Lords Sitting of 16 November 1852

MINUTES.
Took the Oaths.—Several Lords. Sat First in Parliament —The Earl of Suffolk and Berkshire, after the Death of his Father.
PUBLIC BILLS.—1a Oaths in Chancery; Law of Evidence and Procedure; County Courts Equitable Jurisdiction; County Courts Further Extension; District Courts of Bankruptcy Abolition.
2a and 3a, and passed, Bills of Exchange and Notes (Metropolis).

MANNING THE NAVY.
LORD BROUGHAMwished to put a question to the noble Duke opposite, the First Lord of the Admiralty. He believed that towards the close of last Session a Commission or Committee was appointed to inquire into the subject of manning the Navy. He now wished to ask whether any steps had been taken by that Commission or Committee, and whether any report would be laid before Parliament? The subject was one of the most important of those connected with that most important of all questions—the effective force of our Navy, and it was one upon which he felt not an inordinate but a rational anxiety. He hoped above all things that expense would be no obstacle to the improvements which might be required in this department. If there were a man in the House who grudged the money necessary for this purpose, let not that man be listened to.
The DUKE of NORTHUMBERLANDsaid, that he had no difficulty whatever in answering the question of his noble and learned Friend. There was a Committee,

165
not a Commission, under the Board of Admiralty now sitting, to inquire generally into the state of the manning of the Navy, and embracing everything connected with the condition of our seamen. It had been sitting for several months, but no report had yet been made. The Committee was of a private nature, for the purpose of informing the Admiralty, and was composed of many most distinguished officers, in whose judgment the greatest confidence could be placed, and who would ever have prominently in view the good of the service. He entirely agreed that the question was one of great importance.
LORD BROUGHAMsaid, when he spoke of the expense, he had in his eye the undoubted fact of the wages being so much better in other branches of the sea service than in our Navy; and, not only in our own mercantile marine, but in the American service.

BILLS OF EXCHANGE AND NOTES (METROPOLIS) BILL.
The EARL of DERBYthen moved the Second Reading of the Bill with respect to the presentation and payment of Bills falling due on Thursday next.
LORD CAMPBELLsaid, that, entirely approving the Bill, he wished to make one observation with a view of removing some apprehensions which had been expressed with respect to it. It had been suggested that foreign acceptors and endorsers of bills might be released from their liabilities if the bills due on the 18th were presented on any other than the day on which they originally became due. He apprehended, however, that it was a maxim of modern law that that which was done in each country must be taken according to the law of that country. Now, the 17th inst. would be the day for the presentation of bills falling due in England on the 18th, according to the law of this country; and he thought, therefore that the acceptor and endorser would be as much liable if the bill were then presented as if it were presented on the 18th.
LORD TRUROsaid, he did not intend to offer any opposition to the Bill; but he was afraid that some inconvenience might arise. There could be no doubt that the provisions of this Bill, by which bills falling due on the 18th instant might be presented the day previously, would be attended with no evil consequences in relation to British bills. Let them, however, take the case of bills drawn in foreign parts on British subjects. Suppose that one of these bills
166
was in the hands of a British subject, who had to look to the foreign endorser in default of the English acceptor, or suppose the English holder got payment from the foreign endorser, hut that endorser had to look to a prior endorser, and that that remedy had to be enforced in a foreign court —the effect of this Bill would be to alter the nature of the contract which had been made abroad between the parties to the bill. Now a bill of exchange drawn upon a British subject, so far as concerned a British subject, enured according to the British law. Although, however, the general principle of the law was that contracts depended on the law of the country where they were made, there was an exception. If a bill was drawn in one country upon the subject of another in that country, the law of the country where the bill was to be paid was that which regulated the liability of the acceptor. But in this case the foreign endorser had engaged that the acceptor should pay if the bill was presented according to the tenor of the bill; and it was very doubtful if the foreign courts would enforce the contract as altered by an ex post facto law in this country. He wished therefore to suggest that it would behave all holders of bills due on the 18th, whose bills were not paid on Wednesday, to present them again on Friday. Generally speaking, presentation was excused for a reasonable cause, and it had been held that, whore there was a physical restraint on the party holding the bill—such as riots on the day when the bill was duo —nonprcsentation on the day on which it fell due was excused, provided the bill was presented as soon as the physical restraint was withdrawn, and at the earliest practicable moment. Now the effect of this Bill was, if not to render the presentation of bills on the 18th instant unlawful on the day on which they fell due, at least to show that the Legislature intended they should not be presented on that day. That might not be considered equivalent to a restraint by force by the foreign courts. It was therefore important that holders of foreign bills falling due on Thursday should present them on Friday, as the earliest period possible after they fell due, in order to place themselves in the best possible situation,
LORD CAMPBELLsaid, that he must express his confidence that the foreign endorsers and drawers were liable, according to what would be a good presentation by the law of England when that presentation had to be made. Now, as there were three

167
days of grace there was no necessity for a presentation on the day when the hill fell due; and, therefore, according to the law of England, the presentation would now he good either on the 17th or 19thinst.
LORD TRUROsaid, he referred only to foreign contracts.
LORD BROUGHAMsaid, that when two Judges gave opinions not exactly the same, he hoped they would not consider themselves hound by the opinions which they might there express, if the point was ever brought before them judicially.
Bill read 2a (according to Order); Committee negatived; and Standing Orders Nos. 37 and 38 considered (according to Order), and dispensed with; and Bill read 3a, and passed.

FUNERAL OF THE DUKE OF WELLINGTON.
LORD REDESDALEbrought up the First Report of the Select Committee appointed to consider the best mode in which the House could assist at the ceremony of the funeral of the late Duke of Wellington.
The Clerk at the table then read the Report:—

"1. That the House be represented in the Procession by the Lord Chancellor only.

"2. That the Lords attending the Ceremony in the Cathedral do appear in Mourning in the Places reserved for them.

"3. That arrangements be made for such Lords as desire to go to the Cathedral by Water to proceed from the House to Paul's Wharf, at a Quarter past Nine o'Clock.

"4. That Tickets be ready for Delivery to all Lords proposing to attend the Ceremony, 'till Five o'Clock To-morrow, at the Earl Marshal's Office, No. 1, Parliament Street; such Tickets will be required by all who go to the Cathedral, whether by Land or Water.

"5. That similar Tickets be also delivered to all Peers of Scotland and Ireland."

Ordered to be printed.
Moved to resolve—
"That this House be represented in the Procession by the Lord Chancellor only."
On Question, agreed to.

IMPROVEMENTS IN THE ADMINISTRATION OF THE LAW.
The LORD CHANCELLOR: My Lords, I rise for the purpose of stating to your Lordships what steps have been taken since we last met for the purpose of carrying into operation the Acts which were passed last Session having reference to the Court of Chancery, and various matters connected therewith. I rise also to state to your Lordships what are the further measures which Her Majesty's Govern-
168
ment propose to adopt for the further prosecution of the objects which your Lordships and the other House of Parliament had then in view. My Lords, the Acts which your Lordships passed last Session with regard to the proceedings of the Court of Chancery were three in number. One Act was for the abolition of the office of Master in Chancery, and for introducing an altogether new system of Chamber practice with regard to matters which, up to that time, had been prosecuted by the Masters in their own Chambers. The next Act was for the Improvement of the Jurisdiction in Equity; and the third Act was called the Suitors in Chancery Relief Act; and it certainly did afford a great relief, by the reduction of salaries and the abolition of useless and unnecessary offices. Now, my Lords, it has been very much the practice of Parliament, and it is a very easy mode (whatever other difficulties it may involve) of getting through the business of legislation on such subjects, not to fill up in detail the outline of the Bills, but to leave almost everything beyond their leading subjects to be carried into execution by Orders to be made by the Court after the Bills themselves have passed. This was the course adopted by Parliament with respect to the measures of last Session; and I can assure your Lordships, therefore, that my vacation has been principally occupied in a species of legislation—sometimes with and sometimes without the assistance of my learned Colleagues—in order to supply what was necessary to give full effect to these Acts of Parliament. My Lords, they are now in full operation; and I think I can assure your Lordships, from what I have already seen, that they will fully effect everything which the country and Parliament have had in view. And I think I may venture to assert that the celerity with which matters will be decided in Chancery will be such as to make the old proverb entirely forgotten, and to lead to the introduction of a new one. I think there is no Court in this country in which questions of property will be decided with such rapidity as there—and by rapidity I do not mean haste, which above all other things is to be deprecated in the administration of justice; I mean really good speed—speed so far as is consistent with the most mature deliberation; and that such speed can now be given to matters coming before the Court of Chancery I hope to show your Lordships before I sit down, as well as that the expense may yet be greatly diminished, so as to render that Court, and every portion of

