LORD BROUGHAM* My Lords, the petitions which I have just laid before your Lordships, bring under our consideration the important subject of County Courts, and several of the defects existing in the great system of Local Judicature. The Bill which I presented at the beginning of the Session, for further extending that jurisdic- 834 tion, stands for a second reading this day, and I therefore take the opportunity of stating the course which I propose we should pursue with it, and with this important subject in its various branches.
That some great defects, and not a few erroneous provisions, found their way into the system, is not to be wondered at, when we recollect the manner in which the Bill of 1846 was introduced and passed. The responsibility of these defects I must peremptorily disclaim. The original and larger measure of 1830 and 1833 had been rejected by a narrow majority; and when the partial one introduced by my noble and learned Friend (Lord Lyndhurst) was, on his quitting office, adopted by his successor, I in vain urged the postponement of it, from the end of July, when it was resolved that it should be hurried through Parliament, until the next Session, when time would be afforded for removing its defects, and bringing it to a nearer resemblance with the measure of 1833, to which the new Government of 1846 were as much pledged as I was myself, they having been in office with me when I first brought it forward. Unfortunately, it was driven through both Houses between the end of July and the end of August, when but a few Members of either House remained in town. One of the worst consequences of this precipitate proceeding was, the not paying a due attention to the choice of the Judges in some instances, and in all, the underrating the importance of their office. Aware of that importance, I had, in 1833, proposed such a salary as should secure the services of men eminent in the profession. Lord Cottenham deemed a maximum of 1,200l. sufficient, and at once awarded the same salary of only 1,000l. to all the sixty whom he appointed, the former plan having been to make 1,500l. the average, and award 1,200l. to one, 1,800l. to another, according to the kind of the districts in which they officiated. In order to save compensation in the case of local Courts abolished, the other error was committed of appointing persons who had presided in those Courts, and who were of various capacities. I am, however, most willing to admit that generally the selection was well made, and that a body of men were appointed who have given, and justly given, and satisfaction. Of this no better proof can be required than the manner in which the system has worked (with all the imperfections arising from the manner in which it was established), and especially the small 835 number of the reversals of the judgments pronounced by those learned persons.
It would be difficult to overrate the benefits which have been derived from this great amendment of the law; and they are no friends of our judicial system who treat the new tribunals with contempt—still less are they its friends who regard them with jealousy. This jealousy is, with the paradox usual in such feelings, often found to alternate with contempt, and they are termed Small Debt Courts, in order to lower thorn in public estimation. But though, unfortunately, this name was at first applied to them in the Act, and has continued, nothing can be less descriptive of their functions. They were, by the original Bill of 1830 and 1833, to have had jurisdiction as far as 100l. The Act of 1846 reduced this to 20l.; but Mr. Fitzroy's most important Act of 1850, the greatest service that any layman ever rendered to the law, increased this to 50l., and we then added the optional clause taken from the original Bill, giving them unlimited jurisdiction by consent in all cases, not only of any amount, but of any description. Then the Charitable Trusts Bill, the Succession Duty Bill, the Customs Regulation Bill, all now on the eve of passing, add important judicial functions. But take only their present jurisdiction, and compare it with that of the Superior Courts; they had above 400,000 plaints, and tried more than half of them, yearly, before the extended jurisdiction; and in 1851 the plaints were above 440,000, for an amount exceeding 1,600,000l. Above 13,400 for sums between 20l. and 50l. were disposed of, 8,200 being tried. And let me observe in passing, that there being an appeal to the Courts above on all matters of law arising in this class of suits, there were only 38 appeals brought, and only 8 reversals of the local Judge's decisions, being no more than one in a thousand of the cases tried. Now, they who underrate the importance of what they contemptuously call "Small Debt Courts," would do well to bear in mind that while they tried above 8,000 actions between 20l. and 50l., the Superior Courts tried altogether, in the same year, 1851, exactly 1,943; this being the whole number of judgments, including those by consent. The County Courts, therefore, tried four times as many as the Superior Courts, even if we suppose that of those tried by the latter none were under 20l. As, however, a considerable number were, the dis- 836 proportion was very much greater than four to one.
