THE LORD CHANCELLORsaid, that he now proposed to lay on the table a Bill for further amending the Proceedings in the Courts of Common Law. He would call their Lordships' attention as briefly as he could to the case with which he meant to deal; and in doing so, he felt that a difficult task was imposed upon him, for he was fully aware of the difficulty he must experience in attempting to divert their notice from exciting political topics to a subject so very dry, and containing so much matter of mere legal and technical detail. But as he felt that that duty was imposed upon him, he should endeavour to discharge it to the best of his ability. Their Lordships were aware that in the summer of the year 1850 Lord Cottenham, shortly before he resigned the Great Seal, issued a commission to several distinguished members of the bar—among whom were the present Chief Justice of the Common Pleas, Mr. Baron Martin, and the present Attorney General—in order that they might investigate and report upon the best mode of reforming and simplifying proceedings in actions at common law. Those gentlemen made their first report about the close of the year 1851; and the consequence of that report was the passing of an Act of Parliament in the following Session which tended very materially to improve the course of proceeding in those actions. The report in question related principally to that stage of actions which precedes the trial—namely, the course of pleading and certain interlocutory proceedings which must take place in every case before trial; and the object of the Commissioners had been to get rid, as much as possible, of everything merely technical, and to place the mode of procedure on the simplest footing. One main subject to which they directed their attention was that which was popularly called "special pleading." Against special pleading there existed; he believed, a most unfounded prejudice in the minds of the public, in consequence of a misapprehension of what 1328 it really meant. Special pleading, when not abused, afforded the best machinery that could be invented for rendering proceedings at law simple and inexpensive. Its object was to compel litigants to bring their disputes to the simplest and shortest issue, on which the case went to trial. Such was the simple object of special pleading; and, though it had no doubt been subjected to very considerable abuse, in its main features it had been an eminently useful instrument in the administration of justice. In proof of that statement, he need only to refer to a comparison of the number of appeals which had been entered for hearing before their Lordships in the present Session from England and Ireland, where pleading was carefully practised, as compared with the number entered from Scotland, where pleading was unknown, or was very loosely conducted. He had looked over the list of appeals from different parts of the Kingdom during the present Session, and he found that there had been only four appeals entered from Ireland with a population of 7,000,000 or 8,000,000, that there had been only eleven entered from England with a population of 12,000,000 or 13,000,000, while there had been thirty-eight entered from Scotland with a population of 2,000,000 or 3,000,000. He could not help thinking that those facts afforded ground for supposing that the system of special pleading practised in this country and in Ireland, though it had some disadvantages, and occasionally appeared and really was too technical, must be attended with some considerable advantages over those looser modes of proceeding which, to the minds of some, appeared more consistent with convenience and justice. The Commissioners had recommended a great many improvements in that system; but he was happy to know that their inquiries had led them to think that it ought not to be altogether abolished, but that, with great amendments, it ought to be retained. An Act of Parliament had been passed in conformity with their recommendations, and he believed the Judges were prepared to testify that that Act had worked very successfully, and had been attended with as few difficulties and as little disappointment as could possibly be expected. He had said that that first report had been confined for the most part to the question of special pleading and the earlier stages of actions at law. But the Commissioners afterwards proceeded to consider whether any and what amendments could be safely 1329 and properly made in the trial itself. That was the main subject of their second report, which they had produced on the 30th of April last year. He had immediately, on receiving that report, directed that a Bill should be framed, founded upon their recommendations; but as that Bill could not be framed until an advanced period of the Session, and until a time when his noble and learned Friend the Chief Justice of the Court of Queen's Bench was absent from town on circuit with the other Judges, he was then unable to proceed further with the measure than to have the Bill printed and laid upon the table of the House. He had caused the Bill to be sent to the Judges for the purpose of obtaining their opinion of its provisions; and he believed he might say that almost all of them approved of its general outlines. He confessed that he could not himself accede to all the suggestions of the Commissioners, but he had adopted them as far as he thought advisable in the measure which he proposed to introduce that evening. He would now sketch out to their Lordships what the Commissioners recommended, and what he had thought right to adopt. The first great change which the Commissioners recommended was one which, he had no doubt, would startle many persons, but to which he had, to a great extent, become a convert, though he owned that he could not but look upon it with some degree of apprehension. Their Lordships were aware that in civil as well as in criminal proceedings in this country, questions of disputed facts were tried by a jury; and so much was that practice interwoven with our system of judicature, that we had in England little notion of any mode of trial except trial by jury. He believed he could acquit himself of any of the ordinary—he was going to say claptrap—admiration of trial by jury; but at the same time he thought that trial by jury, as it was conducted in this country, afforded one of the best means for arriving at truth that had ever yet been invented. When they spoke of trial by jury, it should always be understood that they spoke of trial by a jury presided over and guided by a judge. The consequence of that system was, that while questions of simple fact were submitted to men not lawyers, they were submitted to them under the direction and guidance of one who was eminently a lawyer, and who had long been in the habit of looking at facts from a legal point of view. He believed that, on the whole, the result of that system was to ensure the triumph of truth better than 1330 it could be ensured under any other mode of proceeding. He knew it was thought that juries often gave wrong verdicts, and no doubt they did; but was it to be supposed that judges would not give wrong