§ LORD BROUGHAM:* Aware that I cannot bring before your Lordships the great subject which I have undertaken to discuss this day, without occupying your attention for a long time, I proceed at once, and without preface, to the task before me. It is true, that the matter is as Important as it is extensive; and yet it is of so forbidding an aspect, of a nature so little attractive by any connection with party interests or personal feelings, that I am surprised, though doubtless agreeably surprised, to find so large an attendance of the House as I have now the honour of addressing. I should ill repay the honour you do me by trespassing longer upon your patience than is necessary. The topics I am to handle are, indeed, not at all of the class termed vital questions, of which it was once said, not more wittily than truly, that while they never failed to excite the greatest interest, their importance was so small, that it signified nothing at all what way they were determined. Those questions which I am now to discuss, are, on the contrary, of incalculable importance, how dry and even forbidding soever they be when in debate.
I shall now state why I have chosen this time for bringing forward the discussion, and in what order I propose to undertake it. Twenty years ago, being then a Member of the other House, I brought before it the whole subject of the law and its defects, only excepting from my view, for reasons which I assigned, the Commercial Law, the Criminal Law, and the Equitable Jurisdiction of Chancery. In consequence of the Address which I prevailed on the Commons to present, the Crown, under the advice of my noble and learned Friend near me (Lord Lyndhurst) issued a Commission to eminent conveyancers, over whom presided my noble and learned Friend opposite (Lord Campbell), and another Commission to common lawyers, most of whom are now on the bench. From the inquiries and reports of those learned and able individuals, resulted many highly important measures for the amendment of the law, measures in passing which
* From a pamphlet published by Ridgway.
I afterwards had a large share, from having subsequently succeeded to the Great Seal. The changes thus effected in our jurisprudence removed a large portion of the defects which I had complained of; and as the whole have not been removed, I feel that the time has now arrived for urging Parliament to finish the important work thus happily begun, as well as to embrace in its amending operations, cautiously and safely, though steadily carried on, those few branches of the subject to which my Motion in 1828 had not been directed. The past success naturally holds out this encouragement; the interval that has elapsed, too, enables us to tell by the experience afforded of our changes, how far these have worked well in practice; and we may conveniently and usefully now pause to decide, whether or not the measures adopted have been wisely framed, and whether or not we should go on in the same course. Such is my reason for now instituting this inquiry. The order in which I would arrange my statements, I shall now state, and I think I have distributed the subject in a manner which is at once distinct and exhaustive. I shall first consider law-makers—or who make our laws? Secondly. Law-making—or how do they make them? Thirdly. Law made—or what is the fabric of our jurisprudence? Fourthly. The promulgation of the law. Fifthly. Its Administration.
§ First, then—Who make the laws? How is our Legislature constituted?—that is, the representative part of it—of whose structure alone any consideration can arise. I do not mean even to touch upon the constitutional questions, but only the legal ones connected with this subject. But I cannot dismiss the political, without making a frank and candid admission, that the late experience of a neighbouring nation has materially affected the opinion which I had so long entertained against the almost indefinite extension of the elective franchise. We have seen Universal Suffrage tried upon an enormous scale, and in a country peculiarly ill adapted to the successful issue of that experiment: 10,000,000 of voters have been called upon to choose the deputies, who should represent them in a National Assembly, and the result has been almost entirely contrary to what the adversaries of such a scheme had ever predicted. The elections have been conducted with exemplary order, and the deputies returned belong to the classes of society, in whose hands legisla- 879 tive power may be the most safely vested. That a Parliament has been chosen which is very little likely to work well, and that under its sway France is doomed to the reign of uncertainty and even anarchy, may be quite consistent with what I have said of the elections; for this and the other evils now pressing upon that ill-fated country may be traced, and easily traced, to other causes—to circumstances now unhappily existing in the position of France, and the necessary result of its late revolution. But that the experiment of Universal Suffrage has been tried, and has succeeded beyond all expectation, truth and candour compel me to confess. I derive from hence the most sanguine hopes that many years may not be suffered to elapse before we too extend our elective franchise to the great body of our fellow citizens, who compose the labouring classes—the very source of our wealth, and the pillar of our strength as a nation—men whose virtues are equal to their industry—men whose steady attachment to the Government and its rule, bids defiance to all the attempts ever made to seduce them from their allegiance.
But if I pass over the qualification of electors, I cannot so easily part with the qualification of Members. How much longer is it to be endured that men shall be suffered to act the part of lawgivers, who set their creditors at defiance—that men shall represent the property of the country who have squandered away their own; that insolvents, unless they be traders, in other words, insolvents without any excuse for their insolvency, shall beard their creditors, the honest tradesmen, whom they have ruined, and insult the community by taking a forward part in making the laws which are to bind it, while they set themselves, openly and audaciously, in defiance of the very laws they are making? By an Act passed in 1812 (52 Geo. III. c. 96), introduced by my lamented Friend, Mr. John Smith, himself a trader, and within its provisions, we have excluded from Parliament all traders who have become bankrupt, and do not within twelve months pay their debts in full, and supersede their commission. Yet the trader thus dealt with has many excuses for his insolvency. The failure of others, the accidents of the winds and the waves, the acts of Government, over which he has very little control, or of foreign States, over which he has none; the frauds of customers, of the man in high station who obtains his property, and cannot or
will not pay for it—all these things leading to the misfortune of bankruptcy, without any fault of the party, are, in most cases, an extenuation, and in many a defence for the trader, and yet we exclude him from the Legislature, on the ground set forth in the preamble to the Act—
That it is highly necessary for preserving the dignity and independence of Parliament, that Members of the House of Commons who become bankrupt, and do not pay their debts in full, shall not retain their seats.
But how would the preamble sound which should state in words the course of conduct we hold with respect to insolvent Lords and Gentlemen?—"Whereas it is highly necessary, for preserving the independence and dignity of Parliament, that those who run in debt with bankers, tradesmen, and others, without any means of payment, by extravagant living, by dicing, by horse-racing, by keeping of mistresses, and by various other devices of spendthrift and profligate men, and who cannot or who will not pay any part whatever of their just debts, should retain their seats in the House of Commons, and have a share in making those laws in daring contempt whereof they are living." To remedy so enormous an evil, and put an end to this outrage on all honest principle, and indeed on all common decency, I four years ago presented a Bill for extending to all insolvents the statute excluding the more innocent class of bankrupts; but I was not fortunate enough to obtain the sanction of the Legislature to that measure. I shall certainly again present it this Session.
§ Unable to pass over the Qualification of Members, I am equally compelled to speak of the arts used for obtaining their election—I mean the scandalous bribery and corruption practised in all the vile branches of that odious traffic in the consciences and souls of men. To this subject I have oftentimes directed the attention of your Lordships, and I have the happiness of thinking that we are agreed upon it. A stringent declaration of each Member, with a promise not to pay any expenses unlawfully incurred, and subject to the pains of perjury for a breach of truth, is the remedy to which I look as most efficacious and most suited to the nature of the mischief. I am happy to find that elsewhere this subject has been lately taken up with adequate zeal; and I believe wholesome inquiries are now instituting there for the purpose of detecting and punishing offenders. But I greatly doubt if an error has not been com- 881 mitted in some instances, from the desire to visit such practices on the sitting Members. It rather should seem as if Committees, led away by the natural indignation which the description of general corruption excites, have resolved upon convicting whoever was accused, without any regard to the material point of agency—thus punishing one man for another's offence.
§ This leads me to the last matter I shall dwell upon connected with the composition of the Legislature—the Constitution of the Tribunals which try the returns of Members, and the needful improvement of which would, while generally amending the course of such important procedure, tend more to repress bribery, by an equal administration of justice, than any efforts of a well-meant but irregularly directed indignation at the offence. The Commons parted with their exclusive jurisdiction over the trial of elections as far back as 1770, when the celebrated Grenville Act was passed (10 Geo. III. c. 16), one of the inestimable benefits conferred upon their country by that illustrious family. But experience has shown, that although many material improvements have been since made in the constitution of the tribunal, especially by the statutes diminishing the numbers of their Members, and doing away with the anomalous character supported by the nominees, yet another step remains to be taken in order to render the trial of petitions anything worthy the name of a judicial proceeding. It must be transferred to a judicial body, unconnected with the House of Commons, in accessible to party claims, uninfluenced by personal feelings; a body not chosen accidentally for particular occasions, and composed of men without experience or learning, and acting without any responsibility—a body, in a word, which will act as judges act, regarding only the merits of each case, and pronouncing decisions on legal points, with a careful regard to consistency and uniformity; not as now, holding one day one opinion, another day the opposite, on the same point, simply because different men sit on several days, and diverse interests or feelings sway them. Some such amendment of the Election Laws as this must needs, sooner or later, be undertaken; for in no other way can the opprobrium be removed, which now rests upon the conduct of Committees, and the character of the House of Commons.
§ Second. From considering the makers of the laws, I pass on to their conduct in 882 making them; and here a scene opens to our view at once strange and painful to contemplate. No system whatever, nothing approaching to systematic, is to be seen—all is random—all hap-hazard—all blind-chance; all acting in the dark, without rule, or guide, or compass, or concert. The Bills propounded have a twofold origin; they come from boards or departments of the State: or they come from private individuals, whom without any disrespect I may term amateurs in legislation. But the boards, independent and separate, act without any concert, any communication whatever; one entirely ignorant what the other is doing; each proceeding upon principles of its own, if principles any of them ever think of; each taking its own views of the same subject-matter on which the other is composing law; each employing a phraseology of its own; all generally in collision and often in conflict. As for the amateurs' work it is worse performed, if worse can be; and the way in which the worthy dilettante is suffered to make our laws really merits attention, as showing how little care the State bestows on this important operation. I will give your Lordships an instance. In 1814 a learned person who adorned the coif, was minded to be placed upon the Bench of Wales. He conceived, and for ought I can tell, so might the Principality, that he had pretensions to judge the Welsh. The Ministers of the day held a different opinion; but as the Serjeant was their firm and faithful supporter, always being disposed to vote with them, and indeed with all Administrations, so considerable a merit must be rewarded, and as he was refused a Welsh judgeship, he was allowed by way of compensation to repeal the Statute of Apprenticeship. To make up for his professional disappointment he was to have the senatorial honour of giving his name to an Act for repealing an Act passed in the fifth year of the reign of Queen Elizabeth for regulating Apprenticeships. Now when we look to his Statute (54 Geo. III. c. 96), we find that it consists of only two sections; but so inartificially is it drawn, so little care has been bestowed on a subject of such great importance, that there is appended to the second—a repealing section which professes to deal with all the provisions of the Statute of Elizabeth (5 Eliz., c. 4) from the 25th to the 30th—a query to which of the numerous matters in their several clauses the repeal is in- 883 tended to apply; and I defy any one from comparing the two, to answer the question, or form a confident opinion on the subject. This amateur, however, was a lawyer; and we may well suppose how much worse fare the laws, and the courts required to construe them, and the subjects commanded to obey them, when country gentlemen are allowed to disport them in dealing with trespassers and poachers, and the various other subjects of their legislative labours; or when traders take up the bankrupt code, in a Bill to amend which I lately read a clause making death without naming executors an act of bankruptcy.