This great change in our judicial system, having now been in operation for above six years, it is manifestly our duty to profit by the experience thus afforded of its working. For, as I have once and again reminded your Lordships, in all proceedings for the amendment of the law, but indeed it may be said in all the alterations which are made in any branch of our polity, the lawgiver is bound, not only to devise his measures with all deliberation, but carefully to watch the operations of each, after it has been adopted. Human foresight can only act within narrow limits. Little are we ever able to see of what lies in advance of us; and this renders the utmost circumspection necessary, that we may at least profit by examining all that can be descried on either side. Yet even here we may not be so secure, as in casting our view behind us, and at least benefiting by the experience of the past. The wise lawgiver, then, will not only in steering his course ever have the lead in his hand that he may avoid shoals and sunken rocks; not only will he by the log ascertain the pace he moves at; but he must constantly take observations, by which he may discover if peradventure he has not departed from his course; and then, scorning to conceal his error, at once avowing his deviation, it behoves him instantly to regain the right track, in order to reach the desired haven. Thus are we now bound to examine carefully the errors which experience may have pointed out in our late changes of the law, as well as to supply the defects which were manifestly left in the plan on its first adoption.
I hear it indeed said, when I have urged, both last year and more lately, tire appointment of a Commission to inquire into the whole subject, that the experience has been too short, and that we should wait till the County Courts have been longer in operation. The answer to this objection seems decisive. Although the time has been short, the space has been vast over which the system has acted. Sixty Courts sitting twelve times a year, and in seven places each upon an average, gives the vast number of above 30,000 Courts holden. These have been under a variety of judges and officers, with a still greater variety of practitioners, and of suitors; so that it is contrary to all probability that any considerable defects of faults in the system should not have been felt and brought to 837 light. It would be endless to give all, or nearly all, the instances; one or two must suffice.
The whole finance of these Courts requires the most searching investigation. The fees or taxes on all their proceedings I have repeatedly brought before your Lordships, as an error of the grossest kind, and a hardship the most cruel to the suitor. In 1851 the suits were for 1,624,000l., of which 815,000l. were recovered by judgments, and 100,000l. paid into Court without judgment. Of the remaining 709,000l. about 500,000l. were paid or settled out of Court on the actions being brought. The fees exacted amounted to 272,000l., or 30 per cent on the sums recovered in Court; but take it on the whole at 1,400,000l. and it is twenty percent on all the money recovered in and out of court, by suit or by threat. Now this has been over and over again allowed to be a grievance utterly intolerable. The Judges in the Courts above are paid by the State; the whole administration of justice ought so to be paid; and the suitors in the County Courts alone are compelled to pay for the judges who decide their causes. Some fees may be retained, as those on execution, because when the decision shows the party to be in the wrong, it is his own fault if he does not pay without a levy upon his goods; but allowing 60,000l. of the sum now raised to be thus taken in execution fees, there remain above 200,000l., which all are agreed must be taken off. But then inquiry is necessary as to the manner of supplying the loss and paying the officers. Such errors as have been committed in apportioning costs must be corrected; and the gross anomaly no longer be suffered to exist of having a judgment by consent, and without any contest, almost as expensive as one where the cause has proceeded to hearing.
When I first denounced these grievance before your Lordships, my noble Friends opposite, and my noble and learned Friend on the woolsack, admitted that they must without delay be removed; and it wt deemed inexpedient to delay the remedy until a Commission should be able to report. It appears, however, that man other matters, and some of them connected also with the finance of the Courts, deserve examination. I have communicated to my noble and learned Friend the results of a most extensive correspondence with the officers and practitioners, and I have also handed over to him a great portion of 838 the letters and the memorials themselves. Upon some of the most important points there is an universal concurrence of opinion, among the rest, upon the finance. Upon other other points there is a considerable difference of opinion. But the whole subject seems now ripe for inquiry.
