LORD BROUGHAMsaid, that as he had more than once given notice of the subject to which he was about to call their Lordships' attention, he ought to apologise for not bringing it forward sooner; but the truth was, that, after having been engaged the whole morning in judicial duties, he felt three or four times that he would not have sufficient strength to make any statement, however short, on the subject at the period of the evening when alone from other matters named before, he could introduce it. He begged their Lordships not to be alarmed at what he had stated, or to suppose that he was about to make any great demand on their patience. Experiencing the favour of their Lordships so frequently, it became his bounden duty not to encroach upon it further than was absolutely necessary For these reasons he should proceed, without further preface, to state the facts on which he grounded the Resolution he was about to propose. But, first of all, he asked their Lordships to allow him for one moment to express his earnest hope that he should not be told that these discussions were at present inopportune, and that they were less interesting than the other matters which had so often occupied their Lordships during the former part of the Session—he meant discussions connected with the state of our foreign relations, and, above all, with the war in which they were unfortunately engaged. Just and necessary as that contest was, unavoidable as it was, he implored of their Lordships that they would not add to the mischiefs which war brought in its train by turning a deaf ear to such proposals as might from time to time be made for the improvement of our laws and of our internal condition. They would only make war still more mischievous, and its misery still greater, by adding what, he would venture to say, would be an unnecessary evil to that war. If he did not consider it absolutely necessary to call their Lordships' attention to this subject, he would certainly willingly spare not only himself 399 the labour, but their Lordships the annoyance, of hearing matters stated, not for the first or the second time, but stated, as they must be, again and again, until the statement should produce a remedy for the evil so justly complained of. And now, first of all, he would call the attention of their Lordships to the state of the county court jurisdiction; because, although he was about to dwell upon the inequality, the injustice, and the absurdity in all respects, of every tax upon law proceedings, yet he fully admitted that it was the application of those principles to the county courts which chiefly urged him to bring the subject before their Lordships. Against those who, like himself, objected to the tax upon proceedings in the county courts, two very different—indeed wholly opposite—objections had been urged. By one class of reasoners they were charged with being enemies of the county courts; and by another, who were themselves hostile to those tribunals, they had thrown upon them the responsibility of having caused their erection. As to the first of these objections—that those who wished to abolish the taxes on law proceedings were enemies of the county courts—if he had not seen it with his own eyes stated, and stated in the Government press, he could not have believed it possible that any human being could have paid so little attention to the subject-matter and history of this controversy between himself and his noble Friends opposite, with respect to the taxes upon proceedings in the county courts, as to have dreamt for one moment that they who were doing all they possibly could to have those taxes repealed, who complained of the burden thus laid upon the suitors in the county courts, and whose whole object was to relieve the suitors from that burden and the county courts from that obstruction, were to be considered the enemies of that jurisdiction. He really would not stop to argue the matter; it was as the friend of the county courts, and because he objected to the obstruction of that jurisdiction, and desired the relief of those courts from the tax on their proceedings—it was in that capacity he then troubled their Lordships, and had for the last year and a half been incessant in his efforts to endeavour to obtain a change, that is the relief of those courts from the burthen imposed on them. Passing now to the objections proceeding from those who were really enemies of the county 400 courts, and who stated that they held him, and those who thought with him, responsible for what they called the evil which that jurisdiction had created, he (Lord Brougham) at once accepted that responsibility. He, and those with whom he acted, willingly admitted that they were responsible for whatever might be alleged with respect to the county courts, except the burden cast upon the suitors by the taxes. They were the authors of the system. Twenty-four years ago he brought in a Bill for the establishment of them—first in the other House of Parliament, and afterwards in their Lordships' House; and he had endeavoured again and again to obtain the assent of Parliament to that most important change and improvement in our judicial system—local judicature. He was defeated in the year 1833 on that important measure, which contained a complete system of local judicature, by a majority of one or two. His noble and learned Friend (Lord Lyndhurst) afterwards took up the subject in the years 1846 and 1847, and brought in a Bill partially enacting the provisions of the measure of 1833; and most important was that Bill of 1847, for it laid the foundation of the system, and created a court, though with limited jurisdiction, yet on a most improved footing. Another Bill was subsequently brought in by an hon. Friend of his in the other House of Parliament (Mr. Fitzroy), extending the jurisdiction from 20l. to 50l.; and he (Lord Brougham) afterwards obtained the assent of their Lordships to a still further extension taken from the