§ The result of all this habitual carelessness and want of system in the preparation of our laws might easily be foreseen. A mass has been engendered in which the obscurity of darkness alternates with the glare of cross light, meagre explanation with inexcusable prolixity, repetition with omission, repugnance with truism—a mass, which if it be not termed nonsense and contradiction, only escapes those epithets from the respect due to the venerable name of a statutory record. For, unhappily, the obvious principles which should guide the lawgiver in his labours, I mean the formal or mechanical part of his task, to which my inquiry is under this head of the subject confined, are neglected so habitually, that the value of these rules becomes the more sensibly felt from witnessing the consequences of their being violated. I shall first mention three such canons, and then illustrate their violation by examples. The propositions are almost self-evident; they require no demonstration. 1. A statute should never be made without a cereful regard to former statutes in pari materia. 2. One part of a statute should ever have regard to all its other parts. 3. Alterations made in passing a Bill should carefully be made having regard to the parts that are left unchanged. Now let us see how these plain rules are broken.
§ i. Statutes are made as if in ignorance of others before made, or other laws or customs before existing. In 1842 was passed the 5th & 6th Victoria, c. 29, which most properly swept away all former provisions giving double or treble costs, as in every way absurd, and indeed professing to do what in practice none of them did. One might have expected the memory of lawgivers to last at the least a couple of years—but no such thing. In 1845, were passed no less than three Acts, all giving double 884 and treble costs, which my learned Friend the Chief Baron's Act had abolished universally, in all cases. I allude to the Lunacy Act, 8 & 9 Victoria, c. 27; the Trade Act, 8 & 9 Victoria, c. 23; and the Smuggling Act, 8 & 9 Victoria, c. 87—all three Statutes dealing with matters of great moment and all three Government Acts. Again, in 1843, was passed the 6 & 7 Victoria, c. 75, for regulating the Practice of Attorneys; and it threw open the court of the Lord Mayor of London to all practitioners—but this was plainly done in utter ignorance or entire disregard of the known custom, by which attorneys of that court purchase their exclusive right of practice at sums ranging from 3,000l. to 9,000l., and the whole value of which the Court of Queen's Bench have found to be entirely destroyed by this careless enactment (Rex v. Ashmead). Nor were our predecessors much more attentive to the legislation of those to whom they had succeeded, little as they, in comparison with us, had to distract their attention. The great Game Act, 22 & 23 Chas. II. c. 11, was plainly made with perfect inattention to the first Game Act, 1 Jac. I. c. 27; for the statute of Charles gives the qualification to the eldest son and heir apparent of an esquire, or person of higher degree, saying nothing of the father, from whom the statute of James had withheld the right to kill game. So that the son is qualified because heir to a person not qualified, and yet the son's qualification is in respect and on the supposition of the father's, which does not exist. This was held by three Judges out of four in the King's Bench (Jones v. Smith) 1 T. R. 44—a remarkable case as being one of the very few in which during Lord Mansfield's time there was any division on that Bench. That great Judge was so much moved by this gross absurdity apparent on the face of the statute, as to hold by and stoutly contest that it included the esquire himself; but he of course yielded to the majority of his brethren, and the law was declared as I have stated it.
§ ii. But though the lawgiver does not remember former statutes, he might at least be expected to recollect while passing one part of the same Act, what he had just been doing in the preceding portions. No such thing—one part of a statute is made without regard to the other parts of the same statute. The sixteenth section of 3rd Geo. I. c. 15, states in its preamble, the fitness of taking away the She- 885 riff's poundage in extending an estate under a writ of elegit; the process, as your Lordships are aware, by which lands and tenements are partially seized by creditors to satisfy their debts out of the rents and profits. But though this is one of the main objects of the section, the word 'elegit' being by a curious infelicity wholly left out of the enactment, the Sheriff has been held entitled to his poundage, though the blunder was so gross that those before whom the matter came seemed at first to suppose it must be a mistake in the printing, and desired the original record to be examined. In that record the omission is found to exist. Price v. Hollis, 3 M. & S. 105. Here our ancestors forgot the preamble in the five or six succeeding lines. We have somewhat improved in our legislative memory, for we only forget what we said three sections back. By the Highway Act of 1842, 5 & 6 Vic. c. 50, in section 95, costs are given to be paid by a rate; in section 98 all this is forgotten, and they are directed to be paid by the party unsuccessfully defending.
§ iii. Now we come to errors which no care in preparing the Bill can prevent—I mean the making of alterations during its passage through Parliament, without regard to the parts left unchanged. Take for an instance the important Act of 1845, 8 & 9 Vic. c. 113, for allowing copies of documents to be given in evidence; it had in this manner an addition made during the passage of the Bill, apparently for greater caution, and the result is to make such nonsense of the whole that no man can tell how to apply it. The words added are, "in every case in which the original could be received in evidence"—but the section had before been confined to those cases only in which the originals could be given in evidence. Here the Legislature bears the aspect not of a doating person, who forgets in old age recent events, not recollecting one day or one hour what he had said the day or the hour before; but of one who being in the very last stage of mental imbecility, forgets at the close of his sentence what he had said at its commencement.
§ iv. I come now to the Diction—the words used in framing our statutes—and here the cardinal rules are as plain as those I have already stated, and they flow from the simple principle of keeping in mind to whom all laws are addressed, not only the lawyers and the courts of law, but the people.886
- 1. Always use the least equivocal and the plainest terms.
- 2. Never use a word that has two senses without defining in which it is used.
- 3. Never use the same words in two senses.
- 4. Never use different words in the same sense.
- 5. Never assume as known what has not been expounded.
- 6. Never, if possible, enact by reference to another statute.
- 7. If, to avoid great prolixity, you must import one, regard carefully the text of the Act referred to.
§ Only see, my Lords, in what daring neglect of all these rules we lawgivers live! I will take from a single Session my example of the very different forms we use to express the same things, the Session 1844, the 7th & 8th Vict.—and the three most ordinarily occurring clauses are those which I select: First, the provision that the Act shall be a Public Act, is framed in four several ways, and to the effect of making it even somewhat doubtful in some of them whether the Act must not be specially pleaded. Second, the clause now inserted in all Acts to avoid the consequences of the fiction that all chapters of a Session are parts of the same Act, and pass in one day—the clause allowing each to be altered the same Session: this is framed in no less than eight different ways. Thirdly, the repeal of other provisions; a most important enactment, and fruitful of litigation and of doubts in courts of justice, is effected in twelve different ways. So that these three objects, instead of being accomplished by three forms of expression, require four-and-twenty. I have given all the Acts to which I refer on this head, in a paper which I now lay on the table, in case any of your Lordships would see the details.
§ But worse remains behind. In 1846, an Act was passed of a highly important kind, to amend the poor-law, 9 & 10 Vic. c. 66. If any piece of legislation demanded peculiar care in its composition, it was surely this—yet the words employed were "is" and "was"—now, "shall be," then "may be," and "may have been;" again, "shall have been"—the changes rung on the unhappy substantive verb from the present to the future, the potential, the pluperfect, to the confusion of the sense, and the bewilderment of the more unhappy Judge, have ended in making it wholly impossible to discover whether the 887 Act is prospective only, or retrospective as well; and what is the consequence? No less than three-and-forty cases are now pending upon this construction of a statute passed less than two years ago. So, on the same important subject, it was the Legislature's design to give an appeal on all cases upon the merits, only shutting out from this review those upon matter of form; yet so ill contrived is the provision, that a learned Recorder, presiding over one of the greatest towns in this kingdom, informed me only this morning that in ten years he has only known two appeals brought.
§ The use of different terms to express the same thing, I have already illustrated by sufficiently striking examples. The same term used in different senses is as fruitful a source of difficulty and doubt to the subject and to the courts. Thus the word "licenses" being used both for ale and spirits, and with the Justices and the Excise granting both, gave rise to much obscurity, as the Court of Queen's Bench found to its sorrow, and the parties to their heavy costs, in Rex v. Downes, 37. R. 569.
§ The use of undefined expression is a yet greater fault of the same kind, and fruitful in evil consequences. Take, for instance, the litigation occasioned by the Act of 1843, 6 & 7 Vic. c. 36, exempting from rates "societies for science, literature, and the fine arts," and see what the Judges say who had to construe these unexplained terms in Rex v. Pocock, 8. L. Queen's Bench, 740; Rex v. Phillips; Rex v. Jones, ib. Lord Denman, C. J., observes that it is "impossible not to express regret that such loose language should have been employed. There is hardly," says his Lordship, "any society respecting which doubts might not be raised." "All which," he adds, "show how great hardship is imposed on the court, on parishes, and on societies. The natural meaning of the words would point to the very institutions least requiring exemption, those consisting of wealthy members." "I only hope," he adds, "that we may have some enactment made to show us what Parliament really does mean." Mr. Justice Patteson and Mr. Justice Williams entirely concurred with his Lordship, and all seemed agreed in considering that the decision they were compelled to give, frustrated the probable intentions of the Legislature.
§ The errors produced by incorporating former provisions in the way of reference, are 888 endless. Thus in 1835 the 5th & 6th Will. IV. c. 76 was passed, and it gives an appeal, not directly, but by reference to the 55th Geo. III. c. 51, the result of which has been the taking away the right of appeal intended to be given. Lord Denman, Rex v. Recorder of Bath, 9 Ad. and E1. 837, in so ruling, said, he saw what was meant, and had to lament that the Legislature should have proceeded by way of reference to another Act, instead of declaring its meaning at once and directly. I have preferred giving such examples as are more recent and of more ordinary occurrence, rather than the old one of a clause cut out by the scissors, the great legislative agent in modern times, whereby the punishment of fourteen years' transportation was awarded—one moiety going to the person suing for the same, the other to his Majesty, his heirs and successors. But one effect of such operations is of more frequent recurrence; the word "said" or "aforesaid" is often used when nothing has been previously said. Whoever has answered many cases will at once recognise the puzzle this creates.
§ Hitherto we have been observing the effects of carelessness in matters which did not seem to call for special attention; but it is still worse where the Legislature applies itself in a peculiar manner to the performance of its task, and particularly to the duty of making itself intelligible, that its failure is signal and lamentable.
