Lords Sitting of 5 February 1852

MINUTES.
PUBLIC BILLS.—1a Municipal Corporation Acts Amendment; Common Law Procedure Amendment; Secretary of Bankrupts Office Abolition.

IRISH SPECIAL COMMISSION.
The MARQUESS of WESTMEATH, seeing a Member of Her Majesty's Government opposite, wished to call the noble Lord's attention to the very fearful state of affairs now existing in the north of Ireland. Her Majesty's Government were by that time aware of the termination of the trials which had taken place in pursuance of a Special Commission, and he thought they were rather in a dilemma with regard to the result. Because either the issuing of the Special Commission, and the steps taken to put those individuals on their trial—and who were not found guilty—was a mistake altogether, or the representation made that the powers of the existing law would be sufficient for the suppression of crime and outrage, were not warranted by the state of the facts. He wished to know whether her Majesty's Government meant to take any new view of the subject; because either these individuals had been improperly brought to trial, or a strengthening of the existing powers was absolutely necessary.
EARL GREYsaid, that he understood the noble Lord's question, whether, in consequence of the failure of convictions before the Special Commission, the Government proposed to introduce any measure for the alteration of the law. He could only say that the proceedings of that Special Commission had but just been furnished to him, and since then he had had no opportunity of communicating with the Secretary of State for the Home Department, and it was not possible therefore that any decision could be come to as yet.

REFORM OF THE COURT OF CHANCERY.
LORD LYNDHURSTsaid, he had a question to put to the noble and learned

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Lord on the woolsack, relative to the notice which had been given by the Government in the other House that a Bill for the reform of the Court of Chancery would be introduced into that House on Monday week. He wished to know if that Bill would be founded on the Report of the Commission, and, if so, whether it was intended that the Bill should carry into full and complete effect the recommendations of the Commissioners?
The LORD CHANCELLORsaid, that the notice in question, he apprehended, applied to a Bill which would be framed undoubtedly on the Report of the Commissioners to which his noble and learned Friend alluded. Until he had seen the Bill drawn out in full, he could not venture to say whether he should feel authorised to recommend its adoption in its entirety. Having considered the Report as far as a limited opportunity would allow (for the document had only been signed a few days ago, and its contents were very voluminous), he had no doubt that the Bill to be introduced into the other House would carry out in detail the whole or so much of the reforms as were recommended in the first Report. But the first Report did not extend to the whole matter; it embraced the proceedings of the Court of Chancery, but not the jurisdiction, the Commissioners having reserved to themselves to make a further report as to the jurisdiction. He had found the labours of the Commissioners so wide, that if he were to wait for their Report before any measure was prepared, he might cause some disappointment as to the period of the Session when it would be introduced; and therefore he had caused a Bill to be prepared which appeared to him of very great importance, and which he was quite sure would not interfere with anything which the Commissioners might recommend. His Bill would be brought in on Friday; and the Bill referred to in the noble and learned Lord's question would be introduced in the other House on Monday week, and he could state would be based on the Report of the Commission.
LORD BROUGHAMrejoiced at the intended introduction of the two measures mentioned by the noble and learned Lord on the woolsack for carrying into effect a great portion of the recommendations of the Commissioners. Nothing more important could be laid before Parliament than a measure or measures of that kind; and in the recommendation of the Report he most entirely concurred, with one exception
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on a point on which it ought to have been more distinct. He could not see how the Bill supplied means of keeping down the arrears in the Court of Chancery. He certainly could have wished that the Report had gone somewhat further; but as to the direction in which it proceeded, and the particular recommendations as far as they went, they had his complete, unhesitating, and cordial concurrence.

HER MAJESTY'S ANSWER TO THE ADDRESS.
The LORD STEWARD OF THE HOUSEHOLD (the MARQUESS of WESTMINSTER)informed their Lordships that he had waited on Her Majesty on behalf of their Lordships' House to present the Address which their Lordships had adopted in answer to the Speech from the Throne on Tuesday. The Address was I most graciously received by Her Majesty, who returned the following answer to their Lordships:—
"I thank you for your loyal and dutiful Address.
"It will at all Times be My earnest Desire to cooperate with you in Measures calculated to promote the Prosperity and Happiness of My People."

