Lords Sitting of 24 March 1854

MINUTES.
PUBLIC BILLs.—2a Second Common Law Procedure, 1854.
3a Highways (South Wales); Registration of Bills of Sale.

THE COURT OF CHANCERY.
LORD ST. LEONARDSmoved for Returns of all Causes now depending in the Court of Chancery commenced in or before 1852, and of their present state; of all matters now in the several Masters' offices; of all writs, &c., in or since 1852, and in which final orders or decrees have been made. The noble and learned Lord said, it would be in the recollection of their Lordships, that a few nights ago he took the opportunity of vindicating the Court of Chancery from some aspersions which had been frequently cast upon it. The observations which he then made were
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drawn from him in consequence of certain complaints which had been made both publicly and privately against that Court, and he had thought it right to state, what he believed to be the case, that these complaints were not well founded, and he had no other object now in moving for these Returns than to give an opportunity of investigating these charges and seeing whether they had been properly made or not. At the same time, if it appeared that any of the complaints made against the Court of Chancery were well founded, and that matters had improperly occurred in connection with that Court, he thought an investigation should take place so that such occurrences might be prevented in future. The object he had in introducing a Motion for the Returns he asked for was to show what was the actual state of the Court of Chancery, and the condition of those suits in it which had been depending for some time. If, upon a Return made in compliance with this Motion, it should appear that there were matters which ought to be inquired into, he should feel himself called upon to move their Lordships, for the appointment of a Committee to investigate the state of the proceedings in that Court, as he was quite satisfied there could be but one object in that House—namely, not to let the Court of Chancery be accused without just cause, and, if there was just cause, to take steps to remedy the evils which might be found to exist. There was one matter which had been publicly spoken of which reflected upon the office of one of the Masters in Chancery. It had been stated that no appointment could be fixed with that Master in Chancery except in the case of certain solicitors, and this was said to fall very hardly upon the solicitors as a body. He had been in communication with the Master in Chancery alluded to, who had written to the solicitors, but had received no reply at the time he (Lord St. Leonards) communicated with him. The Master, however, stated that he was not aware of any cause or matter to which the complaint which had been made could refer. He (Lord St. Leonards) would take this opportunity of making an observation or two upon a complaint which had been made as regarded himself, in which it was endeavoured to show that he had been actuated by a desire of oppressing the solicitors as a body. He could assure their Lordships, and the profession to which he had had the honour of belonging for so lengthened a period, that that accusation

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was entirely without foundation. The complaint was that upon one occasion he had made a solicitor pay costs because no counsel was prepared to go on with the case. He had never done any such thing. What he did was this—he made a solicitor pay costs, because neither he nor any counsel, nor even a clerk or any other person, was ready to appear when a cause was called on. In that case he made—and he apprehended that he acted very properly—he made the solicitor conducting the suit pay the costs; but certainly that was no reflection upon the solicitors as a body. In fact, he had never made any remark which could at all tend to cast a reflection upon that body. He hoped the result of any investigation that might be entered into with regard to the Court of Chancery would prove satisfactory.