§ v. For I now come to that famous freak of modern lawgivers, the Interpretation Clause. Its assumed office, its pretension, is to prevents all doubts by precisely declaring the sense in which words are used. Its actual result is the creation of fresh doubts, the failure in most difficulties to clear them away, and the inevitable carelessness which it encourages in drawing the statutes as well as in passing their provisions. This has become a very serious evil. For instead of weighing well the words employed, and taking constant care to preserve accuracy and uniformity of expression, all draughts are carelessly made to save trouble, in the expectation that everything will be cured by the Clause of Interpretation. Thus, in 1844, an Act was passed requiring Joint Stock Companies to register their shareholders. 7 & 8 Vic. c. 110. The 26th section, which standing alone would perhaps have been clear enough, refers you to the Interpretation Clause, or rather clauses; for, with a marvellous absurdity, there are two 889 and not one such, and you arrive at section 2, which, as Mr. Baron Alderson showed in Young v. Smith, 15. M. and W. 121. raises the whole difficulty; for instead of saying that a Joint Stock Company shall be understood to be one, the stock of which is divided into shares, it adds an exception, whereby you are referred back to the rest of the Act, and thus all companies requiring Acts to work them, are exempted from registration. Bousfield v. Wilson, 16. M. and W. 185. Here let us pause to consider the utter absurdity of introducing an exception into such clauses—they are truly definitions; and who ever heard of an exception in a definition? When Euclid describes a triangle to be a figure of three sides or three angles, we understand him, and can reason upon the figure's properties. Had he defined it to be a figure of three sides in all cases, unless where the context required it to mean a figure of more sides, or to mean a figure bounded by one straight and one curved line, we should have been continually at a loss in our reasonings, and the name of that celebrated geometrician would certainly not have come down to us as designating the first of didactic writers, or his work been regarded as the most perfect model of perspicuous explanation. The various ways in which these exceptions are framed by our legislative Euclids further give rise to great embarrassment. Thus, "unless another sense plainly is shown by the context, or by some positive enactment to the contrary." Now, subtle men like lawyers, will very readily deny that the other sense is plainly shown, or by positive words, or to the very contrary, though they may admit that there are some conflicting words. Again, in 7 & 8 Vic. c. 15. (1844), "unless otherwise specially provided, (it is not even said where) or the subject or the context be repugnant;" while no definition is given of what is special, or what is subject. Further, in 7 & 8 Vic. c. 122, s. 70, we are told that this Act is to be "construed beneficially to creditors, and by analogy to the laws in force relating to bankrupts, and the practice thereof;" while I really should like, for curiosity sake, to know how laws shall be construed by analogy, what laws are in force relating to bankrupts, and, above all, what is the practice of those, or indeed of any laws. No less inconsistent with the nature of such clauses is the practice so prevalent of borrowing into one from another Act framed with 890 different scope; and a fruitful source of error as well as of considerable absurdity does this practice prove. Last year the General Act for giving Town Police Clauses passed, the 10 & 11 Vic. c. 89., and as this was to be the model statute by which all subsequent Police Acts were to be guided, we might expect it to have been carefully drawn, and not concocted by the scissors merely. Well, let us see how the interpretation is given in the third section. Cattle is defined to mean horses, mules, sheep, goats, swine; but not a word is said of oxen or cows, and yet an overdrove ox was a much more likely visitor of a town than a goat, or even swine. My respect for the drawers of such Acts, will not permit me to remark on their omitting also any reference to another animal, found in town as well as country, asses.
§ vi. We have thus seen that the Legislature departs the further from clearness and precision in proportion as it is minded to employ more strict and entire attention to its task, and that it is never so little explanatory as in its explanations. But where the subject is such as to require undivided attention—where all doubt is out of the question—where it says exactly what it means—where what it does is perfectly of purpose and forethought, and is wholly designed and intended, we shall see such things as raise its mere slips into a respectable position for accuracy and sense. We have been contemplating the lawgiver's skill in definition—his powers as logician—no less eminent is he as a natural philosopher and a mathematician. The 35th Geo. III. c. 114, was passed in 1795, for regulating the Glass Duties. It speaks of plate-glass unpolished, and plate-glass unground, apparently without the knowledge that no polished glass can be unground. But letting that pass, the preamble states that, "the regulations hitherto made for the glass duty, have proved ineffectual, and that new ones are become necessary." And the statute proceeds to order that all "annealing ovens shall henceforth be made in a rectangular form, with the sides and ends perpendicular and parallel to each other respectively." Now, if the form be rectangular, the sides must of necessity be perpendicular, that being the meaning of a rectangle. Moreover, the opposite sides must of equal necessity be parallel, if the adjoining sides be perpendicular. This is the nature, and the eternal nature of lines; and it would pass the power of Omnipotence 891 to vary it. Yet the cautious Legislature, to prevent the possibility of that being done, which is thus absolutely and necessarily impossible, annexes a penalty of 100l. to the breach of the rule laid down—declaring that whoever shall do that which no power, finite or infinite, can accomplish, shall pay 100l. by way of fine. It sagely protects the eternal laws of mathematics by this pecuniary penalty—to be sued for by action of debt, bill, plaint, or information in any Court of Record. When we compare such feats of legislative care and diligence with the less marvellous exhibition of careless efforts, we may well say: Mallem, mehercule illorum neligentiam, quam istorum pravam diligentiam.
§ Hitherto we have been considering the manfacturing of Public Acts. The confusion of all principle, the gross errors at every step, and mischiefs of a far worse kind, are much more flagrantly conspicuous in the great department of Private Bill legislation. The importance of this manufacture is, however, exceedingly great; its extent is enormous. Thus in the year 1836, no less than 191 Private Acts were passed, filling about 9,000 folios. In twelve years 278 were passed for forty-five towns, or one for every two years on an average for each. Dublin obtained ten, Southampton twelve, Edinburgh and Glasgow twenty each, Liverpool twenty-three, or two a year. The parish of Marylebone since 1795 has had Acts made for it filling 480 folios, or half as much again as the Code Civile of Napoleon. The nature of the provisions in these Acts is yet more important than their bulk or number. They deal with private vested interests, and unquestionable legal rights, in every one instance and in every one provision. The reason, and the only reason, for passing each of them is, that the law of the land has protected some party whom it is desired to strip of his rights. This branch of law-making is truly transcendental; it is wholly occupied with transferring to one man the property of another; compelling persons to part with their estates for the benefit of others; breaking contracts already made; annulling settlements of estates; setting aside the wills of persons deceased; dissolving the tie of marriage, by law indissoluble; abrogating laws made for the whole community in favour of some individuals, or against others. Such a branch of legislation requires of all others peculiar care, and close and scrupu- 892 lous attention to avert error and prevent abuses; yet error flourishes and abuse triumphs here far more than in the construction of public acts. First, there is here no responsibility at all, not even that shadow of responsibility which the departments of Governments offer for public statutes. Secondly, the whole process is conducted in the dark, as a hidden manufactory; the public attention which through the press and by the debates of the two Houses, prevents many faults in Public Acts, has here no part, the whole being carried on in secret. Thirdly, worse than neglect, fraud and jobbing of every kind prevails. Once a clause was fraudulently introduced into a public or Revenue Bill to benefit a private party; it was instantly discovered, and the attempt frustrated. In Private Acts this is of daily occurrence. All is here done by compromise among a few parties, and the public is always disregarded, the weaker individuals and their rights and interests continually set at nought. Thus such provisions are to be found in Private Acts as could not be believed, did we not read them in the Statute-book. I recollect my noble and learned Friend behind me (Lord Lyndhurst) would not credit my statement, till I brought forward the Great Western Act, in which a clause is actually inserted, enabling the company to give a copy of its books in evidence, without any proof of the copy being accurate; but that is nothing; the company is also enabled to prove its having made certain large payments (the parish rates), by the entry in its own books that these same have been paid. Thus any one writing an entry, and entitling it a copy from the company's books, can prove its having paid the rates. Sir Samuel Romilly once stopped a Lincolnshire Poor Bill, in which he had accidentally found a power given to the master of the workhouse to flog the paupers at his pleasure.
§ The grievances arising from this manner of passing our statutes, public and private, are enormous. The errors and the frauds are never discovered, until the remediless mischief has occurred, and the courts are called to construe unconstruable clauses, and reconcile self-repugnant provisions, and the parties to suffer the hardships of oppression, and delay, and expense. Thus the fine of a shilling for not going to the parish church, lurked in the Statute of Elizabeth till, in 1841, five or six poachers were sent before the Lancashire Justices, who failed to convict under the Game 893 Laws. "Were you at church last Sunday?" said the worthy magistrates. "No." "Or the Sunday before?" "No; nor for five successive Sundays"—and forthwith all the poor men were fined and sentenced to pay costs, and in default of payment sent to prison, where they lay many weeks, when I presented their petition to this House, and they were liberated. But had I held the Great Seal, I should at once have removed the justices for this gross malversation. Thus bad clauses lie torpid like vipers, till, warmed to life by the heat of party, or personal malice, they sting some unhappy individuals. The instance lately occurred of an Act declaring an individual liable to pay the debts of a company to which he never had in any way belonged: he found himself thus made liable only when sued, and the court which tried the cause could not allow proof of his entire ignorance of the company and all its concerns; because the statute named him as answerable with others, and all of them being insolvent, he, the only solvent person named, was sued, and had judgment against him. The loss of time to Courts of Law and Equity is equal to the vexation occasioned to parties by this reckless system. But as the extent and bitterness of the mischief needs no proof, I shall shortly indicate what I take to be the appropriate remedy for preventing it in future, if we cannot hope to cure it in the past.
§ (1.) I have often urged the necessity of a board being formed of skilful professional men, not to supersede but to aid both Houses of Parliament, in the preparation of Public Bills. It is a task which no one man, how gifted soever, can hope satisfactorily to execute, because several men are required, of different habits of thinking, of various turns of mind, to sift the subjects successively dealt with in our numerous statutes. At the head of this board should be the Minister of Justice or his deputy. The necessity of this office I have repeatedly urged, and I may before I sit down once more recur to this subject.
§ (2.) The Private Bills should undergo another scrutiny. I am sensible that much has of late been done to improve the proceedings in Committees. In 1837 I had the honour of propounding a great and most salutary alteration in the Committees of this House; and after examination above stairs, the Standing Orders which I proposed were unanimously adopted by your Lordships; they have been found to work well, and, after some years delay, they have been 894 adopted by the other House of Parliament. Yet I still am decidedly of opinion that we only took the second best of the three plans which I submitted to the Committee's consideration. By far the most effectual, and the best calculated both to prevent error and injustice, and to save delay and expense to parties, was grounded on the important suggestions of my noble and gallant Friend (the Duke of Wellington), made in 1834, and at that time worked out by me in conjunction with him. I am convinced that it afforded by far the best remedy. It is to have a jury de medietate, as it were, formed in each case—a joint Committee of twelve—seven Commoners and five Lords—to examine the whole of the Bill, to hear counsel, and take evidence, under the presidency of a Judge—a professional man, unconnected with Parliament altogether—the joint Committee to find a special verdict, setting forth the whole facts of the case; such verdict to be conclusive on both Houses, and to form the groundwork, in point of fact, of all their legislation in the matter of the Bill. I laid before the House, both in the last and in a former Session, a series of resolutions for working out this principle, and applying it to all Private Bills; and as I am clear that it is the only effectual remedy, so I have sanguine expectations of its being one day adopted.
§ (3.) Such subjects as are rather judicial than legislative, ought at once to be abandoned by Parliament, and given over to the established tribunals of the country. Thus Estate Bills are truly of a judicial character; Divorce Bills still more so; and a Committee of this House has already reported in favour of transferring these to the cognizance of the Judicial Committee of the Privy Council. Assuredly as the law now stands on this subject, nothing can well be imagined more unjust or more anomalous; the practice and the expense in both Estate and Divorce Bills may truly be said to give a remedy to the rich, and withhold it altogether from the poor. In making the transfer which I recommend, we shall not be acting without a precedent. The extension of patents has been, by my Bill of 1835, vested in the Judicial Committee, by a concurrent jurisdiction, of course, with Parliament; for no Bill can prevent Parliament from legislating on any matter whatever. But not a single instance has, I believe, occurred of a patentee applying to Parliament for an Act since the doors of the Privy Council were 895 thrown open, and the Council's proceedings have given general satisfaction.
§ We have considered who make the law, and how they make it.
§ Third. Come we now to cast our eye over the result of their labours, and see what is the system of our jurisprudence thus formed, with a view to its amendment. That it is attended with many evils, gives birth to great vexation, involves the affairs of the community in lamentable uncertainty, imposes upon the citizens who live under it a heavy expense, cannot be denied. To take only the last item of expense. The amount of costs taxed in Equity alone was last year, 615,000l., and the expense to the public of the taxation 13,500l. But two-thirds as much more must be added for the bills of solicitors, paid without taxing by their clients; and thus a million of money was spent in that department of the law.