169
it, at once rapid in its operation and truly cheap to the suitor.
My Lords, independently of the general objects of the Acts in question, there was a very crying evil which has been remedied by the Orders which have been issued by myself and my learned Colleagues. It is a subject which I always had very much at heart—and respecting which I carried my views into effect as far as I could in Ireland. It is this—that there should be a statute of limitations, as it were, within the Court, as well as a statute of limitations without the Court. You pass an Act of Parliament to prevent the bringing forward of old claims; but in the Court itself when once made they may be kept alive and brought forward at a period highly inconvenient and unjust. Your Lordships have an order regarding appeals, which is to this effect—that there shall he no appeal from a decree or order of the Court of Chancery after the lapse of five years after enrolment. Under the early orders of the Court of Chancery, the arrangement was such that the enrolment was intended to take place at once. The intention of your Lordships' House, therefore, at a very early date, was to compel the party to come to this House, if he wanted relief, within five years after he or the other litigating party had first actually got a decree. But, so far from this being practically carried out, the course, up to this last twelvemonth, has been that parties have been allowed in the Court of Chancery to enrol nunc pro tunc, and then the party desiring to appeal to your Lordships' House himself enrols the order, though adverse to himself, and at the end of, it may be, fifteen or seventeen years, he comes to your Lordships' House, and presents an appeal to the House at that distant period; all which leads to great evils and great injustice. There should be no taking away of a man's right to appeal; but there should be no door left open to him for unnecessarily continuing a long and irritating litigation. This evil has been met by Orders to this effect, and I believe they will work most beneficially: In the first place, nobody is to have the right of appeal within the Court of Chancery itself after five years. In the next place, every man is to enrol a decree or order within six months; and after five years have elapsed he is not to be at liberty to enrol at all, except by a special order of the Lord Chancellor, so as to meet what may be a case sometimes of necessity, yet at the same
170
time to prevent different decisions, and keep the subject closely within the time within which he ought to appeal. Therefore, my Lords, there will henceforward be a statute of limitations, as it were, within the Court, as well as one without the Court.
My Lords, the Act for the Relief of the Suitors in Chancery, as I told your Lordships, has also been followed out by orders of the Court. The fees under these Acts have been settled, and they have been greatly reduced in number, and very considerably simplified. A great burden was imposed upon the suitors in having to pay a great many fees upon every occasion at many offices. That evil has been corrected, and the parties will have fewer fees to pay, and the whole system is exceedingly simplified, which in itself will be found to be a very great benefit. I mention this, because I wish clearly to show your Lordships the state of the funds which we have in our Court, and the purposes to which they are applied.
I want to draw your Lordships' attention, and the attention of everybody in the country, to the state of our funds, the nature of the fund out of which the costs of the Court are paid, the costs of the administration of justice, and the means by which I hope still further to reduce those costs. Your Lordships must bear in mind that the additional sum of 9,000 l. a year in the shape of compensation has been thrown upon the funds by the late improvements. You have given large compensations, and at the same time created new offices, so that, although the fees are greatly reduced, yet the immediate expenses have also greatly increased. But, notwithstanding that, my Lords, the saving to the suitors between the fees which were imposed last year, and the fees which will now be imposed under the scale which has just been issued, will be not less than 30,000 l. a year. That is accounted for in some measure by the sum of 26,000 l. a year, for the salaries of the several Judges of the Court, having been transferred to the Consolidated Fund, upon the ground that the Judges ought to be paid by the country, and not by the suitors. And so, unquestionably, the administration of justice ought to be paid for by the public funds, and not by the funds of the suitors. But then there is this clear distinction: the costs of the administration of justice, properly speaking, ought undoubtedly to be paid by the country; but the costs of

171
the administration of the property of a party within the Court ought not to be paid by the public. Every man ought to have a right to go into the Court itself free from expense, if it may be, and to have the decision of the Judge. But, if he has accounts to be taken—if he has estates to be guarded and watched, and kept in order, he is no more entitled to have the expense of that paid for him in Court, than he would be if the operation had taken place out of Court. Keeping in mind that essential distinction, I must call your Lordships' attention a little to the state of the funds, as I shall have occasion afterwards to call your Lordships' particular attention to the operation of them.
There are two funds upon which the Court draws for sums for which it has occasion. One is called the Suitors' Fund, and the other is called the Suitors' Fee Fund. The Suitors' Fund arose in this way—there are in the Court sums of money sometimes of a large amount, which the persons interested in them never require to be invested. The Court, therefore, under the authority of various Acts of Parliament, has been in the habit of itself investing from time to time that portion of the Suitors' "unemployed cash," as it is called, which the Suitor has not required, or directed to be invested on his account. The consequence of the party not requiring it to be invested is, that of course he cannot be entitled to the dividends upon that which he has not had invested, and he is not liable to any loss; but he can demand the amount simply of his cash whenever he thinks proper to do so. The dividends on the stock thus procured are partly applied by the Court in payment of the salaries of officers and expenses of the Court, and the surplus of those dividends is again invested on a separate account, though as part of the same Fund. Nearly 4,000,000 l. has been invested in this way, and the sums standing on these two accounts constitute what is called the Suitors' Fund; and the result is, that at this time there is a fund producing an income of 111,000 l. and a fraction, which is appropriated to the payment of the expenses of the Court and of the administration of justice. Now, my Lords, the sums which by Parliament have been thrown upon this fund amount to 48,320 l. a year. The annual dividend of the fund is 111,843 l.; that leaves a surplus of 63,523 l., which by the Act of last Session—the Suitors' in Chancery Relief
172
Act—was directed to be carried over to the next fund, that is, the Suitors' Fee Fund. My Lords, the Suitors' Fee Fund is a fund— as the very name of it intimates—which arises from fees imposed by the authority of Parliament, and payable by the suitors. That balance of 63,523 l. came in aid of that fund, and the sum which this year will have to be provided for as charges upon the fee fund will amount to 157,450 l. Then, if you take the balance which is to be carried to the credit of the fee fund, 63,523 l., that will leave an amount of 93,927 l., to be levied upon all the Suitors in the Court of Chancery. Now, my Lords, I have no occasion to tell your Lordships that that is a very large sum; yet it is a small sum compared with the actual business done. My Lords, the amount of fees levied last year was 133,842 l. The estimated amount, I have told your Lordships, of the fees this year is 93,241 l.; that is, a saving of 40,601 l.; and then there is to be added 3,838 l. to that for fees hitherto received by the officers for their own use, which have been abolished, and which the suitors will not have to pay. That makes a sum of 44,439 l., which would be the saving in the year. But, my Lords, the Court have received copy money; they have had to copy documents, and have charged a certain amount per folio as copy money, and that sum altogether has produced 10,000 l. a year. The solicitors have complained very much of this. They thought it was taking their own proper business from them, and that they could do it better as between themselves and their clients, if it were left to them. My Lords, it is now left to them, and they will have the benefit of it. The solicitors are themselves to furnish the copies, the expense of which will, as heretofore, amount to 10,000 l. a year. Your Lordships will see it is not a saving to the suitors, because the suitors will still have to pay for copies; but it is not a sum raised by the Court in any manner upon fees which the Court imposes. The result is, that, taking that 10,000 l. off the 44,439 l., because the suitors will still have to pay it, there is a saving of 34,439 l. in this year's estimate between the costs to be paid in the coming year by the general body of suitors, and the costs paid in last year.
My Lords, it is necessary, in order to show to your Lordships what I propose, to state to your Lordships, in some little detail, the particulars of the management