LORD BROUGHAMsaid, he was exceedingly glad his noble and learned Friend had moved for these returns, because it was a matter of justice to the court to show that the individuals who complained were labouring under mistake, and that great improvement had been effected in the mode of conducting equity proceedings. He was also glad to hear his noble and learned Friend announce his intention, if it should be found that the new rules, both by statute and under the authority of the court, had not fulfilled the expectations of those who had promoted those great changes, to move the appointment of a Committee. He (Lord Brougham) was decidedly of opinion that a vast improvement had been effected in the courts of equity; and, although he approved of inquiry, he was convinced it would not lead them to retrace their steps, however necessary it might appear to introduce further improvement. His hope and trust, however, was that further inquiry would not be found necessary, and he entertained a strong expectation that when these returns were made they would show that recent complaints were groundless, and that the utmost their Lordships were called on to do was to examine how far it was possible, in one or two particulars, to make that improvement more perfect and complete. He could not allow this occasion to pass without stating to their Lordships one or two particulars connected with the great cause of legal reform, in justice to those with whom it originated. It was not in the year 1852 that the present Amendments were first propounded; neither was it in the preceding year, 1851, when a Com-
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mittee of their Lordships' House entered into a full examination of matters connected with the Court of Chancery. It was not even in the year preceding, in 1850, when the Chancery Commission first began its labours, that those great changes, which had entirely altered the pace of proceedings in the Court of Chancery were first propounded to the profession. In justice to an honoured and learned relative with whom that proposition originated, Master Brougham, and for the sake of drawing an important conclusion in behalf of the amendment of the law, he felt it his bounden duty to mention that it was not in 1850, 1851, or 1852, but in 1842, ten years before that great measure for the reform of the Court of Chancery was enacted; that, almost in every detail, the measure was stated by Master Brougham, in a letter which he addressed to his immediate superior, the Master of the Rolls, the late Lord Langdale, stating that his eleven years' experience as Master in Chancery proved the evils of the system which he detailed and described, and proved also that there was but one remedy for these evils—an entire change in the system, by abolishing the masters' office. He stated, also, in what manner that abolition should take place; he described the consequent changes in the jurisdiction of the Court of Chancery; and he showed how necessary it was that the Judges of that court should not be satisfied with performing half the business, leaving the masters out of court to perform the rest of it, but that the Judges should sit partly in court to perform what was properly the judicial business of the court, and act as chamber Masters or chamber Judges to perform the residue of the business. These changes, strongly recommended and illustrated by examples, were pressed zealously upon the Master of the Rolls, Mr. Pemberton Leigh, and Sir James Wigraim, afterwards Vice-Chancellor, the three gentlemen appointed by Lord Lyndhurst to examine into the whole matter. The masters having been called upon to give their opinions, Master Brougham stated the particulars in detail; and added, he was only afraid it was too powerful a remedy for the admitted evils, but he was thoroughly convinced, from his experience of eleven years, that it was the only remedy which would be found to have any material effect in mitigating those evils. Unhappily, those three learned persons did not immediately report to Lord Lyndhurst in such a manner as to produce

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any immediate proposition. The master thus finding it impossible to carry out the whole scheme, proposed a middle course, embodied in the Judge Masters Bill, which he (Lord Brougham) had the honour of introducing. That was only a half measure, but they still thought a half measure was better than none at all. That Bill their Lordships were pleased to sanction with their approval. It went to the other House, where it shared the fate of many measures, several of which he was inclined to think were valuable measures, and fell into entire oblivion. He moved the Bill again the following year, which gave rise to the Committee of 1851; before which Committee the letter of the master was given in evidence relative to the proposals he submitted nine years before. But let their Lordships remember the consequences of the delay. There was no reason whatever why a Bill founded upon the suggestions of Master Brougham should not have passed in 1843, instead of in 1852. Ten years had passed from the time those suggestions were first made—years of great suffering to the suitor, of grievous obstruction, to the court, and of great vituperation, not unjustly addressed to that court. Although they were judicial officers of that court who saw the mischief of the system, who were aware of the remedy, who propounded the remedy, and were anxious that the remedy should, without delay, be applied, ten years were suffered to elapse before any effectual steps were taken to apply the remedy, which all men agreed had produced the most blessed change in that jurisdiction which, since its existence, had been known, He drew from this the conclusion, that, whilst they ought not rashly and inconsiderately to make changes in their judicial establishments, at all events they ought not to delay them more than was absolutely necessary for giving due and deliberate consideration to those changes; and if they had had in the Court of Chancery the benefit of that which Lord Langdale always considered indispensable to complete any judicial system—a Minister of Justice—he (Lord Brougham) was thoroughly certain, instead of ten years, possibly not ten months would have elapsed before these salutary changes would have taken place.