The extension of the jurisdiction is one of the most important of the subjects, and it is one to which the numerous petitions that I have presented to your Lordships both to-day and on former occasions are very anxiously addressed. The giving a discretionary power to the Judge of allowing a second action when the debt clearly exceeds the sums sued for, seems an obvious improvement. I have known six cases come in the course of a single circuit before one of the learned Judges, in each of which the sum given up for the sake of bringing the claim within the jurisdiction, was equal to the sum demanded, and in one instance thrice as large. There could be no harm in empowering the Judge to allow a second suit to the limited amount of 50l., where, by the defendant's admission, or by some written evidence, it plainly appeared that the surplus was due. Again, the want of all equitable jurisdiction is loudly complained of. I purpose deferring the further consideration of the Bill, which I early in the Session presented for giving this extension, because I confidently hope the Commission about to be issued will fully examine this important question. Under proper guards, as by allowing a removal in the nature of a certiorari, enabling all the facts to be ascertained in the County Court, and permitting an appeal upon the equity, there seems no kind of reason why the extension should not be given. An improvement upon the law of evidence might also be made, beginning with these Courts, as the former amendment of the law did; but I think it should be extended to all the Courts. I would give the Judge in all cases the discretion of calling before, him the parties, when for any reason they did not appear to be examined. It frequently happens that one is not called in his own cause, and that then the adversary is apprehensive of calling him, and so the truth is excluded. The Court has no interest in yielding to this play of the contending parties; it only desires to come at the real merits of the case, and it should be armed with the discretion to which I refer, to be used, of course, with a due regard to the circum- 839 stances, such as the necessary absence of a party.
The important provisions on Arbitration in the County Courts Extension Bill formerly presented to your Lordships, and which you were pleased to entertain favourably, I have thought it expedient to make the subject of a separate Bill, which I am now about to present; and it greatly extends those former provisions, in consequence of the very important suggestions of some esteemed friends of mine, gentlemen belonging to the City, whose efforts in the improvement of the mercantile law cannot be too highly commended. Indeed, they are well known to such of your Lordships as have either in this Session or in 1849 attended the Committee on the Bankrupt Law. I need only mention the able and worthy Chairman of the London Association, Mr. W. Hawes, who first made me fully aware of the great hardship inflicted on traders by the state of the law respecting arbitration. Its general defects had indeed been often the subject of discussion, and to remedy them was the purpose of the clauses in the County Courts Extension Bill. But the evil consequences arising from the utter inefficacy of the common partnership article for referring disputes, had not been sufficiently considered. I am here most fortunate that I address your Lordships in the presence of my noble Friend opposite (Lord Overstone)—fortunate on every account, because they who have had the advantage of sitting with him in Committees upon the Amendment of the Law, whether as regards Registration, or Bankruptcy, or the Criminal Code, are aware how great acuteness and sagacity as well as ample experience he brings to the discussion; but particularly I am fortunate in stating before him this defect, the consequences of which he must so often have seen; I mean that in a partnership, charter party, policy, or other deed, an article to refer disputes is mere waste paper. Until the difference arises between the partners, of course it is in abeyance; and the moment it is wanted to make a speedy end of the matter in dispute, and to save the expense as well as delays and anxieties of litigation, the parties having quarrelled, both will not agree either to name an arbitrator, or, if the deed has named one, to proceed before him. Now the law as it now stands gives absolutely no remedy. Arbitration, except at Nisi Prius, is no favourite with any of our Courts—neither Courts of Law 840 nor of Equity. The most solemn covenant to refer that men can enter into, gives no right to damages at law for the breach of refusing to refer, or to specific performance in Equity, by compelling the reluctant party to proceed. Nor can any such covenant, or any other agreement to refer, be pleaded either at Law or in Equity against a party choosing to sue before the Courts in the teeth of his most solemn obligation to settle the whole before the private tribunal, It is, indeed, barely twenty years since every kind of submission was revocable at the pleasure of either party; and although that great defect was then removed, nothing can be more imperfect than the law respecting Arbitration still is. Its more glaring defects are removed in the Bill which I shall now present to your Lordships. It