173
of the fund under the care and in the name of the Accountant General. In the first place, I will observe that there has been some complaint made, and justly enough— not as regards the officers, because they have been inclined to give every facility and to do more than officers generally have been in the habit of doing—but complaints have been made that the Accountant General's office is shut the whole of the long vacation, and that when there are persons who have moneys to receive, it is a great hardship that they cannot receive them. I have no doubt we shall be able to make arrangements which, without pressing— as we ought not to press—improperly upon officers who are already sufficiently worked, will enable us to meet the just demands of the public, and to clear the Court from that imputation. I must now draw your Lordships' attention particularly to the state of the Funds standing in the name of the Accountant General. The Accountant General has at this moment standing in his name the sum of 48,015,826 l. stock—an enormous sum to be under the jurisdiction and under the care of the Court; and I have the satisfaction of telling your Lordships that no human being has a claim upon that fund which it is not fully sufficient to answer. With all the burdens thrown upon them, the funds of the Court are more than sufficient to meet them. With a view of seeing whether I could not make an arrangement which should further ease the suitors and very much simplify the management, I have taken great pains to understand the accounts, and to see what further could be done. Taking this last year, the stock and cash "turned over" exceeded 21,000,000 l. of money, and the accounts are upwards of 17,000 in number. Your Lordships will suppose, therefore, what without great care would be the difficulties incident to the management of such vast accounts. The amount of cash which was received by the Court during last year, including that received in respect of sales of securities, was 5,973,769 l.; the amount of cash paid by the Court, including that paid upon purchases, was 5,993,539 l., and I invite your Lordships' attention to the consideration how very nearly those two sums are balanced. Then we come to the stock. The stock, considered With respect to the dealings with it, is of two classes. The first class comprises stock purchased by the Court, and stock sold by the Court; the second class comprises stock accepted
174
by the Court, and stock transferred by the Court, from or to the accounts of different parties. The result of that is as follows:—The stock purchased by the Court last year was 2,181,249 l. The stock sold by the Court was 1,829,009 l., making together 4,010,258 l. The stock accepted was 2,382,591 l., the stock transferred was 2,964,869 l. Upon a comparison of these figures, you will find that by keeping that stock together in one great account, instead of keeping the accounts in the different causes separately, the Court would not have occasion to buy for the whole year more than 230,000 l. stock to meet all those various claims; and yet your Lordships will observe that the real transactions, namely, the actual purchases and sales of stock amounted to 4,000,000 l. and upwards. In order that I may be fully understood, I must explain to your Lordships the way in which transactions are carried on between the Bank and the Accountant General. Your Lordships, I have no doubt, are perfectly aware that certain transactions at the Stock Exchange are carried on by two descriptions of persons, the broker and the jobber. The jobber, unlike the broker, buys and sells stock the whole day long, and has what is called the "turn of the market" upon each transaction, so that buying at l–8th less and selling at l–8th more, in the result he makes l–8th per cent, each way, and that is his profit. Now the Accountant General, having in his hands this vast sum of 48,000,000 l. stock, goes every day into the Stock Exchange, and there buys in the market all the stock which he requires to buy, and sells in the market the stock which is called for, and which has to be sold. Your Lordships may guess how very expensive is this operation, if he has to pay the broker and give the jobber his profit both ways—in fact, it costs 12,000 l. a year—and yet no individual has a right to complain, because no more is done in each particular transaction than the individual himself would have done if he were dealing with his own funds. What I hope to be able to accomplish is this, to get rid, as nearly as possible, of all sales and all purchases. I have had the scheme examined by the experienced officers in the different departments. And I may say here, with reference to this as to all the other subjects which I have to mention, that I have not had occasion to apply to any officer of the Court, from the highest in office to the lowest in station, who has not most readily

175
afforded me every aid in his power. Now, my Lords, this subject was a few years ago under the consideration of a Committee of the House of Commons. I will quote what is said in their Report, which is called "the Second Report of the Select Committee of the House of Commons upon Fees in the Courts of Law and Equity" in May, 1848. They there recommend—
"That the system of brokerage on the suitors' fund should be discontinued, and that the Accountant General should be paid by a salary, and that only the balance of the stock required to be bought or sold in each day should be bought or sold by the broker, and that the one-eighth per cent on the funds transferred thereby saved to the suitor, and which, but for this alteration, would have been actually bought and sold, should be paid to the suitors' fee fund for the benefit of the suitors."
Now, my Lords, the Committee of the House of Commons having this subject under their consideration evidently took for their guidance the practice of the jobber. A jobber never goes home with more stock than he wishes to retain. They say, therefore, that the Accountant General should go each day, and buy or sell only the balance of the stock, and they say also that the saving thereby made ought to go to the Suitors' Fee Fund. I beg leave to differ from that Report upon both these points. I see no necessity whatever for the Accountant General so buying and selling every day or any day, unless cash is actually wanted for current purposes. If he wants cash, he must of course go and sell stock to obtain it; but with 48,000,000 l. of stock he never can want to buy stock. The plan I propose has been fully worked out upon paper, and I have no doubt will work equally well in practice. It does not involve going to the Bank at all, nor putting the party to the expense of a broker; but, without that, everything may be kept perfectly right and regular, and there will be a saving of 12,000 l. a year to the suitors. That is a saving which I think should go—not, as that Report proposes, for the benefit of the suitors generally, but—to the individual suitor. I cannot understand, if you can work a suit without expense, why you are to throw that saving into the general fund. Why should not the man himself have the benefit of it? You charge him dear enough for some things, and if you can let him have other things a little cheaper, why should he not have the benefit? By the plan I propose, then, upon the whole year's transactions it will probably only
176
be necessary to sell some 100,000 l. or 200,000 l. stock. The transactions will, of course, vary from day to day, but not to such an extent as to create any difficulty. It is not until cash is actually wanted that there will be any sale at all. I believe the effect will be that the accounts will be simplified, vast expense will be saved, and the suitors will be benefited. I must mention to your Lordships that one difficulty thrown in the way of this arrangement was, that you would not ascertain what is the price to be paid or accepted by the different persons when there is no longer a real sale or purchase, but only one existing on paper. Fortunately, my Lords, we are enabled to meet the difficulty in the most satisfactory manner. The Bank of England takes the fluctuations every day of the price of each fund up to 1 o'clock in the day, and then it strikes the average. I propose, therefore, to take that 1 o'clock average as the price which every man who sells is to receive, and the price every man who buys is to offer. That will make it very fair as respects all parties, and it will bring this further advantage: Very often sums are ordered to be transferred at the price of a given day. For the computation the broker charges a percentage. The same 1 o'clock price will be adapted to those transactions, and so the suitor will be saved a very considerable sum.
I have told your Lordships that the fund which pays so much of the expenses of the administration of justice in the Court of Chancery consists of a sum which produces 110,000 l. a year. That has been produced by cash paid into Court belonging to suitors which the suitor himself has not required to be invested. I confess during a great part of my professional life I have thought that that was a way in which the money of the suitors ought not to be dealt with. The Court of Chancery itself never permits the trustee of a fund to derive any benefit from that fund. If he were to say, "This money, of which I am trustee, I have invested for my own benefit, taking the corresponding risk"—the Court would, without any hesitation, declare it a breach of trust, and compel him to give up all the benefit which he might have received. Now the Court acts differently with this fund; for, being itself a guardian and trustee of these moneys, because they are not required to be invested, the Court does not therefore decline to invest them;