verdicts? Everybody was necessarily liable to error. He did not know whether the experience of his noble and learned Friends was in conformity with his own, but he could most conscientiously state to their Lordships, that during the eleven years he had had the honour of acting as a common law Judge, and during which he had, of course, frequently had occasion to preside at trials, it had very often happened to him that after having thought at first that a jury had returned a wrong verdict, he had, on further reflection, been led to think that the jury had been right. That had not, however, as might naturally be supposed, always been the case, and be had sometimes persisted in his original impression. But he thought it was worthy of observation, that it was not certain that juries were wrong merely because judges considered that they were so. One great advantage in a trial by jury was this, that as it was a natural tendency of the minds of persons who, as lawyers, had been professionally educated to look upon questions submitted to their consideration in a purely professional point of view, they had their notions on these questions corrected by persons who looked at them from a different point of view; and he was afraid, if they were to get rid of juries altogether, the result would be that the conclusions which would be arrived at by means of professional men would not be so consistent with common sense as the conclusions they had hitherto obtained by means of non professional man. At the same time he was not surprised to find that one of die first recommendations of the Commissioners was that they should, to some extent, get rid of trial by jury; for there were, no doubt, many cases in which a jury presented a cumbrous and inconvenient machinery for arriving at the truth. What the Commissioners recommended was, that whenever both the litigants wished that the matter of fact which was in dispute between them should be decided by a judge without a jury, it should be in their power to have it so decided. In the Bill which he had prepared last Session he had adopted that recommendation of the Commissioners without any modification: But at present he doubted whether it would be wise on their parts, when they were making a great change—and a greater change than taking 1331 away the trial of facts from a jury and giving it to a judge could hardly be conceived—so long as they were going in a right direction, he doubted whether it would not be wiser to proceed by steps such as persons of ardent temperament might think too slow. What he proposed in the present Bill was, that whenever both the parties wished that a matter of fact should be tried by a judge and not by a jury, it should be so tried if the Court in which the action is brought, or any judge of that Court thought fit, either from a consideration of the particular nature of the case, or in consequence of certain general rules of classification, to be framed by the Judges, which should guide them on such occasions. He did not think they ought to begin by compelling the Judges to undertake the duty of trying particular classes of cases, and assessing the damages, such, for instance, as an action for criminal conversation, or where a father brought an action for the seduction of his daughter. In his opinion it was not desirable that that duty of trying such cases by himself should be imposed as a necessity on a Judge until they had had some trial of the system. There was certainly one advantage in the existing system—namely, that it did not give the litigants an opportunity of complaining that they had not been treated impartially, for it was well known that juries were chosen at what might be considered hap-hazard; but the same rule would not apply where the case was decided by an individual. He might be wrong, but he thought it would be safer to adopt the recommendation of the Commissioners with the limitation which he proposed; and if experience showed that it worked well, they might then very easily extend the application of the principle. He was well aware that there was no such limitation in the county courts, where the Judge always decided on questions of fact, unless the parties wished it to be tried by a jury, which they very rarely did; but he did not think that the rule which they adopted with respect to the cases which came before the county court Judges ought necessarily to be enforced with respect to those larger questions which came before the superior court Judges. He did not think it safe to say that whatever answered in the county courts would necessarily answer in the superior courts; and, indeed, with regard to many cases for personal damages, they could derive no suggestion from the county courts, because of actions for slander, libel, and such as those he had 1332 mentioned, they had no cognisance. For these reasons it was his intention to propose, in the first instance, that trials by the Judges should be limited in the mode which he had suggested. There was another circumstance connected with those trials which he regarded as presenting a great anomaly, and to which he deemed it to be his duty to endeavour to apply some remedy. There were many cases in which the issue to be tried was based solely upon a matter of account, and in which, after a great deal of expense had been occasioned to the parties to the action, the Judge found it necessary to order the question to be referred to arbitration. Now the Commissioners recommended that, with a view to saving both time and money, great facilities should be given to litigants to refer their case for decision to an accountant, or some other referee competent to settle the matter, without going before a court, or subjecting themselves to the expense which must be consequent upon the present mode of proceeding. The Commissioners suggested that a person or persons, selected by the parties to such actions, some officer of the court, or, what would be useful indeed, a county court Judge, might advantageously be appointed as arbitrator, who should make a report upon the question on which the court could act;—and this course the Commissioners thought would be likely to give the most general satisfaction. He (the Lord Chancellor) entirely concurred in the wisdom of that suggestion, and he trusted it would meet with their Lordships' approbation. These, then, were the two first recommendations which had been made by the Commissioners; but, anticipating, of course, as was but reasonable, that many cases would still remain to be tried by juries, even after those recommendations had been adopted, they had proceeded to recommend a number of improvements in that mode of procedure, and he had not hesitated to adopt many of those recommendations. Their Lordships were aware of the distinction between common and special juries. One of the changes which the Commissioners suggested in connection with the subject of trials by jury, was one which related to the admixture of common and special jurors. They had proposed that the qualification of the juror should be in some degree raised, and inasmuch as common juries were not in general selected from a class as