HL Deb 23 May 1854 vol 133 cc787-99

House in Committee (according to order).


said, it was proposed by this Bill to give to a Judge of a court of common law the power to refer matters to arbitration, so as to save the expense of a trial. But it was generally supposed that if they wanted to visit a man with a great penalty, they should send him to arbitrators, who had not that sort of sanction that would give weight to their proceedings. They were forced to sit at whatever time would suit counsel, and it was very seldom the same hour and day would suit them and the arbitrators. Then the expense was enormous, and the result was generally unsatisfactory, though they endeavoured sometimes to avoid any very great disparagement of their award by giving something to each side. The proposed alteration was a very great one, and if adopted there should also be some such law as this—that the arbitrator appointed should at the end of a month report to the Judge that appointed him the progress he had made in the matter referred to him. By the proposed changes also they could dispense with a jury, which had been sanctioned by time, and to which the people of the country were accustomed—the unanimity of the decision giving a weight to their decision which nothing else could do. When they came to dispose of a matter of fact, one set of witnesses might swear directly opposite to what was sworn by another set of witnesses, and it was necessary to have a tribunal, whose competence could not be questioned, to decide between them. But the most important point contained in this Bill was the change now, for the first time, proposed in the law, which required unanimity in the jury. He felt extremely unwilling to alter the law in this respect, but he gave way to this extent—that he was willing that, if after a limited period of deliberation, eleven of the jury were of one opinion, and only the twelfth man opposed to it, the verdict of the eleven should be taken as the verdict of the jury. When one man set himself against the rest of the jury, perhaps not upon solid grounds, perhaps for interested motives, perhaps because he was the friend of one of the parties, or, perhaps because he was bent upon carrying his point, they might suppose that the eleven persons opposed to him were likely to be right, and that the one man who was opposed to them was likely to be influenced by some improper motive. But he denied that when there were two dissentients the same reason applied, because the chances were that there was something in an objection which was entertained by two men out of twelve. They could hardly suppose that two persons would enter into a conspiracy to prevent a verdict being given by the other members of the jury; with these views, as the clause in the Bill had specified "ten or eleven," he would move to omit "ten or," so as to leave in the clause the word eleven, thereby making the verdict of eleven jurors decisive. There was another clause on which he proposed to take the opinion of the House, namely, the clause which had regard to dispensing with oaths. It appeared that the Common Law Commissioners could not agree as to whether oaths should be dispensed with altogether or not, and therefore they did not report one way or the other; but it was considered that if from conscientious motives a man—whether Quaker, Separatist, or of any other religious sect—alleged he could not take an oath, and the judge was of opinion that the objection was made in good faith, he should be at liberty to release him from the obligation. He had made up his mind to object to the clause in the Bill on this subject. He was not prepared to say to what extent he should be ready to go if a measure on the subject of oaths were regularly and fairly brought before the House; for, if ever there was a measure which required to be distinctly brought before the Legislature, it was a measure with respect to dispensing with oaths. A man might have a conscientious belief that it was wrong to take an oath; but how was the Judge to decide it; and he asked if any of his noble and learned Friends would like to be called upon to decide it? This, as he had already stated to their Lordships, was, in his apprehension, one of the most important measures that had ever come before their Lordships; and, thinking it was the duty of some person, he ventured to take the duty upon himself of drawing the attention of the House and of the country to the very important alterations that were made by this proposition to pass on; there had been manifested out of doors a very considerable feeling in favour of what had been called the fusion of law and equity. The practice in America had been cited to them as an example. He could only say that having looked with great patience to everything that was brought forward with regard to this supposed fusion of law and equity in America (which came to this, that the same Judge sat in law and in equity, and now says, "I am in law," and now says, "I am in equity"), he thought there was nothing in the evidence that had been laid before the country which would induce him to accept it. They had an example much nearer home of blended law and equity—in Scotland. Now, he did not mean to reflect in any manner upon the Scotch Judges—for their learning and ability he had a most unfeigned respect—but it did so happen that it was impossible to sit in that House as he did, morning after morning, and day after day, without being struck with this—that the number of appeals from the Courts of Scotland exceeds in amount the appeals both from England and Ireland; the appeals from Ireland during this Session were only one in eleven for the appeals from Scotland. Was that owing to the blending of law and equity? He would not then discuss it, but merely call their Lordships' attention to the example he had given, from which they found that the blending of the two courts of law and equity did not lead to that satisfaction and certainty which were the essential elements of a satisfactory condition of law. There were, no doubt, many maxims of equity which might with propriety be adopted by a court of law, and might by the Legislature be imported into a court of law. This Bill afforded some instances of that, and very important ones. If a man should keep the chattel of another, the person whose property was detained might bring an action in a court of law against the holder of his property, but the party was not bound to restore the chattel of which he had possessed himself; and this Bill proposed to extend the power now vested in courts of equity to courts of law, and there was no reason that he was aware of why the law should not be so. Then came the