177
but the Court does invest them, and the interest and dividends are appropriated to its own purposes. The argument in favour of this is of this nature, that the Court acts as banker of the suitors, and, as ordinarily hankers are entitled to employ a balance left in their hands, so the Court itself is entitled to use for the benefit of the suitors generally the money which is thus intrusted to it. There is, no doubt, something in that argument; but I propose to adopt the following plan—that for the future any unemployed cash shall be laid out by the Court when it is not required to be invested, and the Court shall have the benefit of that investment for two years, treating the Court as a banker for that purpose; and if at the end of two years there shall not be any requisition not to lay out the money, the party entitled shall have, as from that period, the benefit and risk of the past investments. Very often this unemployed cash is not invested, owing to the neglect of other parties having no personal interest in it, a neglect of which the persons having such an interest, and who are thereby deprived of dividends to which they are entitled, have cause to complain. I believe that the course which I have suggested will meet the justice of the case without any inconvenience.
My Lords, I have now reached another proposal which I hope will enable me to afford still further relief to suitors. There was an account moved for in the House of Commons in 1851, which I hold in my hand, which is called a "Return from the Accountant General, showing the amount of cash standing to different accounts in his name, and not dealt with during the periods of 10, 25, and 50 years respectively prior to the 1st day of August, 1850; and the amount of stock or other securities standing to different accounts in his name, the dividends on which have not been dealt with during the same periods respectively." It gives the cash and stock in different columns, which have "not been dealt with," as the expression is, during 10 years; those not dealt with during 25 years, and those not dealt with during 50 years. I have to explain to your Lordships that the first line, those not dealt with during 10 years, means not dealt with for 10 years, but within 25 years. The next line, not dealt with for 25 years, means not dealt with for 25 years, but within 50 years; and in the next line 50 years means 50 years and
178
upwards. I wish to bring all those separate accounts together. Many of those sums are so circumstanced that the parties can never call for them—they are in the nature of unclaimed stock. The Court has dealt with them in this manner: Suppose there has been a sum invested: when the dividends are received they are carried to the dead account; so that if it should ever become a living account by a claim upon it by a person justly entitled, that man will find his original sum, with all the dividends received from time to time added to the capital sum he would be entitled to receive. But as fast as those dividends come in, they fall under the head of "cash not invested," and therefore they are invested in a common fund, the produce of which the Court applies to its own purposes. But I propose that in ease of the suitors —and only in ease of the suitors and for no other purpose—the Lord Chancellor shall himself investigate all the accounts, and shall direct that the dividends shall from time to time, instead of being invested, be applied to the expense of the administration of justice, so as to relieve the suitors. Such an investigation I propose shall take place every five years. Independently of other circumstances, the cash was originally invested at an average of 86, and the profit, therefore, on that stock would now be very large. That will yield a large sum in relief of the suitor; and I propose that it shall be applied to his relief, and ultimately to the relief also of the Consolidated Fund.
My Lords, I cannot pass from this topic without declaring my belief, not only that it is impossible that justice can be anywhere administered more speedily than it can be, and will be, in the Court of Chancery, but moreover that the hour will come, and is not far distant, when the suitors in the Court of Chancery will have no costs whatever to pay for the administration of justice—irrespective, of course, of those costs which must always exist between solicitor and client—if it be considered expedient to wholly relieve them. I think I am entitled to say, that I have always been decidedly adverse to Government putting its hands upon this fund. I remember perfectly well in the other House, many years ago, my ear being caught by a conversation between Mr. Huskisson and Mr. Goulburn and Lord Ashburton, then Mr. Baring, the purport of which was, that the Government should, as it was said they

179
could, without any danger to anybody, avail themselves of the funds in the Court of Chancery, adopting a system of inscription in a public book, somewhat, I suppose, on the French system, by which the debt would be altered in its nature, and the country would have the use of the fund without any prejudice to the suitor. I opposed it as strongly as I could, and pointed out the danger which it would involve, not only to the interests of the public creditor, but also to the administration of justice itself. I told Mr. Huskisson that the Equitable also had eight millions of stock, and I said, "perhaps you would like to take that too." The day may come when the Consolidated Fund will be relieved from the payments for the salaries of the Judges; and, if the funds of the Court, properly applicable in that way, are sufficient, I should think it not objectionable. If they are not sufficient, I think the salaries of the Judges should be paid out of the Consolidated Fund; but if you have a fund in Court which will pay them, which I have no doubt this fund eventually will, there is no reason why the public should not be relieved from their payment.
I shall lay before your Lordships a Bill for the purpose of carrying into effect the several measures to which I have referred.
There is one small measure to which I will take the opportunity of alluding. It is with reference to the persons who are called Masters Extraordinary in Chancery. I have taken some trouble to look into this subject, and I find that a great many of the parties who are so called assume this title for the purpose of giving themselves the appearance of being in a peculiar manner trusted by the Court of Chancery. It costs 8l. or 9l, and the appointment is gazetted. I propose to take away from them their high-sounding title, and to give them the plainer name of "country agents to administer oaths in Chancery," and that they shall not be gazetted. I propose, also, that officers should be appointed to discharge similar functions in the metropolitan district. The fees now paid on their appointment are exorbitant, and my plan is that they should pay one fee of 1l. once for all. That will be another great benefit to the solicitors.
I have now to state to your Lordships what Her Majesty's Government have done for the purpose of carrying into effect the wish of your Lordships and the other House of Parliament in regard to the further improvement of the jurisdiction in
180
Chancery. We have had the misfortune, since we met, to lose the services of a very learned and excellent person, from whom most valuable assistance has been derived on these subjects. Her Majesty's Government have thought it right to issue a new Commission, including the surviving members of the former Commission, and adding others; among them one of the Vice-Chancellors, and Mr. Rolt, Sir John Dodson, Dr. Lushington, and Dr. Harding; the object of the Government being not only that the inquiries already commenced should be prosecuted, but that there should be an inquiry into the working of the jurisdiction in testamentary matters in the different courts of the country. It is a great misfortune that a man's will has to be subjected to the jurisdiction of different tribunals, whose principles of procedure cannot be reconciled. There have been many cases in which great hardship has resulted from the variety of jurisdictions. There was, for instance, a case of Dew V. Clark, which is well known to my noble and learned Friend (Lord Lyndhurst), and doubtless to many others of your Lordships, and in which I was counsel. There, a man being affected by partial insanity, which manifested itself in some delusions respecting his daughter, left his property, both real and personal, to his nephews, passing by his daughter. The will was disputed, and successfully disputed, in the Ecclesiastical Court, having jurisdiction over the personal estate, and was set aside. The matter came, by way of appeal, before my noble and learned Friend, and he refused a Commission of Review. But then the parties upholding the will declared that they had, as no doubt they had, the right to take the case before a jury in a Court of Common Law with reference to a small real estate, and that they would exercise that right. And after all this litigation, and these solemn decisions, the daughter, under the advice of her counsel, of whom I was one, was driven to convey the real estate to the nephews who claimed under the will, as the only way of preventing the whole case being tried over again before a different tribunal. And further, my Lords, now that the appeal from the Ecclesiastical Courts lies to the Judicial Committee of the Privy Council, and not to your Lordships' House, you have a complete separation of two jurisdictions which it is impossible to reconcile. This is a state of things which is discreditable to the country, and ought not to be

