HL Deb 07 March 1851 vol 114 cc1099-119

begged to call their Lordships' attention to the various legislative efforts which had been made between the years 1825 and 1850 to establish tribunals of local jurisdiction, and to promote salutary reforms in the jurisprudence and the general system of judicature throughout the country. This retrospect was both necessary in order rightly to understand the new measure, and it was very useful as giving encouragement to efforts for amending the law. The Bill of 1825, for the more easy Recovery of Small Debts, was originally introduced into the House of Commons by Lord Althorp, who, finding it impossible to carry it through the Legislature without the aid of official authority, surrendered it into the hands of the late Sir Robert Peel, who, adopting it with some additions, introduced it to Parliament soon after. The Bill went only a little way, and was confined to debts under 10l., which were made recoverable in the Sheriff's Court, to which an assessor was appointed by Lord Althorp's Bill, but not by Sir Robert Peel's. So matters stood till the year 1828, when he (Lord Brougham) brought under the consideration of the House of Commons the whole state of the law, with the exception of the criminal law, and the laws referring to bankruptcy, and to real property. The result of the Motion and the Address carried, was the appointment of two Commissions by Lord Lyndhurst, during the Government of the Duke of Wellington: to these Commissions the whole subject was referred in all its bearings; one of them being charged to inquire into the law of real property, the other into the state of the common law. The appointment of these Commissions was the first important step towards the introduction of all the subsequent improvements in the same direction; and the alacrity with which eminent persons connected with the legal profession addressed themselves to the task of devising and perfecting the statutory provisions which originated with these Commissions, proved how fallacious were the statements of those who asserted that it was vain to expect any improvement in the mode of administering the law, to proceed from lawyers. Owing to the reports which had been made by the Commissions, most important changes in the law had been effected—many great alterations in real property law, and many improvements in common law, though perhaps not so extensive in the latter as in the former. The important measures which had been introduced of late years, with a view to the improvement of the law, and the simplification of the mode of adjudi- cation, were the direct and inevitable consequences of the reports which had been presented to Parliament by the learned Commissioners; and it was gratifying to think that the great agents of all these improvements were men connected with the legal profession. In looking back to his statement of 1828, he could hardly find one of the many grounds of complaint against the system, which was not now removed—hardly one of the remedies propounded, which was not applied. So vast were the alterations which, during the last twenty-two or twenty-three years, had been introduced into our jurisprudence and our general system of judicature, that it would be no exaggeration to assert, that if any of the great lawyers of former years were to revisit the scenes of their former labours, and to enter the Courts of Chancery or Westminster Hall, they would hardly believe that they had returned to the country which, at their decease, they had left. All these changes had been effected chiefly through the instrumentality of lawyers and of Judges. Having, then, laid before the House of Commons in February, 1828, an exposition of the state of the law, he had thought it his duty to follow up the statement by an effort to render the administration of justice in the courts of Common Law more easy, expeditious, and cheap to the suitor; and, with that view, he had brought before the House the first of those Bills, to which he was now about to call the attention of their Lordships—a Bill for the establishment of courts of local judicature upon an extensive scale. This Bill was introduced into the Commons in April 1830, and read a first and second time; and in December 1830, he introduced it into this House; but, in compliance with the request of the Common Law Commissioners, to whom it was, at the suggestion of his noble and learned Friend (Lord Lyndhurst) referred, many modifications were adopted. The Bill, as originally drawn, proposed to give the local court jurisdiction in all cases of debt up to 100l., and in cases of tort, where the damages claimed did not exceed 50l.; but, at the suggestion of the Common Law Commissioners, he had reduced the amount in cases of debt from 100l. to 201l., retaining, however, the sum of 50l. as the limit in actions for wrongs. The Bill was brought in that shape before their Lordships' House, and was rejected in the last stage by a very narrow majority, there being 81 for and 81 against it of Peers present, and the balance was cast of 10 or 11 by proxies. In the course of the same Session, and after the Local Courts Bill had been lost, an important provision was introduced into the Bill for amending the practice at common law, facilities being given for assessing damages by writs of inquiry before the sheriff. This effected something by way of substitute for the Local Courts Bill. In 1846, Lord Lyndhurst proposed a Bill, which was substantially the same as that afterwards passed into a law, and which wa3 now called the County Courts Act. One