embraces the Arbitration Clauses of the Bill formerly laid before you, giving the benefit of the County Courts to all persons who choose to refer their disputes, of whatever kind, and who would avoid the great delay and expense attending references before private arbitrators whose remuneration depends upon the length of the procedure. But as there are cases in which parties may prefer referring to private individuals—those in whom they may have a special confidence, or who may from professional habits be peculiarly fit to conduct the inquiry—the means are afforded of making such a reference effectual, both by compelling parties to perform their agreement or covenant of reference, and by providing for the easy and expeditions conduct of the proceeding. I venture to state, that whoever takes the trouble to examine this Bill, will find it satisfactorily framed; and I speak not certainly of my own workmanship—for useful changes are made on the clauses in the County Courts Extension Bill, and the clauses which I had framed for meeting the wishes of the City gentlemen, having undergone great alteration, have received material improvement beside the addition of some valuable provisions. I have had in this the inestimable advantage of my learned friend Mr. Francis Russell's assistance—a gentleman well known in the profession as the author of the admirable work lately published on the Law of Arbitrament.
I would fain have engrafted upon this Bill another provision, approved by the Commissioners in their second and most valuable Report—I mean the enabling a Judge in certain cases to make parties 841 refer. But this requires to be guarded in a very careful manner, that abuse may not arise; and I so far differ from the Commissioners as to be of opinion that the power should only be exercised in cases where a previous attendance before a Judge has given full warning to the parties of a reference being probably forced upon them, should they proceed instead of referring immediately. I will not say that cases may not occur where, until a certain progress has been made in the trial, it is difficult to determine whether or not the cause should be settled out of Court. But, generally speaking, the great grievance of a reference is, that it takes place after all the expenses have been incurred of bringing the case to nisi prius, and that the arbitration entails the necessity of those expenses being again incurred, and a great deal more added. If, indeed, the Judge referred to the County Court, a great part of this would be spared, from the procedure being so expeditious where the arbitrator has no interest whatever in protracting it. Yet there would still be the objection to repeating much of the cost already incurred. I have, therefore, on the whole deemed it advisable to insert in the Bill no provisions of a compulsory nature, and only to deal with voluntary submissions, whether by general and prospective articles in partnership deeds, charter parties, policies, or by agreement in the particular case. That arbitration ought to be with the lawgiver a favourite—a course to be by all well-advised means facilitated and encouraged, instead of being, as in our Courts it has been, an object of aversion and discouragement—I hold to be quite clear upon every principle; and having so often failed in obtaining the assent of your Lordships to measures for establishing Courts of Reconcilement, I fondly hope that a substitute may be found for those measures in this great improvement of the Law of Arbitration. I may add, that this Bill will naturally go before the Commissioners upon the Assimilation of the Mercantile Law in the three kingdoms. In Scotland there are in the Law of Arbitration one or two material differences from our English law. One is of considerable importance, and I incline to prefer the Scotch principle. If the clause of submission in a partnership deed or other instrument specifies the arbitrator, the Courts will enforce proceeding with the reference. With us this specification makes no difference; a party cannot be 842 compelled to go on, nor can the agreement of reference to the arbitrator named be pleaded in bar. It will be for the Assimilation Commissioners to consider this among other points, and to report whether the English or the Scotch rule ought to prevail, if the present law remains unaltered; but I trust that their approval of the Bill which I now present may at once and easily assimilate the law in the two countries.
Further, it is to be presumed that the County Court Commissioners will fully digest the various statutes and incidental provisions respecting County Courts into one Act, repealing all those over which the law on this important subject lies scattered. There are no less than four statutes devoted to those Courts exclusively, eleven which contain incidentally provisions relating to them, besides three others now passing through Parliament. It is impossible to figure any case in which a digest of the law can more be wanted. The great number of persons interested as Judges, officers, and practitioners, the still larger number as suitors, renders it peculiarly desirable that the whole provisions of the law relating to this branch of judicature should be brought into a narrow compass, and be accessible by reference to a single statute.
