Lords Sitting of 26 March 1833

MINUTES.
Papers ordered. On the Motion of Viscount MELBOURNE, Copies of the Statements of the Number of Criminal Offenders committed for Trial in England and Wales for the year 1832.
Bills. Read a second time:—Sugar Duties.
Petitions presented. By the Earl of ROSEBERY, from Balingry and Canisby; against the present System of Church Patronage in Scotland.—By Lord KING, from Lankilleth, for a Repeal of the Malt Duty.—By the Earls of HARROWBY and RODEN, by Viscount MELBOURNE, and the Bishop of LONDON, from Numerous Places in England, Scotland, and Ireland,—for a Better Observance of the Sabbath.—By the Earl of MORLEY, from Plymouth, and Stonehouse, against Slavery; and from Plymouth, for an Alteration in the Law of Debtor and Creditor.—By the Earl of RODEN, from the Dean and Chapter of Elphin, against the proposed Measure of Church Reform for Ireland; from another Place, against the Grant to Maynooth College; and from Brechin, against the Ministerial Measure of Education (Ireland).—By Earl FITZWILLIAM, from the Jews of Kingston-upon-Hull, for the Emancipation of the Jews.

ADMINISTRATION OF JUSTICE.
The House, on the Motion of the Lord Chancellor, resolved itself into a Committee on

1061
the Administration of Justice Amendment Bill.
On the Question, that the first Clause stand part of the Bill.
The Earl of Eldonsaid, it was impossible he could assent to the clause. It recited, that great doubts had arisen in Westminster Hall as to the power of the Judges to make alterations in the practice of pleading, and then it went on to enact, that the Judges or any eight of them, of whom three must be the chiefs of the Courts, shall make, at any time within five years, such alterations in the mode and practice of pleading as might seem to them expedient. The effect of the Bill would be, to delegate to the Judges a power which Parliament ought never to relinquish—that of legislation. He could not bring himself to agree to a Bill which, in the year 1833, should enact that five years afterwards—namely, in the year 1838, the rules made by Judges should have all the force and effect of law, and be to all intents and purposes the law.
The Lord Chancellorobserved, that at first view the objection of his noble and learned friend might appear to carry with it some weight, but he begged the House to observe, that the present Bill was founded upon the recommendations of the Law Commissioners, who were of opinion that the whole system of special pleading should undergo revision for the purpose of rendering it more effectual and more conducive to the ends of justice. He was sure that his noble and learned friend could never for a single moment entertain the idea that Parliament could frame a code to regulate the course of all special pleading at all times. When circumstances arose demanding alteration, much inconvenience, nay, much injustice, must arise from waiting for Acts of Parliament. They must intrust powers to the Judges, or permit abuses to continue; and he felt confirmed in his attachment to the present measure, from remembering that it was in perfect accordance with the Bill introduced by Lord Tenterden for facilitating process. He really thought there would be no hazard in intrusting that power to the Judges for the five years that he proposed. It was indeed absolutely necessary that the power of altering the rules and practice of the Courts of common law should be vested in the Judges; because there was no other way in which the object could be
1062
accomplished with safety. The consequence of proceeding legislatively, in the first instance would be, that any evils which originated from the promulgation of rules of practice or of order, must be permitted to re-occur in every case until a new Act of Parliament could be obtained. He would take upon himself to state, that the practice and jurisdiction of the Court of Chancery would not have been established, if the Court itself had not been vested with discretionary power; and those advantages which have been derived from its character as a Court of Equity, would never have existed. His noble and learned friend (the Earl of Eldon) did not state the precise words of the clause, when he said, that it gave the power to the Judges for a period of five years, to devise and determine upon the rules and orders, on the pleadings and practice of the Courts; and that, at the end of such five years, those rules and orders were to acquire the force of an Act of Parliament, the same as though they had been originated by the Legislature. As regarded the particular period of five years, the reason why it was fixed upon was this: There must be some fixed limit to which this authority should extend; and, however high the character, situation, and condition of those who might be called upon to exercise their judgments on subjects of this nature, unless some term were fixed for completing their work, the subject might, by possibility, be allowed to sleep, and be at length wholly overlooked, even in cases where the adoption of new regulations might be essential; and the powers intrusted by this Bill should be carried into effect at the earliest possible period. It was considered that a less period than five years would not be sufficient, where new rules and orders were laid down, to give them a fair trial. Their Lordships would find that, by this Bill, the Judges of the superior common law Courts were empowered, from time to time, to make such alterations in the mode of pleading, and other proceedings in actions at law, and such regulations as to the payment of costs, as to them might seem expedient; and that such rules and orders should have the same binding force and effect as if the provisions contained in them had been expressly enacted by Parliament. The operation, therefore, of these new rules and orders was strictly limited to the period of five years from the