question what equitable powers they might with propriety extend to courts of law. If there be a lost bond for example, the man who had lost it could not proceed at law in consequence of the loss; but he might proceed in equity, and having proved the loss, and given proper security, compel the man who had entered into the obligation to pay the amount. It was proposed by this Bill to give a court of law a like power, and he approved of the proposition. The great difference between law and equity was, that if a man broke his contract the remedy at law was simply by an action for damages, but the court of equity enforced the specific thing, and whatever the party had agreed to do, he must, by the order of that court, specifically perform. Thence had arisen the doctrine of specific performance, and, according to that doctrine, a party was not at liberty to withdraw from a contract and say he would pay damages. He must perform the specific thing he had agreed to perform. Beyond that, equity forced a discovery, but under peculiar rules and restrictions, in aid of an action. There was a popular instance of the powers respectively possessed by courts of law and equity in the case of a singer who, having covenanted that she would not perform anywhere but at the Opera House, entered into an engagement to sing at Covent Garden Theatre. The common law in that case could give nothing to Mr. Lumley but damages; but the court of equity, though it could not force her to sing at the Opera House, did this—it prevented her from singing anywhere else. He was of opinion that, before a change was made, they ought to remodel the courts of law, so as to give to them the same means as were possessed by courts of equity, through chief clerks and other officers to institute inquiries. The Bill proposed also to give greater equitable powers than existed in a court of equity—it enabled a court of law to compel a discovery both of documents and facts. It enabled a court of law to grant injunctions—and ex parte injunctions—to an extent that a court of equity did not possess; because a court of equity never granted an injunction ex parte except to prevent irreparable mischief, and on account of there not being time to call the parties before it. The Bill went on to give the powers of courts of equity in the form of a mandamus for the first time, and in this form it gave the courts of law for the first time the whole power of an equitable jurisdiction to enforce specific performance. There had been an extensive change in the Bill in this respect. The Common Law Commissioners particularly guarded themselves so that the mandamus should be confined to cases in which a mandamus might now issue at law, and they never intended, as this Bill proposed, to give the courts of law a power generally to compel any man to perform a duty which he ought to perform. The Bill again said that whenever a man had an action brought against him he might plead an equitable defence—that was to say, he might put upon the record, in the shape of an equitable defence, that although the plaintiff was entitled by law to recover, yet in equity he was not so entitled. It also, and necessarily so, gave to the plaintiff an equitable replication. Why, what did all this come to but a regular suit in Chancery? In a word, the Bill proposed to authorise the courts of common law to deal with purely equitable suits, demanding greatly increased equitable knowledge on the part of the common law bar, which almost ostentatiously repudiated all knowledge of equity, and on the part of common law Judges who, from their whole training, necessarily laboured under the same defect. The result must be a conflict of authorities and irremediable confusion, instead of that certainty and fixity of decision that ought to exist. As the Bill was originally brought in, the provision as to equitable defence was confined to the case of an undoubted defence in equity, and the equitable replication was in like manner confined to an undoubted replication of equity. Now, as the law of this country at present stood, if A sold an estate to B, and it was agreed between them that the title should be produced on the 10th of May, and that the purchase should be completed on the 11th of the same month, and if the man who sold had not the title ready by the day named, he was liable to an action for damages; whilst the buyer, if he did not perform his contract by the day appointed, was also liable to damages, time being of the essence of the contract. But in equity, on the other hand, an extension of time was in proper cases allowed on both sides, till the completion of the contract. Now this Bill, by the alterations it proposed, would create the greatest difficulties and confusion. If Parliament were at once to determine that one and the same court should decide both law and equity, he did not say that it might not lead to the saving of much time and expense, he did not say that they might not make a set of rules to govern both law and equity; but they must give to each court a fitting machinery for the double jurisdiction; and if they gave to the courts of law and of equity the same rules, then they would know what they were at. He could understand a great country grappling with a great scheme like that, and framing rules to govern both law and equity, and making those rules binding on all the courts over the whole country; but he could not understand the giving to the courts of law, with their present and ancient jurisdiction, which was diametrically opposed to an equity jurisdiction, and then leaving them to do, what?—why, to decide upon equitable grounds against their own rule—the rule of law being that a man was to recover, the rule of equity being that he was not to recover. Now, he did not say that in time they might not work out such a system; but there must be a new machinery set up, and they were entering upon a new career without, as he ventured to think, sufficient inquiry and deliberation, and seeking to do on a small scale and in an indirect manner what ought to be done, if done at all, upon a large scale, and openly and directly. By this measure he believed there would be a clashing jurisdiction given for the first time to the courts of law. He must again repeat that their Lordships had never had a Bill before them of greater importance than this; and that was his excuse for occupying so much of their time. Having stated his opinion, it was not his intention to offer any opposition to the general measure; and he only wished that his misgivings with regard to its working might not be fulfilled by the event. The noble and learned Lord concluded by moving to omit the clause dispensing with oaths.