LORD CAMPBELLsaid, the noble and learned Lord had done well in bringing before the public the obligations they were under to his learned relative, because he had no doubt whatever that the abolition
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of the Masters offices was the origin of all the improvements in the proceedings of the Court of Chancery. He considered his noble and learned Friend (Lord St. Leonards) had done well in moving these Returns, because he was sure they would prove that at present no grievances whatever existed in the equity courts. But for their Lordships to appoint a Committee on account of some paragraphs in newspapers was, he thought, derogatory to their Lordships' House. He trusted that, on these Returns being made, all would concur in testimony favourable to the courts of equity which, if not perfect, because no human institutions were perfect, required very little more to be done to them.
THE LORD CHANCELLORsaid, he could assure their Lordships that had it been the custom in their Lordships' House to require a Motion to be seconded, he should have been the first to second the Motion of his noble and learned Friend. He was sure their Lordships would do him the justice of acknowledging that it was not his object, as the head of the Court of Chancery, to screen anything connected with that Court. There was nothing of which he should be more glad than to have that Court laid open to the fullest possible extent, and, if anything should be found to be wrong, to have it corrected. When he said that nothing was wrong, the assertion must be taken with some little qualification, as errors would be found to exist in any system that might be adopted; and the returns in this case might show that there were some old causes, as they were called, still hanging on hand, and such cases might probably be hanging on hand to the end of time. He referred to causes such as, for instance, a suit concerning persons who had died and left property in the West Indies, Australia, Scotland, or Ireland. When such cases got into the Court of Chancery, it sometimes took years before they got cleared up. They could not properly be called suits, for they were rather the administration of the affairs of deceased persons, and required communication with all parts of the globe, and a long time must necessarily elapse before they could be settled. But he saw no reason why these causes should not be forced on as much as possible. He might say that he had been in communication with the Masters in Chancery upon this subject, and he believed their Lordships would find from the returns that whatever

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there had been of delay was owing, not to the Court, but to the parties concerned in suits, who got wearied, went to sleep, and did nothing. It was not that the Court did not help them, but, on the contrary, it forced them on.
Returns ordered to be laid before the House.

SECOND COMMON LAW PROCEDURE— (1854) BILL.
Order of the Day for the Second Reading read.
THE LORD CHANCELLORsaid, that in asking their Lordships to give a second reading to this Bill, it was not his intention to detain them with more than one or two observations, having so fully stated when he laid it on the table the object and nature of the improvements projected. Since that time he had received various communications upon the measure from different persons, which were entitled to more or less consideration. In the first place, the Bill, as he had stated on introducing it, enabled parties within certain limitations to have cases tried, not by juries, but by the Judge. He had received communications suggesting that he had done very wrong in leaving it optional to the Judge whether he would try the case without a jury or not. That was a total misconception of the Bill. It was not optional to the Judge whether he would try it or not; but it was for the Court or a Judge to decide if the particular case came within such a category as a Judge of the court in which the action was brought, or the Judges generally, by special or general order, should have directed. The parties to a cause instituted in the Court of Queen's Bench, might wish it to be tried by a Judge, instead of by a jury; but it was absolutely necessary—at least so it struck him—to have some guard in so proceeding, and for this reason it would be a very dangerous and impolitic to put it in the power of the parties to have a particular ease tried by the Judge, where it might place the Judge in a position of extreme and distressing embarrassment. For instance: an action being brought for criminal conversation, the Judge, under those circumstances, would have not only to say whether the accusation was true, but what damages the injured party ought to receive. This duty is now entrusted to a number of men, and these persons having as a jury assessed the damages, sink into their own stations again, and are not lia-