Bill of 1833, an extension not in point of amount that might be recovered, but as to the kind of cases over which the courts might have jurisdiction; and he bad been since constantly endeavouring still further to extend the jurisdiction, so as to bring the measure back to what it was in 1833, when it had, unfortunately, been rejected by their Lordships. He would not say nine parts in ten of the Bill, but certainly a large portion of the Bill of 1833 is now the law, and working most usefully and in every respect beneficially for the country. He could not state his cause of complaint against the burdens thrown upon the courts, and the obstructions raised in other ways by these taxes, without first telling their Lordships the amount of jurisdiction exercised by the county courts, and the kind of benefits which they conferred upon the community. The number of suits brought in the county courts 401 was, upon the average of the last six years, 435,641 a year, and the amount involved was 1,400,000l. But during the last three years, since the extension of the jurisdiction from 20l. to 50l., though the amount was not anything like what it would have been under the measure of 1833, it having been then proposed to extend the amount recoverable to 100l. by that original Bill, the average amount for which suits were brought for the last three years was 1,520,000l. a year. The number of suits last year was considerably above the average he had stated, and amounted, for 1853, to 484,000. The way to try the uses of the county courts, and to estimate the extraordinary benefits that had been derived from them in the administration of justice, was to ascertain how many suits had been brought in the superior courts before the establishment of these local courts. It appeared that they amounted to 120,000 a year; but since the establishment of the county courts the number had lessened considerably, about one-third, and they now are 81,000 instead of 120,000. He prayed their Lordships to consider how that fact proved—how it absolutely demonstrated—that there was, in certain cases, a complete denial of justice before the year 1847 and the establishment of these local courts. For if 120,000 suits were all that were tried in all the superior courts, and if the number tried in the county courts for the same time according to the average of the last six years, amounted to 435,000, they had only to deduct the 120,000 tried in the superior courts from the 435,000 tried in the county courts, to ascertain what amount of cases had been perfectly capable of being tried before, but were not tried, and consequently in what number of cases there was. not a great failure, but a complete denial of justice. There remained 315,000 cases in which, were it not for the county courts, the parties could not have obtained redress. But suppose 15,000 were to be taken off that might have been tried in the old local courts and the small debts courts in the different parts of the country, there would remain 300,000 for the trial of which no provision was made, and which but for the county courts would not be tried, and in all of which there was a complete denial of justice. But it would be a very great mistake to suppose that the number of cases tried, and the sums for which the actions were brought, could give anything like an accurate notion 402 of the benefits derived from those courts. They must also take into account the number of cases that were settled without the suits being brought, the knowledge of those courts being in existence, and that suits might be brought in them, causing the parties to settle the debts without putting their adversaries to the necessity of a suit at all. It was quite impossible to form an estimate of the amount involved in those cases, but that it was very considerable there could be no doubt. There were other indirect advantages obtained by the establishment of county courts which, though not equal to the benefits directly conferred by them, were still of great importance—and he would mention one. Great improvements of the law had been facilitated by them; and his noble and learned Friend on the woolsack would hear him out in the assertion he was about to make—that he did not think he should have had the least chance of passing that important measure to which he had had the good fortune of obtaining the assent of their Lordships and the other branch of the Legislature two or three years ago, the new Evidence Act, admitting parties in the cause as witnesses, had it not been for the establishment of the county courts. He had no idea that he should ever have been able to carry it but for the experiment which had been made in those courts, where the success of the system demonstrated that it ought to be made general. Having stated the facts respecting the new system of social judicature, he thought he might now venture to enunciate three propositions founded upon those facts of manifest truth. In the first place, that it was too late to think of retracing their steps; next, that they must improve and extend the system; thirdly, that it must be relieved from all undue pressure of taxes. It is plain that they could not dream of restoring the central, or of abolishing the local jurisdiction. The system was rooted so deeply in the affections of the community, and so intimately connected with their most important interests, that all notion of a retrograde movement was out of the question, and henceforth and for ever it was to be considered as part of our jurisprudence. For that very reason, secondly, it became them—it behoved them—to lend all manner of attention to its improvement, and to introduce all such extensions of it as might 403 judiciously and safely, and upon due deliberation, be propounded. He therefore hoped and trusted that the important Commission which had been sitting for the best part of the year, to consider every matter relating to the county court jurisdiction, would be able to help them