change, however, introduced into it, and a change in the measure of 1833 was, he thought, much to be lamented; and that was, the exclusion of actions of tort, to a great extent, from the jurisdiction of the local courts. Another change in the measure of 1833 he also lamented, the omission of the clauses giving the powers exercised by a Master in Chancery to the Judge of the local court. A small portion of these powers only was given. He lamented that a great deal more of those powers had not been given to him; and he believed his noble and learned Friend (Lord Langdale) joined with him in the regret which he felt on that subject. Then came Mr. Fitzroy 's Bill of last Session, which extended the jurisdiction of these courts in cases of debt from 20l. to 50l., making no alteration in cases of tort. That the greatest possible good had arisen from the Act of 1846 and the Act of last year, no man who understood anything of the subject could entertain a shadow of doubt. He needed only state to their Lordships, to prove this, the vast amount of causes which had been tried in these County Courts. There were sixty of them in all; so that in every man's neighbourhood there was a tribunal where his disputes with his neighbour could be speedily, safely, and cheaply adjudicated. The County Courts had undoubtedly had the effect of rendering the recovery of small debts speedy, safe, and cheap. The returns had only been made up to the month of December 1849, for a period of two years and nine months; and, during that period, no less than 1,200,000 causes had been disposed of by the sixty courts dispersed throughout the country, being at the rate of 423,000 per annum. So that, if the return for the remaining period was only of equal amount—that was to say, at the rate of 423,000 per annum—the calculation would give 1,680,000 causes for the four years during which the County Court system had been in operation. The amount of property that had been adjudicated upon, taking the cases at an average of between 4l. and 5l. each, which some persons considered too low a standard, amounted to nearly 2,000,000l. per annum; which, for the four years during which the Act had been in operation, would give somewhere about 7,500,000l., as the sum probably decided upon in these courts. When he came to inquire how far the courts had given satisfaction in the country, he must refer to the Act of last year; for, under the Act of 1846, there was no appeal from the County Courts. There had been only one ground of dissatisfaction, and that had reference to the limitation of the jurisdiction; but this cause of complaint was in part removed by the Act of last Session, which extended the jurisdiction from 20l. to 50l., and gave an appeal in all cases above 20l. Of the cases tried in which the right of appeal existed, there were no less than 4,000, and yet there were not more than some two or three appeals out of the whole of those 4,000 cases: as the Act so amended had only been in operation five months, the causes heard were at the rate of 10,000 a year. Nor were these causes merely taken from the cognisance of the superior courts; the greater number of them were such as never would have been tried but for the new courts, and thus an enormous denial of justice had been prevented. The benefit of these courts was not to be measured by the amount of the property adjudicated upon; for, besides the 420,000 cases a year disposed of, how many thousands more had been prevented from coming into court? When a man knew that his adversary could, without much delay, or going a considerable distance from home, or incurring heavy expense, compel the payment of the debt, unless his defence was a very good one, he would rather settle the matter than come into court. He believed that a very large number of cases were now settled in this way; and, therefore, instead of this enormous number of 420,000 cases per annum being increased, it would, in all probability, be hereafter diminished; but diminished by justice being effectually done without any expense or delay. Another reason why the value of these courts was not to be measured by the mere amount of property adjudicated upon, was, that it removed the grievances of men who, knowing that they had a just right to a sum of money, but that, in consequence of the trouble, cost, delay, and uncertainty which formerly used to attend legal proceedings, felt that it would be highly imprudent to go to law for the chance of recovering it. He should be asked, perhaps, whether he was disposed to recommend to their Lordships an extension of the jurisdiction of these courts, in accordance with the plan which he had originally proposed. For the present, however, he had no such intention. As far as regarded contentious jurisdiction, and as far as regarded proceedings in court, at the option of the plaintiff, in spite of, and to oust the jurisdiction of the superior courts, he was not now disposed to recommend any extension of jurisdiction to the local judicatures. But he wished to ascertain by a fair trial how far, by increasing voluntary jurisdiction, and by coupling with it the power of the superior courts to avail themselves of the assistance of the local courts, to try how far, without infringing any existing rights, and without running counter even to any prejudice, they might venture to push this beneficial system. The Bill he had already introduced this Session, and the one he now proposed to introduce, with the view of enacting the omitted provisions of the Bills of 1830 and 1833, related chiefly to four points—the bankrupt