observed that, as the noble and learned Lord, whose opinion on such a question naturally carried with it great weight, had objected to some five or six provisions of the Bill, which contained rather more than 100 clauses, although the regular course would have been to discuss the subjects of the separate clauses as they were arrived at in Committee, it would, perhaps, be most convenient if he (the Lord Chancellor) at once noticed the objections of the noble and learned Lord, and stated his reasons for thinking that they were entirely unfounded. The importance of the mea- sure could not be exaggerated; but he (the Lord Chancellor) must take leave to say, even at the risk of offending their Lordships, that it was utterly impossible to imagine that the great bulk of the Members of that House could fully enter into the merits or demerits of the larger portion of the details of the Bill. He would, in the first place, explain the circumstances under which the Bill had been framed. Some time ago a Commission was issued to very learned persons, directing them to institute inquiries with the view of proposing considerable amendments in procedure at common law; they made their report, and two years ago, a Bill, founded upon that report, was passed, which effected most extensive changes in the mode of proceeding at common law. He was sure he would be borne out by the opinion of his noble and learned Friend the Lord Chief Justice, when he said that the working of the change had been most admirable, and had conferred the greatest benefit upon the suitors in the common law courts.


said, the benefit to the suitor did not consist in the improvement of the quality of the article, but in the lowering of its price.


The Commissioners subsequently presented a second report; and, after looking through it, he requested their Secretary to frame a measure founded upon the Report, without, however, pledging himself to adopt slavishly all the recommendations of the Commissioners. In some cases, not considering their suggestions beneficial, he did not adopt them, and, in other cases, he added to their proposals; but, substantially, the present Bill embodied, for the most part, the recommendations of the Commissioners. Whatever blame might attach to him with reference to this measure, he certainly could not be charged with having introduced it unadvisedly; for, feeling that the subject was one in which the great bulk of their Lordships would not take a very lively interest, and with regard to which they could not possess the professional knowledge necessary for enabling them to form opinions, he, with his noble and learned Friend the Lord Chief Justice, and one of the Judges from each of the courts, met the Commissioners, and they went through the Bill clause by clause, discussing the merits and feasibility of the various provisions. The result was that several important alteratoins and amendments had been made in the Bill, and in that shape he had submitted it to their Lordships; but, thinking that a measure of this nature could not receive too much consideration, it was referred, on his proposal, to a Select Committee, which was attended by his noble and learned Friends Lord Brougham, Lord Campbell, and Lord Lyndhurst, and also by other noble Lords, who, although not lawyers, were perfectly competent to form a just opinion upon the questions which were discussed. Some further alterations were made in the Bill by the Committee, some provisions were added to it, and, after having undergone that ordeal, the measure now came before their Lordships. What, then, were the objections urged against the measure by his noble and learned Friend opposite? That noble and learned Lord (Lord St. Leonards) in the first place suggested doubts as to the expediency of the clause which provided that parties who wished to have their causes tried by a Judge without the machinery of a jury might—subject to the regulations of the courts—have that desire gratified. He (the Lord Chancellor) owned that this was not a provision of which he himself was greatly enamoured, because he thought that juries, constituted as they were of a body of persons taken miscellaneously out of a county, were often very much improved as citizens, and rendered more intelligent by discharging the duty of jurors; but, although his own feelings were not very favourable to the change, he could not think it desirable that the suitor should be made to pay for the education of the community, and therefore he considered, on the whole, that the change proposed in the existing system was a reasonable one, and one against which it was impossible for him to set his face. The noble and learned Lord objected to another clause with reference to juries. Their Lordships were aware that, by the present law, it was necessary that a jury should be unanimous in their verdict. Now, he quite concurred with his noble and learned Friend that, with all its anomalies, the necessity of unanimity had not been productive of any great degree of practical injustice; but he felt that, when they were making a change in the law and remodelling the constitution of juries, it was impossible to give this subject the go-by, and refuse, from any pedantic adherence to the established order of things, to sanction the change. It was necessary to consider whether the system of unanimity should be continued or modified. The Commissioners did not recommend that the necessity of unanimity should be dispensed with, but they proposed that the barbarous and absurd practice of locking up juries without food or fire until they agreed to a verdict should be discontinued, and that, if at the end of twelve hours juries had not agreed, and did not ask unanimously for time for further consideration, they should be discharged, and a new trial might be had. That was the form in which the measure stood as it was originally introduced on the recommendation of the Commissioners. The subject received very great consideration, and the Lord Chief Justice suggested this course—that