When the jurisdiction of the County Courts shall be extended, and the other omissions in the existing Acts supplied, and when the Bankruptcy Law Commissioners shall have inquired into the best means of combining these tribunals with the Bankruptcy Courts; when such judicious arrangements shall be made as may facilitate the establishment of a local Bar in the greater provincial towns; and when the more frequent holding of assizes, both for civil and criminal trials shall be the happy results of the diminished business in the Superior Courts—then we shall have the whole measure of 1833 at length established, and shall possess a tolerably complete system of local judicature. We may well view this consummation with satisfaction. Yet I own that in me such feelings are mingled with anxiety, if not with pain, when I consider the great change which it is working in our judicial institutions—its effects upon the profession to which I am attached by every tie of respect and gratitude and affection; its effects, not upon the Bar alone, but upon the Bench, which from the Bar can never be dissociated—the Bar at once its parent, 843 its nursery, and its helpmate. We are in a transition state; and I confidently hope that, although at present some cloud may hang over our prospects, yet by due regard to the interest of the suitor, and by effectual though cautious improvements in all the procedure of all the tribunals, the prosperity of the law's professors will be found to suffer no lasting injury from the advantages which have accrued to its subjects, their clients. Of one thing I am quite certain—the profession have gained as much as the law itself, by having shown themselves friendly to its improvement, and made it possible to leave all that concerns its amendment in the hands of skilful, learned, and experienced men. Other classes of the community have not been so wise, and they have suffered from their shortsighted resistance—they as well as the reform of the system they were attached to. The pain which I have confessed to feeling for the immediate, and I trust temporary, effect of these changes in the law, had I not also felt it for other changes in which I bore a part? Who could but feel deep sympathy with our countrymen in the Colonies, reduced to distress, even to ruin, by the course of legislation in the mother country? Who could avoid lamenting over such cases as I lately presented to your Lordships, in the petition of planters whose vast fortunes had been swept away with hardly any compensation? But those unfortunate men had themselves chiefly to blame. We were ever persuaded that the abolition of the traffic could only be executed by England, but that the freedom of the slaves, after means taken to prepare them for it, was far better left in the hands of the Colonial Governments, as I repeatedly urged more than half a century ago. But deaf to all warnings, they would not stir, at once to perform their highest duties, and consult their best interests, Wherefore England was compelled to interpose, and they who had resisted all timely reform, made themselves, as ever happens, the victims of revolution. The lawyers have been better advised; they have aided, not thwarted, the progress of improvement; they have thus kept the needful changes in safe hands; and the reward of their wise foresight regarding their own interest, their early and liberal concession to the public weal, will be their remaining unscathed after the darkness of the hour has passed away.
My Lords, there are two subjects on 844 which I must further address your Lordships, one connected with local judicature, both the one and the other often before broached by me in this House. I allude to the jurisdiction of the magistrates at Sessions, and to the conduct of business in both Houses of Parliament. It was expected when the Bill of 1833 came before your Lordships, that the Local Court Judge would be chosen by the magistrates as their chairman, and the provision of that Bill, introduced with this view, was adopted also in the Act of 1846, I mean the giving the County Court Judge authority to act as justice within his district. The great advantage of such an arrangement is obvious; and, far from considering it in the light of abolishing the sessions, as a noble Friend of mine, but himself a chairman of sessions, did (Lord Salisbury), when last year I urged it upon the attention of your Lordships, I can only regard it as giving to that important jurisdiction a most useful assistance, and effecting upon it a great improvement. The aid of a learned person, filling a high judicial office, unconnected with any party, and respected by all, would in my opinion, be an acquisition of the greatest value to the respectable and useful body who, by their own free choice, had raised him to preside over them. In Ireland there is hardly an instance of the assistant barrister not being gladly, and without opposition, chosen as chairman of the sessions. In England, I grieve to say, no instance has yet occurred of this choice falling upon a County Court Judge.