intelligent as could be desired, that the panel from which the jurors were to be selected, should include persons whose 1333 names appeared not only upon the common, but also persons whose names were entered upon the special list. Such a course would secure the object of having men on the jury who would bring knowledge of a superior order, while others would bring a knowledge of modes of life which the upper classes could not be aware of; and this admixture would, in his opinion, be productive of no inconsiderable advantage. Now the jury having been assembled, the Commissioners proceeded to state the alterations which they deemed it desirable to introduce in the mode of proceeding before them at the trial. In the present mode of proceeding the counsel for the plaintiff opened his case by stating what it was he proposed to prove, and making such observations as he thought would benefit his client, and witnesses were then called to establish the statements thus put forward. In the same manner the counsel for the defendant went through his case, and called witnesses, or did not call any, as he thought proper. If the counsel for the defendant did not deem it expedient to bring forward any witnesses, then the matter ended, so far as the argument upon the question was concerned, with his statement; but if, upon the other hand, testimony was adduced to establish his case, then the counsel for the plaintiff had a right, after the close of the evidence, to reply. That mode of proceeding was, in his (the Lord Chancellor's) opinion, liable to some objection; because it often happened in the most honestly conducted cases, that when the counsel for the plaintiff bad set forth what he was instructed could in evidence be established, and had adduced that evidence, the witnesses did not exactly bear out the opening statement of the counsel; and then it might be in the power of an adroit counsel for the defence to point out some discrepancy in the testimony, and, by calling no witnesses upon the part of his client, to preclude the opposing counsel from having an opportunity of reconciling contradictions, for which he might very easily and very satisfactorily have it in his power to account. Now, the Commissioners, in order to afford a remedy for such a state of things had, he thought, very wisely, recommended that at the close of the plaintiff's case, the defendant's counsel should be called upon to state whether he intended to adduce any evidence, and if he replied in negative, then that the plaintiff 's counsel should be permitted at the close of the 1334 examination of his own witnesses to address the jury a second time. One of the objections which might be urged against the adoption of such a course was that it would occasion an additional consumption of time. If justice required it time must be found; but he believed that the objection was one which was not entitled to very great weight, inasmuch as the plaintiff's counsel, knowing that in ally case he would have an opportunity of addressing the jury a second time, would be inclined, even as a matter of strategy, to defer to the close of the examination of his own witnesses the greater portion of the observations which he might feel himself called upon to make. Several other suggestions had been made by the Commissioners in connection with the subject of trial by jury in general, which were of a character too technical to render it desirable that he should bring them under their Lordships' notice at length. There were, however, some further recommendations of the Commissioners with respect to which he wished to enter into a brief explanation. They were of a somewhat striking nature, and would, he had no doubt, meet their Lordships' approbation. They had proposed to get rid of one or two anomalies which existed in the present system of jurisprudence, and which had been found to interfere very much with tire administration of substantial justice. There was a rule in law, not altogether unfounded in good sense, which compelled the party who gave a written document in evidence to bring forward the witness also by wheat that document had been attested, if his testimony could be procured. The foundation of the rule was based upon the principle that it was desirable that the person who had been present at the execution of an instrument should, if possible, be brought forward to give evidence as to what passed at the time, and to establish clearly by the corroboration which his testimony must undoubtedly afford the bonâ fide nature of the document. The Commissioners, therefore, proposed to abolish the rule in question, winch was one which had evidently been productive of very great expense, except in cases in which the validity of the document itself depended upon its having been executed in the presence of witnesses. There were a number of other suggestions made in connection with the subject of discrediting a party's own witnesses, which the Commissioners produced to reduce ender the rules of common sense, but with the details of which he should not trouble 1335 their Lordships upon that occasion. He should next advert to another question of some importance, upon which he felt bound to offer a few remarks to the House. Their Lordships were aware that in the case of a verdict, perfect unanimity was, under our present system, required upon the part of all the jurors engaged upon the trial. He did not propose to alter the rule which required unanimity under such circumstances; because, notwithstanding all the inconveniences which might be attendant upon the operation of that rule, he was of opinion that to abolish it altogether would be a course which would be encompassed with no inconsiderable risk; as, for instance, natural indolence would induce many persons to say they voted for A, others that they voted for B, and the case would be thus easily disposed of, without the truth being sifted and canvassed, while the present unanimity required from jurors necessitated discussion. But, although he was an advocate of the rule in question, he did not wish to insist upon its being carried into effect with all the machinery by which it was at present surrounded. It was well known to their Lordships that, in order to obtain the requisite unanimity in the case of juries, we were obliged to have recourse, at times, to measures of coercion the most severe. Juries were locked up; they were deprived of fire, meat, and drink, if it could be shown that there was no danger to life from the deprivation, until they came to an agreement as to their verdict, or until one or more of their number died; or, at any rate, until it was certain that their further detention would do serious bodily injury to some of them. The Commissioners saw the necessity of grappling with such a state of things, and of proposing some more rational rule with respect to it than the very anomalous one which at present prevailed, and which made the success of one of the parties to a suit in some measure dependent upon the strength of the jurors by whom a view of the question favourable to his claims might be supported, or on the more recent period at which they might have