Lords Sitting of 28 June 1833

MINUTES.
Bills. The Royal Assent given by Commission to the following Bills:—Stamp Duties Repeal; Militia; Ballot Suspension; Sewers; and a Number of Private Bills.—Read a third time:—Exchequer; National Debt; Sergeants' Inn Agreement.
Petitions presented. By Lord WYNFORD, from Parts of the Parish of Lindsay, against some Clauses of the Local Jurisdiction Bill.—By the Bishop of LONDON, from the Clergy of the Diocese of Chester, against the proposed Measure of

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Church Reform (Ireland).—By the Earl of RODEN, from Dublin, for a Better Observance of the Sabbath; from Wicklow, for taking the Protecting Duty off Sugar produced by Free Labour, and from a Number of Places, for the Immediate Abolition of Slavery.

LAW COMMISSION (SCOTLAND).
The Earl of Aberdeensaid, the noble and learned Lord on the Woolsack had more than once stated in that House, that it was the intention of his Majesty's Government to institute a Commission to inquire into the laws of Scotland, similar to that which had been appointed in this country. From the noble and learned Lord's speech, the other night, he was led to suppose that the constitution of the Sheriffs' Courts would form one object of the inquiry to be set on foot by that Commission. But perhaps the noble and learned Lord would have no objection to state generally to what objects that Commission was to direct its attention. He was not disposed to deny that such a Commission might be productive of very great advantage to that part of the country; but, of course, its efficacy would rest mainly on the manner in which it was formed and sent forward. It was a perfectly natural conclusion that, unless it possessed the confidence of the country and of the profession, its suggestions would be of little avail. It ought to be composed of men of learning and ability, not only capable of discharging their important duties satisfactorily, but well understanding the present slate of the profession in Scotland, which, he believed, was perfectly well known to the noble and learned Lord. Perhaps the noble and learned Lord would now state, generally, what the nature and the object of the Commission were.
The Lord Chancellorsaid, he had no objection to state, so far as his recollection served, the general nature of this Commission. The body of the Commission itself would, however, point out its nature and object very clearly. In the Commission the object was plainly defined, and that, he thought, would answer the purpose of the noble Earl more precisely than any statement made by him. But, in the mean time, he would state, for the satisfaction of the noble Earl, the principal objects to which the attention of the Commission was to be directed. In the first place, it was to inquire into the best and most judicious means for diminishing the expenses of law proceedings, especially with respect to fees of court. Next, it was to inquire into certain arrangements which had been made
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with respect to the subordinate officers of the superior Courts. Another object of the Commission—and it was a very important one, both to the noble Earl and to the landed interest generally—would be an inquiry into the best mode of simplifying the system, and diminishing the expense of conveyancing. Upon that subject great complaints had existed for a long time. Connected with this inquiry there was another object to which the noble Earl had alluded—that was, an inquiry into the jurisdiction and practice of the Sheriffs' Courts. That would be instituted with a view to ascertain whether an extension, or otherwise, should be recommended with reference to that jurisdiction. He thought that the result would not be the extending of that jurisdiction, and possibly it would be the very reverse. The experience he had had in those matters led him to think that, when cases of a certain kind were brought before these courts, they were afterwards, in many instances, carried before the Court of Session, and a very great expense was created. He was perfectly aware that in a proceeding of this description much depended on the persons appointed to act as Commissioners; and Government had adopted, as nearly as they could, the plan which had been laid down in the appointment of the English Commissioners. Men of great knowledge and of extensive practice—men who had spent their whole lives in the study of the law, and particularly in those branches of it which it was deemed particularly necessary to inquire into—would be selected. There was another branch of the profession—namely, conveyancers—individuals who had not been called to the Bar, but whose assistance would be most valuable, and from that class also selections would be made.