THE KAFIR WAR.
The DUKE of WELLINGTON: My Lords, I was unable to address your Lordships two nights ago, when you voted the Address to Her Majesty, to which She has returned the gracious answer which we have just heard read. The Motion now before you is, that the Address be entered on the Journals of the House; and I wish to avail myself of this opportunity of expressing my sense of the services of General Sir Harry Smith, now in command of Her Majesty's troops at the Cape of Good Hope. Sir Harry Smith is an officer who, from his high reputation in the service, ought not to require any commendation from me; but having filled a high command in several important military operations long before, carried on under his direction, and having now been recalled by Her Majesty's Government, it is but justice to him to say that I, who am his commanding officer, though at a great distance, entirely approve of all his operations, of all the orders which he has given to his troops, and of the arrangements which he has made for their success. I highly approve of the conduct of the troops in all their operations; I am fully sensible of

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the difficulties under which they have had to labour, and of the gallantry with which they have overcome all those difficulties, and of the great success which has attended their exertions. My firm belief is, that everything has been done by the commanding general of the forces, and the other officers, in order to carry into execution the instructions of Her Majesty's Government. I have myself had the honour of holding the command of British troops, and superintending different miliary operations in a similar country, under three Governors General of India; and I am proud to say that I have not observed any serious error in the conduct of the whole of these operations of my gallant Friend Sir Harry Smith. He has no doubt committed errors as others have done before him. The operations of the Kafirs have been carried on by the occupation of extensive regions which in some places are called jungle, in others bush, but in reality it is thick-set, the thickest wood that could be found anywhere. The Kafirs having established themselves in these fastnesses, with their plunder, on which they exist, their assailants suffer great losses. They move away with more or less celerity and activity, sometimes losing and sometimes saving their plunder, but they always evacuate these fastnesses. Our troops do not, cannot, occupy these places. They would be useless to them, and, in point of fact, they could not live in them. The enemy moves off and is attacked again; and the consequence is, to my certain knowledge, under the last three Governments, that some of these fastnesses have been attacked not less than three or four times over, and on every occasion with great loss to the assailants. There is a remedy for these evils: when these fastnesses are stormed and captured, they should be totally destroyed. I have had a good deal to do with such guerilla warfare, and the only mode of subduing a country like that, is to open roads into it so as to admit of the transport of troops with the Utmost facility. I have recommended that course to the noble Earl (Earl Grey) opposite, who, I believe, has ordered it to be adopted at the Cape. It is absolutely necessary roads should be opened immediately into these fastnesses. The only fault I can find with Sir Harry Smith's operations is, that he has not adopted the plan of opening such roads, after he had attacked and taken possession of those fastnesses. I have, however, instructed
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him to do so in future; but it is a work of great labour—it will occupy a considerable time, and can only be executed at great expense. The noble Secretary of State has ordered that region to be laid open; and the truth is that the war at the Cape has come to that point that unless such a measure is adopted, there can be no peace in that part of the world—there can be no enjoyment of the social comforts of civilised life. The Kafir chieftains at the head of 10,000 or 20,000 men establish themselves in these fastnesses within the boundary of Her Majesty's territory, and they are not accessible to any portion of Her Majesty's troops. I say then, that such a measure must be adopted; it will take time, and can only be effected at great expense; but the effect would be to give peace, and to enable the people to enjoy the blessings of social and civilised life—and the expense would not be a tenth part of the expense of one campaign. If this was not done effectually, there would be no peace and no cessation of armed bodies making inroads upon the people in that part of the world. He thought it but fair to say what he had said of his gallant Friend Sir Harry Smith; and that it was also right to say that all which ought to be done had not yet been done to lay the foundation for that which was the object of all war, namely, peace.
LORD LYNDHURSTwished to know whether the papers laid on the table on Tuesday night contained any account of the proceedings of the Legislative Council, the legality of which was discussed at such length during the last Session of Parliament?
EARL GREYsaid, the papers laid on the table contained a full account of the proceedings. There were two sets of papers laid on the table, one set confined to the circumstances of the war, and the other to measures of legislation. The latter contained all the proceedings of the existing Legislative Council with regard to the body, the legality of which was so much contested by the noble and learned Lord last year. If he referred to those despatches, he would find that the Governor did not call together the Legislative Council until he had completed it to the number of which it previously consisted, and it would continue until the new Parliament came into operation.
LORD LYNDHURST: That body then never was summoned in its reduced state.
EARL GREY: It was never summoned

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in its reduced state, and Sir Harry Smith was always desirous of having it, if he could, in its full number. The instructions to him required him, in case of his inability to complete the Legislative Council to its original number, to proceed with the reduced number; but if he could produce satisfactory nominations, he was desired to complete it to the increased number.