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ble to be pointed at as having taxed a man to that amount. Such was his view; but he proposed to refer the Bill to a Select Committee, when that matter would be discussed, and if their Lordships should hold a different opinion, he should not be indisposed to give it further consideration. The second point was, that it was said parties ought to be at liberty in all actions to stop the further proceedings, by paying money by way of compensation, into court, and if the plaintiff chose to go on after that, he should do so at his own peril, and should pay all costs if he did not recover more than was paid into court. He thought, if that right was not qualified, it would give rise to great injustice. Suppose a man's character was grossly vilified and attacked, and he brought an action for the sake of the opportunity of explaining his conduct publicly, and showing that the calumnies imputed to him were without foundation. Now, if the party complained of were at liberty to say, "You have brought your action, here is 50 l.; go on with it if you dare, and if you go on, and the jury do not give more than 50 l., you will have to pay all the costs of the proceeding; that would be a scandalous state of things, the real object of the action being the public vindication, and not damages. There was one other point well worthy attention. The Commissioners had recommended that the courts of common law should in all cases be at liberty to make an order for what is called "specific performance" of contract. It was quite obvious that, in the unqualified way they put it, that was impossible, because they could not have specific performance of some sorts of contracts. In the case of a breach of promise to marry, for instance, the impossibility of enforcing specific performance was apparent. That was an extreme case, but the truth was the Bill did provide for all those cases in which such an enactment would be at all useful. It provided that, where parties had the chattel of another, who desired to have it delivered up to him, specific performance would be ordered by judgment which compelled the defendants to deliver up the chattel. In cases also where persons were under obligation to make a road, or anything of that sort, there was provision to have the specific performance of that obligation enforced, and not merely to recover damages for the nonperformance. The only other case in which specific performance was of any importance, and, indeed, the only case in which

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it could be practically enforced, was the case of the purchase and sale of real estates. [LORD ST. LEONARDS: And settlements]. He spoke generally of dealing with real estates. Now, in the case of the sale of real estate, when the action was brought by the party selling, the court of law did give specific performance; namely, it awarded the payment of the purchase-money, and in that case no new enactment was required at all. In the other case, where the action was by the purchaser to compel the seller to convey the estate to him, there was no difficulty in getting that done in the Court of Chancery—done in the simplest and easiest way in which such a matter could be done; and he confessed that, merely for the sake of pedantically making matters more square, he did not think it desirable to give the courts of common law that power, which would also involve great difficulty; because, before the court decreed specific performance, it would have the title of the seller to look into, to see that he could perform. In the Court of Chancery there was the machinery necessary to investigate the title of the vendor, and his ability to fulfil his agreement; but to enable the courts of common law to do so, new machinery must be created; and the creating new machinery was quite unnecessary, as it would only enable the courts of common law to do that which was now effectually, cheaply, and, as they had heard, expeditiously done by the Court of Chancery. At the same time, with regard to that, as well as to other points, they could be considered in the Select Committee, and when the Bill came before their Lordships again, if they took a different view, and thought this enactment could be extended, he should only bow to their opinion. If they would only state the way in which the recommendation of the Commissioners could be best carried into effect, he should be happy to bow to their Lordship's decision. The noble and learned Lord moved, that the Bill be now read 2a.
LORD CAMPBELLsaid, that he thought it might be beneficial to have some causes tried by a Judge without a jury, but that there were other causes in which that course would be extremely pernicious. A school had sprung up out of doors which treated all juries with contempt. He called the disciples of this system the pessimists. Everything that was established was the worst that was possible. Instead of "everything that is is
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right," their motto was, "Everything that is is bad;" but whatever odium he might incur with those parties, he did not hesitate to state his Opinion that, for the determination of doubtful questions of fact, and especially as to the degrees of credibility to be attached to witnesses, a jury, with the assistance of a Judge, was the best tribunal that ever was established. He was convinced there were many cases which could not be satisfactorily tried by a Judge without a jury—such as criminal conversation, actions for assault, actions for slander, and actions for libel. Take the case of a libel charging murder, in which a justification was pleaded; would it be proper that a Judge, unaided by a jury, should have to brand a person with such a crime? The Commissioners recommended that in every case in which the parties should before issue, and before, therefore, it is known what the question to be tried is, wish to have the cause tried without a jury, it should be so tried. He thought it was far more wisely provided by the Bill that after issue was joined, and the question to be tried was known, the court on its responsibility was then to say whether