satisfied their appetites. To obviate that anomaly the Commissioners proposed that, at the end of a given time—twelve hours, for instance, might be considered a reasonable time—the jury, if they could not agree, might be discharged, and a new trial might be granted. The Commissioners had also suggested that they should be allowed such reasonable refreshments, by the direction of the Judge, as might preclude the possibility of 1336 the supposition that they had been starved into a verdict in favour of one side or the other. He was of opinion that there could be no real danger in making that alteration in the present system; for, although much evil might not have really resulted from the present anomalous state of the law, yet the attention of Parliament having been called to it, and the Commissioners having recommended a change, he thought this recommendation was one which might well receive their Lordships' approval. In the case in which, after a confinement of twelve hours, the jury did not unanimously agree as to the verdict which they ought to pronounce, it was proposed that the Judge should be at liberty to discharge them, and the parties were placed in the same position as if they had not gone to trial at all, and they might either proceed to a new trial immediately at the same assizes or sittings, or they might have the case adjourned until the following assizes, as, under the circumstances, might be deemed the preferable course. Another of the changes which the Commissioners had recommended in the proceedings during the course of the trial, and which he (the Lord Chancellor) thought was based on good sense, was this:—Their Lordships were aware that almost all the evidence given in our courts of justice was tendered upon oath. There were, however, certain religious bodies, such as the Quakers and Moravians, who had conscientious scruples with reference to taking an oath, and to whose scruples deference had been paid by the Legislature. The members of these religious persuasions might give their testimony without binding themselves by the obligation of an oath; and it was for the jury to decide how far that circumstance did or did not in any particular case affect the testimony which they might have given; but the Judge was bound to receive, and the jury to listen to it. It sometimes occurred, however, that persons belonging to none of those religious bodies whose members were exempted from taking an oath on trials by jury, bad an objection equally strong against binding themselves by any obligation so solemn, and it sometimes happened that the Judge was thereby placed in a very disagreeable position. In a trial at which he himself presided in York, a man of respectable appearance was brought forward as a witness by one of the parties to the suit, but refused to take an oath in consequence of the religious scruples upon the point which he entertained, He was asked whether he was a Quaker, or a Moravian, or a Separatist, or a mem- 1337 ber of any of those religious sects to which the attention of the Legislature had been directed; but he replied, "No, I am neither, but I have a most conscientious scruple against taking an oath;" and he quoted the words "Swear not at all," and other passages in Scripture, in justification of his refusal. He (the Lord Chancellor) was bound to say that the witness must either take the oath or be committed; but the man said that, whatever might be the consequences, he could not take the oath. Thereupon, as the witness was an honourable-looking man, it was agreed that, instead of his being committed for contempt of court, which he must otherwise have been, the trial should be adjourned until the next day, in order that he might reconsider the matter. The next morning he came and said he had asked the opinions of various persons, whose names he mentioned, and he now believed that he might take the oath, and he accordingly did take the oath. The difficulty was avoided in that case, but it was avoided by accident; and he hoped their Lordships would observe the position in which they were now placed. They would not hear what a man had to say, although so strong and conscientious was his feeling that he ought to discharge his duty honestly, that he would go to prison rather than utter a single word against his conscience. Now, what the Commissioners had proposed in reference to the case of those men who seemed ready to undergo imprisonment rather than act in contradiction to what they believed to be their duty was, that the Judge should have the power of examining such persons, and if he deemed their objections of taking an oath to be based upon conscientious motives, of regarding their evidence in the same light as that of the members of those religious persuasions with reference to whom the obligation of an oath had by the Legislature been dispensed with. This he (the Lord Chancellor) considered was the best mode of getting out of the difficulty which the nature of the thing permitted. He knew that some persons considered oaths as unnecessary under any circumstances, and that its administration to witnesses upon a trial tendered to serve no useful end, inasmuch as that those who conscientiously objected to an oath would tell the truth, while those who did not intend to speak the truth would not be induced to do so by an oath. Practically, this might be perfectly true with regard to their Lordships, and the Constitution in some measure supposed it, because, in cases where other per- 1338 sons were obliged to answer on their oaths, their Lordships were permitted to answer on their honours; but he should be very loath to give up the additional security for the truth being spoken, which was now obtained from the impression that they were speaking upon oath produced in the minds of many persons. He was greatly confirmed in his Conviction by an observation which he had heard made by Lord Melbourne—that they never found a secret society existing, the members of which did not bind each other by the most solemn oaths. This showed the force which in their opinion attached to an oath. He thought the suggestion of the Commissioners was the best that could be made; and therefore he proposed to leave the oath as it now was, but that the present exception in favour of Moravians, Quakers, and other classes of persons, should be extended to all persons who, having stated that they had conscientious scruples against taking an oath, were able to satisfy the Judge, upon examination, that they were stating that which was perfectly true. He was aware that there were matters of detail, but he should be loath to introduce a Bill of this sort into their Lordships' house without acquainting their Lordships with some of the most material changes which it proposed to effect. There was another circumstance which sometimes took place during a trial, with regard to which a proposition had been made. A question sometimes arose as to whether a particular document or a particular signature was in the handwriting of a particular person. Generally speaking, out of the walls of a Court of Justice, if a person wished to know whether a certain signature was the