I pass to the other and yet more important subject of our Private Bill legislation; perhaps I should rather say our whole Parliamentary business. But that of Private Bills demands the greatest share of our attention. It is wholly unaccountable that this power should have grown up and its exercise assumed such vast dimensions, without any adequate provision for guiding and controlling it. Well might Lord Langdale term it a truly transcendental authority which Parliament thus exercises. While all the courts of justice in the country are deciding questions that involve interests to the amount of thousands or hundreds of thousands, we are disposing of millions; and while they are acting by fixed rules and are only administering the law in each case, we are disposing of rights of property to this enormous amount, not only without any known law, but contrary to the law; setting aside settlements, break- 845 ing wills, violating men's vested rights, acting for or against infants and others incapable of consenting, or even of knowing what is done, nay, persons unborn, and who for years may not come into existence. But again, to consider the vast amount of the interests thus dealt with, and the necessity of both the facts and the rights being in each case thoroughly investigated, it surely never can be contended that the present manner of conducting these inquiries is the best, if it be not indeed the worst possible to be devised; that it either consults the great interest of discovering the truth, or the lesser, though very important interest, of giving despatch and avoiding expense. A plan of proceeding was suggested nineteen years ago by the great man whose irreparable loss we have now to deplore; and though it referred to a particular kind of Bill, it was capable of universal application. The origin of the proposal was this. Towards the end of the Session 1834, a Bill came up from the Commons, providing that any borough charged with corruption might be disfranchised by a single vote of each House, agreeing to an address, and the address assented to by the Crown. When I saw this astounding measure, which would have enabled a Minister to disfranchise any number of boroughs by obtaining in any way from the other House accidental votes, in which I felt afraid your Lordships would not very unwillingly have concurred, I saw that a great oversight alone could account for such a Bill having been passed; and I at once communicated with the illustrious Duke, then leading the opposition, and with my noble Friend near me (the Earl of Ellenborough), one of his most distinguished supporters, appealing to them, whether they could take advantage of the blunder that had been committed, how favourable soever its operation might be to their anti-reform prejudices. As I expected, both those noble persons disclaimed any such wish, and the Duke promised to consider the subject with a view to amend instead of rejecting the Bill. Next day he informed me that a plan had occurred to him; he gave me the outlines of it, and desired my assistance in filling it up, which, highly approving of the greater part, I most willingly gave. We went into the subject in detail, and, having agreed on the main principles, had the Bill referred to a Select Committee, where, after a full discussion, this plan was adopted. In any case where corruption was alleged, a Committee of 846 twelve Members of both Houses was to be appointed, seven of the Commons, and five of the Lords. These were to sit under the presidency of a Judge, who should decide on questions respecting the admission or rejection of evidence. A report, in the nature of a special verdict, should then be made on the facts proved. This report should be conclusive on those facts, and nothing more. A Bill might then be brought into either House, and should go through all the usual changes, excepting only that no further evidence should be taken in the Committee. My recollection is not distinct as to whether a new inquiry might be directed by either House in a similar joint Committee of twelve; but this is immaterial, for all must at once perceive that in hardly any instance would an unwillingness be found to abide by the result of the first inquiry. When I express my admiration of this plan, I speak without the least claim to a share in it; on two points only did I venture to differ with my illustrious Friend; the presidency of a Judge which I suggested, and the proportion of the Members between the two Houses; which he at first thought should be that of equality; but afterwards, with his wonted candour, agreed should be seven and five.
This plan was adopted by the Committee without a dissentient voice; the Bill was amended accordingly and reported to the House; it passed unanimously through its after stages, and was sent down to the Commons. There my noble Friend (Lord J. Russell), frankly admitted the faults of his measure, and entirely approved of the manner in which we had corrected them. But as the whole Bill had been altered, as we had in truth sent down an entirely different Bill, there was an obvious reason against passing it by the single vote of agreeing to our amendments—the very argument, indeed, used against the Bill as it originally came up to us from the Commons. The result was that it stood over to another Session, and it has never since been taken up.