law, equitable jurisdiction, arbitration clauses, and courts of reconcilement. He did not propose to alter the bankrupt laws, but merely to absorb the one jurisdiction in the other, and gradually to bring cases of bankruptcy within the jurisdiction of the County Courts, but not in London. This was the provision of the Bill of 1833, which would thus be restored. The Bill would not in any degree affect the power of the London Commissioners. He considered the London Commissioners, with their machinery for administration and testing accounts, with their official assignees, with the invaluable power of calling the parties before them, and equally important power of calling the debtors of those parties before them, with their great experience for 20 years in the administration of the bankrupt laws—with all these advantages he considered those learned persons would form an important aid to the Court of Chancery. He believed that to these learned persons might be transferred a large portion of that intolerable load of business which now clogged the Court of Chancery, the transfer being subject, of course, to the order of the Court, and to appeal from the Commissioners back to the Court. A learned Friend, of the greatest ability, and the largest experience in those Courts, had calculated that 400 out of the 1,000 matters now before the Court of Chancery might be disposed of by some such arrangement. He left this entirely to be dealt with by his noble and learned Friend the Lord Chancellor, but he proposed by the present Bill, that all matters of which the Master in Chancery could now inquire, should be capable of being sent to the County Court, by the order of the Court of Chancery in each case, and subject to the whole proceedings being revised on the return to the order, that is, the report on the County Court. This would be a great advantage both to the suitor and to the Court. To the Court, because it would remove much of that business which now clogged up the channel in the Master's office, which the Winding-up Act, and the New Orders of his noble and learned Friend Lord Cottenham had greatly augmented. To the suitor, the advantage would be still greater, as, instead of bringing up his documents and his evidence from Cornwall or Northumberland to Chancerylane, to attend the superior courts there, he (Lord Brougham) proposed that he should only be compelled to go to the nearest town which was the seat of a County Court, and have the account taken, the documents seen, and the witnesses examined vivâ voce. The advantages on both points were so obvious that he might leave them, and would proceed at once to the next head, which was one of great importance. He proposed further that the Judges in the Superior Courts should have the power of sending cases for Arbitration to the Judges of the County Courts; but on the application of the parties themselves, go that there should be no peremptory, but only a voluntary, jurisdiction in this respect. He proposed that such references should be also made at the option of parties, without their cause even coming into court at all, that whatever the amount of the claim might be, whatever the nature of the defence, whatever the subject of dispute, whether in law or equity, the suitors should be able to submit it to the Judge of the County Court as arbitrator in the matter of dispute, subject of course, as at present in cases of arbitration, to points of law or points as to the admission or rejection of evidence being stated on the award, at the desire of either party, or of the Judge him- self, which points are to be decided by one of the superior courts of law or equity, as the case may be, to be agreed upon by the parties. His noble and learned Friend the Master of the Rolls was aware, and the Judges of experience in the Courts at Nisi Prius, his noble Friend on the Woolsack, and his noble Friend the Vice-Chancellor (Lord Cranworth), a most able and learned Common Law Judge, were much more aware, that causes frequently came into court, which, from their nature, could not be tried, and which must of necessity be referred. The course was this—an action was brought, all the preliminaries were gone through, and the necessary expenses incurred, attorneys were employed, counsel retained, witnesses summoned and brought to the assize town, the cause was set down for trial, it appeared on the Judge's paper, counsel came into court with their briefs, followed by the attorneys, and possibly by the unhappy persons themselves, whose pockets had suffered, and must soon suffer much more; and then it appeared (what was probably well known the night before at the consultation, and perhaps earlier) that it was not a cause which could be tried, that its trial was a matter quite out of the question, from the time it would take, and the impossibility of a jury trying an action of account; and the learned Judge, in mercy not only to the jury, but to the parties themselves, said that it must he referred, and it never ought to have been brought there as a cause. Then much of the expense must he repeated, before an arbitrator, who had to sit for days or weeks; and all, or nearly all, the expense already incurred had been thrown away for nothing. Attorneys were sometimes too zealous, sometimes not well informed, and sometimes without prudence—and this might account for such cases, which were quite common, and formed an established grievance in our courts; but the whole expenses, just as if it were tried, were incurred, and the reference, probably, would cost as much or more than the sum already