to some very important improvements in this judicature. The last of the propositions which he grounded upon the facts he had stated was this—that above everything they should endeavour to relieve the courts from the burden of taxation under which they now laboured. He asked their Lordships to consider the extent of that taxation. In order to show it, he would not take the average of the last six years, but he would take the average of the last two years; and he found from the papers on their Lordships' table, that upon this average the sums levied in direct taxation for fees—he could not mention without some comment the word "fees," which had apparently given rise to the ridiculous errors made by a portion of the Government press in supposing that those who complained of the fees of the county courts were enemies of those courts, because those writers seemed to confound the fees with the other charges, those of attorneys, or the perquisites of the officers; in talking of fees he meant the court fees—the taxes imposed by the Government upon the suitor—duties which were levied and paid in court, and were certainly, as they were intended to be, taxes upon suitors—those taxes amounted yearly to 261,000l.; and the sums recovered in those courts, and in respect of which those taxes were imposed, and those court fees, as they were called, were received, amounted to 859,000l.; the sum sued for was little less than 1,500,000l., making a percentage of 17½ in taxes upon the sums sued for, and 30 per cent and upwards on the sums actually recovered—he meant recovered by judgment or paid into court. Therefore about 17 per cent upon the sums sued for was levied in the form of taxes from the suitors in those courts. It might be said that in some eases it was a great deal less than 17 per cent. Ay, but in other cases it was a very great deal more; and he would give as instances several bills in actual suits to illustrate this. In one ease where the action was brought in one of the county courts of the metropolis to recover 17l. 8s. 9d., the court fees, or taxes 404 amounted to 4l. 18s. 4d., which was pretty nearly 30 per cent. In that case the attorney's bill was 2l. 16s. 8d.—that was to say, the professional man, for all his pains and cost and skill and labour, received 2l. 16s. 8d., whilst the sum received by the treasurer of the court in consideration of none of these things was 4l. 18s. 4d., or very nearly double the whole amount of the professional man's profits. In another case the percentage was a vast deal more. It was also tried in one of the county courts in London, the sum sued for being 14l. 3s. 6d. The court fees amounted to 7l. 5s. 9d., or about 51 per cent. In another case tried in Hertfordshire, the sum sued for was 18l., and the court fees amounted to 10l. 0s. 2d., being more than 55 per cent. In a case—the crowning case of those be should cite—tried in the county of Kent—an action of trespass brought in a county court, under the optional clause, by the consent of both parties—the sum sued for was 5l.: how much did their Lordships suppose the Treasury had mulcted the suitor of in this case by way of taxes, of what they call court fees by way of disguising it—independently of all professional remuneration, of all other expenses in other respects? Not 30 per cent, not 51 per cent, not 55 per cent, but 150 per cent, and more than 150 per cent! Upon this sum of 5l. the court fees exacted were no less than 8l. 0s. 6d.—more, considerably more, indeed, than 160 per cent. He had not had access to the particulars of these bills, except in two instances; but in these two instances he bad seen the bills, and he had submitted them to one of the officers of those courts best acquainted with the subject, who would have corrected them at once had they been erroneous. His report, however, was, that the fees exacted by the officer of the court were correctly and truly due, that he had no choice but to exact them, that for the work done, for the steps had in the proceedings, the fees charged were due, under the Act of Parliament, and that the officer was not merely right in demanding them, but would have violated his duty had he not exacted them from the suitor. He concluded, therefore, that the charges made for taxes on the other two bills of which he had spoken were also rightfully and legally demanded from the suitor. He had stated the whole amount levied in taxes on the suitors in the period spe- 405 cified to be upwards of 260,000l. How was it in the courts above? By an arrangement which was made a couple of years ago, the whole of the Judges and officers of the superior courts were paid out of the Consolidated Fund. Ever since the year 1825 the greater number of them were paid out of that fund, but the remainder of those who had previously been paid by fees were transferred two years ago to the Consolidated Fund, and the Amount of fees to be taken in the superior courts was reduced to 50,000l. a year certain. So that in the higher courts, where the rich are the suitors, who can better bear taxation, 50,000l/ a year is all that is levied upon the suitors; but in the inferior courts, where the suitors are poor and least able to bear taxation, and where, likewise, the class of business transacted is least able to contribute, instead of 50,000l., five times that sum and more is taken—is extorted from the suitors. He believed that even this 50,000l. taken in the superior courts is 50,000l. too much; but if that is utterly indefensible, then how much more monstrous is the grievance of exacting five times as much from the poorer suitors in the county courts? The effect of the change—combined with the effect of the allowance of costs in particular cases—that had been made in the superior courts has been very great; for he found that, whereas before that change took place the business of the county courts had increased at so rapid a rate between 1851 and 1852, that there were 32,000 more suits brought