§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR
said, 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- 1258 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 50l.; go on with it if you dare, and if you go on, and the jury do not give more than 50l., 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 1259 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.
said, 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 1260 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 1261 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. LEONARDS
said, 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 1262 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.
wished 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.
said, 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 1263 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 WICKLOW
said, 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 1264 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 ARGYLL
said, 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 1265 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.
said, as to this subject having been distinctly brought to the attention of the House by his noble 1266 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 WICKLOW
had 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 CHANCELLOR
said, 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 1267 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.