HL Deb 03 April 1851 vol 115 cc958-67

Order of the Day for the House to be put into Committee (on recommitment) read.

The LORD CHANCELLOR

said, he had several objections to make to the Bill in its present form, as he believed that the law did not require the alterations which the Bill proposed to make. The first series of clauses provided that if parties should agree to try any matter, whether in law or equity, before a Judge of the County Courts, the Judge should he empowered to hear the cause. Now, in the first place, he would be glad to know, before they proceeded to impose any further obligations on the County Court Judges, how far their time was occupied by their present duties; and he thought such an inquiry was the more necessary since the Legislature had extended the jurisdiction of these courts to 50l. There was another clause in the same series which gave parties the power, if they agreed, to have any matter, however special, tried before these Judges, by way of reference. Now, as this clause stood at present, the effect of it would be, under the pretext of facilitating arbitration, to give the Judges of County Courts power, with consent of parties, to try any cause whatever. No matter how important or complicated the question, the multitude of witnesses, the contradictory nature of the evidence, the question might be tried and settled by one of these Judges of the County Courts. He saw no reason for these clauses relating to arbitration, however they might be guarded from the consequences he had alluded to. The law had already given every facility for arbitration, and there was no necessity for these new enactments. The next series of clauses related to the establishment of Courts of Reconcilement. He had a great respect for the experience of his noble and learned Friend, but he must own it did not appear that these courts were suited to the genius and habits of the people of this country. It was proposed in these enactments that if one party proposed to be reconciled to another in respect of any matter in dispute, he must summon the opposing party before the Judge of Reconcilement, which party must then give notice whether he meant to appear or not. If he gave notice that he would appear, and did not, he would be liable to the costs. If he did appear, the parties were then to go without attorney or adviser of any kind before the Judge, and state before him their respective differences; and if the Judge was not able to reconcile them, a certificate was to be given to that effect, and then the case was to be tried before another tribunal. Now he did not see what end such a proceeding was to serve, except in enabling a cunning party to get a knowledge of his opponent's case—to see what evidence he had to bring forward, and how it might be best met; after which nothing would be easier than to find out some reason for not being re- conciled, and then going to law. But did the people of this country require a Court of Reconcilement? He was satisfied they did not. The utmost that could be said for such a measure was, that it would do no harm; but he did not think the dignity of the Legislature was best consulted by enacting laws which were to be of no practical use. He did not think there was any difficulty in people becoming reconciled, if they had a disposition to be reconciled; and he certainly did not think that the present state of society in this country required such laws as these. The next series of clauses dealt with equitable rights, and he must say it did not occur to him that it was desirable to graft the proceedings of the Courts of Equity upon the practice of these Courts. All that was practicable in these clauses, appeared to him to be already provided for in the existing Act, 9 & 10 Vict. ch. 95, which provided that anything in a case which was incidental to equity practice might be done by the Judge of the County Court, under the authority of the Master in Chancery, and subject to all the rules and regulations which applied to the officers, of that Court. If more than this were required, it would be better to introduce it as part of a general system, rather than in this incidental manner. There was another clause which provided that a clerk to an attorney, of six months' standing, might appear in these courts and advocate the cause of his client. Now he would appeal to his noble and learned Friend, whether it would be possible to enact a greater nuisance than this clause threatened to be? It was constantly happening that certain parties who were not attorneys, but who pretended to be clerks of attorneys, and who allowed a low grade of attorneys a portion of their earnings for the use of their names, haunted the criminal courts, and produced mischief which it was hardly possible for his noble and learned Friend to conceive. Their Lordships could not fail to have read several cases mentioned in the newspapers of prisoners being brought to the bar of a criminal court, looking about for a counsel to defend them, but finding none; and when the case came to be afterwards inquired into, it was found that they had been deceived by persons who pretended to be clerks of attorneys, and who had engaged to provide counsel for them, and after squeezing as much as they could out of the poor creatures or their families, in order to fee a counsel, had left them to take care of themselves. Besides, in the course of civil actions, the most nefarious practices frequently took place from the same cause. Of all the evils which they were hound to repress, and to punish with severity, he thought this was the most crying; but he feared the present clause would rather encourage the nuisance. What sort of a case must that be about which a man would go to an attorney, and which a six-months' clerk of the attorney would be sufficient to defend? A man went to an attorney in the hope of getting the benefit of his experience, but if he only obtained the services of a six-months' clerk, he did not think that would much benefit him. He therefore hoped, on all these grounds, that his noble and learned Friend would reconsider this clause with a view to strike it out of the Bill. There was another clause to which he had a strong objection, in fact producing a total alteration in the present law—he meant the clause relating to the recovery of the tithe rent-charge, which, from some influence or other, had been very adroitly palmed off upon his noble and learned Friend, and by him inserted in the Bill. At present the power of recovering the tithe commutation rent was by distress on the premises; but unless there was property on the premises there could be no remedy—the consequence of which was, that if a farm was unproductive, if it produced no titheable articles, then the tithe-owner had no remedy. But, on the ground that some clergymen had a delicacy in enforcing the law of distress, a clause was introduced into this Bill which would give the clergyman power to summon the occupier of the farm into the County Court, and, failing to pay, he would be sent to prison. Now, this was altering the entire law upon the subject of tithes, and it was not even pretended that any amount of tithe was lost under the existing law, but simply that it hurt the feelings of some clergymen to proceed by way of distress. He was satisfied that the attention of his noble and learned Friend had not been called to the present state of the law on this subject, or he never would have sanctioned such a course. He concluded by moving that the Bill be recommitted for this day six months.