1063
passing of the Act; and that at the end of that period, should they be found effective, then only they might be made a part and parcel of the law, by receiving the sanction of the Legislature. It was apparent, that the desirable object of establishing good rules in the Courts could not be attained without an Act of the Legislature, which should give the Judges larger powers than they possessed. His noble and learned friend had not correctly quoted the preamble of the Bill; and he would find, on reference to it, that it did not state, that in consequence of great doubts having arisen, so and so was necessary to be done; but that as "doubts" may arise "as to the power of the said Judges to make such alterations without the authority of Parliament." The object of the Bill was, therefore, not to provide a remedy for any doubts that existed; but it actually went to prevent, as far as possible, any such doubts from arising. Since the Report of the Common Law Commissioners was made, not only the Judges of the Court of King's Bench, but the Judges of all the Courts in Westminster Hall, had issued rules and orders, effecting very great and material improvements in the practice of those Courts, which had tended to render the practice and proceedings on them much more clear and distinct; and, what is most desirable of all, to diminish useless expense to the various suitors in them. The great object to be effected was, that of altering the method of pleading to this extent, that the manner and mode of it shall be clear and distinct; and it will be at the peril of a party to adopt any other mode than that which is laid down. Suitors must adopt the mode laid down by the Judges: they might, if they pleased, make a plea shorter; they might choose their own words; but if a plea consisted of more words than the order laid down by the Judges permits, it would then be said, "you did so at your peril, and you shall not have costs." This was a desirable improvement in the rules and practice of pleading in the superior Courts; much good had already been effected—he had no doubt it would continue to increase; and he felt convinced that the greatest possible benefit would result from the exercise of those powers which it was the object of this Bill to bestow on the Judges.
Lord Wynfordsaid, he hoped that, in a case like the present, the House would
1064
seek for the assistance of the Judges, who could give their Lordships a great deal of information about pleading, but he also hoped that they would retain the power of applying that information in their own hands. Their Lordships ought not to impose upon the Judges the responsibility of legislating for a period of five years. It had been said by his noble and learned friend on the Woolsack, that the House could not all at once make provision for all the rules which a complete system of special pleading would require; but such an objection, if admitted in the present case, must be allowed to prevail with equal force in every other, and would apply to every law that might by possibility be introduced in that or the other House of Parliament. It was one thing to require that Judges should make rules respecting matters of practice, and quite another, that they should be called upon to establish the rules upon which pleading was to be conducted. He would repeat, that in considering the present measure, the assistance of the Judges would be required for every part of it. He thought the people would be benefitted if the Judges were in the first instance allowed to propose such improvements as to them might seem necessary, such as experience might suggest; and if those improvements, thus proposed, were afterwards brought before Parliament for its sanction; the two Houses, of course, reserving to themselves the right to see whether the alterations proposed were fit to be adopted.
The Lord Chancellorsaid, that the mode proposed by his noble and learned friend was more objectionable than that which he proposed to get rid of. If that mode was once adopted, it would be the recognition of the principle that that House should stop in its legislative course for the assistance of the Judges, and no man in either House of Parliament would ever afterwards think of proposing any change in the law lest he should be met with the objection,—"Oh, but have you the approval of the Judges, for if you have not, we cannot adopt what you propose, for it is for them alone to begin alterations." He, in common with other noble Lords, felt the greatest possible respect for the learned judges, but anything like allowing them arbitrarily to decide for Parliament whether any changes should be made—whether those changes were sufficient—whether they were neces-