in those courts in 1852 than in 1851; during the following Sear, 1853, instead of an increase of 30,000 and odd cases, there was only an increase of 10,000 of all classes of suits; and in the suits between 20l and there was not only a diminishing rate of 50l increase and relaxation of progress—not only was there a retardation of the speed at which these tribunals had been advancing before—but there was a positive diminution, and instead of 12,567, which was the total number of cases between 20l. and 50l. in 1852, in 1853 there was a diminution of one-quarter, or only 9,206 suits were brought—a result to be ascribed entirely to the alleviation in the fees and allowance of costs in the courts above. He felt that he should be doing a most superfluous and almost an intolerable thing if he were to enter largely at this time of day, and in the middle of the nineteenth century, into an argument to show the absurdity, 406 the injustice, the utter impolicy in all respects, the utter contrast to everything like rational principle, of any tax upon law proceedings, but more especially upon such proceedings as those taken in the county courts. Why, sixty years ago Mr. Bentham proved to demonstration the entire absurdity, the monstrous iniquity of such taxes. How would any party bear a tax being imposed on one part of the kingdom and not on the rest—for that was what we did by taxes upon law proceedings? How would any one bear the singling out of a certain proportion—say of so many thousands, or hundreds of thousands—of persons in the country, and saying that they and they alone should pay a particular tax for the benefit of the whole? Yet that was the proposition of those who said that the suitors in the county courts should singly pay a tax, the use of that tax being to benefit not merely the individuals who were exclusively called upon to pay it, but the public at large—for property, liberty, and life itself were benefited by the due administration of justice. But the case was even worse than this. If they were to impose a tax upon a certain specified number of Her Majesty's subjects only, whilst all the rest of the community profited by the use to be made of it and yet contributed nothing, the bare mention of such a thing would excite ridicule at its absurdity, and abhorrence at its injustice; but the evil was a great deal worse than that, because here a tax was levied on a certain body of the people, who were, whether they would or not, compelled to undergo that which subjected them to the operation of the tax—namely, to come into court either as plaintiffs to demand their rights withheld, or as defendants to protect themselves from threatened wrong. Not that the plaintiff did not feel that in nine cases out of ten it would be better for him to abandon his claim, and the defendant to give up his defence if the matter were not very large in amount, than expose himself to all the anxiety, vexation, and expense of a lawsuit; but he knew that if he did so he might have to give up all that he possessed, one farthing after another, and therefore he had no choice but to resist injustice in the first instance, and thus subject himself, among other evils, to this tax. Therefore this was a tax from the pay. meat of which the parties had no possible escape. But that was not all. It was 407 wholly uncertain on whom it should be levied. It would be better if some definite body were singled out and burdened exclusively with this impost; but it was visited not upon any given number of persons assignable by rules, but upon precisely that class of the community who at the time suffered most, and were the most deserving of compassion and consideration at their hands; because this tax was not the whole amount they had to pay as expenses for law proceedings in defending themselves from injury; they had also to remunerate a professional man for his work and labour, and his skill in conducting the suit, and they bad further to bear the expense of bringing forward evidence. And it was just because the poor unfortunate suitor was, by the injustice of a wrongdoer, placed under the necessity of paying these other and heavier expenses, because he was staggering and bending under the load of these other charges, that the Legislature stepped in, and said, "We must make your load heavier still." It was not enough that the suitor should pay for the skill or the want of skill, the honesty or knavery of his attorney—that he should pay all the regular and fairly-understood expenses of his case and its consequences—he was told by the State that he must suffer still more, and in addition to what these causes entailed on him, pay what the Government chose to exact in the form of taxation. There was much talk just now of the defence of the country. Heaven forbid that any stone should be left unturned which might contribute to making that defence effectual; but how should we like a proposition for casting upon the frontier—upon the southern coast—the whole burden of the national defence, and for exempting all the inland counties—for confining the cost of the militia, the coast-guard, and the naval and military forces to parts of the coast, on the plea that its inhabitants would immediately benefit most by the defence; making them alone pay who suffered most in anxiety as well as in all other respects? Why it would not be endured for a moment; and yet this was in principle the very thing we did, in another but not less monstrous manner, to the suitors in the courts of law. They were exposed to hazard, anxiety, vexation, and expense, and for that very reason they were made singly to bear the whole burden of this taxation—a burden, let him observe, which 408 operated not merely as a heavy load on the suitors for justice, but as an obstruction to the administration of justice itself. He would put a case to his noble Friend opposite (the Earl of Aberdeen). How would he like it if—which Heaven forbid!