LORD BROUGHAM

thought he had a great right to complain of the course which his noble and learned Friend had taken. If he had given him the slightest indication—the remotest hint—he would not have brought forward the Bill at that time, but would hare postponed it till to-morrow. There was not one single objection which his noble Friend had stated to these clauses which was not one of detail, and which might not have been taken in Committee; and, however inconvenient to himself and to their Lordships, he was now driven to follow every one of the arguments—as he thought, inconclusive arguments—which the noble Lord had urged against the Bill. I And with reference to the equity clauses, his noble and learned Friend said, "What is the use of these clauses, since they are all contained in the 27th section of the Act of 1846?" Now he would show that his noble and learned Friend was entirely and absolutely mistaken, and that the mistake was as great as it was possible for any person to commit upon the subject. These equity clauses were not now proposed for the first time; they were in the Bill of 1833. That Bill underwent a most full and deliberate discussion. These clauses were canvassed, altered, amended, and varied; and when the Bill was ultimately thrown out, they were lost with it. When Lord Cottenham adopted Lord Lyndhurst's Act of 1846, upon the retirement from office of that noble Lord, he found the equity clauses were not in the Act. He was so pressed by the noble Lord the Master of the Rolls to insert them, that, after some hesitation, he yielded, and those were the clauses which Lord Cottenham agreed to. His noble and learned Friend, who had been for fifteen years a Judge of that Court, and twenty-five years a practitioner in it, was so impressed with the necessity for their adoption, that he came down here the other night to support them. Owing to the inconvenient course adopted by his noble Friend on the woolsack, he was deprived of his assistance.

The LORD CHANCELLOR

was very sorry to occasion any inconvenience to the noble Lord, He did not mean to act unfairly by him, in withholding notice of his opposition. What he now wished to propose was, that, if it suited the noble and learned Lord better, he would withdraw his Motion, and take the discussion upon the third reading. He did not wish to take the noble Lord by surprise.