181
allowed to continue. There ought to be one plain rule by which the proceedings of all Courts should be guided, and the Government have thought it their duty to see whether some means cannot be found of bringing more into harmony on this subject the different powers of the different Courts. It is of no use, however, attempting to disguise that a more extended investigation into the working of the Ecclesiastical Courts must follow at no distant period.
There is one short Bill which the Government will think it desirable to introduce with reference to the Patent Law. I regret to say that some of the inferior clerks in the Court of Chancery have at times received public money and have not accounted for it. This evil has been wholly obviated by the late substitution of stamps for money payments, and we propose to apply the same system under the Patent Law Amendment Act of last Session.
I will now call your Lordships' attention to a very different subject, one in which many of your Lordships, and especially my noble and learned Friend (Lord Lyndhurst) take a deep interest—I mean the subject of Lunacy. My Lords, there is a great deal of machinery at work (but perhaps not too much) on this subject. There is not only the authority of the Great Seal acting under the authority of the Queen's Sign-manual, but there are two Masters in Lunacy, and a Registrar in Lunacy, and there are three Visitors, whose duty it is, under the Act of Parliament of 1833, to visit persons who are lunatics, by inquisition. Besides that, there are, under another Act of Parliament (commonly called Lord Shaftesbury's Act), eleven Commissioners, five of whom are unpaid and six are paid, that body being presided over by the noble Earl himself (the Earl of Shaftesbury); of whoso zeal and the dedication of whose time to this service it is impossible to speak too highly. Their duty is to license asylums, to visit those asylums, and generally to have the supervision of them. That system has worked well; but in the course of time has been found to require considerable amendment. Those amendments are now in progress, under my direction, with the full co-operation of the noble Earl and his colleagues; and I have every reason to believe that all the difficulties which have hitherto been found to arise in the working of the Commission will be removed by the assistance of Parliament. The Masters, who are attached to the Lord Chancellor in a more particular
182
manner than those Commissioners are, execute all Commissions of Lunacy, and also receive orders and make inquiries. They are very fully employed, and are persons very competent to their duties. The Registrar also has important duties to perform, which he performs very much to my satisfaction. However, when the system is that the Lord Chancellor has, as a matter of course, to send everything to the Master for inquiry, and that then the Master has to inquire, and when he has made inquiries to send it back to the Lord Chancellor, and that then there is to be a hearing in Court before him, there must be undoubtedly a very considerable loss of time, and much unnecessary expense. Then, again, there are many cases in which, on the execution of a Commission of Lunacy, the intervention of a Jury is not only unnecessary but absurd. My Lords, too great anxiety cannot be felt, with regard to the liberty of the subject, not to dispense too hastily with a jury as a universal rule; but there are cases in which, upon the mere sight of a person, it is manifestly a solemn mockery to summon a jury to inquire whether he is of sane mind or not, and, for that purpose, to bring him before the jury, paining unnecessary the feelings of relatives and friends without the slightest object. I propose to do away, as far as may be, with this evil by means which I will presently explain to your Lordships in detail. There are three classes of criminal lunatics for whose care and maintenance it is necessary to make provision: criminals who have been acquitted on the ground of insanity; criminals who are in custody, and have never been tried because they are lunatic; and persons who are dangerous and at large. I could not entirely agree with what was proposed by the noble Earl (the Earl of Shaftesbury) last Session in the Bill which he introduced for a very excellent purpose—namely, for enabling a person who was evidently insane and dangerous to be at once taken and confined, and also to provide for the maintenance of persons who were in lunatic asylums, and were left there by their friends, and who, for the want of funds, were liable to be turned out by the keepers of such asylums, even though their being at large might be attended with danger. I hope to devise a plan which, while it will save the public from the danger to be apprehended from a person clearly insane being left at large till proper steps can be taken to confine

183
him, shall, on the other hand, involve no danger of the infringement of the liberty of the subject in any way.
At present, with respect to Commissions of Lunacy, the course pursued is this: In the case of each person supposed to be a lunatic, a commission issues, directed to the Masters, to inquire with a Jury whether the person is of unsound mind or not. I propose to issue one standing commission, and to refer every case as it occurs to it. By that means there will be saved at once a very considerable expense. I then propose that in every case there shall be notice given to the person respecting whom the inquiry is to be made, and that he shall be at liberty to require a jury; and that unless the Lord Chancellor himself, upon personal inspection of him, shall be of opinion that his infirmity of mind is so great as to render him incapable of forming a rational wish, he shall be allowed to have the intervention of a jury. The examination by the Lord Chancellor would be analogous to that which he now makes in cases of application for a traverse. Such an application my noble and learned Friend near me (Lord Cran-worth) will remember was made in the case of Mrs. Cumming, when he and I and our learned Colleague held that a party was entitled to a traverse as of right, subject to an inspection by the Lord Chancellor, the object of such an inspection being to ascertain, not whether the party is of sound mind or not, but simply whether he is so far sane as that the traverse may appear to be really desired by himself, and not merely by some other interested party. In like manner I propose that, if upon a similar examination in the case of an application for an inquiry, the Lord Chancellor sees that the party himself really wishes for it, he shall direct a jury; but that if no such requisition is made by the party, or the Lord Chancellor is satisfied, on such personal examination, that the party is not competent to express a desire upon it, and that it is unnecessary, the Master shall proceed with the inquiry without a jury—and that the finding of the Master that the party is insane shall operate as an inquisition taken before a jury. And I propose, besides, that the Master should in any case have power to summon a jury, if, on investigation, he think it necessary. In that way an enormous expense will be saved, while the rights of this unhappy class of persons will be entirely preserved. Again, my
184
Lords, a large expense is now incurred by the inquiry at what time the party first became of unsound mind. This originated, no doubt, in a desire to protect the rights of the Crown; but the Crown no longer takes any beneficial interest in the estates of lunatics. The result of the inquiry on this point is in nine times out of ten of no value at all, and in no case is it of any value beyond its being primâ facie evidence. It very often happens that after all these inquiries have been made, and every protection has been carefully and laboriously thrown around the lunatic, you have not left him enough of his property to provide for his hare maintenance. My intention therefore is, that it should be provided that the inquiry as to the sanity or insanity should have relation only to the time present, unless under a special Order of the Lord Chancellor for carrying it back to a particular date. I propose, further, under the power given by an Act of last Session, to substitute a percentage on the incomes of lunatics for the fees now paid; and, my Lords, I think I may say that the application of that principle may be safely intrusted to my hands, because I have always been of opinion that it is most unjust to make a rich man who is afflicted with lunacy liable to pay the expenses of a poor man who is similarly afflicted, merely for that reason. I also propose to get rid of unnecessary attendances by the next of kin. The next of kin have a sort of inchoate right to look after the property of a lunatic, because if he die without leaving a will, they may be entitled to inherit. I do not mean, therefore, that the attendance of the next of kin should be altogether prevented, but that in proper cases a certain number should be allowed to appear. The next thing to be attempted is, to save those unnecessary references which I have already alluded to. The great difficulty is, to improve the working of the Masters' Office, by extending their powers without trenching on the authority of the person acting under the Queen's Sign-manual, which authority it is impossible to give up. A man petitions for an inquiry—the Lord Chancellor sends it to the Master—the Master makes a report, which goes again before the Lord Chancellor. I shall propose that, for the future, wherever the Masters are of opinion that if a petition went to the Lord Chancellor he would send it to them as a matter of course for inquiry, they shall have power to proceed with the inquiry without any order of reference at all, of