§ The field over which we are now to glance is so extensive as to discourage any attempt at fully examining it. But I cannot help deriving great comfort from the success which has attended former attempts at improving it. The famous Commission under the Commonwealth, in 1654, presided over by Lord Hale, reported in favour of some fourteen changes in the law; and ten or eleven of them are now on the Statute-book. Between 1785 and 1790 Sir Samuel Romilly, as appears by his papers, proposed many legislative reforms, few of which he himself brought forward. Of these one-half had been adopted twenty years ago, when I brought this subject forward in the other House; and now almost all of them are introduced into our jurisprudence. Of above seventy defects whereof I complained on that occasion, about sixty have since been removed; nor were those slight defects, or those changes small innovations. I complained that party prevailed over the selection of Judges; and of late years, both while I held the Great Seal, and in the time of my noble and learned Friend (Lord Lyndhurst) who succeeded me, as well as while my noble Friend on the Woolsack has held office, no party considerations have been allowed to influence the selection of those high functionaries, any more than Sir Robert Peel had previously to 1828 been swayed by party considerations in naming the Judges of Scotland. I complained of the Welsh judicature: this has since been abolished, and the Principality subjected, as I recom- 896 mended, to the same tribunals with the rest of the realm. I complained of the Court of Delegates: it was abolished by my Act of 1833—of the judicial system prevailing in the Privy Council: it was reformed by the same statute, and the Judicial Committee substituted for the trial of all appeals, both from the Consistorial Courts, the Court of Admiralty, and all our various and extensive foreign possessions. I complained of real actions, including fines and recoveries: real actions, with the the single exception of quare impedit, are swept away, and fines and recoveries altogether. I complained of many defects and anomalies in the Law of Evidence: these defects have been almost entirely removed by the admirable Act of Lord Denman, though one important step in the same direction yet remains to be taken by examining parties themselves. I complained of the period of limitation, especially of the suffering it to be interrupted by the duration of estates tail, and of the immunity from all limitation enjoyed by Church rights. The Acts of Lord Tenderden in 1829 and 1832, and those to which my noble Friend (Lord Lyndhurst) and I obtained the concurrence of Parliament in 1833, have removed those defects, so that now the opprobrium of the law exists no longer, by which rights might formerly have been enjoyed, as against the Church, for centuries, without the least security to the possessor, and by which, in one case, a large estate in the north, after being possessed for above a century and a half, and being made the subject of settlement, and sale, and mortgage, over and over again, was found to be the property of a mere stranger, in consequence of estates tail not having been determined, and no adverse possession having been had as against the reversioner. I complained that the Statute of Frauds had not been united with that of Limitations; and now writing is required to prevent the time from running.
§ I had complained loudly of the impediments to settlement by arbitration; this defect has been removed by the Act of 1833, as well as many others in our system of pleading, on which I had dwelt particularly in 1828. The cruel and unjust, as well as inconsistent and impolitic law of arrest for debt, of which had also complained, has been entirely changed; arrest on mesne process was abolished by my noble Friend on the Woolsack in 1837; and my Acts of 1844-5 have abolished 897 arrest altogether; Acts framed upon the principle which I propounded in 1828, that debtors should only be imprisoned for the crime of fraud or gross extravagance, or for refusing to give up their property to their creditors.
§ In branches of the law to which my Motion of 1828 had not extended, various improvements have likewise been made. It may be enough to recite the great mitigation of the Criminal Code, now as mild as it ought to be made; the allowing prisoners full benefit of counsel in felony, of which I at first doubted, but these doubts have by experience been removed; the improvement of the mercantile law, by the new Statutes of Bankruptcy; the law of insolvency which has generally been much amended. The arrears in Chancery have been got rid of by the additions made to that judicature, and many serious evils have been removed from the Master's office, where, however, not a little in the way of amendment remains to be done. The retrospect of the improvements which have been made during the last two centuries in our jurisprudence, and this view of the accelerated pace at which law amendment has of late years moved, is calculated to inspire sanguine hopes, I may say, even to give us the confident expectation of all being soon accomplished which it yet remains to achieve for the improvement of the system. We seem to have completely witnessed the truth of Lord Coke's famous dictum, so consolatory to the friends of human progress, so little resembling the general course of that great man's opinions and prejudices—that no good proposal for the amendment of the law was ever made which did not, sooner or later, bear its fruits. Encouraged, then, by the result of the view we have just been taking of the past, let us see what remains to be done in the same excellent career.
§ i. I begin with the Criminal Law. It has been made as mild, generally speaking, as can be desired. The restriction of capital punishment to treason, murder, and one or two other very grave offences, gives all the mitigation that is desirable to our penal jurisprudence. I am very clearly of opinion that we may here pause; I think, and I decidedly and on much reflection think, that there is no good reason for dispensing altogether with the punishment of death; I hold the doctrine, without any hesitation, that we have a right to inflict that highest of all penalties on malefactors, with the view of preventing a repetition of those 898 crimes by others, stamping, as it were, with a peculiar awe those graver offences; and I hold that we have no other or better right to inflict punishment of an inferior kind, than the right which we derive from its high expediency—the same being the ground of our right to punish capitally. These opinions, I am aware, are not popular; I know that out of doors they will give rise to dissatisfaction; and it is therefore for the sake of truth, that I think myself bound to give them utterance in this place, and upon this occasion.
§ But I am as clearly of opinion that there are other matters in which our recent legislation has not gone far enough, and that it has even retrograded in some particulars. The punishment of fine is much too often awarded by the Acts continually passed to repress offences; and though I admit the advantage which probably has recommended it to lawgivers in most countries, the facility of apportionment by the amount of the punishment denounced being made according to the proportion of the pecuniary sum; yet I am sure a little reflection will show how very unequally this punishment falls on different parties guilty of the self-same offence. To one it is the payment of a trifle; to another it becomes a serious injury; to a third it is not fine at all but imprisonment; while to a fourth, a poor man, taken from his business for months, it is absolute ruin. Thus the Malicious Trespass Act, passed in 1820, at the suggestion of a worthy friend of mine, Mr. Nicolson Calvert, was one against which I always protested, especially in 1828, when I expressed my hope that he would survive the offspring of his legislative labours. Unhappily, he has predeceased it; and we have still on our Statute-book a law which punishes the same offence with a few shillings, or at most five pounds penalty in a wealthy man, and with six weeks' and even in some cases three months' imprisonment in a poor man. To suit the taste, too, of the sportsmen, who administer the law, the offences committed by gentlemen are excluded; for a proviso prevents the Act from extending to trespassers for hunting or shooting.
§ ii. The late Act on Evidence requires to be extended. Interest is no longer an objection to a witness's competence; and all the contradictions and anomalies of the law in this respect are by that most salutary amendment swept away. Then, why should not parties be examined at law, their interest being the only objection, and 899 the Courts of Equity always examining them even before the late change? If it be said that this examination must be mutual, and that one party may be disabled by sickness, or absence beyond the seas, surely this difficulty could easily be got over by postponing the trial, or by excepting the cases of permanent disability. At all events, there can be no objection to examining both parties, where both consent to be heard upon oath, or to examining either, if the other consents to his examination without reciprocity. As for the old objection from fear of perjury, the late Act gets rid of that entirely at law, and it never at any time was allowed to prevail in Equity. Indeed, the practice always established, in all courts, legal as well as equitable, of allowing affidavits of parties, where there can be no check from cross-examination, sufficiently proves that the fear of perjury cannot be made a ground for upholding the exclusion. May we not now also extend to all contracts whatever the law requiring written evidence, unless where there has been part performance? I think we safely may.
§ The late improvement of the Law of Libel by the Act of my noble and learned Friend opposite (Lord Campbell) removes one of the complaints made by me in 1828; and carries into effect the object of a Bill which I twice brought into the other House, having had the invaluable assistance of the late Lord Chief Justice of the Common Pleas (Sir N. Tindal), in preparing its provisions, both in 1816 and 1830. I have to lament that the late Act leaves out the most important and, I think, most wanted part of the amendment which my Bill proposed; for it is confined to cases of private slander, whereas the political offence far more deserves mercy and protection. The truth cannot yet be given in evidence in any prosecution for libel upon the Government or its officers in their public capacity; and this I conceive to be a great defect still existing in our law.
§ iii. No branch of the law is more important or more interests the strong feelings of mankind than that relating to personal status—Marriage—Divorce—Legitimacy. It is of extreme importance to every one that there should exist no doubt whatever on the question whether he is married or single—legitimate or bastard; and yet the conflict which exists between the law of England and Ireland on the one hand, and of Scotland on the other, with the daily increasing facility of communication be- 900 tween the three countries, raises continually difficulties of the most distressing kind on these subjects. The validity of Scotch marriages, long ago settled by the cases of Crompton v. Bearcroft, in the Delegates, and of Ilderton v. Ilderton, in the Common Pleas, has entirely frustrated the provision of Lord Hardwick's Marriage Act, 26 Geo. II., c. 33, because the very parties whom that statute was intended to affect—rich heirs and heiresses—can be withdrawn from its operation by a journey to the Scotch border; and those poor people whom it had not in contemplation are alone bound by its provisions, because they cannot afford the expense of the journey to defraud the law. The Act has, indeed, this great defect, that it professes to do one thing and does another; professing to require the consent of parents and guardians before an infant can contract marriage, it only requires such steps to be taken as are likely to fail, for it only gives the parent or guardian notice of the intended marriage by banns published, which proceeding if taken in a parish where many banns are published, or in a remote parish, gives no notice at all. The possibility of a Scotch journey completes the defeat of the statute, and its defeat in the very quarter which it behoved to make the strongest. But the conflict is greater still, and its consequences more vexatious, as regards divorce. This has been well known to lawyers, and to some of the Members of your Lordships' House, ever since 1813. Lolly's case was then tried and determined. I was counsel in the cause at Lancaster, and afterwards argued it before the twelve Judges, when they held that a respectable merchant of Liverpool, who had been married in England and divorced in Scotland, and believing, according to the advice of the most eminent Scotch lawyers that his marriage was effectually dissolved, had married again, but in England, was thereby guilty of polygamy; and he was sentenced to seven years' transportation. Lord Eldon, then Chancellor, kept him two years in the hulks, in order, his Lordship said, to show clearly that such was the law—to show that the Scotch Courts could not validly dissolve an English marriage. The unfortunate gentleman was compelled as it were to teach this lesson of law in his own person; and such of your Lordships as, in precisely the same circumstances with respect to divorce, had taken the precaution of contracting the second marriage in 901 Scotland escaped all punishment. Yet see the result. All the Judges in Scotland hold the second marriage in Scotland valid; all the English Judges hold the divorce void. Then quid juris as to the issue of the second marriage? No lawyer of either country will venture to give a confident opinion upon their legitimacy, or upon the question whether the parents are living in the state of holy matrimony, or in concubinage. So a party in Scotland where he is domiciled, marries after cohabitation and the birth of a child—the Scotch Courts hold that child legitimate by virtue of the subsequent marriage; the English Courts hold him bastard—but not generally. If he claims personal estate he is legitimate; if he claims real estate he is bastard—in England bastard in one court; legitimate in another—in Scotland legitimate to all intents and in all courts. Surely, surely, such a state of the law it perfectly disgraceful, and should not be suffered to continue. In 1835 I presented a Bill to remove the grievous defect, and it then met with acceptance from the Scotch Bar and the Scotch Bench. I trust it may soon be adopted and passed into a law. It went to cure the defect in the Scotch marriage law, by which the most important of contracts may be entered into without any forethought by persons of tender years; to make the status of legitimacy general over the whole empire; and to allow Scotch divorces as well as marriages a validity within reasonable limits in respect of acquiring a domicile.