wasted. He (Lord Brougham) proposed to remedy this by giving as he had intimated, the power of arbitration to the County Court Judges; and when it came to be known that there was a respectable arbitrator of high character, whose judicial conduct may have won him the esteem of all about him, he believed parties would be at once disposed to submit such cases to so unimpeachable a referee; and not go into court at all. There might be some spurred on by bad feelings, some instigated by evil and interested advice, who would not avail themselves of this provision; but the Bill would give a power to the Judge at once to recommend such cases to be sent to the County Court Judge—a far better tribunal than an arbitrator; and, besides, with the knowledge before them, that such a tribunal was open to them, litigious persons would pause before they involved themselves in expenses which must of necessity prove of no avail. He wished to speak with the greatest possible respect of the profession to which he belonged, and from which so many of the brighest ornaments of that House had sprung; but he believed the consideration, that the County Court Judge was not remunerated in proportion to the number of days the arbitration occupied, but that he was paid by a salary—paid by the year—and that whether he sat a long or a short time, whether two days or two weeks, that would not add to or take from his emolument—would give greater confidence to suitors, and render his arbitration more popular and satisfactory. He (Lord Brougham) was far from saying that such base considerations would induce barristers acting as arbitrators to unduly protract the period of arbitration; but it was not unimportant that they should be protected even from the suspicion of such an imputation. These arbitration clauses were in the Bill of 1830, but were left out in that of 1833. He came now to another part of the proposed measure, upon which he set still greater store, and which was in the Bill of 1833—one which would conduce greatly to the peace of the community, the comfort of suitors, and the disposal of an immense amount of business of other descriptions than those he had just referred to, which never ought to come into court; and it would, by affording the means of avoiding forced arbitrations, after causes came into court ready for that, also have a most salutary effect in completing the relief from that grievance so much complained of. It was proposed in the Bill that any person who was sued, or any person who sued another on any matter whatever, whether within the jurisdiction of the County Court or not, might cite his adversary before the Judge, sitting in private, where both the claim and the defence should be stated. He wished to speak of the attorneys as he had done of the other branch of the profession. In all large bodies there were men of various characters, a better and a worse class. Amongst the attorneys and solicitors of England, there were men of the highest honour, the most consummate skill, and the most undoubted prudence; but it was also true that there were others who did not possess those qualities; and while there could not be a greater blessing to a community than an attorney of the high character he had described, there was not a greater curse to any neighbourhood than one of the inferior character and worse description. His plan was, that neither the respectable attorney nor the respectable counsel, nor the attorney and counsel of a contrary character, should be admitted to these courts of reconcilement; that none of them at all should attend before the Judges, but that the parties should go themselves, without any legal advisers whatever, and state their claim or demand on the one hand, and the ground of its refusal on the other; and that then, or at another time, after consideration, the Judge should give his advice to the parties according to his opinion upon the merits of each party's case. Thus, when the parties came before the Judge, he would say to the one (if so he thought)—"You have no case at all; you will only, by going on, run a risk of great detriment to your own interest;" or he would say to the other, "You have no defence; you had better give in at once; you haven't a leg to stand upon." Either party, then, acting upon his advice, great expense would be saved, and the valuable time of the courts would be husbanded. This was no visionary scheme—it had already been tried in several of the Continental States, and he would state to their Lordships the result. It had been tried in two different ways. In France it had been tried only as a compulsory proceeding. No person there could proceed in a lawsuit without citing his adversary before the local courts, and obtaining a certificate of appearance. He was bound to confess that it had not, in his opinion, succeeded so well as might be wished in France, and that solely, he believed, because it was compulsory, and had, therefore, degenerated more or less into a preliminary form. He had a little of experience his own on the point, for he had been summoned as a party in a case, and there was not much in the proceeding beyond a preliminary form; but the Judges in these cases there ranked more with the class of inferior magistrates in this country, and had not the same weight as the Judge of a County Court here would naturally have. He had seen it stated in the works of some of the able and learned New York jurists that the plan in France had succeeded, and that it had had the effect of settling a great number of cases; but this, he thought, was in some degree a