That precisely the same plan might be adopted in every case of a Private Bill, I have no manner of doubt. And an opportunity soon occurred of considering this general application. In 1837 I brought before your Lordships the whole subject of Private Bill legislation, and you were pleased to appoint a Committee to examine what changes should be made in our Standing Orders on this subject. Before going into 847 the Committee, I naturally conferred chiefly with the Duke, reminding him of our plan in 1834. My noble Friend near me (Lord Ellenborough) joined us in considering the whole matter when the Committee met. I stated to the Duke that there seemed three courses open to us, and asked which he felt disposed to recommend. There was the most effectual one, his plan of a joint Committee, but this required the concurrence of the other House. There was the adoption of new Standing Orders requiring Select Committees of five in each case, and to sit from day to day. There was a third plan, but so ineffectual that we at once rejected it. The Duke was clearly of opinion that I should try the best plan, and he said, "If they wont take that, you can retreat upon the other." I need hardly add, that with his accustomed straightforwardness he supported the proposition; but we were unable to carry it, chiefly because it was more than could be accomplished by this House alone. After considerable discussion, we adjourned, in order to give time for the consideration of another plan suggested by one of the Committee. This was almost unaanimously rejected, and the report was without any dissentient voice made in favour of the new Standing Orders, to which I had the satisfaction of obtaining also the unanimous consent of your Lordships. We expected that the Commons would have adopted them; but for many years this did not happen; it was only in 1846, I think, that the great improvement in our procedure became common to both Houses.
That it has effected a most salutary change—that it is a very great improvement upon the former system—I most entirely admit. But it leaves much to be done; leaves more evil by a good deal than it has remedied. With the view of supplying this defect, I ventured in 1846 to lay before your Lordships a series of resolutions, directing the formation of a board of competent professional men, irremovable like the Judges, not to supersede the functions of either House, but to aid both Houses, by conducting the whole inquiry into the facts of each case, and only rendering the stages of the Committee and report on any Bill unnecessary; but this also subject to the control of each House, so far as regards further inquiry, or referring back or disapproval of the Report. The state of the business in both Houses, but more especially in the Commons, has come to be such as renders some measure 848 of effectual assistance absolutely necessary; and in consequence probably of these Resolutions and the Orders of 1837, I have had the honour of a communication with the highest authority there upon this subject. I rejoice to find that the matter has thus been entered upon. It cannot be in better hands. Were I to join in the universal chorus of respectful praise which rises to that eminent individual, I should be doing a most superfluous act; but I may be allowed to bear my testimony to the great merits of the plan now in contemplation, and my satisfaction with it, notwithstanding some material differences from my own. To show the absolute necessity of a change, we need only recollect that in one year (the year before the Resolutions) there were 241 Private Acts passed, containing 13,624 sections and schedules, beside perhaps half as many which were thrown out.
But when we shall have put this branch of legislation upon a right footing, surely we cannot stop short of the other, and leave the preparation and passing of Public Acts in its present most unsatisfactory state. How often have men of all parties avowed their ardent desire to see this grievous defect remedied, whether by appointing a Minister of Justice, or a Board, or a Board acting with or under that functionary. All men are agreed on the evil. No one denies or doubts its magnitude. Yet I remember a lamented friend of mine, in this House, one of the most sagacious of observers (Lord Ashburton), saying—"This is, of all the improvements you have ever propounded, the most undoubtedly required; and, nevertheless, you will find it easier to carry all the rest than this." I would fain hope that the time approaches when the difficulty may be overcome; and if the plan now under consideration in the other House, shall next Session be there adopted, and extended to our proceedings here, I really do not despair of seeing the whole mechanism of our legislation at length framed upon principles which by deserving may command respect.