185
course subject to objection by any party— and I think that may be accomplished. The last question with which I have to trouble your Lordships on the subject that I am now dealing with is this: a great many matters are brought before the Lord Chancellor at a public hearing in Court, which may be appropriately disposed of at Chambers. If, my Lords, we adopted a system in perfect harmony with the provisions of the Masters in Chancery Abolition Act of last Session, the Masters in Lunacy should have chambers in immediate connexion with the Lord Chancellor; but that is impracticable. I propose, however, that when the report of a Master is not objected to, that report, instead of being made the subject of a petition which must be heard by the Lord Chancellor in Court, shall be transmitted from the office of the Master to the Lord Chancellor by the hands of the Registrar. If it is a matter which requires public investigation, either party will have the right to require it to be so investigated. In that way no expense will be incurred by an order so made in Chambers beyond the necessary cost of the order itself. My Lords, there is a class of small cases in Lunacy with respect to which a great deal of feeling has been naturally excited. Several very painful cases were stated to your Lordships last year—for instance, the case of a household servant who had saved a small sum in the course of his service, and who became a lunatic. A commission issued in his case, and the various expenses left scarcely anything of his hard-earned savings for his support. I propose to deal with the cases of such persons with great tenderness. In cases where the amount of property is under 700 l., for the income under 50 l., I propose that it shall be charged nothing under the scale of percentage till the fund is called for out of Court on the death of the party himself, and then only such a small percentage as will be a fair contribution towards the expenses of the establishment. There is only one point further on the subject of Lunacy which I will mention. Your Lordships are aware that in the Act which I have already mentioned as Lord Shaftesbury's Act, there is an exception of Bethlehem Hospital from the jurisdiction of the Commissioners, and one of the proposed amendments of that Act is to give the Commissioners power to visit that Hospital. I say this without the slightest intention of implying any censure upon the governors of that institution. Charges have been made
186
against them: it may be my duty to investigate those charges; but it has not been so hitherto, and I can sincerely say that I am altogether ignorant of the merits of the charges against them.
Another subject on which I have some observations to make to your Lordships is that of Bankruptcy. The Act of 1849 established an entire code of bankruptcy law. It required Orders, however, for the purpose of putting that Act into full operation, which Orders have only recently been issued by the Commissioners, with my approval, as the Act required. Great difficulty was experienced in obtaining the concurrence of eight Commissioners, which the Act rendered necessary. I, however, set about the matter with some earnestness, and 163 orders have been issued, which complete the system that the Act of 1849 introduced. One great difficulty which has been felt is with respect to the payment of the official assignees. It is a subject which has very much engaged, not your Lordships' attention, but the attention of merchants in the City of London. The Act of Parliament seemed to give to each Commissioner the power of fixing the allowances to the official assignees in his own Court, which led to variation of the scales in the Courts of the different Commissioners; but I propose that the Lord Chancellor should have power, with the advice and consent of the Lords Justices, to adopt one scale binding in the Courts of all the Commissioners throughout the country. With regard to their remuneration, the official assignees have been placed in a false position. When those officers were first appointed, there were great arrears of bankrupts' estates outstanding, from which the official assignees received a large income; in some cases, I believe, so large as to exceed the incomes of the Commissioners, the Registrar, and all the other officers of the Court. In the course of time that source of profit ceased, and they now complain that their emoluments are too small. I have been reluctantly induced to agree to an order which gives them a certain percentage upon each debt. For a long while I objected, and wished the allowance to be upon the gross receipts; but I was told that that would be a very insufficient amount, and that it could not in justice be adopted, and therefore I gave it up. But the new system must be subject to this condition: I propose not to fill up the appointment of any official assignee, which being left vacant would enable the other

187
official assignees to obtain a sufficient remuneration. In the case of Manchester, one of the official assignees has been unfortunately dismissed. I have not filled up the vacancy so occasioned, because the income arising from that particular office is not sufficient to remunerate a gentleman for his labour and time; but by this addition to the remuneration of the others the difficulty will be overcome. I propose, also, that the Lord Chancellor shall be empowered to refrain from filling up vacancies which may occur in the number of Commissioners in the country, so as to bring the number more into accordance with the requirements of the district. My Lords, I have been very anxiously inquiring what can be the reason why the business in the Court of Bankruptcy has fallen off, especially when I perceive that the fees received in respect of business in that Court are insufficient to meet the expenses. At the same time, my Lords, it must be borne in mind that the payments include an amount of 18,000 l. a year for compensations to gentlemen whose offices have been abolished by Parliament. Therefore it is not fair to attribute to the present administration of justice in bankruptcy the expense represented by the whole amount of those payments. As these compensations drop, the funds of the Court of Bankruptcy will become more capable of defraying its current expenses. One reason assigned for the falling-off of the business, has been, that the system of giving different classes of certificates operates as a stigma upon the trader. The first commercial men in the City of London, merchant princes as they are, men of the highest feelings, may fall into misfortune; but in order to obtain a first-class certificate it is requisite that nothing but unavoidable misfortune shall have contributed to the bankruptcy of the party. Now, the very heart and soul of commerce is enterprise, and it is very difficult to say where enterprise ends, and want of due caution begins. I am persuaded that one of the effects of the present system is to keep out of the Court of Bankruptcy many cases where persons would gladly avail themselves of it, were it not for fear of the stigma which might be unjustly inflicted upon those who by their instrumentality become exposed to it. The Act of Parliament enacts that "the Court, having regard to the conformity of the bankrupt to the law of bankruptcy, and to his conduct as a trader before as well as
188
after his bankruptcy, and whether the allowance of his certificate be opposed by any creditor or not, shall judge of any objection against allowing such certificate, and either find the bankrupt entitled thereto and allow the same, or refuse or suspend the allowance thereof, or annex such conditions thereto as the justice of the case may require." It is, therefore, imposible to say that a very large power is not here given to the Commissioner. It is enacted in the next section that the certificate shall be in the form given in the schedule, and from that schedule all the difficulty has arisen. The Commissioner is directed by the schedule to certify that the bankruptcy has arisen from unavoidable losses and misfortunes, and thereupon to award a first-class certificate; or that the bankruptcy has arisen not wholly from unavoidable losses and misfortunes, in which case he is to award a certificate of the second class; or that the bankruptcy has not arisen from unavoidable losses and misfortunes, in which case he is to award a certificate of the third class. The consequence of this is, that the Commissioners have the power to examine into all the acts of the bankrupt, including his personal conduct, and to scrutinise it in a way which has led to very great objection on the part of many persons to bring those with whom they have had commercial dealings into the Court. I propose to repeal so much of the Act as gives the Commissioners power to grant 1st, 2nd, and 3rd class Certificates, but to leave untouched the power of refusing or suspending the allowance of the certificate. The second reason alleged for the falling-off of business in the Court of Bankruptcy is, that the percentage is unduly high where the property exceeds 1,000 l. This objection I propose 'to obviate, if I find the allegation is well-founded. I may mention another thing which has led to a falling-off of the funds of that Court. Parties have been in the habit of entering the Court and availing themselves of its jurisdiction up to a certain point, and then, when it was convenient to themselves, of withdrawing from it and settling matters privately. I am far from desiring to interfere with their power of doing so, but I think they ought not to be allowed to throw serious labour upon the officers of the Court, without paying a just contribution towards the expenses of the Court.
It was proposed last Session by my noble and learned Friend (Lord Brougham), that certain of the powers of the Court of Chan-