§ Of the English divorce I have already spoken; it can now only be effected by an Act of Parliament. It is only the remedy of the rich; and the greatest oppression is practised on parties by the expense of process. I have known instances of men absolutely ruined by having to pay all the heavy costs of both sides in Doctors' Commons and the Privy Council, one suit and two appeals; so that before they could obtain their divorce in Parliament they had spent their last shilling. One of them is now suing before this House in formâ pauperis, from these misfortunes. The remedy is to send such cases before the Judicial Committee, and to require neither verdict nor consistorial sentence as a condition precedent to the dissolution of the marriage. A difference should be made, no doubt, and for obvious reasons, between the conduct of the husband and of the wife; but within certain limits this highly important remedy 902 should in England as in Scotland, indeed in all other countries, be made accessible to both parties.
§ iv. Next to marriage and legitimacy, the question of Partnership is, in a commercial country especially, of high importance; and nothing can be more disgraceful to our law, than the difficulty which persons every day find in ascertaining whether they have by their transactions made themselves partners or not. On this, on the law of debtor and creditor, and especially on the laws regarding bankruptcy and insolvency, I shall not dwell, because they are on all hands admitted to require a full revision, especially with a view to digesting them into one code or system. Many groundless theories are afloat upon the subject; and while many persons who ought to know better have made proposals unworthy of attention, others have misunderstood with marvellous pertinacity both the scope, the reasoning, and even the history, though very recent, of the changes which have been introduced. But I have no hesitation whatever in submitting such part of these late measures as I brought forward to the scrutiny of further inquiry; and though my own opinion remains unchanged—though I hold that my Acts for abolishing imprisonment for debt, when duly guarded, as they have been, by remedies to the creditor, and punishment to the criminal or contumacious debtor, still deserve the countenance of the Legislature, I yet am perfectly willing to receive and act upon the lights which experience may have shed on this important subject, and even to reconsider the question of arrest on mesne process, strong as my conviction is that we cannot restore it. Meanwhile, I have presented to your Lordships a Bill containing some most important amendments in the practice of the bankruptcy jurisdiction, suggested by the experience of those learned persons who are engaged in administering it. All are agreed that my Act of 1831 has worked a most salutary change in the law, and generally in the mercantile system of the country; and those further improvements of that Act I am willing to send before the Committee which shall be appointed to consider the whole subject.
v. I now, my Lords, approach a yet more important branch of my subject—the Law of Real Property—the interest of which to the community at large cannot be overrated, but, above all, to the Members of this House, peculiarly the lords, as you
are, of the soil of England. To improve the security of its possessors, and to increase the facility of its transfer, must ever be the great end of the lawgiver in all his plans for amending this great branch of our jurisprudence. So thought Blackstone—so thought Locke. The learned Commentator says—
Experience shows that property best answers the purposes of civil life, when its transfer and circulation are free and unincumbered."*
Locke, in his famous Essay on the Value of Money, says—
None can expect that men will risk richly laden ships among shoals and quicksands; or expend their money on estates which may have bad titles. The daily wrecks which strew our coasts shew the numbers of those who have miscarried.
How many a title is there of which it may truly be said, and indeed is daily felt by owners, that it is good enough to keep, but not to sell—that a willing purchaser may take it, but an unwilling cannot be compelled after he has agreed to buy? But also how many titles are there which an owner feels himself insecure in holding, and bitterly laments having ever bought, or if he took by descent, anxiously dreading eviction and ruin! Then, is it not a shame to our system that such doubts, such difficulties, and such darkness should hang over this most important branch of the nation's property? Is it not a scandal to our law, that my learned and right hon. Friend Sir Edward Sugden, one of the greatest lawyers and first conveyancers of the day, should in his admirable and truly practical work have a whole chapter on important points yet undecided? Is it not, again, a deep disgrace to our principles, that the expense of conveyancing should be so enormous, owing to legal difficulties, and that as much cost should be incurred by the purchaser of an acre, as by him who buys land worth five thousand a year? But is it not also truly impolitic to place such difficulties in the way of land purchases, in a great commercial country, where by our habits, or by our institutions, there is such a tendency to realise fortunes by purchase of land, and also where persons of humble fortune are enticed naturally to similar investments of their more humble savings? It was reckoned by Dr. Beke, in 1801, that there were not more than 200,000 owners of land in England, and 8,000 only in Ireland—1 in 75 of the people in the one country, 1 in 1,000 in the other. In France there are above
* 2 Com. 288.
11,000,000, or 1 in 3, and above 5,000,000 paying under 4s. land-tax, or possessing on an average 10s. a year land revenue. Of course I feel no envy of a state, of things just as prejudicial to the agricultural and the commercial, as to the political welfare of that great country. Yet some middle point all must allow to be desirable, and no one can believe that the working of any system is good which confines landed property to so few hands.
§ Now, many amendments of this law are required to place it upon a proper and reasonable footing, and to give both owners and purchasers their due protection. To these I must shortly advert, and I would begin by stating the opinion to which I have come, modifying only that which I formerly inclined to think the safer, and holding that we can hardly hope successfully or even securely to amend the law of real property, unless we do so upon an extensive scale; taking large views of its scope and operation, and not selecting insulated portions for the subject of our amendments. There is so intimate a relation between its various parts, so close a connexion between the different arrangements of a system extremely artificial, yet the growth of many ages, such a mutual dependence of each portion upon all the others, that we cannot safely reckon upon the effects of a partial change being confined within the bounds which we intended to prescribe, and cannot be at all sure we may not be affecting other parts when we only mean to touch one, nor even be aware in what manner the operation of the one measure may tell upon other departments of the complex system. Even to a registry would I apply this observation, at least to the extent of holding that its beneficial effects would be much circumscribed, and its salutary operation weakened, were it unaccompanied by other improvements. However, I by no means deny that this change would be to a certain degree both safe and salutary. But I speak of amending the Property law at Large.
§ 1. The grievous condition of parties in possession or parties intending to purchase, from doubts how their titles may fare when brought into Courts of Law and Equity, I have already adverted to. A suit must actually exist before they can have the possibility of being quiet and secure. Now there is an easy remedy for this serious evil, by introducing, as I proposed to do by my Bill, presented three years ago—the Declaratory Action from 905 the Scottish Law. Succeeding Chancellors, myself included, have often lamented the want of this most useful provision in our system. A possessor of real estate thereby raises an action of declaration, as it is termed, making parties all persons who may have any interest vested or contingent in disputing his title, and after full discussion of the case, he obtains a judgment which binds all these parties and their heirs for ever; he thus possesses his estate from thenceforth as securely, and deals with it, if he is unfettered by any entail, as beneficially, in selling, exchanging, and mortgaging, as if he had the title of an Act of Parliament. In England he must wait until some one chooses to dispute his title, which, perhaps, no one may do until there be some defect of evidence, or some new decisions of the Courts pronounced, or some new doctrines ventilated among lawyers—for these have their varying modes and fashions like other men. It is not till then that any man in this country can call himself sure, because till then the Court has not given any judgment. But the Scotch proceeding enables him to anticipate future events, and to enjoy and use his estate exactly now as if he had survived his own day, and lived in a future period of time. I shall deeply lament if this improvement be not soon made in our law. The objection that we may thus bind persons not yet in existence, is really futile. We do so every day, not merely in Private Acts of Parliament, but in proceedings at Law, and still more in Equity; and the protection thrown round all possible interests by the declaratory process, makes it really no more hazardous to unborn parties than any suit is to a man's successors, which he brings or defends, with all the admissions he makes in the course of it.
§ 2. The late Acts have greatly improved, and chiefly by shortening, the period of limitation, now for the most part twenty, and never more than forty years. Yet I cannot help hoping that this may be further shortened. In France ten years possession, accompanied with proper notices and advertisements to incumbrancers and other claimants, gives an owner a complete and indefeasible title for ever, and against all mankind.
§ 3. The greatest mischiefs have, in my humble judgment, arisen to our law, and the greatest burthen been cast upon our Courts, from the unfortunate distinction between the rules of construction for wills and for deeds. The ground or pretence 906 of this diversity is the desire to get at a man's real intention. But is it not equally our object to arrive at the intention of parties to a conveyance? If, again, it be said that wills are often made with less help of professional men, or with less care on the part of the testator, than conveyances inter vivos—let us only reflect, first on the fact, that almost all wills of any valuable property, especially of real estate, are prepared, and their execution witnessed by men of skill, which indeed the very acts requiring a particular kind of attestation almost assume in every case; and next, that do what you will, you are after all compelled to adopt certain fixed rules for construing the words of wills. It really seems that there is as much technical nicety in the rules applied to construe the will as in those applicable to the deed, only that the two sets of rules are wholly different, and yet both are to be used in pari materiâ. I need not remind lawyers either of the endless litigation hence arising, and the extremely numerous doubts in which the diversity of the rules has been fertile; nor of the signal failure which has been so often exhibited by lawyers and by Courts in hunting after the real intent, and of the frustration of that chase by the rules introduced for sacrificing the particular to a general intent. I believe few persons would be more astonished at the intentions ascribed to them by the decisions of Courts, as well of Equity as of Law, than the testators themselves, to ascertain whose design the rules have been framed. What would John Williams, whose will gave rise to the question in Perrin v. Blake, and caused the application to devises of the rule in Shelly's case, have said, if, having given an estate to a devisee for his life "and no longer," he had found that adding the limitation to heirs of his body, enlarged the gift to an estate instantly convertible into a fee? Nor can any one doubt that these rules have been the cause why many persons, thinking they have devised an estate to the object of their bounty, have only bestowed upon him a series of lawsuits. To take an instance at once of the multiplication of suits, and the frustration of intents—the rule of perpetuity which governs executory devises, had in Lord Thurlow's time given rise to fifty-six reported cases in the books, beside the vast number that never came into court at all. I once asked an eminent conveyancer, who was arguing before me a question of this description, 907 to how many the decisions now amounted; and he said between seventy and eighty. Now, from the nature of the thing, all these cases arose from putting constructions upon the words of wills; and a single rule, such as is adopted in constructing the clauses of a deed, and such as has lately been sanctioned by the late Wills Act (1 Vic. c. 26), would have prevented all these and similar disputes from ever arising. Mark, too, that wherever the words were found to give too remote an interest to satisfy the rule against perpetuities, the testator's intent was of necessity disregarded, and his object frustrated; for no man in his senses could ever mean to create a void executory devise.