mistake, arising from their having taken the number of causes begun, and the number brought into court for trial, and attributing all the difference between the two, which was very considerable, to this process of reconcilement, whereas probably little was attributable to that proceeding. But with respect to other countries, its success had been most signal. The example of Switzerland was important, because in some of the cantons it was compulsory, and in others optional. Where it was compulsory it failed to diminish litigation, as in Prance, at least in parts of France; but in Geneva, where it was optional, no fewer than from a fourth to a third of the cases were settled by this course. In Denmark the law was introduced in the year 1795; and in the year 1797, when it was in full operation, the causes were reduced two-thirds. In Hamburgh they fell in that proportion at once on the first introduction of the law. From Denmark he had a return of the number of causes in the three years ending with 1823. There were 31,000 causes brought before the Judges of reconcilement, and no less than 21,000 of them wore settled at once by the parties adopting on the spot the advice and following the opinion of the Judges. Of the remaining 10,000, 600 were settled before further steps were taken; and of the remainder not more than 3,000 were tried at all. Of the cases not settled at once before the Judge without any expense, two-thirds were settled with a very small expense, and one-third only were tried; so that nine-tenths of the causes brought before the Judges of reconcilement were settled at once, on their advice, or the proceedings were ultimately dropped in consequence of that advice. He thought this plan would operate most beneficially in this country, and that very rarely indeed would designing attorneys induce suitors to proceed in the face of an unfavourable opinion of the Judges of the County Courts, and that proceedings would be stayed before any expense had been incurred, on advice given in this way by Judges, deliberately, dispassionately, and, above all, disinterestedly. It would also operate favourably in arbitration cases, and prevent that from happening to which he had already alluded as now occurring so often—namely, parties being forced to a reference by the Court in causes which ought never to have been brought there at all. This reconcilement process, coupled with the facility of arbitration, would, he ventured to say, extinguish that incident to our Courts which often greatly annoyed the Judges and the profession, and brought no little discredit upon the judicial system of the country. In Scotland, the benefits of local judicature had long been enjoyed by the people. All actions of nearly every description, be the amount great or small, or whatever the subject in dispute, were, generally speaking, commenced before the Sheriff Depute; and for the three years for which we had the other returns he had read to the House, ending in 1823, he understood there were 22,000 cases in the Sheriffs' Court. Of these, 10,000 were defended, the rest undefended; and, that their Lordships might not mistake these for trivial or unimportant cases, he could state, that 300,000l. worth of property was disposed of in one year in the Sheriffs' Court for the county of Lanark. What, then, was the amount of appeals from the decisions disposing of that sum? What was the measure of dissatisfaction with the judgments of that Court? It was just one 53rd of the whole number of causes; for the local adjudications upon property suffered to stand, included no less than 294,000l. of the gross sum, leaving no more than 6,000l. for the amount of the appeals. The expense of their process in Scotland was very small. He regretted to be obliged to say, that by the County Courts Act of 1846, they had saddled the English suitors in those courts with a very considerable, a very needless, and, he must say, a very unjustifiable amount of expenses, not so much by imposing upon them the ordinary fees of the court, but by exacting the expense even of building the courts—an expense which no suitor ever ought to have borne by so much as one fraction of a farthing. In his opinion, and that of all who maturely considered the subject, no more intolerable grievance existed, than making the suitor in any court liable for the expenses connected with establishing and maintaining a court of justice, which it was every subject's right to have as due to him from the public. It was most unnecessary to dwell upon such a topic as that, after it had been exhausted in one of the ablest works produced by Mr. Bentham, his Protest against Law Taxes—an argument amounting more nearly to mathematical demonstration than any thing of which he was aware out of the exact sciences. But he could not conclude without further observing that the Legislature had exercised a very little and a very unwise economy, when they cut down the salary intended for the County Court Judges by the sum of 200l. A more wretched policy than this mean saving on so important a service could hardly be imagined. He had detained the House at some length; but he could hardly bring himself to apologise for it. The improvement of our judicial system, so as to make our courts easily accessible to all, was the very highest of the lawgiver's duties. He would once more declare the maxim on which, whether in office or in a private station, he had ever acted—the maxim for both Government and Parliament to follow—Execute the laws firmly, to make them respected; amend them wisely, to make them be loved.