189
cery should be exercised by the Judges of the County Courts. I entirely agree with my noble and learned Friend that those powers may properly be given in aid of the Court of Chancery; but I propose to give them to the Commissioners of the Court of Bankruptcy instead of to the County Court Judges, because I think that the Commissioners, from the nature of their jurisdiction, will be likely to perform those duties with more satisfaction to the Court of Chancery itself. I also propose to give to the Commissioners of Bankruptcy jurisdiction under what are called the Dead Men's Clauses. Under those clauses the Court would have the same jurisdiction after the man's death as during his life, subject to this restriction, that the man had been a trader within the bankrupt laws at the time of his death, and that his debts remained unpaid for a certain time after his death. One difficulty in the way of the adoption of this course is, that I have ascertained that the costs of such proceedings in the Court of Bankruptcy would be considerably higher than the costs of similar proceedings in the Court of Chancery. Another difficulty is, that under the administration of bankruptcy specialty debts are cut down to an equality with simple contract debts. This is not objectionable in the administration of bankruptcy when the trader is alive, but of course it cannot be allowed after his death. It will therefore be necessary, my Lords, to take care to reserve to the specialty creditor the rights which he would now have in the Court of Chancery after the death of his debtor.
Another point to which I would refer before passing from the subject of Bankruptcy is this: Solicitors are now permitted to appear as advocates before the Commissioners of Bankruptcy. I propose to put the same restriction as is now put upon attorneys under the County Courts Act. That is, my Lords, I object to what are called attorney-advocates. I do not object to a man's attorney arguing his case for him, but I do object to an attorney being turned into a barrister, and acting as an advocate. There is no fair play in that. I desire to see the profession stand upon its proper basis. I wish the barrister not to trench upon the province of the attorney, nor the attorney upon the province of the barrister. Let each stand in his own place. Depend upon it, my Lords, if the system which has so long prevailed be broken in upon, great evils will ensue. It will necessarily lower the character of the Bar. Whether it will elevate
190
the character of attorneys, I will not stay to determine; but, at any rate, there must be equality. Your Lordships had, in the course of last Session, to decide whether you would continue the restriction upon counsel from acting in the County Courts without attorneys, or whether you would leave the etiquette of the profession and the honour of the Bar to maintain things as they have hitherto existed. It so happened that the decision of that question, if I may say so, devolved upon myself. My noble and learned Friends were divided in opinion, two and two, and as the matter was left by the House to the decision of the Law Lords, it necessarily fell to the fifth to give the casting vote, if I may call it so, upon the question. I did give that vote with great reluctance in favour of repealing the law which prohibited counsel from acting without attorneys; but while I did so I took care expressly to state that I gave that vote upon the distinct statement that attorneys had threatened the Bar that if they took business in the County Courts, they should not have business elsewhere. I meant to leave it, therefore, to the honour of the Bar to act as they had always acted, not intending to open the door at all, unless there be an absolute necessity for it, to the practice of barristers acting without the intervention of attorneys—a practice, in my view, highly objectionable, and one which I should be the last person to countenance. Certain barristers, however, I re-grot to hear, have since then taken upon themselves to decide that they will thus act without attorneys. That is a practice, my Lords, which cannot be too highly reprobated. I am far from saying that, in the present state of the law, the Bar, as a body, may not properly meet and consider what it becomes them in their station to do. But if any such serious change in the long-established usage of the Bar is to be made, it ought at any rate to be made with the concurrence of a large majority; and I entirely object to any small number, or even to any considerable number, taking upon themselves to act contrary to the general rule of the profession, now so long established. My Lords, the Bar at the present moment is in a state of transition, and I would recommend everybody having any voice or any influence in this matter to consider where—if you allow the Bar to lower its own station or dignity—you are to look for learned persons to fill your Benches and carry on the administration of justice.

191
With respect to the County Courts, my Lords, it is not the intention of Her Majesty's Government at present to propose any change in them. My noble and learned Friend (Lord Brougham) wished for an appointment of a commission of inquiry as to their operation; but I think so many changes have already been made in them by the Legislature that we ought now for a time to leave them alone, especially as there is so much that is useful in other ways to be accomplished.
The same noble and learned Lord will be glad to hear that it is the intention of Her Majesty's Government to proceed with what is called a "Digest of the Criminal Law." Your Lordships are aware that this is a subject which has been very much considered. Two Commissions have been appointed, whose labours have occupied, in the whole, some fifteen years, and have produced thirteen blue books, in which is to be found much valuable information. The country has already expended 40,000 l. in the acquisition of this information; and it is desirable that that expenditure should not be thrown away. At the same time, Her Majesty's Government do not feel it necessary to renew the Commission: such a step they consider would only lead to expense, delay, and difficulty, and they therefore propose to proceed with measures founded upon the existing reports, which contain abundant and well-considered materials for legislation. I am, as my noble and learned Friend well knows, no friend to codification in general. But, if that principle can be properly applied in any case, it surely may be so in the case of the Criminal Law. Even there, however, we must proceed with much caution, with regard as well to the substance as to the form of the Digest. My noble and learned Friend, I observe from a printed letter of his, seems to think that we should not attempt to improve or alter the subject, but take the propositions as we find them. My Lords, unless we are careful, we may collect a set of bad treatises and give them a binding effect. Valuable treatises are now resorted to by the Judges for information, but they are not bound by them; they can, therefore, extract the principle, and adapt and mould the relief as justice may require. But if effect be given to like treatises as statute-law, the Judges must follow them implicitly, and thus great difficulty will arise: for it would be dangerous to allow the Judges to depart from the rule as digested, and yet
192
without that power it would constantly be found necessary to resort to Parliament to amend the law, than which nothing can be more prejudicial. I propose, therefore, without attempting anything like the Code Napoleon —for it is impossible for us with our system of legislation to revise the law in the manner in which the laws of France were discussed and revised before binding effect was given to the Code— to correct any anomaly or error which we discover, and to make the Digest as accurate in point of law as if we were passing enactments in the ordinary way, although it is manifestly hopeless to expect the same accuracy in all the details of a vast subject as if we were dealing with only a branch of it. It may, after all, be a dangerous experiment, and it must not be considered as a pledge on the part of the Government to proceed beyond the Digest of the Criminal Law. I have, however, the satisfaction of now informing my noble and learned Friend, that, consistently with these views, the first part of such a Digest has been actually prepared in the form of a Bill relating to Offences against the Person. The subject of the Criminal Law is a very large one, and it would be a vain attempt to deal with the whole of it at once, and to pass the entire Digest in one Bill. The subject, therefore, must be broken up into parts to be dealt with in separate Bills. And we propose, as I have said, to begin with Offences against the Person. This course will have the further advantage that it will give an opportunity of introducing those amendments which will, doubtless, be found necessary from time to time, before the several Bills have been gone through. When all the Bills have been passed, I would not consolidate them into one Act, because a very long Act of Parliament is a very great evil; but, on the other hand, it is no less an evil to be obliged to search for different Acts on the same subject, scattered through many volumes of the Statute-book. Therefore, at the end, the course will be to repeal all the Bills which have been enacted, and to re-enact them at one time, with the corrections and amendments, numbering them consecutively, so that they may be found with convenience, following one another in a proper order, in the same volume of the Statutes. In that way you will gain great facility of reference, and will have all the advantages of a single Act of Parliament without its cumbrousness and inconvenience.
The only remaining subject to which I need refer, is the Patent Law Amendment

193
Act of last Session. Orders have been requisite for the purpose of bringing it into complete operation, and to the issuing of those Orders I and my learned Colleagues the Commissioners are now addressing ourselves.
My Lords, I know that Her Majesty's Government will have the assistance of noble Lords on both sides of the House in maturing and carrying into execution the various measures to which I have referred. Fortunately, they have nothing to do with politics, but relate only to a subject which we all must regard as of paramount importance—the administration of justice. I feel that I owe no apology to your Lordships for the length at which I have detained you, but I must express my gratitude for the patience with which your Lordships have listened to me.
LORD BROUGHAMsaid, he was quite sure that never was debt of gratitude less due than on the part of his noble and learned Friend; for no one could have listened to him without being fully aware that they must express their gratitude to him, not he to their Lordships. The great variety of the subjects opened, he might say largely discussed, by him, and their importance, their variety, the difficulty of some, the importance of all of them—might well be a reason for his not following him over the field which he had so ably and so learnedly gone over. He must reserve his opinion, as their Lordships also would do, on the subjects touched upon, until the Bills themselves, embodying the suggestions made, were before the House, only he could not entirely concur with his noble and learned Friend on some of the subjects, and he entertained considerable doubt in regard to others; but he would advert to one or two merely by way of sample. As to lunacy, for instance, he had no doubt that the object proposed was highly desirable, but he felt considerable doubt as to the modus operandi. He believed, in the matter of bankruptcy, that great improvement might be effected in the circumstances of those holding the office of official assignee, although it had not been stated how that was proposed to be done; but he gave his noble and learned Friend credit for the course he intended to adopt in respect to those highly useful officers in not filling up vacancies, except so far as the business of the Court required, with a view to an increase of the fund for the relief of those who remained in as
194
official assignees. There was another instance in which he concurred in part, and as to portion differed, from his noble and learned Friend. He had great doubt as to the question respecting certificates. He admitted that the falling-off in bankruptcy business was mainly to be attributed to the establishment of three classes of certificates, and some improvement might possibly be effected in that part of the system; at the same time he affirmed that a more useful improvement never was made than that which was introduced by the establishment of these three classes of certificates in the Act of 1849. This system might be improved—abandoned it never could be. As to the Suitors' Bill which his noble and learned Friend proposed, as it would be doing for the suitor no more than the strictest justice, so it would be a great improvement generally; upon that there could be no doubt. Upon one point he felt gratitude was due from all amenders of the law to his noble and learned Friend. After his long experience of the profession, and now charged with its highest judicial duties, he had recognised the great principle in express terms, that the suitors ought to be enabled to obtain their just rights, when withheld, or to defend them when attacked, without paying taxes of any kind as suitors for the administration of the law—which it was the bounden duty of the Government to provide, not of the unfortunate suitor, it being the condition of the subject's allegiance that he should be protected. There were some other questions upon which he would have made a few remarks, had it not already been so late; but another opportunity would offer when the measures themselves were under the discussion of the House. He was sorry to find his noble and learned Friend avowing he was not a friend of codification; but he hoped his noble and learned Friend would not imagine that his objections could not be satisfactorily and triumphantly answered. He would not refer to those objections which he had urged, further than to say they were old, and had often been answered: suffice it for him to express his great satisfaction that his noble and learned Friend made an exception in favour of the criminal law, whether consistently or not was immaterial. He (Lord Brougham) thought there was no inconsistency, though he knew that some considered the criminal law less fit for a digest than any other branch. In that he did not concur. The