genuine writing of the person whose signature it purported to be, and he could not apply to the person by whom it purported to have been written, he compared it with other signatures or with the writing of other documents which he knew to be genuine. Undoubtedly this course might have been adopted in courts of justice; but there the objection has been taken, "You cannot tell that the other documents have not been manufactured;" and thus they probably shut out a comparison in 99 cases where the documents had not been manufactured, because in the 100th case it might have been manufactured for the purpose of deception. They shut out the truth in a majority of cases, because in one solitary case more harm than good might be done by the manner in which it was submitted. The Commissioners had, therefore, proposed to alter 1339 the present rule; so that, if any other document were in evidence in the handwriting of the person whose signature to a particular document was disputed, the jury might be allowed to compare the two documents. At present a counsel at nisi prius had to display a kind of dexterity in order to get some other document in the same handwriting put in evidence; but it was now suggested that it would be desirable that a comparison should be made in all cases. There was also another change proposed, which he looked upon as very desirable, and which he trusted would be effected. It sometimes turned out that a document I produced in evidence during a trial had an improper stamp upon it. It might be said that the party could now go to Somerset House and get the document properly stamped, by paying a fine of 5l.; but, if the trial was taking place in the country, it had to go on, and the result was, that if the party lost his verdict he was obliged, not only to pay for the stamp, but also the costs of the trial, and to have a new trial. It was proposed, as a remedy for that state of things, that the officer of the court should in such cases be empowered to receive the penalty, the amount of the proper stamp, and something more, and the document would then be considered in the same state as if it had been stamped at Somerset House. This, as it seemed to him, would be a very desirable object to attain, as a trial now very often failed because there was an error in the manner in which the instrument had been stamped, having, for instance, a 15l. instead of a 20l. stamp—not because it was without a stamp at all—and it was very often extremely difficult to tell what the stamp ought to have been. These were the main recommendations with respect to proceedings at trials. There were a number of other recommendations connected with trials, some of which he had adopted, and some of which he thought he could not properly recommend to their Lordships. At present, in all actions of contract, a defendant who was sued might pay money into court, and then if the plaintiff proceeded to trial for more—for instance, for 500l., the defendant having paid 200l. into court, with the costs up to that time—but did not recover more than the amount of the payment into court, he was very properly obliged to pay all the subsequent costs up to the time of the delivery of the verdict. The Commissioners proposed that this rule should be extended to all cases, but he thought this would be a dangerous change. There were a 1340 multitude of cases in which the damages did not constitute all that the plaintiff desired to attain. A man's character might be slandered, and he might bring his action because he wanted to vindicate his character from the imputations which had been wrongfully cast upon it, and nothing short of a trial would attain his object. What a position would that man be placed in if the defendant were entitled to pay his 500l. into court, and so prevent the trial from proceeding? He would say, "That is not what I want; I want my neighbours and the public to know that I have not been guilty of the abominable acts which have been imputed to me." It would be unjust not to allow a man to proceed except upon the peril of laying, as it were, a wager as to whether the jury would give him a certain amount of damages or not, and he did not therefore intend to recommend their Lordships to adopt the proposal of the Commissioners. There were a number of other recommendations as to what the court might do in order to facilitate the administration of justice—empowering them to make orders for the investigation of documents, for the inspection of the subject-matter of the controversy by the opposite party, and other matters upon which he would not dwell, because it was obvious that they must obtain universal concurrence. There was, however, another very valuable suggestion to which he would refer. According to the present course of proceedings, as laid down by the last Bill, what was called special pleading still continued to exist. The plaintiff delivered a short statement of his grievances to the defendant, and the defendant delivered a short answer of "Not guilty," or whatever his defence might be. The Commissioners made the suggestion, which appeared to him a most reasonable one, that the plaintiff in his declaration, or the defendant in his plea, might deliver a written interrogatory or interrogatories, to which either party respectively should be bound to return an answer upon oath. He thought that if this suggestion of the Commissioners was adopted it would, in a great many cases, prevent all further litigation. The parties to a cause were, as the law now stood, liable to be examined upon a trial; and why should they not be examined vivâ voce upon the trial: why not, he would ask, examine them beforehand, and bring the matter in dispute within the smallest compass, rather than entail upon them unnecessarily all the expense which a trial in a course of law must engender 1341 Some might answer truly and some untruly; they would, however, incur the penalties of perjury by swearing falsely, but there was no reason to believe that in a great majority of cases the parties would not speak the truth. At all events, let the experiment be tried, for it could do no harm. After the plaintiff had recovered judgment in an action brought for some wrong which had been done, it very often happened that the defendant kept on repeating the same injury, and at present a court of common law had no power, except in the single case of the infringement of a patent, and that only by a very recent Act of Parliament, to do what was called preventive justice. It might give damages when the injury had been committed, but it could not prevent the injury, and, in order that this might be done, the party must be handed over to another tribunal, to the common-place declamations against which he should be the last to yield—namely, the Court of Chancery—in order to secure themselves from a recurrence of these injuries; but nothing could, in his opinion, be more utterly at variance with the object of all jurisprudence than unnecessarily to hand over a party from one tribunal to another; and why should they not therefore give the court which had adjudicated upon the right, and given damages in respect of its