LORD BROUGHAM

never meant to complain of any intentional unfairness. If the noble Lord had done anything like unfairness, it would have been the first he had ever known him to have done so during a very long intercourse of years. The noble Lord was equally wrong in saying that he had taken him by surprise. All he complained of was, the inconvenience of the course adopted. He could not now refrain from saying something. The conduct of the noble Lord forced him to make some statement of the facts. He should not occupy, however, much time. He would deal with the cargo—he said it with all respect—of his noble Friend's arguments by way of sample; he would not break hulk by doing more; and only dealing with them in this manner, he would show how very incorrectly, how absolutely without foundation, how entirely futile, the objections of his noble Friend were. With respect to these equity clauses, he had already stated that his noble Friend the Master of the Rolls came down the other night to bear his testimony to their value. He had told him what passed in the year 1846; he stated how desirous he was that they should be inserted: how, after great delay and trouble, these clauses were selected out of a number of others, as the only ones which Lord Cottenham would adopt and approve of. And these were the clauses which were now before their Lordships, which his noble and learned Friend designated as being unapproved of and unsanctioned. This would be something to show the gross error, the very gross error, which the noble Lord on the woolsack had fallen into—a gross error which it was more extraordinary should have been committed by his noble Friend—though perhaps he should say the less extraordinary—considering the short time the noble Lord had been in the Court of Chancery—long might he there flourish, that it might benefit from his talents, learning, and his unexampled assiduity!—but considering the short time he had been in that Court, the noble Lord had not been enabled to see the advantages of these clauses, or the greatness of the error he had committed in opposing them. One thing, he was sure, would be admitted, that Lord Cottenham understood that Court, and that forty years' practice had acquainted him with the practice of that Court. Lord Langdale pressed upon Lord Cottenham the adoption of these equitable clauses in the Bill of 1833. By the ultimate rejection of that Bill they were lost; and they were now again before the House. Lord Langdale could only obtain the consent of Lord Cottenham to a very small portion of the clauses he proposed; and it was to that portion for which his assent was obtained, that he now directed the attention of the House. When the noble Lord on the woolsack said that these equity clauses were contained in the 26th section, he, on the contrary, said they were not. There was nothing like them in that section; there was only one small infinitesimal portion of them contained in it. The object of these equity clauses was to give to the County Court Judges the same powers as were now vested in the hands of the Masters of the Court of Chancery. Nothing was clearer, and all those who knew anything of the Court of Chancery, admitted that those clauses were an improvement on the practice of that Court. They were most carefully prepared—the noble and learned Lord shakes his head—but he could assure him that these clauses were most carefully prepared, and were not the undigested suggestions of different parties thrown together in a heap. They were carefully prepared first in 1833; then they went through the Committee of the same year, where they had the benefit of the alterations and amendments of Lords Eldon and Lyndhurst. Since that period they had undergone further revision. They had been before the Equity practitioners here; they had been before Masters in Chancery who had made in them improvements and amendments, He himself, as well as his noble and learned Friend the Master of the Rolls, gave them further revision; and he even thought that his noble and learned Friend opposite (Lord Cranworth) had seen them. Practical suggestions had been adopted, and there was no doubt that the Bill was now improved by being rendered more compendious. He had communication with all the County Court Judges. He had received their suggestions, as it was his bounden duty to do, and he had added several clauses to the Bill, profiting by their experience in the actual working of the County Court system. Then, with regard to permitting a tithe rent-charge to be a ground of summons before a County Court Judge. It is a very hard thing that the parson should be obliged to go without his tithe, or to have recourse to restraint; the consequence of this state of things is, that the parson not unfrequently is defrauded by the dishonest man. The noble and learned Lord said that there was no ground for a distress for tithes if there was no titheable matter on the ground; so that this provision would alter the whole law. That was certainly a very curious objection and a curious doctrine. What tithe is produced by a horse, by chairs and tables, by carts or household furniture, and yet they were all subject to distress for non-payment of tithe. It was, therefore, vain to produce such an argument; and there was no harm in giving a right to the titheowner to recover his tithes, which, he had heard, were better paid to the lay impropriator than to the parson. With reference to the Courts of Arbitration, the noble and learned Lord did not take the same view as he did. The course at present respecting arbitration is this: after all the expenses of a contest in a court of law have been incurred, and when the matter has