PRESIDENCY OF THE BOARD OF CONTROL.
The EARL of ELLENBOROUGHsaid, that as the noble Lord the late President of the Board of Control (Lord Broughton) had retired from office just at the moment when his extensive experience would be of most use to the country, he wished to know what Member of the Government was to undertake the duties of the post thus vacated, as he desired to put some; questions to the Government relative to the affairs of India?
EARL GREYsaid, the noble Earl ought to give notice of his questions, and then some Member of the Government would be prepared to answer them. The noble Earl, however, must be aware that it was very common for the President of the Board of Control to be a Member of the Other House.
The EARL of ELLENBOROUGHwas aware of that fact, but it was certainly extraordinary that the moment selected for the late President of the Board of Control's retirement, should be just when his long official experience would be of most service to the Government in revising the powers of the Court of Directors, which would expire in two years; and it was more extraordinary still that the noble Lord should be succeeded by a gentleman from the office of Secretary at War; in which situation also great knowledge and experience were necessary, especially when measures were about to be prepared for strengthening the national defences; and that Secretary at War, again, was succeeded by a civilian, who knew nothing at all about the particular department which he was appointed to conduct. He would now, however, give notice that on Tuesday next he should first ask two questions: what measures it was the intention of the Government to take during the Session—if they were to take any measures—for the purpose of putting Parliament in possession of such information as might enable it to legislate with respect to the termi-
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nation of the present interest of the Court of Directors in the revenues and territories of India, and which interest ceases in about two years; and, further, he wished for any information which the Government might be enabled to afford respecting the present state of our relations with the Court of Ava, with especial reference to the expedition and hostile operations which were commencing against the port of Ragoon.

COUNTY COURTS.
LORD BROUGHAMsaid, he had to move their Lordships for certain returns respecting the Court of Chancery, and in doing so he would take that opportunity of giving notice that on Tuesday next he would state the course he intended to pursue relative to an important Bill which last year received the sanction of their Lordships, and also the sanction of the other House, with some alteration, but which Bill was only prevented from passing owing to the late period of the Session when the Commons' Amendments came on for consideration, He alluded to the County Courts Further Extension Bill, which, by the courtesy of their Lordships, had received a first reading last Tuesday. The measure was, in fact, the same measure which their Lordships agreed to last year, the alterations made upon it in the other House not affecting the principle, but only the modus operandi. He would read to their Lordships a communication from one of the Judges who presided over the County Courts, in which that gentleman, a most learned and able person, expressed his thankfulness and satisfaction at the benefits derived from the justice administered in those courts. The learned Judge stated that, strongly as he had always been led to think in favour of the County Courts in consequence of the reports which he had heard respecting them, now that he had seen more nearly the working of the system by experience, he was astonished at the protection and comfort which they afforded to the people. He added, that out of the numerous cases which had come before him, he had met with only one bad case of perjury. That was a highly satisfactory testimony to the good effects and the efficient working of those courts; and he reckoned his learned Friend singularly fortunate in having met with but one case of perjury in the course of his experience. In all probability his statement