infringement, the power of also issuing an injunction to prevent its further infringement? The recommendation of the Commissioners upon this point he proposed to adopt, as he considered that it was founded upon very good reasons. At present, especially since the last twenty or thirty years and the increase of railway and other public Acts, a party, besides being entitled to a remedy for a wrong done, was also entitled to apply for a writ of mandamus compelling a public body to do a certain act. Suppose that a railway Act passed, authorising a company to make a railway, and directing them to make a communication from one to another of his fields. If they made the railway, but not the communication, he had two grievances against them. In the first place he had been injured by being shut up in one of his fields, and in the next place the injury was one which might continue for all time. He must now take two proceedings, one in a court of law to recover compensation for the injury that had been done him, and the other in the Court of Chancery to compel a specific performance of the right to which he had become entitled. The Commissioners suggested that the same pro- 1342 ceeding should enable the party to obtain damages and also relief from the injury. The Commissioners went on further to recommend that there should be given to the courts of common law power to decree what was called specific performance of a contract; but he did not go along with them in that suggestion, and he thought it was unnecessary. At present specific performance might practically be said to be confined to cases of contracts for the sale and purchase of lands, although, strictly and technically speaking, there were other cases to which it also applied, and those cases were well and satisfactorily adjudicated upon by a proceeding well known in Chancery. The Commissioners proposed, that in all cases of contracts the common law courts might order the parties specifically to perform. He was at first, he confessed, taken with the proposal, and thought it quite consonant with justice, but he did not know, when he had considered it, what limitations could be imposed upon it. Could the party be compelled to specific performance in an action for breach of promise of marriage? This illustration went to an extreme length, but there were numbers of cases, not quite so strong, which, if they were not excepted from the general rule, would present great difficulty in the way of its application. He did not, therefore, feel warranted in recommending their Lordships to adopt this suggestion. Having gone through the proceedings at trials, the Commissioners had directed their attention to the means which it would be desirable to employ to enable parties to obtain the fruits of their successful verdicts. Various alterations had from time to time been made in the articles which might be taken in execution after verdict. Chattels were always liable to be taken, and land had lately been also made liable; but it was singular, that for a length of time money could not be taken, although the law had now been altered in that respect. But there was one description of property which could not be taken. A man might have a quantity of valuable debts, but, except in the city of London, by the system of foreign attachment, and, he believed, in Bristol and some other places, a creditor who recovered judgment against a debtor could not touch his debts. He (the Lord Chancellor) saw no good reason why that should continue any longer to be the case. There seemed to be no reason why a man who owed him 100l. and would not pay him, should not be obliged to give up the 100l. owed him by another man, in satisfaction of his debt. 1343 Certain clauses had been introduced in the Bill to carry out this object. There was one other very important subject to which he would call their Lordships' attention. They had heard of late a great deal about the expediency of what was called a fusion of the courts of law and equity, so that each court should be competent to administer justice either as a court of law or of equity. Undoubtedly, if they were founding a new country which bad no law at all—where all were, as it were, a tabula rasa—and were endeavouring to make the best system which could be devised, no one would think of making a distinction between what was technically called law and what was technically termed equity. He was not, however, one of those who held the opinion, considering the position in which we were now placed, that so much advantage would result from the proposed fusion of law and equity as many persons seemed to imagine. If there were any real grievance to be complained of as the result of the present mode, then the question would undoubtedly assume a different aspect, and a fusion would perhaps become imperative—but such was not the case. The difference between what were technically known as law and equity was well understood. But, although this was the view he took, he was far from not agreeing that, if they could so far assimilate the two that a party, by going to law, could obtain all he could now get by going to law and equity, so as to have everything done in one court, it would not be a most desirable object. With this view, the Commissioners had recommended that great facilities should be given to the pleading of what were termed "equitable defences," at trials at common law. He would illustrate his meaning. A man brought an action on a bond and recovered judgment, but the party against whom he had recovered refused to pay, because an agreement, not under seal, released him from the payment. According to the rules of law, this defence could not now be pleaded, as it was an equitable, not a legal one. He proposed in this Bill, that an equitable defence might be pleaded in bar to an action, and he did not believe that any difficulty would be found in the working of the provision. One of the learned and talented gentlemen whose name was attached to the Report, Mr. Willes, had lately visited the United States, where this law was in operation, with the understanding of a lawyer. He said, that in the American courts he had seen equitable defences tried, and had 1344 spoken to some of the most intelligent lawyers in that country on the subject, but, although the alteration had only been introduced within the last thirty years, no difficulty whatever had been found in carrying it into effect, and this had confirmed him in his previous opinion. He would now, thanking their Lordships for the indulgence with which they had listened to his statement, move that the Bill be read a first time. The course he proposed to take was to move the second reading, upon which he supposed there would be no discussion, as the Bill referred almost entirely to matters of detail, when his noble and learned Friend the Lord Chief Justice returned from his circuit, in order that it might then be immediately referred to a Select Committee. The noble and learned Lord then presented A Bill for the further Amendment of the Process and Practice and Mode of Pleading in and enlarging the Jurisdiction of the Superior Courts of Common Law at Westminster.
