminishing costs in his court were in full force. In one case, in which judgment was suffered to go by default, the 368 costs were 13l. for a debt of 10l. In another case, the costs were 34l. 8s. 10d., of which 6l. 19s. 6d. were disallowed. The sum to be gained, the cause of action, for which the plaintiff incurred a bill of costs to the amount of 34l. 8s. 10d., on which he lost 7l, was 7l. 19s. 6d. After a year's litigation exposed to the chance of having a verdict found against him—after advancing 34l., and after paying 7l. of that 34l. out of his own pocket, which he never got jack—and after the risk of losing it—the balance of the acount upon winning the cause was just 19s. 6d., although he was in the right, and although he had gained his point in every stage of the proceedings. The noble and learned Lord next referred to a case in the King's Bench, in which, for a debt of 16l., the plaintiff had to lay out 115l., of which he recovered but 66l., leaving him 49l. out of pocket, though justice was on his side, and proceedings all along were decided in his favour. This, too, was after his case was entered one year and a-half for trial, and after waiting two years before it was so entered. Well might Lord Hale, that illustrious Judge and law Reformer—a Judge who, instead of carping, and declaiming, and sneering at the reform plans of others, was ready with measures of his own—was not unwilling to sacrifice his own prejudices and interests at the shrine of justice—who chalked out the way where the knife should be applied with a steady and unsparing hand, to the excision of the rotten parts—well might this illustrious Judge cry out, "Let us return back to those ancient institutions which in better times furnished cheap and ready justice to the poor suitor. Well, too, might Blackstone advocate the same noble principle. Lord Hale was for raising the jurisdiction of the Local Court to 10l. cases; he rightly argued that 10l. in his time was not more than equivalent to 40s. at the time of the enactment of the Statute of Glocester. But without confining themselves to the mere authority of illustrious names, every Local Bill in their own statute-book was a striking illustration of the principle of the advantage of local jurisdictions, and of the anxiety of the Legislature to provide a remedy for their absence. He would go further, and refer them to a still higher authority, which distinctly, and most clearly enjoined the establishing of local jurisdictions. What statute was that which declared that "you shall not 369 delay nor deny justice, nor make it a matter of sale? Was it not Magna Charta itself? And did they not deny justice when a suitor, to recover a debt, had to spend 50l. more than he could legally recover? And did they not delay and sell justice when it was at a price which but few could afford to pay, and which, if even they could, they would be as wanting in sense as in money if they embarked it on the uncertainty of not being able to recover it even when, after some one or two years' delay, and after having run the gauntlet of Westminster-hall, a verdict should be given in their favour—a verdict, however, which left the costs higher than its award? He called upon their Lordships to afford a remedy for this monstrous state of things. The lime was arrived beyond which such a remedial measure could not be longer delayed. He gave them full credit for their earnest anxiety to provide the people with the means of speedy and cheap justice. He was confident that they would not allow party feelings, no nor any factious antiquated scruples as to the present measure, which was, in fact, a very slight change in the existing law, to influence them to reject that measure. He warned them to be cautious in adopting the statements of its opponents. One of these statements alone would show that such advice was not uncalled for. His learned friends, in asserting the proposition of a Jury consisting of less than twelve persons proved, that however well acquainted with the usages of the Courts below, they were very ignorant of the proceedings of Parliament. The proposition was not his—non meus hic sermo. Without referring to other proofs in order to show that five, and even three persons were proposed to constitute the Jury, he need only refer them to a bill introduced by Lord Redesdale some few years ago, in which seven was proposed as the number for a Jury, and which Bill was never objected to on the grounds of its lessening the number of Jurors below the usual number of twelve. He regretted the time did not permit of entering more fully into the details of the Bill, and that he was obliged to confine himself to those broader principles or features which had been so much misrepresented, because he would fain believe so much misapprehended. His learned friend had been jocose in reference to bestowing on the present measure the title of 370 "the Poor Man's Bill." He adopted the name—it was an honorable one—the Bill was the Poor Man's Bill. He called it a Poor Man's Bill which removed those obstructions which at present lay in the way of speedy and cheap justice, which enabled the poor suitor no less than the rich to obtain a ready redress of his wrongs. He called that a Poor Man's Bill which enabled the poor suitor to obtain redress for his wrongs, or the payment of a debt in the very next street to the cottage where he lived, without any of the expense, and delay, and vexation, and uncertainty of