it was a fit case to be tried by a Judge or jury. It was said that the Judges wished to save themselves trouble, and therefore were unwilling to try causes without the assistance of a jury. The Judges had no such feeling. Their only wish was that the truth should be elicited and justice done, which he believed was done effectually by the present system. He had a profound reverence for trial by jury, and his experience taught him that frequently where juries differed from the Judge on matters of fact, it turned out they took a more sound and correct view than the Judge. With regard to the second point, he entirely agreed with his noble and learned Friend. It seemed a most monstrous injustice that a foul libel imputing the most abominable crimes having been published, say in a newspaper, the defendant might pay his 5l. into court, and tell plaintiff that if he were not contented he might go on, at the risk of paying the whole costs of the proceedings. He had, indeed, proposed and carried a measure giving such a power to newspapers in regard to libel; that, however, had been done on two conditions—first, that the libel had been originally published per incuriam; and secondly, that an apology for it had been published as soon as possible. With respect to the third point referred to

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by the noble and learned Lord on the woolsack—namely, the granting of power to the common law courts to enforce specific performance of contracts—the proposal made by the Commissioners was undoubtedly far too wide, as it would embrace even cases of breaches of promise of marriage; but with regard to contracts for the sale and purchase of estates, he saw no reason why parties should not be allowed to bring actions in the common law courts, either for specific performance or for damages. He cared not whether such a power was entrusted to courts of law, or confined to courts of equity; but, considering the many valuable books which the common law Judges had now at their command, and the great assistance which they might receive from the officers of their courts, he hoped he was not arrogantly assuming too much when he said that they would have little or no difficulty in arriving at a just decision in such cases. Upon the whole, he believed that when this Bill became law, it would confer a great boon upon the country.
LORD ST. LEONARDSsaid, that as the Bill now before the House was to be referred to a Select Committee, he should not enlarge upon any of its provisions; but after what had fallen from the noble and learned Lord opposite (Lord Campbell) he could not refrain from addressing a few observations to their Lordships. The Bill proposed for the first time to introduce, to a great extent, equity jurisdiction into courts of law. He was not disinclined to let that experiment be tried; but he trusted their Lordships would bear in mind that it was only an experiment, and one, moreover, with regard to which no man was in a position to say how far it might succeed. The noble and learned Lord, however, seemed to desire that, even before the result of the present experiment should be ascertained, the whole subject of the specific performance of contracts should be committed to the hands of the common law Judges—that parties should be allowed to go either to a court of equity or to a court of common law—and that either of those courts should be empowered to enforce specific performance of contracts. Now, the whole machinery of a court of common law was adapted to the assessing of damages in cases of breach of contract; but he utterly denied that it was in any way fitted to deal with the specific performance of contracts. All cases of that description involved questions of title, which
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it was impossible for a court of common law to decide; but, on the other hand, the machinery of a court of equity was mainly directed to the specific performance of contracts, and to the settlement of difficult and complicated questions of title. But it had been proposed, on the other hand, to transfer to the court of equity the power of assessing damages in such cases. Now the court of equity had disclaimed that power; and, for his own part, there was nothing which he would regret more than to see the Court of Chancery, in its present state, invested with the power of inflicting damages. It would be necessary to summon a jury; but if the court was obliged to do so, in all cases in which damages were to be assessed, it would find it impossible to transact its ordinary and proper business, and the consequences would be mischievous in the extreme. He regarded, in short, the proposed mutual transference of the duties of one court to the other as a change of the most objectionable character, and one which could not fail to be most injurious in its results.
LORD CAMPBELLwished to state, in reply to the remarks of the noble and learned Lord, that he thought the other Judges and himself, with the assistance of the officers of the Court, would not find it difficult to come to a just decision upon questions of title, and as to whether there should be specific performance or not. He believed, on the other hand, that the court of equity was quite able to assess damages without the aid of a jury. The matter was almost invariably one of pure calculation, and he saw nothing to prevent a Judge or his clerk, after giving an hour's attention to the subject, coming to a fair conclusion as to what the amount of the damages in each particular case should be.