My Lords, in the few observations which I desire to address to you, I intend to avoid the consideration of the details of the measures proposed by my noble and learned Friend. It is with the greatest satisfaction that I have heard of the benefit which has been derived from the establishment of the local courts; and, persuaded as I am that their jurisdiction may be greatly and advantageously extended, I am anxious to express, shortly, my opinion on the subject.

In the first place, I am of opinion that so much of the jurisdiction in Bankruptcy and Insolvency as is in part judicial and in part administrative may be most usefully exercised in the local courts; and I hope that my noble and learned Friend's Bill in relation to that subject will be fully and favourably considered.

In the next place, I beg leave to say that it has for very many years appeared to me that the jurisdiction, partly judicial and partly administrative, of the Court of Chancery, might also, with great advantage, be exercised by the local courts, under the direction and control of the Court of Chancery. I cannot expect that my noble and learned Friend should bear in mind the suggestions which were made to him more than twenty years ago on this subject. The Bill of 1832, I believe, contained the first distinct proposition for the establishment of what might, perhaps, without impropriety, be called local masters.

The Court of Chancery, in the exercise of its large jurisdiction, has occasion for the performance of two nearly distinct classes of duties, both of which might be most usefully performed by the local courts. One class is almost (though not entirely) of a ministerial nature, and is usually performed by means of commissions in one shape or other. The other class consists of duties which are much more of a judicial nature, and is applicable to matters of administration and account. Jurisdiction in matters of this kind might be, and in my opinion ought to be, at first directed, and on all subsequent occasions superintended, and if necessary controlled and corrected, by the court itself. The relief to the suitors would be very great indeed—accounts might be taken in the country—witnesses, books, vouchers, papers, and documents, in most cases, need not be brought to town—time would be saved to a large extent—and the parties themselves might attend to their own business. I confess, my Lords, that having often considered the means of relieving the suitors of the Court of Chancery from expenses and delays in the Master's office, the plan of attributing a considerable portion of the business to the Judges of the local courts has appeared to me more likely to be effectual than any other which has occurred to me.

My Lords, I believe that this great and important improvement might have been effected by the addition of scarcely more than three or four words to the Local Court Act of 1846; but the words "Masters in Ordinary" were omitted from the 22nd Clause in the Bill, and the remainder of the clause, though containing powers calculated to be very useful, has unfortunately been disregarded or lost sight of. I wish to give every support in my power to this part of my noble and learned Friend's measure.

With respect to arbitration, I will only observe, that there may be many cases in which the parties reasonably desire to constitute a Judge of their own, in one sense arbitrary, and with absolutely final authority; and that in cases in which it is thought desirable by both parties to establish such a Judge, some great advantage may probably be obtained by having the arbitrator a known Judge, appointed by authority, free from all bias, all interest in fees, and all interest in delay. I shall be glad to consider the provisions of the Bill which my noble and learned Friend has laid on the table. I own that the subject I have most doubt upon is that which relates to the proposed courts of reconcilement. It may be, that my noble and learned Friend has correctly accounted for the apparent want of success which has attended such measures. He seems to have lately received some important information; but, undoubtedly, a notion has prevailed, that courts of reconcilement have succeeded in other countries only to a very small extent. The subject is, of course, to be further considered.

But, my Lords, I am, on this occasion, principally desirous to address to your Lordships a few observations, which, although they may not be of any practical importance at the present moment, will become of great importance if the jurisdiction of the local courts should be considerably extended. I consider that the local courts, if sufficient in number, well conducted and properly assisted, will prove to be most powerful instruments for the improved administration of the law; but that they cannot work well unless certain provisions, so important that they may, perhaps, be properly called conditions, be made.

Amongst the things which appear to me to be necessary for the due administration of justice by a system of local judicature, are, 1. Ample judicial power; 2. the greatest practicable reduction of the expense of justice; and, 3. the greatest practicable simplification of the law.

Unless there be ample judicial power in the local courts for the transaction of the increased business which will be thrown upon them, arrears will accumulate; or, what is still worse than arrears, there will be hasty and unsatisfactory decisions—erroneous orders—orders right, perhaps, in themselves, but appearing to be erroneous, because so hastily pronounced. You must have no scanty provision of Judges.

Next, as to the reduction of expense. My noble and learned Friend has bestowed a well-merited panegyric on the admirable little work of Mr. Bentham on law taxes. I should be glad to believe that the time was come for the practical application of the maxims of that learned and ingenious man. It seems admitted that all practicable means ought to be taken to prevent justice from being unnecessarily expensive in these as well as in all other courts; and it is very necessary to observe, that there are two classes of expenses which are to be carefully distinguished when we speak of the expense of justice. One class of expense arises from the maintenance of judicial establishments and courts of justice—from the salaries of the Judges and officers—and the providing of buildings necessary for the accommodation of the courts, and connected with the business thereof. My Lords, I hope to have, at some future time, an opportunity of showing that no part of such expenses as these ought to be charged upon any suitors, and that justice (so far as relates to this class of expense) ought to be provided by the public absolutely without charge to the suitor, just as much as any other part of the Executive Government, and just as much as the Army or Navy, or the police. The whole of this part of the expense of justice ought, as I conceive, to be defrayed by the State; and the suitor, whether in the local courts, or any other court, ought to be wholly relieved from it. The other class of expense arises from the obtaining advice and employing agents; and this is the subject of different considerations. From this expense a man can be wholly relieved only in cases where he has the time, the knowledge, and the ability to transact his own law business. There must always be many cases where this cannot be; and if a man must employ another to act for him, he ought to be able to find an upright, industrious, and skilful man. If such a man cannot be found, and that easily, you have but small chance of securing the due administration of justice; and in order that there may be such men, they must be educated in habits of respectability, and well instructed, and be able to obtain adequate remuneration by the practice of their profession. I am the rather induced to make this observation, as I think I have noticed a tendency to reduce those expenses of advice and agency which cannot easily be reduced beyond certain limits, rather than those expenses of court fees or law taxes, which ought, as I think, to be wholly abolished. Court fees are, in fact, by the Local Court Acts now in force, levied to a considerable amount, whilst by the sixth clause of the last of those Acts, professional fees are fixed at so low a scale that I do not think a sufficient remuneration can be obtained. I think that this system is very likely to be injurious to the honest and poor suitors who may not themselves be able to pay for good advice. If their attorney by exertion, skill, and industry succeeds for his clients, the adverse party who is in default, and who fails after causing the whole litigation, is not liable to pay more than the small sum provided by the Act—perhaps not more than thirty shillings—though he may have wantonly occasioned far greater costs and expenses: and the difference has to be deducted from, and perhaps exhausts, the sum awarded as justly due to the poor plaintiff.