—a riot should happen in the part of the town honoured with his residence, or if attempts were made to set fire to his mansion, and he must call in the civil and military power to disperse the rioters and save his property or his life—how would he relish being told, as soon as he was safe from pillage and destruction, and the riot had been quelled, that he would have to pay the bill of the police and the bill of the military, who roust be paid for their attendance, and that he must likewise pay the yearly charge of that portion of the army and that portion of the police to which he had happened to owe his own safety and that of his property? He would no doubt say that he paid his taxes to the Treasury as one of the community, that he always understood that the army and the police were maintained by the State for the protection of Her Majesty's subjects generally, and he would complain that it was rather hard upon him, who had suffered the anxiety and alarm consequent upon the riot and perhaps a partial loss, to be obliged to pay, not his proportion, but the whole expense of the troops and the police who had been employed on that occasion. But that was very inferior indeed to the grievance of the county-court suitors. How would his noble Friend like to be told, "You have had a very slight riot and attempt at fire here, and suffered some anxiety and very little loss; nevertheless you must pay not only the soldiers and policemen who protected you on that occasion, but you must pay those who are employed in Northumberland and Cornwall also, because we take this from you under the name of police money and soldiers' money, and put it into a purse, out of which we pay the soldiers and police all over the country, wherever there may be an attempt at riot or at incendiarism?" So the county-court suitors had first to pay the costs of the court; next, the clerks of the court; and afterwards the bailiffs there; and then to contribute the amount of 37,000l. over and above these, out of which was paid the cost of building, repairing, and renting all the courts of the country; so that the 409 suitor in Middlesex where there were no court-houses wanted, had to pay in taxes part of the 37,000l. which was used for providing court-houses in Northumberland and Cornwall. His noble Friend, in addition to his private mansion, also inhabited occasionally another in this immediate neighbourhood—he meant in Downing Street. His official residence was the resort of many suitors; but his noble Friend humanely and charitably thought that the bare expense of conveyance to those suitors, coming all the way from the sister kingdom for example, if that case ever happened, or coming from the northern part of this kingdom, which might be perhaps a less frequent case, was enough expense for them to bear in their endeavour to obtain access to his office in Downing Street, without calling upon them to pay a heavy tax beside for the maintenance of that and the other offices in Downing Street. He also would feel for the anxiety of his suitors. A great poet had said that one of the bitterest ingredients in the cup which an exile had to drink was the hard necessity of climbing and descending another man's stairs; and certainly his noble Friend would feel the hardship of adding to this misery the load of needless expense. A great authority had said that the Lord Treasurer was armed with his staff in order to drive away importunate suitors; but it never entered into the subtle mind of Lord Coke to obstruct their access by a bar, and still less to levy a turnpike toll, and, least of all, to turn the turnpike toll money so levied into a fee for repairing all the offices in Downing Street. He (Lord Brougham) saw that in the course of twenty-four years the cost of repairing official residences had been 24,000l. Now, supposing that a toll-bar should be erected to raise 1,000l. a year for repairs to official residences in Downing Street, and not only that the suitor to his noble Friend should be obstructed in his access, but that another tax should be exacted from him and applied as a fund for repairing official residences in Downing Street, and in all other localities throughout the country—why that would be, to the very letter, the identical case of the unhappy suitor in the county courts. The Government obstructed his access to those courts by levying taxes upon him, but they used the money extorted from him to provide for the salaries of the judges and officers, and to erect and maintain the buildings in which 410 all suits were to be prosecuted. Now, he conceived it to be the bounden duty of the Government, and indeed of everything which pretended to be a Government, to provide for the administration of justice, and to make the expenses of its administration fall upon the community at large, not upon the suitor alone, who could least of all afford it. It was the Government's duty not to add to the weight which the bare fact of a man being a suitor imposed upon him. The charge of providing for the administration of justice should be thrown upon the community at large—the State—because it was the duty of the State to afford to its members full protection in return for the allegiance it exacted from them. It might be said that if the plaintiff made good his case the defendant was legally liable to pay all costs, and therefore that the burden fell upon the party who deserved to bear it; but it should be remembered that in two cases out of three the defendant who was adjudged to pay costs was unable to pay, and then the charge fell upon the plaintiff. Thus, when the unfortunate suitor was suffering and complaining of the dishonesty and malpractices, perhaps, of a pettifogging attorney, and of the insolvency of his debtor—at the time when he was either pillaged by one party, or injured, without blame, by another, then was the precise moment which the Government chose for pouncing down upon him and making him pay still more—the State sharing, as it were, with the knaves