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was confined to the cases of the parties examined. He had now to move for returns showing the state of business in the country Courts of Bankruptcy, and in doing so he must remind their Lordships of the measure he had introduced in the last Session, having for its object the consolidation of the bankruptcy jurisdiction with the County Courts jurisdiction. The only chance of effecting that consolidation was by not filling up the vacancies in the offices of the Courts of Bankruptcy as they occurred, or, if they were filled up, that the persons who were appointed to them should receive their appointment to such offices upon terms similar to those on which other office-bearers, including the Welsh Judges, had sometimes been appointed, namely, that in case of their accepting the office, they were to have no claim to compensation if it should please Parliament in its wisdom to abolish those offices. He considered that either the vacancies should not be filled up, or, if filled up, it should be in that manner and on those terms. When the returns which he now moved for should be laid upon the table, their Lordships would see that in some of the country Courts of Bankruptcy there really was very little, indeed, of business transacted. It was stated that in some of those Courts a period of two months sometimes elapsed without any meetings being held for despatching business. Whether that representation was well founded or not, he would not undertake to say: they would be able to judge when the returns were made; but at the same time they could not always rely on the returns of the number of meetings as affording an indication of the real amount of business transacted, for he knew by what had formerly occurred that it was customary to set down notices of meetings in these Courts when there was little or no business to be brought forward, and the meeting was merely nominal. At all events, the returns for which he moved would furnish much important, and indeed absolutely necessary, information with regard to the country Courts of Bankruptcy.
The Returns moved for by the noble Lord were ordered to be laid before the House.

COMMON LAW PROCEDURE AMENDMENT BILL.
The LORD CHANCELLORbegged to lay on their Lordships' table a Bill
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founded on the Report of the Commissioners appointed to inquire into the Courts of Law and Equity, for regulating the ordinary proceedings in the Courts of Common Law. He might observe that the Bill dispensed with a great number of forms heretofore necessary, that it simplified every proceeding, and that it removed altogether the consequences of merely technical objections. It also tended to expedite the course of actions at law, and would entirely prevent those delays which occasionally occurred, owing to the technical nature of the proceedings. He might also mention that this Bill was but the first of several others of a similar character that would be laid before their Lordships during the present Session.
LORD CAMPBELLexpressed his satisfaction at a measure of so important a nature, and from which so much benefit might be anticipated, being laid before their Lordships at that early period. The Commissioners, on whose Report the Bill was said to be framed, were wise men, and rejected the notion that legal proceedings could be entirely divested of their technical character. Formerly there prevailed a system of optimism with regard to the common law; now there prevailed a system of pessimism. A notion was abroad that a Judge, like a Turkish Cadi, had nothing to do but to call witnesses before him, examine them, and give his opinion. But doubtless a great number of abuses had crept into the administration of the law, which ought to be and which would be removed, and proceedings would become much more expeditious, much more simple, and much more economical than they had been heretofore. There was one matter in which he took a peculiar interest, and he should be glad to hear from his noble Friend whether any steps were intended to be taken in regard to it. He alluded to the question of fees, the abuses of which had been most enormous, and though the evil was not so great in amount as it formerly was, yet it still existed to a certain degree, and was very unequal in its distribution. What he (Lord Campbell) desired was, that there should be one fee imposed early in the cause, which would be abundantly sufficient to defray all expenses, and that all the officers connected with the courts of law should be paid by salaries, and not by fees. It was partly a recommendation of the Commissioners that the officers of the courts should be paid by salaries, and not by fees, and it would give