As to the simplification of the law, I request your Lordships to observe, that the more the jurisdiction of the local courts is extended, the greater is the obligation upon the Legislature to use all practicable means to simplify the law. There are too many cases in which you cannot, by any means, prevent very complicated states of fact, and very nice, difficult, and doubtful questions of law. No rational person, I suppose, imagines that the law is in as clear and simple a state as it might be made by skill and industry. What I wish to suggest is, that all which can be done ought to be done for the simplification of the law, and the promotion of its expression in writing—in other words, to encourage and facilitate codification. It is, perhaps, not too much to say that the success of any greatly increased extension of the local courts will mainly depend upon the progress which may be made in the simplification of the law, and its clear and unambiguous expression in writing. When all has been done that can be done, a vast amount of complication and difficulty will remain to exercise the learning and talent of the ablest professional men.

I wish to make one other remark only, and will trouble your Lordships no further on this occasion. I take the liberty of stating that, in my humble judgment; all that is desirable to be done with reference to the improvement, not only of the local courts, but of all the other courts, and of the law itself, cannot be done without the appointment, under some appropriate name, of a Minister of Justice, whose duty, whilst in office, would be to attend principally, if not exclusively, to this most important of all subjects.


thought, as the noble and learned Lord had proposed to extend the County Courts, he ought to have done away with the clause limiting the suits tried in these courts to 50l. He argued for that extension of the amount not merely on the ground that the Judge capable of disposing of a cause of 50l. must be as capable as to one of 100l., but also on the ground that the limitation had the effect of compelling the creditor to reduce his claim of 60l. perhaps, or 65l. to 50l., so as to bring it within the County Courts Act, and thereby of putting money into the pocket of the debtor, who was thus bribed to delay. He had great rea- son to fear that it was too often the case now, from what they had in evidence before the last year's Committee, namely, that a vast number of claims were reduced from 40l. to 20l. previous to the jurisdiction being extended to 50l. He regretted the noble and learned Lord had not thought it worth his while to have a return of the number of suits last year taken into the superior courts between 20l. and 50l., for that would have shown the effect of the alteration introduced against his (Lord Beaumont's) will last year into the Bill, by which parties were allowed costs in the superior courts, although the action was one which ought to have been brought in the County Court. If that number were small, then his (Lord Beaumont's) argument failed; but if it were very large, then he attributed it to the clause in the Bill giving the parties the option to sue in the superior courts at Westminster, and recovers costs without the Judge's certificate. As to the reduction of fees, and the remarks of the noble and learned Lord (Lord Lang-dale) on that subject, he too thought that justice was a thing which ought to be made very cheap; but then there were very litigious people, and these, if they found they could carry their cause into court, and come out again scot-free, might acquire a troublesome habit of returning frequently. Besides, if the fees were to be reduced to the extent to which the noble Lord had hinted at, what, he wished to know, would then become of their courts of reconcilement, for they would have no peculiar inducement to draw suitors from the regular courts?