the fruits of their dishonesty. Why it reminded him strongly of a certain man, who, having fallen among thieves, was observed by a passer-by lying in the road in an exhausted state. "What is the matter? What ails you?" said the passenger. "Oh!" says the injured man, "thieves set upon me, and robbed me of my purse and my hat, and I tried to follow them and to recover my property, but I was unable to proceed further." Then, says the passenger, "Do try and get up." "I can't," says the injured man. "Oh, yes; try and move a little." "I have tried, and I really can't." Then the false Samaritan rejoins, "As you can't move at all, and the thieves have taken your purse and your hat, I may as well have your wig;" and away he walks with the same, leaving the poor man lying in worse plight than he found him. This was the case of the suitor in the county court and the Government. The Government found him suffering 411 from the loss of his money, and mulcted in the costs besides through the s insolvency of his debtor, and as the poor man had no power to defend himself, it said— "Pay us this 3l. 11s. 4d. True, it is only 17s. in the Court of Queen's Bench and in the Court of Common Pleas; but the taxes are 3l. 11s. 4d. here, and you must pay." He (Lord Brougham) regretted that there appeared to be a rooted determination to continue, if not to perpetuate, this grievance. It might be said that the Government could not, in the present circumstances of the country, afford to part with any portion of the revenue. But the question was not a question of the 260,000l. which was now levied, but one of only 120,000l., namely, the salaries of the Judges, and the 37,000l. which went to the general fund. If that 120,000l. was taken off, the greatest relief would be given to the suitor, and the greatest obstruction removed from the entrance to local courts of justice. There was no pretence for saying that this proposition should form part of a general measure. It stood insulated and by itself. The question whether the Judges of Westminster Hall should be paid by salary or by fees, and whether the fees of the superior courts should be reduced to 50,000l. a year or not, was a question that was discussed a year or two ago, and Parliament wisely resolved that these Judges should be paid by salaries, and none of them by fees; and the Judges of the Court of Chancery had also happily been placed upon the Consolidated Fund instead of being paid out of the suitors' fund. He (Lord Brougham), in conclusion, would only say that he had now seven Resolutions to move, which he had drawn up for their Lordships' consideration. He would spare their Lordships the trouble of hearing him read them, because they embodied the principal facts that he had stated, and asserted the principle for which he had contended—that principle being that all taxes on law proceedings, but more especially those levied in the county courts, should cease.
Then it was moved to resolve,
- 1. "That the Number of Suits brought in the County Courts during the Years 1852 and 1853 was 959,095, or about 479,000 yearly, for Sums amounting to above 1,494,000l. yearly, whereof above 859,000l. was recovered by Judgments or paid into Court, beside the Sums paid without. any Proceedings being had further than Service of the Plaint.
- 2. "That the Fees or Law Taxes levied upon
412 the Suitors in the County Courts in the Years 1852 and 1853 amounted to the Sum of 523,303l., or above 261,000l. yearly, being 17½ per Cent. upon the Sums sued for, 30½ per Cent. upon the Sums recorded by Judgments or paid into Court, but as these are the average Proportions, while in many Cases the Percentage is less, so in many it is greater, and thus sometimes the Tax amounts to even more than the Sums in dispute. - 3. "That these Taxes are applied to paying the Salaries of the Judges and other Officers of the Courts, the providing of Court Houses in the different Parts of the Country, and defraying the travelling Expenses of the Judges and Officers.
- 4. "That by several Acts passed in the Years 1825 and 1852 (6th Geo. IV., Caps. 82, 83, and 84, 15th and 16th Vict., Caps 73 and 87) the Salaries of all the Judges and other Officers in the Superior Courts of Law and Equity were made payable out of the Consolidated Fund, and the Fees or Law Taxes levied from the Suitors in the said Superior Courts of Law were so for reduced in Amount as little, if at all, to exceed Fifty thousand Pounds a Year since the last of those Acts passed, and no Fees or Taxes whatever are levied on the Suitor to pay for the Court Houses or Judges' Lodgings, or other Expenses of the Judges.
- 5. "That the Fees or Law Taxes exacted in an undefended Action in the County Courts, that is where the Parties agree and an Order is made or where the Defendant does not appear, are the same as in a defended Action; and those Fees or Taxes in an Action for the Sum of 20l. amount to 3l. 11s. 8d, whereas in an Action brought in the Superior Courts for the like Sum, where Judgment is entered by Default, the Fees or Taxes amount to 17s only.
- 6. "That the Number of Suits brought in the County Courts has been increasing since their Establishment, that 32,500 more were brought in 1852 than in 1851, but that in 1853 it was only 10,000 more than in 1852, and the Actions for Sums above 20l. fell from 13,006, the Average of 1851 and 1852, to 9,270 in 1853, owing, as appears, to the lowering of the Fees or Taxes in the Superior Courts, as well as the Rules made for allowing more Costs than are allowed in the County Courts.
- 7. "That all Taxes upon Law Proceedings are contrary to every sound Principle, and of necessity work Injustice and Oppression, but that those which are imposed upon the Suitors in County Courts are in an especial Manner to be reprobated as falling upon the Classes of the Community the least able to bear the Burthen, and as obstructing the Access to those Courts where alone the great Majority of Causes can be tried."