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him great satisfaction to hear that a Bill for effecting that recommendation would be brought before Parliament.
The LORD CHANCELLORsaid, his noble and learned Friend would find that the necessary effect of the Bill which he had had the honour to lay upon the table would be to diminish fees to a very great extent, for by it the great length and delay of proceedings would be put an end to, and by that means the fees would be decreased in number. It was also in contemplation still further to diminish the amount of fees by increasing the use of stamps in proceedings; but whether it would be wise to do away with fees altogether, he would not undertake to say. The Bill which he had already alluded to relating to the Court of Chancery annihilated all fees, and put the whole of the officers of the court on salaries. He quite agreed with his noble and learned Friend that fees should not exceed what was necessary for the support of judicial establishments, and as much as possible had been done with the view of reducing fees to that point. He might mention that one of the objects of the Bills to which he had alluded was to transfer all Judges' salaries to the Consolidated Fund. He now begged leave to lay upon the table another Bill for the purpose of doing away with the office of Secretary of Bankruptcy, and also to put an end to the office of secretary formerly attached to the Registrar of the Court of Bankruptcy.
EARL FITZWILLIAMsaid, that the consequence of the alteration in the payment of the Judges' salaries, mentioned by the Lord Chancellor, would be to add 28,000 l. a year to the Consolidated Fund.
LORD BROUGHAMwas quite certain that even a larger sum than that would never be grudged, either by the people of this country, or by those who represented the people in Parliament. He felt sure that any measure for relieving the suitor, now aggrieved by the complication and delays of proceedings in the Court of Chancery, would meet with general approbation, and that the nation would not be led away by any false notion of economy—that worst possible system of saving where you ought to be liberal, which was usually accompanied by lavish expenses where you ought to be saving. All the old arguments in favour of expensive law had been utterly exploded since the time of Bentham. One of them was, that law ought to be taxed like any other luxury, and that
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the expenses and delays of the law had a salutary tendency to prevent people from having recourse to it too hastily. But that was a doctrine which he was quite sure his noble Friend (Earl Fitzwilliam) would never sanction by his authority. He begged to ask his noble and learned Friend the Lord Chancellor whether the Bill which had been introduced by him relating to proceedings in the Courts of Common Law had been submitted to and approved by Lord Denman?
The LORD CHANCELLORsaid, that he felt anxious to lay the Bill on the table at the earliest period of the Session, and as his noble and learned Friend (Lord Denman) had informed him that he proposed shortly to express his opinions on the subject in a pamphlet, he (the Lord Chancellor) did not think it desirable to wait until that pamphlet had appeared before he had brought forward the Bill. He had gone through the whole of the Bill with the assistance of Mr. Willes, to whom the public was already so much indebted. He (the Lord Chancellor) claimed no credit for it, for it was founded entirely on the Report of the Commissioners. No one could be more anxious than he was to have the assistance of the great learning and experience of his noble and learned Friend, but he did not think it expedient to postpone the Bill.
LORD CAMPBELLexpressed his satisfaction that no delay had taken place in bringing forward the measure.
Bill read 1a.

REGISTRATION OF DEEDS.
LORD CAMPBELLsaid, that it was with great satisfaction that he was authorised to state that a measure relating to the Registration of Deeds would be introduced by his right hon. and learned Friend the Master of the Rolls into the House of Commons on the earliest day that could be found for that purpose. The question had been lately propounded, "Will you register your deeds?" and to that question a right hon. Friend of his, Sir Edward Sugden, who was justly considered as one of the brightest ornaments of his profession, had replied, "No." Now, he (Lord Campbell) said, "Yes." Register your Deeds, he would say, and by so doing you would more readily prove the validity of your title, and diminish the expenses of a transfer of property. He trusted that the Government Bill on this subject, about to be introduced, would carry along with it

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some degree of reputation for last Session, and that in the present Session it would become the law of the land. He was convinced that some measure of this nature must form the foundation of all improvement in the law of real property.
EARL FITZWILLIAMthought that this was a question upon which the greatest deliberation and care ought to be taken before anything could be done. An Act which involved the necessity of registering in a public office every deed relating to property, would be productive of very great inconvenience to those who had dealings in small quantities of land. He did not object to all registration. Far from it. He thought there were great advantages connected with it; but a measure such as was brought forward last year was calculated to impose great expense and inconvenience in the transfer of small properties. He hoped that the Bill would be relieved of that obnoxious provision which exposed to every curious eye the deeds executed by private persons.
LORD BEAUMONTsaid, that the Bill of last year had since undergone much discussion out of doors, especially in the Ridings of Yorkshire, and he was happy to say that, generally, there was an inclination in favour of registration, and almost all the provisions of the Bill were approved of. One, however, was invariably objected to, an important clause, but one to which there seemed insuperable difficulties—that was the principle of centralisation. Many great authorities were of opinion that the registry of deeds should not be confined to a single office, but that it should be extended throughout the country.
LORD BROUGHAM: It is six of one and a half-a-dozen of the other which plan you adopt.
The LORD CHANCELLORstated, that the Bill had undergone no change since last year, except the simplification of some of its terms.
EARL FITZWILLIAMrepeated his conviction that the measure would be productive of great inconvenience to private persons, by the exposure which it would entail of the deeds and agreements relating to their properties.
The LORD CHANCELLORwould remind the noble Earl, that in consequence of similar objections which had been urged last Session, a clause was introduced into the Bill, which required that all registered documents should be given up to the owner of the property to which they related, and
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that no persons should be allowed to inspect the registry, without producing the original documents. This would effectually prevent these things being exposed to the gaze of the curious.
House adjourned till To-morrow.