LORD BROUGHAMsaid, that having already expressed his objection to part of the Bill as not going far enough, he would not repeat now what he had said; but he might be allowed to express his concurrence in the remarks of the Lord Chief Justice with respect both to the ability of the courts of law to enforce specific performance of contracts, and to that of the Court of Equity to assess damages without the assistance of a jury. He thought that there should be given to the parties the option of suing for damages for the breach of a contract, or for specific performances. The noble and learned Lord on the woolsack proposed, in certain cases, to take away from parties the option of having

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their suits tried either by a Judge alone, or by a Judge assisted by a jury; but that proposal was one of very little consequence, inasmuch as it would be extremely difficult to conceive a case of damages for breach of contract that would not fall within that description of actions in which parties were still to have the option of having their cases tried either by a Judge or by a jury. He believed, so far as the court of equity was concerned, that it would be easy to make arrangements for the very few cases in which the assistance of a jury would be required. He was convinced that in 99 cases out of every 100, the parties would prefer the decision of the Judges alone. The difficulty, therefore, was more apparent than real, and he trusted the proposed reforms would be carried into effect as speedily as possible.
THE EARL OF WICKLOWsaid, there was one provision in the Bill which, in his opinion, was not only contrary to the existing laws of the land, but was in direct opposition to repeated decisions on the part of their Lordships. He alluded to the 18th clause, which provided that, in case any witness before a common law court should entertain conscientious objections to the taking of an oath, the Judge should be at liberty to dispense with the oath, and to take a simple affirmation or declaration instead. Now, he need not remind their Lordships that Session after Session the late Lord Chief Justice brought forward a Bill for the purpose of carrying that principle into effect, and that upon every such occasion the proposition was rejected by the House, and that with so much certainty that the noble and learned Lord had never had the courage to press it to a division. Lord Denman, with all his ability and learning, found it impossible to convince their Lordships that his opinion was the right one; and yet here, in a Bill professing to deal with the common law procedure, a clause was introduced for the purpose of accomplishing the object which that noble and learned Lord had in view. He did not accuse the noble and learned Lord on the woolsack of an attempt to smuggle that clause into the Bill—the noble and learned Lord was incapable of such an act; but he had already acquired sufficient experience of the House to know that, when he got up at the seventh hour to expound a new law Bill, the attention of other Peers was claimed by duties of a more domestic nature than those which devolved upon them as Members of that House. The
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fact was, that the speech of the noble and learned Lord on introducing the, measure was delivered in a very thin House, and he thought he might venture to say that the 18th clause was entirely unknown to the great majority of their Lordships. It was not for him to detain their Lordships with arguments upon the subject of oaths. That subject had been discussed over and over again in connection with the Bills introduced by Lord Denman, and more recently two of the Colleagues of the noble and learned Lord on the woolsack—Lord Palmerston and the Attorney General—had expressed a strong opinion upon the importance and necessity of oaths. He merely wished to point out the apparently insidious manner in which the 18th clause had been introduced into the Bill. Their Lordships were aware that a Bill was at the present moment before the other House of Parliament for permitting oaths to be dispensed with, under certain circumstances, in all the Courts of the realm. That was the proper way to deal with the subject, if it was necessary to touch it at all. Why should the change, if there was to be one, be confined solely to those witnesses who came before the common law courts? Why should it not be extended to every Court in the kingdom? Again, why were Ireland and Scotland to be excluded from the operation of the Bill? But he objected altogether to the principle of the clause. He entertained a high respect for the Judges of England, but he would never consent to give them the power of dispensing with what formed part and parcel of the law of the land. He trusted this subject would be fully discussed and considered by the Select Committee to whom the Bill was to be referred. He had done his duty in bringing it before their Lordships, and he hoped they had not so far changed their minds as to be prepared to sanction a principle to which they had frequently refused their assent.