LOCAL, JURISDICTION.
On the Motion of the Lord Chancellor, the House went into Committee on the Local Judicature Bill.
On the 37th Clause, restricting the Jury to six, and in case of numerous challenges giving to the Judge the power of filling up the Jury de circumstantibus being read.
Lord Lyndhurstopposed it. He contended that the number of Jurors retained in the superior Courts should be adhered to in the local courts, and he also argued that the right to try causes before Special Juries should be admitted.
The Lord Chancellorsaid, that if the number of Jurors were extended to twelve

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it was to be feared that in many districts they would be worn out. As to the second point, Special Juries had been excluded in order to avoid expense and to make the proceedings more simple. He was ready, nevertheless, to re-consider the subject of the number of a Jury.
Lord Wynfordobserved, that twelve Jurors were necessary in a superior Court, and, in his opinion, a greater necessity existed for continuing that number in these local courts. He was certain that the substitution of six for twelve Jurors would not be productive of any benefit.
Lord Lyndhurstthought that there was a disposition abroad to run down Juries in Government newspapers, and to speak of them as Government Juries.
The Lord Chancellorsupposed, then, that Government Juries were spoken of in the sense that Government newspapers were sometimes mentioned—because they always attacked Ministers.
The Clause agreed to.
On the 41st clause, imposing a penalty on witnesses refusing to be examined being read.
Lord Wynfordopposed it. Suppose a man (an agent or an attorney) was summoned to produce papers, and refused to do so, was he to be punished? Was the Judge to say to him:" Produce those documents you must," although, by so doing, he might violate a sacred trust? According to this clause, however, a man refusing to give what might appear to the Judge a satisfactory answer was to be committed to the county gaol or to the house of correction He did not know whether their Lordships would not be liable to imprisonment under that clause. He was aware that, in cases of debt, they could not be imprisoned; but he knew not that their privilege would protect them against what might be deemed a contempt of Court. If a party were committed for contempt by the Judge of a local court, there was no appeal—no writ of Habeas Corpus to relieve him. He objected to the clause as it stood, and proposed to strike out that part of it which gave the Court a power of imprisonment, for a refusal to answer questions which it might be inconsistent with the duty of an individual to answer.
The Lord Chancellorthought it a matter of course, that the court should have power to compel witnesses to give evidence. Every Court possessed such authority, which, indeed, was inseparable from its existence, and the due discharge of its
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functions as a Court of Justice. A Judge would not call upon a witness to prejudice himself by his evidence, or to produce books or papers which he might hold as the agent of another, or which, if produced, would affect absent parties. The Quarter Sessions had power to compel evidence—a single justice of the peace could commit for a refusal to give testimony. He had no objection after the words "books, papers, or writings," to insert in the clause "such as he may be lawfully ordered by the Court to produce." Probably this Amendment would reconcile his noble and learned friend to the clause.
Lord Lyndhurstobjected to the terms of the proviso, "that no witness or party shall be compellable to answer any question which may tend to expose him to any penalty or criminal charge," on the ground that it was not so comprehensive as the law which it professed to interpret. The better course would be, to leave the common law as it stood, which extended its protection to witnesses much further than this proviso.
The Lord Chancellor assented to the omission of the proviso, and the clause as amended was agreed to.
On the Question that the 49th Clause stand part of the Bill, giving the Judge in ordinary power to examine upon oath the defendant against whom execution shall have issued.
Lord Ellenboroughavailed himself of the opportunity to object to the clause, as more objectionable than any which had yet been passed. He trusted that their Lordships had not yet forgotten the excellent observations made by a right reverend Prelate a few nights ago upon the impropriety of multiplying unnecessary oaths; but whether they had forgotten them or not, he would remind their Lordships that they ought not to subject an individual to the necessity of answering upon oath in matters relating to his own interest and property.
Lord Lyndhurstsaid, that besides the moral objection taken to this clause by the noble Baron, he had another objection to urge against it of a more formal character. On whom was the expense to fall of all these examinations before the local Judge, of seizing and dragging the individual before his tribunal, of committing him to prison, and of other processes, all of which were accompanied with great cost.? There was no provision in the Bill to decide on whom this expenditure should fall.
The Lord Chancellorconsidered this clause as one of the most beneficial improvements of the law which this Bill contained. By means of this arrangement, he hoped that the country would be enabled to get rid of the system of imprisonment for debt. To examine a man upon oath on matters relating to his property was by no means an innovation on the law. He could be so examined both in the Court of Chancery and in the Court of Bankruptcy; indeed, no course was more common. Besides, in this instance, it was likely to lead to beneficial results, for if a man had property, and refused to give an account of it to his creditor, he would be severely punished. If he had not property, and answered the questions of his creditor fairly, he would be left in enjoyment of his liberty. If he refused to take the oath, he would be sent to prison, and, in point of fact, would be imprisoned for debt, as he was at present. Imprisonment for debt ought, in certain cases, to be continued, not, however, as a satisfaction to the creditor, but as a means of compelling the debtor to surrender his property, and to submit to the process of the Court. You ought to increase the facility of obtaining for the creditor the property of his debtor; but, when the debtor submitted himself to examination, and gave up his property, and was guilty of no fraud or no gross negligence, which the civil law very property considered as equal to fraud, then, being an unfortunate, and not a guilty man, he ought to be left in the enjoyment of liberty.
Lord Lyndhurstreminded his noble friend on the Woolsack, that he had not given any answer to the question which he had put to him.
The Lord Chancellorsaid, that if a defendant was seized after execution, and taken before a judge, the costs of this process would be costs in the cause, and the defendant must pay them if he had property. If he had not property, they would fall upon the plaintiff.
Lord Wynforddoubted whether these costs would be costs in the cause. He gladly availed himself of that opportunity to declare, that he concurred with his noble friend in thinking that imprisonment for debt ought only to be used to get at property, and to punish fraud in the mode of contracting debts.
The Lord Chancellorsaid, that in all cases where a creditor thought fit to seize his debtor, and examine him upon oath
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before the local Judge, the creditor must judge for himself, whether he would or would not incur the cost of the process.
The Clause agreed to.
On the 57th Clause being proposed, which enacts that there be no writ of error, or certiorari, from these Local Courts,
Lord Wynfordsaid, that he did not object to that part of the clause which said, that there should be no writ of error, but to that part of it which went to get rid of the writ of certiorari. It might be said, that the Bill would be neutralized if writs of certiorari from these Courts were permitted in all cases. He fully agreed in that proposition. The Amendment which he would propose would prevent a defendant from taking out a writ of certiorari, except in cases where he felt it his duty to himself and family to protect his character from local prejudices by appealing to the superior Courts at Westminster. In such cases he would be called upon to give security for the whole amount of the claim in dispute. In cases of tort, &c., where the amount of damages was uncertain, he would provide, that the defendant should put in bail to meet them. The noble and learned Lord then proposed to strike out the words "no certiorari" from the clause, and to insert, in their stead, an Amendment, to the effect which we have stated. He would now mention another Amendment of the same nature, which he would propose on a future occasion. He would strike out the clause which prevented actions for less than a certain sum from being brought in the superior Courts. He would leave the plaintiff at liberty to bring his action still in the superior Courts.
The Lord Chancellor: We have passed the clause, to which my noble and learned friend is alluding, long since.
Lord Wynford: Well, then, it was passed without his knowledge. He was not inclined to shut up the old shop because the new one was open; on the contrary, he would try both. He should propose, then, that when a person brought his action in the superior Courts, it should be tried at the same expense in the superior Courts, as it was now proposed to try it in the inferior Courts. He proposed, that in actions brought for debts under 50 l. the fees to all the officers in the superior Courts should be the same as in the inferior Courts—that the pleadings should be the same in both Courts, and all the other forms of the suit. In case he brought his action for 50 l. and recovered less, he would not de-