THE LORD CHANCELLORsaid, it was not his intention to follow his noble and learned Friend in any detail in the address he had so ably made to their Lordships; in the first place, for this reason, that in a great deal of his general views he (the Lord Chancellor) entirely concurred. He agreed with his noble and learned Friend in thinking that it was the 413 first duty of every State to supply the means for the administration of justice, and that, as a general proposition, the means of carrying on that administration should be furnished, primarily at least, by the country at large, and not by the suitors. And if he did not agree with his noble and learned Friend in thinking that it would be expedient at the present moment to pass the Resolutions he had laid upon the table, it was, first, because the present moment, for the reason his noble and learned Friend had himself hinted at, seemed to him peculiarly inopportune for effecting any change which would impose any great addition on the burdens of the country; and secondly, because he thought that an abstract Resolution of that sort, which they were not prepared immediately to act upon, was in the highest degree inexpedient. He had stated that he concurred with his noble and learned Friend generally in the view he took as to the mode in which the funds for the administration of justice ought to be supplied; but whilst he concurred in the general view, there were many considerations which, looking at the question in order to be theoretically right and accurate, could not be kept out of sight. The persons upon whom the cost of administering justice ought eventually to fall were, perhaps, those whose misconduct, in violating the rights of others, had led to the necessity for litigation; but, in the first instance, it was unquestionably the duty of the Legislature to supply courts, and it was not only not an unjust mode of contributing to the revenue for this purpose, but a course that was founded on the strictest principles of justice, that the party who was in the wrong, and whose wrong had caused the necessity for resort to litigation, should be, whether by fine or otherwise, bound to contribute to the maintenance of that court the existence of which his injustice had rendered necessary. He could not, therefore, object, even in theory, to so much of those fees as were levied upon the wrong-doing suitor against whom a decision was made. Indeed, it seemed to him that the portion so contributed was levied in consistency with every principle of right, and with the ordinary notions and feelings of mankind. To such an extent was that practice carried—as his noble and learned Friend was well aware—across the Channel, in France, that every criminal was mulcted 414 in the cost of his suit, and even if he were sentenced to death he was bound to pay the costs of the suit—which was made part of the sentence—though, of course, ordinarily speaking, he was unable to do so. That, therefore, appeared to him (the Lord Chancellor) to be a considerable qualification upon the general view of the proposition which had been asserted by his noble and learned Friend. It was true that the State should supply the tribunals; but it was also fit and proper that one of the suitors, either the defendant who had wrongfully withheld that to which the plaintiff was entitled, or the plaintiff, who had wrongfully claimed something to which he was not entitled—should also be bound to contribute to the expense of the machinery of the judicial system. His noble and learned Friend had mentioned the fact that there was a Commission engaged in making inquiries concerning this subject, from whom their Lordships might expect very soon to receive a Report. And he (the Lord Chancellor) feared that what would turn out to be the great and unjust pressure in the case was this—that the system of fees as at present levied in the county courts was a system not only perhaps objectionable in its extent, but in the mode in which it was carried into effect—one which bad a tendency to cast fees upon the innocent party—the party who was in the right—which ought to fall wholly on the party who was in the wrong. That was undoubtedly a matter which required great consideration, and a grievance which certainly called for redress. But it must not be supposed that complete justice could be done in the case by Parliament merely directing its attention to the county courts. Fees to a very large amount were also levied in other courts. His noble and learned Friend said that in the superior courts of common law they amounted to only 50,000l. a year. He (the Lord Chancellor) rather thought it was more than that; but it was undoubtedly very small in comparison with what was levied in the county courts. It was a great deal more, however, in the Court of Chancery; for last year, after all the great reductions which had been made in the fees of that Court, they were close upon 100,000l., and would probably exceed that amount in the present year. His noble and learned Friend was altogether wrong in supposing that this subject had escaped the attention of the Government. 415 So far from that, he could assure him that it had been under their consideration; but, in the first place, they had deemed it proper to await the production of the Report of the County Court Commissioners; and then it had occurred to his noble Friend (the Earl of Aberdeen), the Chancellor of the Exchequer, and himself (the Lord Chancellor), that the matter ought not to be dealt with merely in reference to the county courts. It was their opinion that, before any step was taken, the whole subject must be investigated, as to the fees levied in all the different courts. He had stated that the fees levied in the Court of Chancery amounted to 100,000l. in the course of last year. His noble and learned Friend said, "Yes, but these are fees levied in courts for the rich, whereas the county court fees are levied in courts for the poor." He was sure his noble and learned Friend did not wish to press forward an argument merely ad captandum, and that