195
course which the noble Lord proposed to adopt upon that, by taking the subject not as a whole but piecemeal, was the same suggested by one of the learned Commissioners, Mr. B. Ker, who some time ago convinced his noble Friend opposite (Lord Lyndhurst) and himself that it was advisable to pass the digest which he (Lord Brougham) had on the report of the Commissioners twice brought in as a Bill, in separate Bills, beginning with the great chapter of Offences against the Person, prefaced, of course, by the preliminary chapter applicable to all offences; and that Procedure should come last. The discussions they had held at the beginning of the recess had led to this opinion, and also to the necessity of having the whole statutes repealed and enacted as one digest, in the manner now proposed (with the numbers running through it). He said he did not despair of seeing his noble and learned Friend come round to the opinions which he and others held upon codification of the law. But there was another subject on which he differed, he feared, yet more widely from his noble and learned Friend—he meant Registration. [The LORD CHANCELLOR: Hear, hear!] However, even here he was not without hope. He had known instances in. our history, he would not say at what period, of great changes of opinion on subjects if possible more important—certainly more interesting to the community at large. He recollected, in those passages of history, mention being made of many persons, bodies of men important both from their number and their value, holding very strong opinions on subjects still more exciting than that of cheap law; and after living some few years in these very decided, and even vehement, opinions, all at once coming round to the views he and others held, so that now there really was no difference whatever between them; and, to his unspeakable satisfaction, he found himself ranged at the same side on the very important and interesting, and even exciting, subject of cheap—he would not say what, but he might call it, for the present, cheap law, as if they had never differed about it. He hoped that a like conversion awaited his noble and learned Friend upon the subject of registration, when it should be called for by public opinion, just as the kind of cheap law had been to which he now referred. He could not sit down without expressing his opinion of the great merit of his noble and learned Friend with regard to the measures of last Session;
196
it would be the height of ingratitude in him, and all desirous of improving the law, were he not to recognise the extraordinary labour—the skilful and learned labour— which he had bestowed in carrying those Bills into execution, and in that labour the self-denial, as to any increase of his patronage, which had prevailed through the whole course of the last autumn's labours, in preparing the orders under the Patent Laws Bill, the Suitors' Bill, and the Masters Abolition Bill. Speaking of the Patent Laws, without the least dis-trust of his noble and learned Friend proceeding with the measures now announced, he proposed to pursue as to some of them the same course he had taken last Session on the Patent Laws; namely, to present his Bankruptcy Bill and County Courts Extension Bill again, while his noble and learned Friend presented his Bills on those subjects; just as formerly his (Lord Brougham's) Patent Law Bill had been presented along with the Bill of the Government; and their Lordships would see which of the two Bills was best, or prefer, as they did in the Patent Laws, a combination of both. He would therefore bring before their Lordships that part of the County Courts Extension Bill of last year and the year before, which was not passed last Session, but was postponed not to disturb the great Bill for the improvement of the Jurisdiction of the Equity Courts. He would add a third Bill, which was two years ago before them, for extending the Jurisdiction of the County Courts to equitable matters, for it was difficult to justify, and the pub-lie were ill reconciled to, a system which suffered them to obtain justice at their own door without delay and at little cost upon rights of one kind, as on one sort of debt or claim, and yet on another kind of debt or claim drove them, not only from their own door, but into the expense and delay of the Court of Chancery. And, lastly, he proposed to lay upon the table a Bill for the further improvement of the law of evidence and procedure, which would contain the following provisions upon that important subject, namely, making competent the evidences of husband and wife—competent and compellable in all cases except criminal trials and adultery, and except in matters communicated by either to the other during coverture; regulating all matters connected with the payment of money into court, and providing that the payment into court should be no admission upon the ques-

197
tion at issue; regulating the examination and cross-examination of witnesses with respect to the objection of raising collateral issues; regulating, partly by declaration, partly by enactment, what was known as the rule in the Queen's case, the cross examination of witnesses upon the contents of written documents; depriving witnesses of the protection afforded them at present by law against answering questions where their answers might criminate themselves, and preventing any such answer being given in evidence against them in any prosecution, except for perjury upon those answers. Then as to procedure in all cases between the Crown and the subject, to place them both on the same footing with regard to the right of reply, and other privileges now claimed by the Crown; next, where a party has been acquitted, whether upon a proceeding for penalties, or a criminal procedure, that he should be entitled to his costs against the Crown, subject to the discretion of the Court; and, lastly, to facilitate under the authority of the Court, or a Judge, the change of the venue in criminal cases. He had great doubts whether he ought not to go a step further in dealing with these matters; for it was found in the County Courts that the result was that not three in a hundred of the cases were tried by jury, where either of the parties had the option; and he really felt that in cases of debt and contract, not of tort, it should be left optional with the parties in the Superior Courts, as it was in the County Courts, to try by a jury, or content themselves with the opinion of the Judge. On one subject more he must detain their Lordships. He must express his earnest hope that strenuous efforts would at length be made to prevent bribery and corruption at elections, by some other mode than that now adopted. This could not be done in the two ways proposed for effecting it; it could not be done either by the ballot or by a large increase of the constituent body. As to the ballot, he said he had, he would not say an irre-moveable objection, but a very great repugnance to it on various grounds. Respecting these, doubt3 might be entertained, but of one thing he was quite certain —the ballot was no cure for bribery. It would not prevent bribery, but it would prevent prosecution for it. The promise would be given to pay so much if a certain person was elected, and thus every voter taking the bribe would be converted into an agent for the bribing party, as well as being him-
198
self a corrupt voter. He also saw no kind of security against bribery in the increase of the constituent body. He was, and ever had been, decidedly favourable to that increase, so it were made upon safe and well-considered principles; and especially if it were so made as to improve the representative body itself; but he expected no benefit from it as regarded the prevention of bribery. It was only when parties were somewhat nearly balanced that bribery was rife—and a few hundreds turned the scale in a very large body of voters. A certain number to turn the scale would be found in a body of 10,000 as well as one of 400 or 500, and these would be the persons bribed. He was, therefore, of opinion that more stringent measures ought to be taken for the prevention of this most pernicious practice. The criminal law against it must be made more severe, and the new law of evidence would, with that increased severity, extirpate the offence, one of the most crying evils of these times. His Lordship then introduced, 1st, a Bill for further amending the Law of Evidence and Procedure; 2nd, a Bill for Extending the Jurisdiction of the County Courts to certain Matters cognizable in the Court of Chancery; 3rd, a Bill further to extend the Jurisdiction of the Judges of the County Courts, and to facilitate Proceedings in the High Court of Chancery; and 4th, a Bill to limit the Jurisdiction of Her Majesty's Court of Bankruptcy, to abolish the Courts of Bankruptcy for the County Districts, and to give to the Judges of the County Courts Jurisdiction in Matters of Arrangement and of Bankruptcy in certain cases; which were severally read a first time, and ordered to be printed. House adjourned to Friday next.