THE DUKE OF ARGYLLsaid, that he was not at all sorry that the noble Earl who had last spoken had called the attention of their Lordships to this subject, which he was quite ready to admit was one of considerable importance. The noble Earl's objections to the measure seemed to be twofold—firstly, a direct and specific objection to the 18th clause; and, secondly, a general objection to the abolition of oaths under the circumstances contemplated. Before answering such objections, however, he begged to protest

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against the observations which the noble Earl had made with reference to the noble and learned Lord on the woolsack, as far as regarded this clause. He happened to be in the House when the noble and learned Lord explained this measure to their Lordships, and he perfectly remembered the very clear and distinct manner in which the noble and learned Lord placed before their Lordships the improvements that were contemplated by, and the various clauses of, the Act; and, among other clauses, he called the especial attention of their Lordships to the clause to which the noble Earl so much objected. So far, therefore, the House had had full notice of this clause. With regard to the general principle, he trusted that the clause would receive the sanction of their Lordships. Nothing could be more absurd or anomalous than the existing law with regard to oaths. The principle of dispensation was already recognised by the law of the land; but the exemption was only granted to certain enumerated parties, on the ground that it was believed they had conscientious scruples to taking an oath; but could it be said that no other body of men could have those conscientious objections except Quakers, Separatists, and Moravians? He knew of cases in Scotland where persons had been imprisoned rather than take an oath. The principle of this Bill, with regard to oaths, was already the principle of the law, and they were, therefore, doing nothing but extending the existing law. There were many cases of persons who objected to take an oath, not because their fathers before them were Quakers or Separatists, but because they had religious scruples on the point. As to the extension of this principle to Scotland, he quite agreed with his noble Friend. He was glad to see the principle admitted in the one kingdom, as he was sure that then it would soon be extended to the other. If once established in England, there was no doubt that the principle would in a few years be extended to Scotland also. He rejoiced to see the change of opinion that had taken place on this subject since he had presented a petition regarding it from persons in the neighbourhood of Edinburgh; and he should be sorry indeed to see the principle omitted from the present Bill.
LORD BROUGHAMsaid, as to this subject having been distinctly brought to the attention of the House by his noble
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and learned Friend on the woolsack, there could be no doubt; for he recollected stating how grieved he was that the absence of Lord Denman on that occasion, from ill-health, prevented him from receiving the gratification which his noble and learned Friend's announcement of an alteration for which he had himself laboured in vain for so many years would have given him. As to the extension of the principle to Scotland, he might state that he had himself presented a petition from a person who was imprisoned thirty days in Scotland because in a case where he had been summoned by the police, and was not a volunteer witness at all, he refused, from conscientious scruples, to take an oath.
THE EARL OF WICKLOWhad no doubt that this subject had been fully explained on the first reading of the Bill, when very few were present; but it was on the second reading that such explanations ought properly to have taken place.
THE LORD CHANCELLORsaid, no doubt it was true ordinarily that the principle of a Bill should be explained on the second reading; but it was difficult in a measure like the present to say what the principle was, as it involved a great variety of topics relating to the improvement of the administration of justice. When brought before their Lordships, the Bill met with almost universal approbation, and he was not at all aware that exception would have been taken to this or any other part of the measure. He certainly had no intention whatever of keeping back the proposed alteration with respect to oaths, and he assuredly had not done so on the occasion of explaining the provisions of the Bill on its first reading, for he considered that, had he desired to make the measure a popular one, his best course would have been to enlarge upon the proposed alteration. His noble Friend seemed to suppose that this was an improper Bill for the introduction of a clause relating to oaths, but, with all due respect, he thought otherwise. The security to be obtained for getting at the truth of witnesses was a most important part of the procedure at law; and the alteration was in accordance with the recommendations of the Commissioners appointed to inquire into, and report upon, the whole subject of common law proceedings. The Commissioners reported on all the necessary proceedings in a court of law, and surely they could not omit that which related to the securities for truth. A recommendation

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on this subject was accordingly embraced in their Report, and was now, as it appeared to him, introduced with the greatest propriety into the present Bill. If this had been a Bill to abolish oaths, on the ground that they could get at the truth as well without an oath as with one, he should certainly have been opposed to it; but that was not the nature of the provision, which was simply to meet cases where, on account of persons objecting on principle to take an oath, their evidence could not be obtained at all. The object of the clause was to enable them to receive testimony from those who had a scruple of conscience on the subject; and he hoped, when they came into Committee, that the House would not sanction the exclusion of that clause from the Bill.