said, that as they were not yet perfectly acquainted with the details of the proposals of his noble and learned Friend, he would not trouble their Lordships with many observations upon the subject. His noble Friend who had last addressed the House, was mistaken if he supposed that a party resisting a fair demand might not be taxed, even though all fees of court were removed, because he could still be made to pay the costs which he had improperly compelled his adversary to incur. But that which his noble and learned Friend (Lord Langdale) complained of was, that in addition to the costs of suits, there were positive taxes levied on every person who sought to obtain justice in any of the courts of the country; although that practice did not certainly prevail at present to the same extent as before the publication of Mr. Bentham's work upon the subject. A few minutes before he (Lord Cranworth) had entered the House, he had seen a document, from which it appeared that there were more than 150,000l. a year raised from the suitors in the Court of Chancery in the shape of court fees; and it appeared, from papers lately presented to the other House, that there were about 15,000 accounts in that court, so that apportioning the fees on the several accounts (not perhaps a very correct mode of estimating the burden) the average charge will have been 10l. on each account. He believed that his noble and learned Friend must be prepared for an extension of the number of County Court Judges, as a part of his scheme, and a considerable additional expense would be incurred for carrying out that object; but he hoped that that expense would not be provided for out of the pockets of the suitors. There was one part of his noble and learned Friend's measure on which he should make a passing observation, and that was the establishment of courts of reconcilement. Now, he was very far from saying that that was a subject on which he had made up his mind; but he should confess that he very much doubted whether such a plan would be found to answer in this country. The fact was, that the practice was not new to us; it was a part of "the wisdom of our ancestors." No one knew better than his noble and learned Friend that in the olden times there had been at almost every stage in legal proceedings what was called an imparlance—that was to say, the parties were brought together for the purpose of ascertaining whether they might not amicably arrange their differences; but experience showed that that arrangement was only calculated to lead to vexatious and unnecessary delay, and the practice had therefore been completely discontinued. It was true, however, that that system was not quite the same as the establishment of a court of reconcilement as proposed by his noble and learned Friend; for his noble and learned Friend would not make a resort to the court of reconcilement imperative on the parties. He very much feared, however, that under the arrangement proposed by his noble and learned Friend the Judges of the County Court would be a sort of consulting barristers, and their time would be perpetually occupied in hearing the statements of parties appealing to them for advice. But he was far from saying that it would not be expedient to introduce such a provision, although he did not feel the same confidence in the utility of that part of the Bill as in the utility which must probably result from other parts of the measure.


said, that the practice of imparlance to which his noble and learned Friend had referred, was of a different character from the system which he sought to establish; for that practice had been confined to the parties to the suit, and had certainly been found completely useless. But by his proposal the parties would be heard by a Judge, in the first instance, who would endeavour to advise them.


expressed his concurrence in the opinion that their Lordships' time would not be usefully employed in discussing this subject at present, when they were not in possession of the Bill proposed by the noble Lord, so much must depend on the practicability of the provisions, and so much on their being adapted to carrying the principle of the measure into effect. The tax of about 150,000l. which was stated to be now levied on suitors in Chancery was not connected with the present administration of justice in that court. There was a very large sum to be paid over to the Consolidated Fund by way of compensation; and it had always struck him as a singular thing that a suitor of the present time should pay a tax to compensate those whose services in former times had been acknowledged by payment from the suitors of those days. In cases which were submitted to arbitration, all the expenses of preparing for trial were frequently incurred. One class of these cases was familiar—namely, cases in which builders, architects, or surveyors were engaged. From want of attention during the progress of the work, a difficulty was experienced in procuring distinct evidence. The evidence, indeed, would be so uncertain and contradictory that its character would be seen from the opening; Judge, and jury, and counsel would see how hopeless it was to arrive at a just conclusion without further inquiry. The jury would look up in despair and say, "How can we decide? Had not some surveyor better look to it?" If parties wised to refer the questions in dispute between them to the Judges of the County Courts, he did not see how they might not do so now. There were persons in London who had considerable practice in arbitration on questions of charter-party, contract, and the like questions arising out of shipping concerns. But it not unfrequently happened that the judgments of these persons gave dissatisfaction, and became the subject of discussion in courts of law. Then there were gentlemen at the bar who were in the practice of taking arbitrations. He should like to know what had been the experience of the Judges of the County Courts—to what extent they had been employed in giving opinions on the multiplicity of questions which would come before them from persons applying without professional aid, and incompetent to state their own cases. However incredible it might seem when he said so, yet it was the fact, that very few persons were able to state their own cases. So disjointed was their manner, so little aware were they of the weak points of their case, that when they came to state it for themselves, great injustice might be done. There might be arbitrations now without coming into court.

Bill read 1a.

House adjourned to Monday next.

Back to