1065
sary or fit to be made was—what he never would consent to. That would be nothing more nor less than a complete abdication of their own legislative functions. He knew the practice of Parliament well enough to be quite sure, that if the precedent were once set, it would ever after be acted on. To adopt the noble and learned Lord's recommendation would be to make the Judges the Lords of the Articles over them. The use of that expression reminded him of an instance which clearly showed that what he was now proposing was not only not unusual, but was the usual mode in which Parliament dealt with matters of this sort. That instance was to be found in the Statute of the 6th Geo. 4th—the Act passed to establish the Jury Trial in certain cases in Scotland—an Act passed when his noble and learned predecessor was on the Woolsack, and in which the Chief Commissioner of the Jury Court, with certain other persons therein-named, was empowered to make orders and processes—these processes being in Scotland, as his noble and learned friend well knew, the most important pleadings in a cause. There was no doubt, that if they were to wait for an Act of Parliament to amend the pleadings in causes whenever such amendments were required, that they would never be made; and it was chiefly for that reason that he wished to confer on the Judges this power of alteration.
The Earl of Eldonthought, that the speech of the noble and learned Lord rendered it an absolute duty on him to oppose this measure. The power to which the noble and learned Lord seemed to object, was most effectually given to the Judges by this clause. Instead of the old practice of the Lord Chancellor calling on the Judges to state their doubts as to the practice of their Courts, and then, if he thought proper, undertake to recommend the alterations to Parliament, it was now proposed—and that too in a Bill which stated doubts as to the power of the Judges—that they should make rules in their own Courts, which rules were to have authority for five years, and then to become the law. Why, this was legislating, and this Bill gave into the hands of the Judges the power to make laws in very important cases. The practice of the Courts was a part of the law of the land, affecting property and even personal liberty, and he protested, on the part of the subject, against
1066
giving to Judges this extensive legislative power.
The Lord Chancellorread the clause, to show that the proposed powers related chiefly to alterations in pleading. The Scotch Jury Act was a precedent for this.
The Earl of Eldondid not wish the law of Scotland to become ours, especially with regard to the powers of the Judges, whose acts of sederunt were often equivalent to legislative enactments. As to these being mere matters of pleading, the noble and learned Lord must know, that pleadings influenced the rights of the subject more than anything else.
Lord Ellenboroughsaid, the subject seemed to be one of considerable difficulty, and he believed the representations made by the noble and learned Lord were correct. He was averse from giving such a power to the Judges, and he would suggest, with a view of obviating the difficulty, that the Judges should draw up such rules and orders as they might think necessary, should lay them at once before Parliament, if Parliament was sitting, and, if not, should do so within five days after Parliament actually assembled, and that such rules and orders should not have any force till six weeks after they had been so laid before Parliament.
The Lord Chancellorsaw no objection, to the noble Lord's Amendment. On the whole, though it would not be without inconvenience, he thought that the suggestion of laying the rules before Parliament was an improvement; certainly in some cases, as for example, when practice had taught the Judges the imperfection of some of their rules, they must wait till Parliament assembled, and they obtained its sanction to alter them.
Lord Wynfordhad listened with great attention to all that had been said on this point by his noble and learned friends on both sides. He was still of opinion, however, that no necessity existed for Parliament to delegate its powers to the Judges in the manner proposed. His experience did not lead him to the conclusion that there was anything connected with the practice of pleading which could not be provided for by legislative enactments. All that was necessary was to bring back pleading to what it had been two centuries ago—a simple statement of facts, so that the defendant should know what he was charged with, and the Judge what he had to try. He would therefore move an

1067
Amendment to the effect, that in all cases, the Judges should state what they considered to be necessary, and that their recommendations should be proposed in Parliament, the Parliament reserving the right of receiving or rejecting the proposed alterations.
The House divided on this Amendment: Ayes 9; Noes 12—Majority 3.
Lord Ellenborough's Amendment was agreed to.
Lord Eldonexpressed his satisfaction that the arbitration clause had been withdrawn, as in his opinion it was of the most injurious and oppressive character. For fifty years, as a Barrister, a Judge, and a Chancellor, he had been acquiring experience, and that forbade him ever to consent to compel suitors to submit to an arbitration. Being on his legs, he would take that opportunity of pointing out another clause which was of an unsatisfactory character. It was that which called upon the subjects of these realms to bring their suits before the Sheriff for trial, instead of a Judge. There would be ten times as many questions of law arise for subsequent decision, as there would be if the matter were before a Judge of Assize, and for many other reasons he looked upon the clause as a most vicious one.
Bill passed through the Committee.