§ 4. The excessive length of deeds is another evil justly complained of. The expense which this accumulates is not confined to the original conveyance; it extends to each time that the property is affected in any way, nay, to all proceedings in Courts concerning the title. But the heavy cost is not the worst of it; the chances of error and oversight are multiplied in proportion to the length of the instruments. Varieties of expression creep in, and constructions are raised in consequence; omissions occur, often fatal to titles, often misleading the Courts that have to decide upon them. "This wordiness," says Lord Redesdale, "puzzles both the draughtsman and the Courts." He gives a remarkable instance of its effects in a case, which, after lasting for a great length of time, was determined by the Master of the Rolls, and when an appeal from his decision came on before the Lord Chancellor, a clause was discovered lurking in the many folds of the lengthened deeds—that clause at once disposed of the case; it left no doubt at all on the question so long and so expensively litigated; and the decree at the Rolls was reversed as a matter of course. Here all the delay, anxiety, and expense was owing to the prolixity of the instruments; and had the losing party remained content with the judgment below, irremediable injustice would have been wrought. I had a case before me in this House which had run the gauntlet of the three Courts, Chancery, King's Bench, and Common Pleas, all tried upon an error in transcribing, by which one line had been left out of the will or settlement, I forget which, executed by a party in disposing of a large estate; the effect was to pass over the first son, and begin with a gift to the second. I agreed 908 with the Common Pleas that the context and the whole frame of the settlement as well as the general remainder to all other sons after the sixth, let in the first; but the King's Bench had decided otherwise; and so the prolixity of drawing was near working a manifest injustice, and disappointing him who was the first object of the maker's bounty. Now to remedy this evil I obtained in 1845 the concurrence of Parliament for passing an Act greatly assisting all leasehold conveyances in towns, by making certain abridged words refer to the more extensive clauses, and operate as if these were inserted at length; so that by a few lines any town lease may be completed or transferred. I afterwards extended the same plan to farm leases and to sales, mortgages, wills, and all other dealings with real estate, by another Bill of much greater length. But it was deemed expedient to delay the proceeding with this important measure until the new Real Property Commissioners, headed by the Master of the Rolls, should have completed their inquiries and made their report. Meanwhile I must observe that the plan of awarding payment to practitioners according to the value of the property dealt with and the labour of the drawing, and not according to the length of the draft as at present, would be of inestimable importance if generally enforced, and I shall present a short Bill to your Lordships, directing this principle to be applied in all taxations of costs. It has been found to succeed perfectly in Scotland, and it has even been tried with success in the Antipodes; for in Australia it is the established practice.
§ 5. I need hardly dwell on the benefits of a registry for securing titles and facilitating transfers of property. England is nearly the only country which is still without this advantage. When in office I caused a measure of this nature to be prepared and introduced into the other House by an hon. and learned relative, then Member for the borough as well as a Master in Chancery. The clamour of country practitioners raised against it, had the effect of misleading the country Gentlemen, who were made to believe that their titles would thus become published, whereas the most stringent regulations were made in the Bill to prevent the possibility of any one seeing a single line of any title without the express permission given by the owner in writing under his hand. Of course when a sale or exchange or mortgage was in negotiation, the lender or purchaser must have 909 access to the deeds; but so he would, whether they were put upon the register or not. Connected with a registry should be an authentic and detailed map, the result of a survey of each county or smaller district—what the French call a Cadastre—to which on each sale, mortgage, or other conveyance, reference should be made; each change of possession being entered upon the face of the plan. Nothing can better tend to both conciseness of conveyancing and security of title than this scheme; and the experience of Belgium and some other parts of the Continent pronounces amply in its favour.
§ One kind of Register I must advert to, because that none of the objections can by possibility apply which are made against a General Registry—I mean a public office, in which any person may deposit his will for safe custody, and under his own seal, so as not only to be accessible to his representative, but also on his decease to be examined by all devisees and legatees. At present no one can tell how he is to secure his will from loss by accident, or indeed from destruction by interested parties. The heir disinherited, or the next of kin wholly or in part passed over, are generally the persons who have access to a man's repositories on his decease, and by them spoliation may easily be committed, if it be their interest to cause an intestacy. I have often been asked how a person should secure his will. Bankers may break, solicitors may die, and no one succeeding to their business, documents in their keeping may, as has once and again happened, be cut up into tailors' measures. Even making duplicates, previous to the late Wills' Act, was attended with risk under the nicety of the law, which made the destruction of one copy a revocation, unless it could be satisfactorily shown to have been done without the intention of revoking. A greater relief to testators, I am certain, could not be given than such a Register-office, and the expenses of maintaining it would, I am sure, be willingly reimbursed by payment of the fees.
§ 6. But I cannot leave this branch of the subject without impressing on your Lordships the expediency of another scheme sanctioned by all the consideration which eminent men have given to the subject—I mean the introduction of Insurance into dealing with real estate—in a word, the Insurance of Title. When once any title is examined, as by offices lending money upon it, why should not this investigation 910 suffice as often as any other transaction takes place respecting the same title? Yet, if ten times money is to be raised on lands all held in the same right, ten times is all the delay and expense to be incurred, when once ought to have sufficed. A Government office, established to give all owners security, would be a blessing to the whole proprietary portion of the community. The terms of insurance must needs be moderate; for all are agreed that the vast majority of titles are really good, and such as give small chance of eviction; and the profits of the depositors would be in proportion to this preponderance of safe titles, and the rare occurrence of an owner being evicted. These profits would suffice to pay the party whom the law should deprive of his possessions; and to leave a considerable surplus for the expenses of the office. When we consider the proceedings of Insurance-offices, and other bodies lending money on real security, we shall perceive that they really act upon the very principle which I am recommending for adoption.
§ I cannot proceed to broach a new subject without congratulating your Lordships and myself, if I may make so bold, upon the entire success of the Terms Bill, passed three years ago, and at that time the subject of no small obloquy from ill-informed persons, but also, I fear I must add, from some who should have known better. It has already done much to prevent frauds; and its operation in lessening expenses to landed proprietors may be better understood by an example than by any general description. I was present at a meeting of our Law Amendment Society, when the respectable solicitor of a noble Duke—an extensive proprietor in the north of England—stated that the savings to his client in one year, in consequence of that Act, had amounted to between 4,000l. and 5,000l. The gathering such fruits of our labours is truly gratifying, and it naturally must encourage us in persevering until we have finally accomplished the great work of safely and cautiously, but with an unflinching hand, amending our law.
§ Fourth. The law made in the manner we have seen, and composed as we have seen, whatever may be the merits or defects of the process, and of the fabric to which it has given rise, must be published to the people who are to obey it. This is the bounden duty of the lawgiver; and it implies that he is to make his commands 911 fully known by giving them such a form as shall make them of easy comprehension, and of easy recollection. Both the Judges who are to administer the law, and, above all, the subjects who are to obey it, have an indisputable right to this. In proportion as the system of jurisprudence has become extensive, and the subjects which it embraces are various, it is the more necessary that the whole should be reduced into a convenient shape, and arranged in a proper order. Hence all good lawgivers have had recourse to a code or digest, necessary for all laws, but especially for those defining crimes and denouncing punishments; nor can a more flagrant neglect, nay, breach of duty, be committed by any Government, or a greater oppression upon any people, than omitting to furnish a Digest of its Criminal Law. The Digest, however, should extend to the Civil Law as well, nor is it always easy to separate the two branches of the system.
§ In England, more than in any other State, more even than in Rome, where Justinian began his labours at a time when the civil law was said to be a burden for many camels, this process has become absolutely necessary, because our law, whether made by Parliament, or existing in tradition, or declared by the Judges, has attained an unprecedented bulk. The Reports of Cases in the Courts fill five hundred volumes—the Statutes near forty, or between thirty and forty thousand quarto pages—while Napoleon's whole Codes, five in number, crept into seven hundred and fifty duodecimo pages. Well might he boast that he should descend to future times with his Code in his hand! Our want of care in making the law known even when it is to be obeyed on pain of death, has occasionally been shown in a remarkable manner. The 43rd of George III., commonly called Lord Ellenborough's Act, by which some eight or ten capital felonies were created, was to take effect in six days, when it could hardly have reached the remote parts of Ireland, where the acts made capital were most likely to be done. Though nothing like a Code or Digest has yet been prepared by us, yet great steps have been taken towards it. The experiment has been tried on some classes of offences, especially by Sir Robert Peel, whose Acts for the digesting of these have been carefully formed, and are productive of great advantage. The Revenue Laws, too, have from time to time been digested, with good effect to their 912 administration; and it is an additional reason for undertaking this process on an extensive scale, that nothing of the kind has ever been done without leading almost necessarily to salutary amendments of the existing law, by showing its defects in a striking manner, and by the comparison of its inconsistent provisions which arises out of their juxtaposition under the heads of the arrangement.
§ Although the labours of the Commission which I issued in 1833, to Messrs. Starkie, B. Ker, Amos, and others, and which my noble and learned Friend (Lord Lyndhurst) and my right hon. Friend (Sir J. Graham) most wisely continued in 1846, have rendered the task easy for Parliament by the digests reported, and have recommended it by the reasonings in their most valuable reports, and although some inducement is offered to have the whole work done at once, yet I am clearly of opinion, as are my learned Friends the Commissioners, as well, I believe I may add, as my noble and learned Friend, and my right hon. Friend, whom I have just named, that we shall act more judiciously if we at first rest satisfied with forming and passing a Digest of the Criminal Law, by far the most imperatively required; and I accordingly, in 1845, brought in a Bill to this effect. At the desire of my noble and learned Friend (Lord Lyndhurst), I postponed the passing of this measure, in order that it might be referred to a new Commission, composed of the former Members, with one or two important additions. Those learned persons have now more thoroughly investigated the whole subject; they have reported a Digest of the whole Criminal Law, excepting Procedure, on which we may in a few months expect their final report; and I am now prepared to lay a Bill on your table enacting a Criminal Code—a code defining all crimes, with their punishments; and I promise to follow it with a second, enacting a Code of Criminal Procedure.
§ But there is one thing which I must strongly recommend to be done forthwith, and I know I have in this the entire concurrence of the learned Commissioners, especially my friends Mr. Starkie and Mr. Ker, and the learned and able Secretary to the Commission, Mr. Lonsdale. Let us, without delay, direct to be prepared a work which will require little labour, and will prove both invaluable in itself, and a most useful preparation and help for a complete Digest. Let all our Statute Law be brought 913 together in one body, and arranged under convenient heads. I am quite sure that whoever turns his attention to this subject will at once see the importance of the suggestion. Of course, I mean our statutes sifted from the vast mass of temporary and trifling matter which overloads and encumbers the Statute-book—in short the general and permanent laws of the realm. Sir William David Evans, a most learned lawyer, who was afterwards Recorder of Bombay, once undertook this task, and his book, which he did not well finish, will afford assistance to those whom we may appoint to undertake the work. I am of opinion that the labours of the existing Commission had better not be interrupted by imposing on them this additional duty; but that it might be more conveniently entrusted to a Sub-Commission, acting in concert with them. I shall lose no time in moving an Address to the Crown on this subject.
§ Fifth. At length, my Lords, we seem to be in sight of land, and I approach the last branch of this vast subject—the Administration of the Law, or the constitution and practice of the Courts. The importance of this subject is not to be doubted; it can, indeed, hardly be overstated. The saying, "Whate'er is best administered is best," may almost literally be applied to the law. This at least is undeniable, that a bad system of law may become comparatively in-noxious if administered by judges of great wisdom, capacity, and integrity, whose independence of all mankind is absolutely secured. Nay, so much more depends upon having your law well ascertained and fully known, and equally administered, than upon its actual structure, that it would be better for any people to live under an ill system well executed, than under a good system administered by incapable, corrupt, or dependent judges. Now, upon this important subject the principles are as little the subject of contest as under any of the former heads; ther application alone is to be considered.