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prive him of all costs, but would only give him the same amount of costs which he would have recovered in the inferior Courts, unless the Judge certified. He was a friend to the equality of justice, but unless this Amendment was adopted, there would be no equality of justice in this Bill.
The Lord Chancellorwas strongly opposed to some of the projected Amendments of his noble and learned friend, but in all actions of tort, and in the nature; of tort, he had no objection that the defendant should have a certiorari under certain restrictions. That part of the Bill had now, however, gone through the Committee, and he himself would, if the noble Lord did not, move an Amendment, according to his noble friend's wish, on the bringing up of the Report. In debt, however, no such power ought to be given, and as to plaintiffs, they could have no claim to this, as they had the option, in the first instance, to bring their cases before the superior Courts. There was this very great objection to another part of his noble friend's Amendments—namely, that of allowing two modes of proceeding, not merely different, but diametrically contrary to each other, in the same Courts. This would, if not utterly impracticable, be altogether disrelished by the profession.
Lord Wynfordsaid, that all lie was anxious for was, that the people of this country should have the power, if they wished it, of having their causes tried by a central administration of justice.
The Lord Chancellor, on bringing up the Report, would move an Amendment very nearly to the same effect with that relative to the certiorari proposed by his noble and learned friend.
Lord Wynford's Amendments negatived.
The House resumed.