coming some hundred miles to London to look for costly justice. He called that a Poor Man's Bill which, without taking away the poor suitor from his daily avocation, from his family, or from the employment by which he earned subsistence, would enable him to go at once into Court, and face to face to his adversary obtain cheap and ready justice. His learned friend had impugned the title on the ground that it was absurd to call a bill friendly to the poor suito which afforded speedy execution against him; but it should be recollected, that if the Bill in one case provided speedy execution against the poor defendant, it, on the other hand, insured him speedy execution against the rich defendant, when the poor man was the plaintiff. He would have, therefore, no right to complain, particularly as, in the majority of instances, he would be the plaintiff. It had been said, that as the poor man would not be able to afford security of costs, so as to enable him to remove the trial in case of a wrong decision, the Bill could not be considered as favourable to his interests. Now, this clause, for the removal, by certiorari, of a trial, from a local to a Superior Court, was introduced at the instance of a learned Lord, and very contrary to his own feelings on the subject. He yielded, however, to the sense of the House, and guarded against the abuse of the privilege by the rich man, by compelling him in these instances to give security, not only for the taxed costs, but for the full costs of the action, so that the poor man would, in point of fact, receive just as cheap, though not so speedy, justice. Such was the Bill he then called upon their Lordships to sanction. Rumours were abroad, whispers filled the air, every species of tale was afloat, that it was intended to reject that 371 Bill. He could not believe it—he would not believe it—till their Lordships themselves had convinced him, and they could only do so by their solemn vote, that they would not pass this Bill. "My Lords," continued the noble and learned Baron, "I will conceal nothing from you; I will speak out frankly to you. I did not come here to flatter you. I will neither give nor take flattery, I will be neither its victim nor dispenser. I will give utterance to the plain truth, even though it be unpalatable; and I tell you plainly, that if you this evening throw out my Bill, your doing so will nowise influence me to relax my efforts in favour of law Reform, and any of your Lordships who expect that such a defeat will have the effect of damping or discouraging my prosecution of measures calculated in ray mind to promote the general weal, very much reckons without his host, and, if possible, still more mistakes his man. If I said, on the other hand, that your throwing out the Bill on the present occasion would not deeply mortify me, and, in one sense discourage, and, I might say, make mc despair, I should not be dealing fairly with your Lordships, and I should represent myself in a state of mind very different from the real one. To be able to carry into effect measures of judicial Reform which long consideration has convinced me are demanded by the wants and interests of the people was my great and primary motive in accepting office. To the effecting an adequate, but cautious, and prudent, and sale measure of legal Reform, I looked to the official influence of my present high station as the great means which alone rendered it an object of my ambition. Of course, if you this night check my efforts to make my official influence useful to the country, you compel mc not, I repeat, to relax my efforts to effect judicial Reform, but to propose measures less adequate to my views of the public exigencies, but measures more likely to be successful in attaining your approbation. I must propose measures less efficient, because, if you this night thwart my hopes, it would be useless to propose any measure of extensive reform, but within these limited bounds of practicability—I mean practicability as far as you are concerned—I shall endeavour, to the best of my powers, to discharge my duty, thankful even for half au inch of concession in favour of the people, 372 and hoping that more will follow at no distant opportunity. But, my Lords, I am not the only person whose just and rational hopes will be sadly disappointed by your throwing out this Bill, It matters little your damping my hopes—your dashing the cup of promise from my lips; but it does matter your damping the hopes and dashing the cup of promise from the lips of the people of England. I expected that smile, told and counselled as you have been, that it would be degrading to you not to disregard such consequences. I say yes, your Lordships have been told and counselled to disregard the feelings of the people. ["No, no."] Well, then, I am to understand that you do regard the feelings of the poor suitor, whose fate is so much involved in this Bill? I am rejoiced by that cheer; it restores the confident frame of mind in which I first ventured lo solicit your sanction of the present measure. It was, indeed, to be deeply lamented that you should take a step likely to damp the rational wishes of the people for cheap and speedy justice; and heartily I rejoice at your disclaiming cheer, as it makes mc confident that you will not hastily reject a measure which affords this cheap and speedy justice, I have only to hope, that the hopes and expectations of the country will this night be realized.