§ As regards the Judges, the essentials are these:—
- 1. The separation of the judicial from the executive and legislative powers.
- 2. The absolute independence of Judges, both of the Crown and the people.
- 3. The securing of competent learning and skill in those selected to fill that high office.
- 4. Their payment by salary and not by fees.
§ In all these particulars our system is, 914 generally speaking, sufficiently free from defect, though some exceptions there are. Regarding practice and procedure—the main point is to render it as expeditious and as little costly as may be to the suitor; to levy from him no duties for the State upon any law proceeding, only making him pay for what benefit he receives. But the best mode of ascertaining the truth in judicial inquiry demands more minute consideration, and may be reserved for the chapter of general defects. To them we now proceed.
§ i. In the condition of Judges the departure from principle has been considerable in some respects.
§ Justices of Peace furnish the first instances. That part of our system sins, but more in theory than in practice and in fact, against the two first of the principles just stated; for though they have large jurisdiction, and especially preside over by far the largest portion of criminal trials, and yet are both eligible to Parliament, and are removable by the Crown, yet they never are removed unless on conviction, after once being appointed. As to the third rule, to secure their competent qualification for their important office, requires a change in the law. It is, however, to be observed, that some subjects of magisterial jurisdiction are peculiarly ill adapted to that kind of tribunal. Thus I particularly think that questions on the Game Laws are little likely to be satisfactorily decided by country gentlemen, game preservers and game destroyers themselves. The conviction of a man for poaching, that is, killing game without a qualification, because he had snared a hare that had for weeks been destroying his garden, is one among other instances in support of my opinion. On this and other grounds, there is no doubt that a paid professional Chairman should be appointed to preside at sessions; and he might conveniently occupy an important place in preparing the cases for the assizes, so long at least as we continue, against all principle, to have no public prosecutor. He might fill too the place of Judge in the Local Courts. Against the third rule our Colonial Judicature sins most largely. Those who are to administer law in all its various forms among myriads of our people are so much underpaid, that while I held the office of Minister of Justice, or the only and most imperfect substitute which we have for that office, I constantly refused to recommend Judges for the Colonial Settlements, because I 915 would not go into Westminster Hall to find fit persons for the office, when I could offer no salary sufficient to tempt well-qualified lawyers, and no retiring pension on their health being broken down in bad climates. I know a most learned and able man, who has filled most underpaid offices for the greater part of his life, and who now has 1,200l. a year, in a place where that sum is only equal to 600l. in England, and who, if his health fails under a tropical sun, retires upon literally nothing. This remark applies not to our Indian Judges, and these accordingly are for the most part well selected. But exceptions there are, because there is no Minister of Justice responsible to the profession; and I grieve to say I have lately heard of one such exception, with a wonder shared by me with the whole profession of the law. The subject is painful because it is personal, and I willingly hasten away from it, preferring to lose myself in more general matter.
§ ii. The first and second rules which I stated are both violated in the highest of our judicatures; the judicial powers of the Chancellor must no longer be left in the hands of a Judge holding his office during pleasure, and the first member of a political party, as well as of a Ministerial body. There remain abundant duties for that high officer after this anomaly in our system is removed. He should be the Minister of Justice; a functionary much wanted in this country; the want of whom, indeed, meets us at every step, whether we regard the amendment of the law or its due administration; and I rejoice to find that on this important question we have now the sanction of my noble Friend the Master of the Rolls' high authority. On this subject I do not purpose to dwell longer on the present occasion; but having, as it were, got into Chancery on one point, I must, like the other parties who get there, be content there to remain for a space; and even to enter the most awful part of its penetralia—the Master's Office.
§ 1. On this all seem now agreed, that the course of proceeding in that department affords the most just of all the grounds of complaint against our Equity judicature. I take my stand chiefly upon the undiscriminating reference of matters for inquiry, and the mischief that thence result to the suitors, by delay so endless, that the clerks of some Masters being lately examined, have not hesitated to declare that it is wholly in the power of a solicitor, whose interest might lie in delaying the proceed- 916 ing, to protract it without any limit of time whatever. So says Mr. Pugh, clerk to Sir Giffin Wilson; so say others, his brethren. Now, the Equity Judges send all things before the Master, and thus appear to get through their cause paper, when in reality they are doing little but augmenting the costs, and extending the delay of the parties. First, they refer matters to be inquired of, on which no inquiry at all is wanted, because all parties are agreed on them. Secondly, they refer questions, much fitter for their own decision than the Master's—questions of mere law, as whether a power has been executed, always even after the facts are ascertained, so nice a point of law that I hardly ever gave an opinion upon it unless I found some decision upon the very same form of words; and yet the Master, after ascertaining the facts, has to report whether or not the execution is good in law. So upon the validity of a devise or bequest; and in all such cases, whatever way he decides, the losing party is sure to except; so back the matter comes, after useless, and costly, and dilatory litigation, to the Judge, who should in the first instance have pronounced his decision. Thirdly, matters of fact are referred, out of which, perhaps unexpectedly, emerge mere legal points. Now, in all cases these should be sifted from the whole matter, and reserved for the Court, and the inquiry of the Master limited to the questions, and the disputed questions, of fact. Nothing could be easier than this process. Parties might be called upon for their statements; the admissions might be taken of fact, as we have by the late improvements in procedure since the Act of 1833, done in the Courts of Common Law; or parties might agree on the points fit for the Court and for the Master respectively; and, above all, an easier intercourse might be established between the Master's Office and the Court. Had the Master a power of at once communicating with the Court, as the clerk has with himself, whenever he found that any thing emerged which was sure to end in exceptions, what way so-ever he reported upon it, he might at once send it back to the Court, and this whether the matter was one of law or of fact.
§ 2. A great abuse would be prevented, and an incalculable saving of time as well as expense to parties be secured, by requiring the Masters to act de die in diem, on each reference, giving of course due notice to the parties, and calling on them, upon pain of exclusion, to be prepared with 917 their witnesses and other evidence when wanted. This is the course at law, where, unless the party is ready, he must expect the verdict to go against him. In Chancery, the parties come before the Master for an hour one week, and then for another hour the week after, when half or whole of the last day's proceeding has been forgotten, and thus the inquiry and the expense never ends.
§ 3. I have little to add on the Master's Office, except to express my regret that I was overruled in 1833, as to paying the Master by salary, or at least altogether by salary. The principle is no doubt as I have stated it, to pay Judges by salary and not by fees. Yet this rule cannot safely be applied to those who sit in private, however good it may be for those who sit in the eyes of the profession and the public; and if only such fees be allowed, as the functionary has no power of increasing by the steps or the length of procedure before him, he will be usefully quickened in discharging his duty, by being at least in part thus remunerated for his labours. I am certain that many fewer reports have been made by the majority of the Masters since the time when I was compelled to yield my opinion on this subject; and the abolition of the Master's fees is the only part of the late changes in the Courts which I lament.
§ 4. The mode of taking evidence in Chancery is still as bad as possible, and loudly calls for alteration. Nothing can well be conceived more preposterous. The Examiner is a mere mechanical agent, and his office, though richly paid, could be performed by steam. He has only the power of reading the interrogatories and minuting the answers. These interrogatories are prepared by a draftsman who never sees the witness, and frames every question without the possibility of knowing how any of the former ones was answered. Thus, the first question being, Did you ever see the party? and the answer, Never; the second may be, What did he tell you when last you saw him? So cross questions are put in utter ignorance of the answers to the examinations in chief, or even of the questions in chief. My noble Friend behind me (Lord Lyndhurst) and myself in discussing this matter, with our experience of the far different proceedings in our own Courts of Law, have often agreed that the best we could say for the Chancery practice was, that we only wondered it brought out so much truth as it frequently did, or 918 indeed any truth at all—a poor panegyric on any system of inquiry. Now if we are not ripe to pronounce for letting in viva voce evidence in all cases (the true remedy for the evil) at least we may call on Equity to adopt the far better course of examination used in our Civil Law Courts, where the Examiner is called upon to put whatever questions are suggested by the allegations, or the interrogatories, and also whatever questions appear to himself fitted to bring out the truth, only taking those instruments for his guide. Such of my noble and learned Friends as with myself have been used to sit on appeals from these courts, are well aware how greatly superior this kind of examination is to that of the Court of Chancery.
§ 5. The vast amount of business in Chancery, as well in its administrative as its litigious department, is only exceeded by the great variety of the functions which it is called upon to perform. There are above sixty millions of personal property under its control or under its consideration, and perhaps as much or more of real estate; but also there are so many kinds of labour which it must undertake, that one is bewildered in thinking "how one small head can carry all it knows,"—or rather ought to know—for its ignorance and incapacity make the wonder cease. Chancery is truly a jack of all trades—a landowner, a farmer, a proprietor of bank stock, a holder of railway shares, a joint-stock director, a trader, a manufacturer, a minor, a shipowner, a fisherman, nay, the manager of a theatre. As truly as it is jack of all trades, does it verify the proverb, by showing that it is master of none. Thus to say nothing of commercial, or of manufacturing, or of theatrical concerns, we know that travelling in the country, and seeing a well-cultivated, thriving farm, we cannot tell to whom it belongs; but seeing an every way ill-conditioned estate, we hardly find occasion to ask, Whose is that? for we may at once conclude it is in Chancery. Now I would have better and official assistance given to this great administrative department. I would have a class of official receivers and other managers appointed, whom the usual emoluments would well reward. I would apply to this Court the institution of Official Assignees, which I introduced some seventeen years ago into the Court of Bankruptcy; an invention at the time loudly blamed by the profession, and to my astonishment as loudly complained of by the 919 mercantile community, whom it was especially designed to serve, but now with singular unanimity as loudly approved by both classes. After this experience we cannot hesitate in recommending its extension to the Court of Chancery.
§ That the defects I complain of exist, and that their remedy is loudly called for, who can now undertake to deny? I will only give your Lordships a few instances—first in the administrative, then in the judicial branch of Chancery. The accumulation of the rents under Mr. Thelluson's will was in that famous case represented as likely to prove so enormous as in half a century to create a fortune absolutely perilous to the balance of our monarchical constitution; and this was one of the arguments pressed upon the Court against supporting the will in favour of the testator's intention—Nescia mens hominum fati sortisque futureœ! Little did the prophets know the powers of Chancery administration to arrest the accumulating speed!—The half century has now elapsed, and instead of 20,000,000l. a year standing to the credit of the account, the income has not increased 20,000l. But take an instance or two of more recent date as to the delays and the costs of litigation. A suit was begun in 1807 to which a London banker in the Irish Equity Exchequer was party. In 1845 it had gone through the Master's (Remembrancer's) office, and exceptions to his report were heard during eight successive days: this hearing ended in a reference back to that office, and there the suit rests after a period of forty-one years, during which the London banker has been deprived of his money. In the Chancery of this country the case of Cottingham v. Shrewsbury, begun in 1828, is still hung up in the same Court, though the funds are ample to satisfy all claimants. In another case of a like kind, after fourteen years, assets have been realised to the amount of 3,700l. How much of this sum, think you, has been spent in the litigation? Why, all but 383l. In another suit of a specialty creditor, 2,500l. have been got in, but the costs only leave 35l. to be divided among the unfortunate parties who have gained. As to the cases of partnership accounts, which in a suit to dissolve, must always be taken, and, of course, in the Master's office, things are worse if possible. A solicitor in large practice has declared, that after making a very extensive inquiry he can find no one case of litigated partnership accounts ever coming out of 920 the Master's office at all. My Lords, I will detain you no longer on this head. I think I have proved my case, and so if it please you we may get out of the Court of Chancery, and be the envy of many a poor suitor who still lingers imprisoned there.