LORD CAMPBELLhad no doubt that, when the measure proposed by his noble and learned Friend had passed both Houses of Parliament and received the Royal assent, it would very much improve the jurisprudence of the country. He thought they were exceedingly indebted to the learned Commissioners for the suggestions they had made, and that they were deserving also of the thanks of the country. At the same time there were some of the suggestions which he thought went further than the House could safely venture, and he was glad that his noble and learned Friend had not followed all the suggestions pressed upon him. With regard to trial by jury, he was glad his noble and learned Friend was not one of the new converts who thought it ought to be abolished. Certainly there were many cases now brought before a jury which a jury was unfit to try, and they should refer such cases, at least with the consent of the parties, to the Judge, and not to the jury. For example, cases of ejectment, in which there was no dispute as to the facts, but the questions to be decided were simply points of law and matters of that kind, should not be sent before a jury, because a jury was totally incompetent to try them, and the sooner they were removed from their jurisdiction the better; but he felt convinced that with regard to cases that were fit for a jury, a jury with a Judge would try them infinitely better than a Judge without a jury, Cases of slander, assault, and personal 1345 wrongs were of this class, and would be tried much better by a jury with the assistance of a Judge, than by a judge without the assistance of a jury. Even as regarded contracts, grave objections existed against referring them, without any exception, to the decision of a Judge. Suppose an action was brought against an insurance office on a fire policy, and that the defence was that the plaintiff had set fire to the premises with the view of defrauding the insurance office, In this case the real issue to be tried would be whether the plaintiff had been guilty of felony; but still it was an action of contract, and would it be fit that such a case should be tried by a single Judge instead of being tried by a jury? He was sure that he as a Judge would shrink from such a task were it to be thrown upon him. With regard to the improvements in the trial by jury to which his noble and learned Friend had referred, he approved of them all, particularly the change which had reference to the alteration of that barbarous custom of locking up and starving out juries. It was not, however, accurate to say that they were not allowed candlelight. They were not to have fire, but they were allowed the advantage of candlelight; they might have candles, but not fire, and they must remain without meat or drink until they do concur. And on circuit it was prescribed, that if they could not agree upon their verdict they were to be carried in a cart to the border of the county and there shot into the boundary. He was glad that that system was to be changed; but in carrying out the proposed measure they should take care that the jurors were not engaged in reading newspapers or fashionable novels until the twelve hours during which they are to be detained had expired. The next subject referred to was the objection expressed sometimes by witnesses to the taking of oaths. In this matter the discretion proposed to be given to the Judge in the administration of oaths was an improvement that had long been called for. A noble and learned Friend of his (Lord Denman) formerly brought in a Bill to carry into effect what was now proposed, and providing that where a Judge thought there was a sincere scruple on the part of a witness to take an oath, that witness might be examined without being sworn. He (Lord Campbell) must express his astonishment, notwithstanding that measure had been several times before 1346 their Lordships, who were always eager to vote for any improvement in the administration of justice that was proposed, and to set an example to the other House in respect of legal improvements, that three times had such a measure been before them, and that such a measure should have been lost. It was supported by the right rev. bench, and particularly by the Bishop of London, who was of opinion that after the words of the Divine Founder of our faith—"Swear not at all"—no one could be said to be absurd who should entertain scruples on the subject. The Bishop of London said that, although the Thirty-nine Articles allowed that oaths may be taken by Christians, those articles are not at all binding upon lay Christians of the Church of England. And that a man might be a good Church of England man, not only nominally, but in communion with the Church of England, and in all respects recognised as a member of the Church of England who might refuse to take an oath on the notion that it was contrary to the precept of our Saviour. Therefore, it was not only Dissenters that might suffer for refusing to take an oath, but members of the Church of England might also suffer for refusing to do so. The intended alteration in the law would moreover afford relief, not merely to those who entertained conscientious scruples as to the taking of oaths, but to those interested in obtaining the testimony of witnesses. He had said before, and he now repeated, that a right to a seat in their Lordships' House might be forfeited by the scruple of a witness to take an oath, and that would show how much the administration of justice would be improved by an alteration on that point. There was one part of the plan proposed by his noble and learned Friend to which he entertained serious objections. It was now proposed that in all cases whatever, whenever a new trial was moved for or refused in any of the superior courts, there might be an appeal against that decree or judgment of the superior court, and it was proposed that that appeal should be to another court, not coming to their Lordships' House, but that their Lordships' jurisdiction should be encroached upon or set aside. To allow that unlimited power of appeal in every case would lead to great vexation and mischief, and must seriously obstruct the administration of justice. If there should be an appeal from 1347 the Court of Queen's Bench to the Exchequer Chamber without bringing the case before their Lordships' House, it would be an alarming encroachment upon the privileges of that House. For the sake of the public, and for the dignity and efficiency of that House, he earnestly advised their Lordships carefully to watch their privileges as being the supreme court of appeal.
LORD CAMPBELLsaid, that if a final appeal to the House of Lords was to be given in every case of a motion for a new trial, that would be an error in the opposite direction. Suppose an action was brought in the Common Pleas for an assault, the plaintiff obtained a verdict, and the defendant moved to show cause why the verdict should not be set aside and a new trial had;—there being no pretence for the Motion, the Court refuses to interfere. It was proposed that under these circumstances there might be an appeal, first to the Exchequer Chamber, and afterwards an appeal to that House, about a trumpery matter of 5l., when there was no ground to question the decision of the Common Pleas. That he should most strenuously resist. It was a very clumsy proceeding; it was a much more convenient mode to put any great question of law upon the record, and when once upon the record let them come to that House; but according to this new proposition the Bridgwater case must have been decided by the Exchequer Chamber without coming to that House. With respect to the fusion of law and equity, he concurred in the views which his noble and learned Friend had expressed. It would be a great matter that one court should be able to decide one case, and that the suitor should not be going about from one court to another, oscillating between equity and common law; and, though he believed it would be attended with difficulty, he thought it was an object that could be accomplished. He regretted that his noble and learned Friend despaired altogether of enabling a court of law to order the specific performance of a contract. Certainly the suggestions of the Commissioners would never answer, for they proposed that in every case where damages might be recovered there might be a specific performance decreed. Suppose, however, after a promise of marriage, the lady refused to perform that promise, ought there 1348 to be a specific performance decreed of that contract of marriage, and that she, against her will, might, at the peril of incurring a commitment for contempt of the Court of Queen's Bench, be unwillingly dragged to the altar. The fulfilment of such a contract could not be specifically enforced. But (as a contract for the sale of land) there were others in which a specific performance of a contract might be very safely referred to the jurisdiction of a court of law. He should be most happy to lend his best assistance to the improvement of this Bill, and he had no doubt, from the labour bestowed upon it by the Members of that House—lay, he hoped, as well as law Lords, for there were parts of it on which all their Lordships could form as good an opinion as the legal Peers—that when it left that House, and was sent down to the House of Commons, it would deserve the approbation of the country.