On Question, agreed to; Bill read 2a accordingly, and referred to a Select Committee.

DAY OF PRAYER AND HUMILIATION.
THE EARL OF CLANCARTY; My Lords, before your Lordships separate, I would beg to put to the noble Earl at the head of Her Majesty's Government a question upon a subject which is just now of much public interest, and I trust that, although I have not given any formal notice of it, he will be both able and willing to give a satisfactory answer. Evening after evening discussions have taken place in this House relative to the affairs of the East, and to the war with Russia, upon which this country may be said to have entered; and those discussions have certainly not been devoid of interest and of public advantage. It is a subject of congratulation that the whole of the correspondence with Russia, both secret and official, having been laid upon the table, it has been found to be such as to reflect no dishonour upon the British name, and it may justly be added that it is most creditable to those who have been entrusted with the conduct of our foreign relations. These papers show that everything has been done that could have been done to avert the calamity of war, and they conclusively establish the justice of the cause we have espoused. Again, from the discussions that have taken place on the naval and military armaments, it has been satisfactorily shown that the most efficient preparation has been made, and that the Government have not been wanting in the emergency in careful attention to the good of the public service. Hence they have acquired, at this important crisis,
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the cordial support of public opinion, and the national enthusiasm in the impending conflict is scarcely less than that which animates the forces that are now on their way to the scene of action. All these are most auspicious and cheering circumstances, but there is one circumstance which many in this country view with regret and disappointment, and that is, the omission on the part of the Government to take any step for publicly invoking the Divine blessing upon our arms, and upon the cause they are sent forth to support. Such a step would, I conceive, have been right, at a time when the country is embarking in a war, certainly of a very formidable character, and of which no one can foresee the issue. We may feel confident in the justice of our cause, we may feel confident in the strength of our armaments, and we shall certainly not be disappointed in the valour of the brave men we have sent forth; but "the race is not always to the swift, nor the battle to the strong;" and if we look not to the Almighty disposer of events for his guidance and blessing, we may find our confidence no better justified in the event than was that of the Spanish Monarch, who once sent against this country the armada that he styled "invincible." I am no advocate of superstitious forms and observances, but they may nevertheless be regarded in general as implying a recognition of the Deity. I therefore take the liberty of mentioning what came under my personal observation, when I happened to be with a Russian army in 1829, on the occasion of a force being detached upon some special service from Count Diebitsch's army at Adrianople. The troops were formed in an open plain around an altar, at which a Greek priest officiated, and after a certain rite, doubtless including the offering up of prayer, had been performed, the troops were sprinkled with holy water. The ceremonial, though not very intelligible in its forms, was undoubtedly designed to invoke the Divine blessing upon the expedition, and the example is so far worthy of imitation. Forms of prayer and devotion in this country are happily simple and intelligible. Prayer is made during the sitting of Parliament for the Divine blessing upon your deliberations, and suitable forms of prayer are ordered for use in our national churches on occasions of calamity or of danger. Surely, then, on the departure of so many brave men to engage in the strife of arms, it would be suitable that some public acknowledgment should

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be made of national reliance on Divine support. I trust the noble Earl will, if he has not already done so, take such steps in the matter as would be becoming in the Government of a Christian people. I therefore venture to inquire, as a matter of much public interest, whether it is intended that any form of religious observance should be commanded in reference to the war in which the country is now engaged?
THE EARL OF ABERDEENconsidered the noble Earl's appeal somewhat premature, for war not having yet been declared, the time had not arrived when such a step as that to which the noble Earl referred could properly be taken, even if it should be thought proper to take it at all. He would remind the noble Earl, too, that there was in our liturgy a prayer to be publicly used in time of war, and which for the same reason—that war did not exist—was not read in our churches; and it would, he submitted, be premature to announce any proceeding of this sort, until the emergency to which it was to be directed arose.
House adjourned to Monday next.