when he considered the case, he would see that that argument was not founded in justice; for this reason, that the suitors whose wrongs had occasioned the necessity for litigation, or the class of suitors whose wrong-doing had created the necessity for the courts, were the persons who, in fairness, ought to contribute to the maintenance of those courts. Now, in the county courts, in 99 cases out of every 100—he had almost said in 999 cases out of every 1,000—the necessity for the suit was occasioned merely by the wrong of one or the other party. It was either a customer wrongfully withholding from an honest tradesman the amount of the bill he owed him—and there was no question of law in the case—or it was some one wrongfully claiming what he was not entitled to. It was, therefore, consistent with the strictest theory that a large proportion of the costs of establishing courts for ascertaining those rights should be borne by the parties whose wrongful acts had occasioned the necessity for them. He knew that that was not to be done in all cases, because, as his noble and learned Friend observed, they had frequently to deal with parties who were in a state of insolvency. But if in the county courts 99 cases out of 100 were cases of wrongful acts of one of the parties, in the Court of Chancery the very reverse was the fact, in a large proportion of the cases the necessity for a suit arose out of the uncertainty of the law. In truth, therefore, it was consistent with all theory that the 416 Legislature, whose fault it might be said to be that the law was not more clear, should largely contribute to the expenses of that court. The 100,000l. a year contributed in the Court of Chancery in fees was not to be compared with the 260,000l. contributed in the county courts in fees, without taking into account the different circumstances and the different nature of the litigation in one court and the other. He had already stated that in the general propositions of his noble and learned Friend he entirely concurred. He thought it was the first duty of the State to provide tribunals for settling disputes between its subjects—that it was the duty of the State to provide them at its own expense, subject only to recouping to itself as much as it could, by making a fair proportion to be contributed by the suitor whose wrongful act had occasioned the necessity for litigation. The exact state of the case with regard to the fees in the county courts he hoped to become acquainted with when the Commissioners made their Report; and with that Report and the statement of the fees contributed by the various courts before them, the Government intended to consider the whole subject, with the hope of being able to suggest some course which would put the matter in a fair train, in order that both State and suitor might contribute their fair proportion respectively, and that there might be no inequality between one class of courts and another. He agreed with his noble and learned Friend that if there were an inequality, it was most unjust that that inequality should be thrown upon the county courts, for he concurred with his noble and learned Friend in the eulogium he had passed upon those courts; he believed the value they had been of to the community could not be exaggerated in their direct operation upon the suitors, who had through their instrumentality obtained rights which would otherwise have been withheld from them; and further, that the proceedings of these courts had been, and he trusted would continue to be, the means of suggesting improvements in the superior courts, so that the two systems might mutually act and react upon each other. He yielded not to his noble and learned Friend himself in his admiration for those courts. They were proposed, though not in the form in which they were now in operation, by his noble and learned Friend twenty years ago; and they had been carried into effect in conformity with 417 his noble and learned Friend's suggestion. His noble and learned Friend had, he thought, earned the gratitude of the country for the great boon he had been the means of conferring upon it, and he trusted that any evils which arose out of the present imperfect and too extensive mode of levying the fees from these courts might, when the Report of the Commissioners was upon the table, be mitigated, if not removed altogether. He would suggest, therefore, whether it was really expedient or necessary to place upon their Lordships' Journals Resolutions of a merely abstract nature, which would not, perhaps, more tend to the accomplishment of his noble and learned Friend's object than the able manner in which he had brought the question before them that evening, without loading the Minutes of the House with his Resolutions.
LORD BROUGHAM ,in reply, said, with reference to the argument of the noble and learned Lord, that a suitor who had been guilty of wrong ought to contribute to the expense of the court, that a party could only be found to be wrong by the prosecution of litigation, and that before you had a right to fine a person for having misinterpreted or misunderstood the law, you must make that law so clear and certain that it was an offence to misunderstand it. Even if the law were reduced to such a state of certainty, which neither we nor those who came after us at a very distant day could hope to live to see, he should maintain that this was no ground on which to levy a fine, but still it would in part displace his answer to the argument of his noble and learned Friend (the Lord Chancellor). His noble and learned Friend had suggested that he ought to withdraw these Resolutions. He was unwilling to do so; but would only remind his noble and learned Friend of the description of the "previous question" once given by a friend of theirs who was now dead, and who explained to a public meeting that it meant that there was a great deal of truth in the proposition brought forward, but that it was a very disagreeable subject, and the less that was said about it the better.
Previous Question thereon negatived.