I will not detain your Lordships with any apology for having so long trespassed upon your patient attention, for which, however, I have to offer my respectful thanks. Whatever functions this House may exercise, believe me there is none so important as that which connects it with the department of justice. We can never be better employed, or more certainly secure our footing in the State, than by 849 duly administering the law, and anxiously watching over its amendment.
§ Order of the day discharged for the Second Reading of the County Courts Further Extension Bill.
LORD BROUGHAMthen presented the Arbitration Law Amendment Bill, and moved that it be now read a First Time.
The LORD CHANCELLORsaid, that the subject of the Bill which his noble and learned Friend had just moved should be read a first time, was one entirely worthy of the attention of the House. It must be apparent to all who had given the matter a moment's consideration, that at present private Bills before Parliament stood in a most anomalous position, partaking as they did partly of a judicial and partly of a legislative character; and the question being in this respect, amongst others, of much importance, he trusted a measure might be completed that would be satisfactory alike to their Lordships and to the parties concerned. With regard to his noble and learned Friend's Bill on the Jurisdiction of the County Courts, as that measure had been withdrawn, it was unnecessary that he should occupy their Lordships' time by comments upon it. It was, however, a subject which was worthy their Lordships' careful attention, and he admitted that there were great variations in the practice of the various County Courts; and he might add, that in deference to the opinion of his noble and learned Friend, he had determined on issuing a Commission to inquire into the state of those Courts, with the view of ascertaining if they had properly discharged their duties, and what improvements could be introduced in the practice of these Courts, and also whether any and what additional duties might be imposed upon them. With regard to the transfer to them of an equitable jurisdiction—supposing the Judges of the County Courts were able to undertake such duties—he very much doubted whether it would be so well or cheaply performed as by the Courts which now exercised that jurisdiction. His noble and learned Friend proposed to transfer to the County Court Judges functions which were at present usually exercised by Masters in Chancery; but he (the Lord Chancellor) thought this would be only to establish Masters in Chancery under another name. He could assure his noble and learned Friend, however, that the subject of County Courts should receive his most anxious consideration. His own conviction with respect to 850 those institutions was that they had been of incalculable benefit to the country; and he only hoped, that in throwing upon the Judges of the County Courts other duties than those for which they were immediately constituted, their efficiency would not be impaired in those points upon which they had proved themselves so competent and useful. The subject of fees paid in the County Courts should also form matter for immediate inquiry, and without saying that they ought all to be taken off, he thought that according to the present system they were imposed in a manner to cause the greatest instead of the least quantity of annoyance, because they were almost all, in the first instance, imposed upon the plaintiff, who had to recover them afterwards from the defendant. It would be satisfactory to his noble and learned Friend to know that his learned and excellent friend Mr. Justice Erle had consented to be a member of the intended Commission; that the Master of the Rolls had consented to be at the head of it; and that he (the Lord Chancellor) had great hopes that his hon. friend Mr. Fitzroy, the Under Secretary of State for the Home Department, would also consent to be placed upon it. Of course it was impossible for that gentleman to devote much time to the subject; still his name would afford a security that the question would be honestly and fairly looked into. Several County Court Judges would also be upon it, and he thought one other Common Law Judge, in addition to Mr. Justice Erle. He thought that such a Commission, conducting their inquiries fairly and honestly, and with no bias for or against the County Courts, but with a determination to report to Parliament and the public what the actual state of these Courts was—how far they had adequately discharged their duties to what extent they could be improved, and whether any and what other functions could be usefully exercised by them—he thought the appointment of such a Commission would be of incalculable benefit, and that Parliament would then be in a position to legislate with much more daylight upon the subject than it possessed now, and be better able to judge how far any of the Bills of his noble and learned Friend might, with advantage, be passed into a law.
LORD BROUGHAMthanked the Lord Chancellor for his fair and candid statement, and took occasion to remind him that there were already many Bills passed into law respecting these Courts—that four 851 several statutes were devoted to County Courts and nothing else—that eleven statutes incidentally dealt with those Courts—and that there were three Bills then pending before Parliament in which they were also dealt with.
§ Bill read 1a.