LORD BROUGHAMsaid, that his assent to the measure proposed by his noble and learned Friend was a matter of course, because the greater part of its provisions—all, indeed, but one or two—were embodied in the Bill which he (Lord Brougham) had presented to their Lordships last year. He was bound to say that this coincidence was without any concert or design between the Commissioners and himself; for his Bill was drawn in utter ignorance of the direction which their inquiries had taken, and their recommendations were, he believed, founded upon a consideration of the evidence they received, without the least knowledge on their part of the provisions which he had embodied in this Bill. In many of the observations made by his noble and learned Friend who had just addressed the House on the subject of trial by jury he entirely concurred. He agreed with his noble Friend that no man who knew the law or the constitution of the country, or had any experience or even observation of the working of the system, could harbour an idea of dispensing generally and absolutely with trial by jury. But, nevertheless, it was found in practice, as had been stated by his noble and learned Friend on the woolsack, that many cases were much better tried by a Judge than by a jury. Frequently, indeed, trial by jury was a mere form; for, although nominally tried by the jury, they were in reality tried by the Judge, the jury having only to say that the facts, about which 1349 there was no dispute, were so and so. In other cases it would be much more convenient to have them tried by a single individual—a Judge in effect—rather than by the jury. In cases of account, for instance, when the cause was called on before the Judge and jury, the barristers on both sides exclaimed, "This is a case which should never have come here—it must be referred to arbitration; and it was accordingly referred to arbitration, and after all the expenses had been incurred to have it tried before a Judge and jury, the same expenses must be gone through to bring it before an arbitrator. Out of 150,000 cases in the county courts, how many did their Lordships think, the parties having the option, chose to have them tried by a jury? Where the debt was under 5l. they had not the option. Where it was between 5l. and 50l. they had the option, and out of 150,000 cases where the debt was between 5l. and 50l., and where the parties had the option, 769 cases only were tried before a jury. That was to say, one in 200; the other 199 cases were tried by the Judge, the parties having the option to have them tried by a jury if they pleased. Their Lordships must remember, moreover, that in the county courts, cases of tort as well as of contract were dealt with. The measure he proposed last year was confined to cases of contract, but his belief was that there would be no harm whatever in making the measure general as it was in the county courts, and in cases of tort as well as contract leaving them to be tried by a Judge or by a jury, as should be agreed. He must express his astonishment that his noble and learned Friend should object to allowing money in all cases to be paid into court, and he could not see any ground for the objection. His noble and learned Friend had said that if a defendant were to be at liberty in all cases to pay money into court when a party brought an action for the vindication of his character, or to soothe his wounded feelings, the defendant, if he were a rich man, would pay money into court, and prevent the plaintiff from going before a jury, when all he wanted was to go before a jury for the vindication of his character, and to soothe his feelings; but as the law now stands, precisely the same case might arise if the defendant chose to take the money offered to him. The rich man might make his offer, and the poor man might take it, and his character would never be vindicated before a jury, nor would his feelings be soothed.
[ The Lord CHANCELLORIf he chose to take it.] If he chose to take it, no doubt. But suppose the defendant should be allowed in all cases to pay money into court, my noble Friend cannot think that the plaintiff would be bound to take that money. If in an action for slander a sum of money was paid into court by the defendant, it was only a tender, which the plaintiff was not bound to accept. He might say, "I don't want your paltry money, but I want to have my character vindicated, and my feelings soothed." He regretted that another part of his Bill of last year had not been sanctioned by the Report. He referred to the protection of witnesses in matters where the answer might tend to criminate them.
LORD BROUGHAMwas pleased to hear his noble and learned Friend say so. He had discussed the subject last Session with his noble and learned Friend, and he had taken a considerable step in a right direction. Now his hope was that, before he had done with it, they should make him convert that step into a stride, so as to make it effective. As to the equitable clauses, they were no doubt an improvement, and he perceived that they were almost entirely taken from the able and learned report of a gentleman who was now one of the county court judges. He had to express his thanks, first to the learned Commissioners, and then to his noble and learned Friend, who had adopted his views on most important points. He had hoped that another improvement would have been introduced which would tend greatly to the convenience of the courts and to despatch in the administration of justice, and would do away with what was considered a very great grievance, and that was making the writs returnable alike in all the Courts of Westminster Hall. It frequently happened that one court had hardly any business in comparison with the others. In Ireland, for some years past, the possibility of that had been prevented, for all writs were made up in parcels of twenty-five and distributed amongst the courts; and there was no ground whatever for allowing the plaintiff to choose his own court in this country any more than he was allowed to choose it in Ireland.
§ Bill read 1a.
§ House adjourned till To-morrow.