The original Question being "that this Bill be now read a third time," and an Amendment, "that this Bill be read a third time this day six months," having been proposed, a division took place upon the (Question, "that the word proposed to be left out (viz. the word now) stand part of the Question." Content (Present 81, Proxies 41) 122; Not content (Present 81, Proxies 53,134: Majority 12.
Their Lordshids divided a second time On the Question—"That this Bill be read a third time this day six months." Contents 76; Not-contents" 08:—Majority 8.
But a Question arising whether some Lords had come into the House after the question was put, not having heard the Question put, the tellers were heard, and certain Lords declared that they had so come in by mistake, and the numbers were reduced accordingly. Content 68; Not-content 73:—Maiority 5.
|List of the NOT-CONTKSTS (first division).|
|Salisbury||Willoughby de Broke|
|Abercorn||St. John of Bletso|
|EARLS.||Hay (Earl of Kinnoull)|
|Doncaster (Duke of Buccleuch)||Southampton|
|Leven||Saltersford (Earl of Courtown)|
|Belmore||Sheffield (Earl of Sheffield)|
|Lonsdale||Clanbrassil (Earl of Roden)|
|Beauchamp||Penshurst (Viscount Strangford)|
|Vane (Marquess of Londonderry)||Lyndhurst|
|Melross (Earl of Haddington)|
|VISCOUNTS.||Stuart de Rothsay|
|Gordon (Earl of||Wynford|
|Leeds||Norwich (Duke of Gordon)|
|Graham (Duke of Montrose)||Arbuthnot|
|Lorton||Hopetoun (Earl of Hopetoun)|
|De Roos||Ker (Marq. of Lothian)|
|Clinton||Oriel (Visc. Ferrard)|
|Monson||Wigan (Earl of Balcarras)|
|Tyrone (Marquess of Waterford)||Heytesbury|
|Clanwilliam (Earl of Clanwilliam)|
|List of the CONTENTS.|
|Lansdown||Mounteagle (Marq. of Sligo)|
|EARLS.||Granard (Elarl of Granard)|
|Suffolk and Berkshire||Gardner|
|Albemarle||Minster (Marquess Conyngham)|
|Hillsborough (Marq. of Downshire)||Glenlyon|
|Somerhill (Marquess of Clanricarde)|
|Cadogan||Fife (Earl of Fife)|
|Craven||Rosebery (Earl of Rosebery)|
|Rosse||Brougham and Vaux|
|Grey||Sefton (Earl of Sefton)|
|Morley||Clements (Earl of Leitrim)|
|Lichfield||Kenlis (Marquis of Headfort)|
|VISCOUNTS.||Chaworth (Earl of Meath)|
|Hutchinson (Earl of Donoughmore)||Hamilton (Lord Belhaven and stenton)|
|Paget (Earl of Uxbridge)||Tenmplemore|
|Howard of Effingham||Godolphin|
|Say and Sole||Hunsdon (Viscount Falkland)|
|Gower (Marq. of Stafford)||Solway (Marquess of Queensberry)|
|Holland||Archbishop of Dublin|
|Vernon||Bishop of Llandaff|
|Ducie||Bishop of Chichester|
|Sundridge (Duke of Argyll)||Bishop of Hereford|
|Norfolk (E. M.)||Clifford of Chudleigh|
|Bedford||Ponsonby (Earl of Besborough)|
|Anglesey||Mendip (Viscount Clifden)|
|Ferrers||Ranfurly (Earl of Ranfurly)|
|Cowper||Kilmarnock (Earl of Erroll)|
|Fitzwilliam||Fingall (Earl of Fingall)|
|Spencer||Rossie (Earl of Kinnaird)|
|VISCOUNT.||Ludlow (Earl of Ludlow)|
|Leinster (Duke of Leinster)|
|Howard de Walden||De Saumarez|
|Grey of Groby||Stanley|
|Clifton (Earl of Darnley)||Archbishop of York|
|Bishop of Norwich|