come into Court, it is then found that the dispute is one which cannot be settled in public; perhaps it is a matter of account, and the parties are forced, are compelled to go before an arbitrator. What follows? The expenses have all been already incurred. The arbitrator is careless about the matter, because he is paid by the sitting, so are the attorneys and solicitors, because they have an interest in delaying the proceedings. The case is adjourned from day to day; no one is interested in arriving at the issue, save the parties themselves, and a long period elapses before a result is arrived at. Every one was aware that if they appointed a paid arbitrator, a gentleman of abilities and learning, things would be managed in a much more satisfactory manner. As to the Courts of Reconcilement, the noble and learned Lord thought it was a mere visionary scheme, and that there was nothing practical in it. Why, it is the practice of more than one-half of Europe. He had received that very day, in addition to the letters which he had already read to their Lordships, the testimony of a learned gentleman of great authority, who was connected with the Government of the late lamented King of the French. That learned person gave additional testimony to the great benefits which were received in France from the establishment of these courts. He states that more than one-half the cases which go before the Judges of the Courts of Reconcilement are settled by the Judge. In France no person is bound to tell his case, under such circumstances as could possibly give an opponent the slightest advantage; neither would he be in this country. But would it not be advisable for a Judge to say, "You have no defence, or you have no case," after hearing the parties—if the facts warranted such a conclusion? The advice thus given would be acted upon, and a vast amount of litigation would be put an end to. With respect to the optional jurisdiction clauses the objection to the inconvenience of bringing witnesses from a remote distance equally prevailed at present. As the law now stood, if the action was not local, but transitory, you may bring your action anywhere you please; and it was constantly the practice to try a case in London, where the witnesses have been brought from Cornwall. He should abstain upon the present occasion from further comment on the objections urged against the measure, only observing that there was not one of those objections which he was not prepared to meet, and to give to each and every one of them a perfectly satisfactory answer. One word more before he sat down. That portion of the Bill respecting the practising of clerks was inserted from this reason. Respectable solicitors and attorneys would not attend these courts; the result was that the business would fall into the hands of an inferior class of practitioners, and it was thought that if solicitors were enabled to send a managing clerk, they would have a check and control over the class of men who sought to appear before the court as agents. He would most willingly bow to the decision of their Lordships with reference to the measure; though should they reject the improvements of the law which it contained, he should regret the circumstance as one highly detrimental to the public interests. The Motion of his noble and learned Friend might have the effect of preventing for the present the public from receiving the beneficial effects of this measure. He would console himself, however, by the words of Lord Bacon, which had been adopted by Coke, "No good proposal for the amendment of the law is altogether lost." Whatever might be the delay in its adoption, whatever opposition it might meet with, whether from prejudice, or ignorance, or indeed from both, nevertheless in the end it is sure to produce its appointed fruit in good season. It may have been delayed to the injury of the community and to the benefit of that class whose benefit they ought never to consult—the benefit of the unjust debtor, creditor, or lawyer, whose interest it is to keep the law in its imperfect state. It was a fact that 500,000 cases had been determined by the County Court Act, 490,000 of which would never have been tried but for the beneficial effects of that Act, and the noble and learned Lord might now deprive the public of the further beneficial effects of the present Act; but he might rely upon it that when they were both passed away, the principle for which he (Lord Brougham) now contended would be received and adopted.

The LORD CHANCELLOR

After the very strong speech of my noble Friend, various parts of which were very strong indeed, although I cannot say that the arguments were, strong, I beg leave to withdraw my Motion, and move that the Bill be recommitted, with a view to have the Amendments printed.

LORD BROUGHAM

proposed that the Bill should be committed pro formâ, in order to introduce the Amendments he had to propose, and which were rather numerous, owing to the many suggestions he had received from the learned Judges and others. For instance, he intended to omit the clause allowing two Judges on circuit to sit as Judges under the provisions of this Bill. If the Bill went into Committee pro formâ, these Amendments could be made, and the Bill, as amended, be printed by the time it came to be discussed again.

The LORD CHANCELLOR

said, he thought the course suggested by his noble and learned Friend was the most convenient.

The said Amendment was (by leave of the House) withdrawn. Then the original Motion was agreed to. House in Committee accordingly (on Re-commitment); further Amendments made: the Report thereof to be received To-morrow.

House adjourned till To-morrow.