§ iii. The expense and delay of Appeals, I mean appeals to this House, and especially from decrees in Equity, has long and justly been complained of. Our fees and the fees of practitioners, and the delay from vacation to session, are paid in every case, but in small cases they amount to an absolute denial of justice. At present there can be no appeal in cases of a moderate amount; and of the numberless orders made upon Appeal Motions, often highly important in principle, not seldom decisive of the whole question between the parties, I am confident not an instance can be given of one being brought here, however manifestly erroneous in law or in fact the order may have been. This must really be altered; the dignity of your Lordships' House, as well as its character for justice, imperatively demand the applying a speedy and an effectual remedy to so great an evil.
§ iv. It is equally true that a denial of all justice by the Courts below, exists in cases of small amount. No man can obtain payment of a 50l. or even a 100l. legacy, if the executors or administrators of the deceased choose to refuse him, because no man in his senses would sue in Equity for such a sum, and in Equity alone can he sue for it. So the trustees of small charities, thousands in number, are wholly beyond the reach of the law—amended as it has been, and numerous and searching as have been the late inquiries into their malversation. Therefore I deeply lament the loss of my noble and learned Friend (Lord Lyndhurst's) Bill in 1846 on Charities; and I also lament the omission in the Local Courts Act, of the provisions which I had introduced on legacy cases into the Bill, when it was first presented by me to the Commons in 1830, and to this House in the following year. My hope is, that these improvements in our Equitable and our Legal judicatures may before long be made. And let me add, how evident is now the necessity of extending the jurisdiction of the Local Courts, when we find the great amount of business which they have so satisfactorily transacted to the incalculable relief of suitors. That amount has in every way facilitated the extension for 921 which I am asking; because the fees, so easily collected, may now be considerably reduced to the suitor; the costs may be given to parties at present deprived of them; and, above all, the ablest professional assistance may be obtained by the considerable emoluments enjoyed by the Judges. Therefore, I venture confidently to hope, that among other improvements, will be made that of adding the voluntary jurisdiction clause, which my noble Friend (Lord Lyndhurst) author of the present Act, had introduced at my desire from the Bills of 1830 and 1838—by which, although the compulsory jurisdiction of the Local Courts was confined to 20l., and to cases of personal rights, and indeed to actions of debt mainly, yet the Court could entertain any case of any kind whatever, and of all amounts, provided both parties should consent. All that is wanted in such instances is to provide for an appeal, in case the parties do not consent to make the Local Courts' decision final.
§ v. I cannot close my observations upon the defects still existing in the administration of the law, without adverting to one, and for the hundredth time denouncing it to your Lordships—because it affects our whole criminal law as regards its execution. We still—we alone, of all civilised nations—we, contrary to all principle, and in spite of all experience, still persist in leaving the criminal law to execute itself. No provision whatever is made in our system, for any one criminal being brought to trial, any one offence prosecuted; no provision, at least that is of the least certainty, or that may not just as well prove nugatory as effectual. A man is robbed; he has the additional misfortune of being bound over to prosecute the robber—his life is attempted; he has the additional risk of losing the costs of the trial, and the certainty of losing his time in urging it on. Public prosecutor we have none; all is left to hazard; the worst crimes may go unpunished; aye, and the most innocent parties may be involved in a prosecution. The Grand Jury, good for some purposes, is for others wholly useless, for not a few absolutely mischievous, if acting without the guard of an officially responsible prosecutor. I will give your Lordships only three instances, one of impunity to the guilty, the other two of vexation to the guiltless. A man in good business at Plymouth, some years back, committed for- 922 gery to a large amount, and the party injured was bound to prosecute under a two hundred pound recognizance. Had the culprit been poor he would have been tried, and, as the law then stood, hanged. But no prosecutor appeared against the rich felon; he had made his peace and paid the forfeiture of the bond. In 1812 I was counsel for a gentleman, a respectable man, of 10,000l. a year; but a Catholic, at the Lancaster assizes. The Grand Jury found a bill against him for murder; and it had been committed by his bailiff, or other servant, leaving a rope incautiously across a road under repair, without a lamp to warn passengers, whereby an old woman returning from market had broken her neck. The prosecuting counsel could hardly state the case with any pretence of seriously expecting a verdict. Mr. Baron Wood said, "Is the Grand Jury discharged?" We answered, Yes. "I am very sorry for it," said the learned Judge, "it is a most scandalous case," and he immediately ordered an acquittal. Yet here was a highly respectable man, who, all his life after, was known to have stood in the dock of a public court on a charge of murder, and in whose teeth any Protestant bigot could at any time, in the heat of political or religious controversy, fling this charge, and fling it with truth. Now, I will assert, that at no time, nor in any fervour of faction, civil or religious, would any public prosecutor, responsible in his own person for his official acts ever have chosen—I may say even have dared, to put Mr. Blundell, of Ince, upon his trial as a murderer, making him criminally answerable for the negligence of his servant. But the Grand Jury had none of these alarms or scruples. When called for by the Judge, to be severely rebuked—to receive such a reprimand as would have attended them all the days of their life—they were gone forth; they no longer existed in that capacity, in which they had done the most criminal act I ever knew a jury perpetrate; they had retired into the body of the community; and even if all their names had been made public, nay, if they had come to receive their sentence from the Judge, no man could have told to which of them it applied; because all being bound by oath to conceal their own counsel, and that of their fellows, no means existed of knowing who composed the thirteen or more that found the bill. Mr. Baron Alderson, at the last Central Criminal Court, had a bill for forging a will presented by 923 a Grand Jury. No prosecutor appeared at the trial; the whole was the malice of a disappointed legatee; and the Grand Jury had found the bill without ever asking to see the will!
§ I am sure I have done more to recommend the appointment of a public prosecutor, by giving these three examples of the want of this office, than if I had argued for it during an hour. But I must add, that great as was the desire for this assistant to the execution of the law, when I first proposed it in my evidence before the House of Commons in 1834, it has now been rendered doubly necessary, by the Act allowing counsel to address the jury for all prisoners. The law has no longer a fair chance of being duly executed, for the prisoner who can afford it has always an able advocate to sway the feelings or perplex the understanding of the jury, while very often there appears no one to speak against him. The Judge, it is said, may in his charge take off the effects of the orator's eloquence or sophistry. But that is no part of any Judge's office, even were he always qualified to perform it: on the contrary, he is by the principles of our law held to be the prisoner's counsel; and at any rate he is chosen to be placed upon the bench for very different qualities from those which fit him to work on a jury's passions, or wrangle successfully with the bar.
§ I therefore do hope that a long time may not elapse before we borrow from our Scottish neighbours their invaluable institution of a public prosecutor, lending them in return our Grand Jury—against which I have not a word to urge, only desiring it to be accompanied with a learned, an efficient, and thus a well-qualified and a fully responsible officer, to superintend the enforcement of the criminal law. That law thus amended in its procedure and improved as it has been since 1828, would, in my humble judgment, approach so near to perfection as only to require being well digested, and thus made well known, to make it deserve and receive the cordial applause of a grateful empire.
§ I touch, my Lords, on the conclusion of my course, and I have to express my thanks for the patience with which you have deigned to attend me on it. We have traversed a vast expanse of ocean, but unruffled by any breath of faction, nor heaved up by the ground-swell of any personal interest, while the surrounding shores are at this moment shaken 924 far and wide by convulsions that awe the soul. The mighty monarchy of France, destroyed in an hour—the dynasties of its Eastern neighbours crumbling to pieces—the perennial Empire of the Cæsars tottering to its fall—the janitor of the Alps flinging open the Italian gates to the Gaul—the Eternal City built upon seven hills shaken to their base by the populace thereof and their accomplice, the successor of the Borgias, inheritor of their ambition, but unsustained by their capacity or their courage—the air thus ringing with the crash of fallen thrones, the din of arms, the shouts of demagogues—aye, and with shame I speak it, of demagogue statesmen exulting over the havoc which their evil example has dealt all around. Through the air thus inauspiciously filled, let me hope that the feeble voice may pierce which I raise to implore, that while yet the storm only growls at a distance, you would perpetuate the safety you providentially enjoy, by removing every flaw in your system. It is because all other States are shaken, and ours alone is yet secure, that I would have you make those institutions perfectly to be loved which you bid the people press to their bosoms. The events at which all Europe stands aghast, are fitted to teach you this lesson. Listen not, I beseech you, to the thoughtless men, who wrapping up a false doctrine in a fallacious figure, would make you believe that you should not repair your cabin in the hurricane season. I tell you this is the time to repair; for on you the tempest has not yet begun to blow; and you ought to employ the interval while it only rages at a distance, to give all the solidity you can to your walls, and every strength you can impart to your timbers. I have the most entire and undoubting confidence in the powers of our constitution, and the loyalty, the virtue, the courage of my fellow-subjects to sustain it. But the better the law is under which they live, the cheaper is its administration to them, the closer its remedies are brought home to their doors, the plainer it is written for them to read, and the simpler to comprehend as digested, the more secure property becomes in the enjoyment, the easier to exchange and transfer—making it, as Blackstone says, answer more perfectly the purposes of civil life—removing as Locke hath it, the shoals and the quicksands which beset the course of 925 those who deal with it—the better will our system deserve the people's love—with the more fervent loyalty will it be by them upheld—the more firmly nerved in its defence will be their gallant arms—the more inaccessible their honest hearts to the arts of all its enemies. Inspired with such sentiments, I twenty years ago addressed the Commons, beseeching them to help me in my endeavours. It is their business to amend the laws of the people who have chosen them to represent their will and guard their interests. But I have now the honour of addressing another, a more august assembly, one whose peculiar province it is to watch over the passing and the administration of the law. I address you who are its hereditary guardians, you who more eminently preside over legislative Acts, you above all who are the judges appointed in the last resort to perform the sacred office of administering its powers and its remedies, you the highest Court of Justice in the Empire. Your aid I implore in performing the office of improving our jurisprudence in all the branches that still require amendment; and my hope that the system thus improved will be as perpetual as its merits deserve, is grounded on the excellence of the fabric which you have to build upon—a constitution justly dear to those who live under it, and justly envied by those who unhappily enjoy not its blessings—uniting in itself the advantages of all other Governments, regal, patrician, republican, and clothed with their several virtues,—borrowing vigour from monarchy, stability from aristocracy, freedom from democracy. But if there remains any defect, anything for a friend to lament, and an enemy to rejoice over; that defect should by its friends be removed, and to its friends therefore I make my appeal. It is my fervent hope that, so improved, it may have a lasting duration. This is my earnest prayer, as it is yours, and I also pray that if, like all the works of man, it be fated to perish, I may not survive to read over its ruins a mournful lesson, how frail are the most perfect monuments of human wisdom.
I crave of your Lordships a first reading for this Bill, entitled—
An Act to Consolidate and Digest into one Statute all the Laws of England, as far as relates to Indictable Offences and the Punishment thereof.
Bill read 1a.—House adjourned.