juries, if they did not previously agree unanimously upon a verdict, should be kept together for twelve hours, and that if, at the expiration of that time, ten or eleven of them were agreed in opinion—that was, if they agreed in the proportion of five to one—or, à fortiori, if they agreed in the proportion of eleven to one—their verdict should be received as the verdict of the jury. This course, he thought, possessed very great advantages over that proposed by the Commissioners. Suppose there should be upon a jury one or two obstinate men—as he was afraid was sometimes the case—who knew that by sitting out for twelve hours and refusing to agree to a verdict they would be absolved from giving a verdict at all, and that there would be an end to the trial for a time at least, he feared obstinate men might be tempted to pursue that unreasonable course; but if such persons knew that, even if they persisted in disagreeing to a verdict in which ten or eleven of their fellow-jurors concurred for twelve hours, the verdict of the ten or eleven who were against them would be received as the verdict of the whole, he hoped the inducement to this unreasonable obstinacy would be removed. His noble and learned Friend had also complained of what he called the "arbitration clause," Any one conversant with the proceedings of courts of common law knew that many cases were brought before them which it was impossible for a Judge to try. Suppose, for instance, the case of an action against a builder for work to the value of 5,000l., that amount consisting of items of 10s. or 20s., every one of which must be investigated. The noble and learned Lord said, "Why not go into a court of equity?" but no one knew better than his noble and learned Friend that there was no equity in such cases; and the usual course was, when cases of this kind had gone on for a little while, that both parties agreed to refer them to arbitration. Now, in order to prevent parties to such cases from incurring expenses to the amount of hundreds of pounds, by bringing their cases to trial, paying fees to counsel, and subpœnaing witnesses, the Bill gave the power to a Judge—at the instance of either party—if he thought it a case that must come eventually to arbitration, at once to refer it to arbitration before unnecessary expenses had been incurred. This was undoubtedly a new system in England, but it was the common mode adopted in Scotland of dealing with matters of account, and he could not but think it possessed very great merits. The next provision of the Bill to which his noble and learned Friend objected was one which he (the Lord Chancellor) hoped would be received with great approbation by a very large majority of their Lordships, and by a very great majority of the country at large. He alluded to the provision contained in the Bill on the subject of oaths. At present, primâ facie, everybody who appeared as a witness was sworn; but a century and a half ago a law was passed allowing Quakers, Moravians, or Separatists, who objected to taking oaths, to make solemn affirmations instead, subject, of course, to the same penalties for affirming falsely as other persons were liable to for perjury on their oaths. This exemption, however, was not confined to Quakers, Moravians, or Separatists, for it had been extended by statute to all persons who had at any time been Quakers, Moravians, or Separatists, but who, having ceased to be so, stated that they still retained conscientious scruples against taking oaths. If, however, a person entertained scruples against taking an oath, but could not declare that he was or had been a Quaker, a Moravian, or a Separatist, there was no statute absolving him from the obligation of being sworn. Their Lordships must admit that this was a most anomalous state of things; and the present Bill provided that any person who was called as a witness, and who stated that he had conscientious scruples against taking the oath, should be allowed, instead, to make a solemn declaration; but this was not to be permitted unless the Judge was satisfied of the sincerity of the witness's objections to taking an oath. It might be asked, "Why are these parties to be relieved from the obligation of taking oaths?" But it appeared to him that that was putting the question upon a most absurd foundation. The person to be considered was the party who required the testimony of the witness. It was entirely unimportant to the witness whether his testimony was received or not; but it was a serious misfortune to a tradesman, who was suing a debtor, if the only person who could prove the debt was a very honest man, who neither was nor had been a Quaker, a Moravian, or a Separatist, who might be a member of the Church of England, a Baptist, or connected with sonic other persuasion, but who entertained conscientious scruples against taking an oath, and whose evidence, therefore, could not be received. Ought the plaintiff—another party—to be punished because a court of law refused to take his witness's evidence, except upon oath? That appeared to him most anomalous and absurd; and this Bill sought to put the matter on a more rational footing. His noble and learned Friend had pointed out, that when the Bill was introduced, the form of declaration recommended by the Commissioners was adopted, namely, "I, A. B, do solemnly, and in the presence of Almighty God, declare." It had been suggested, however, that many persons would regard that form as equivalent to an oath, and, therefore, the form was altered, and the words "do most solemnly and sincerely declare" were adopted. The form of declaration introduced into the Bill, in the first instance, was similar to that adopted in the first Act for the relief of Quakers and Moravians; but, in consequence of the objections entertained to the form by Quakers, the words "in the presence of Almighty God" were omitted under the authority of an Act of George II. His noble and learned Friend had referred to the equitable clauses of the Bill. Now, those who had paid attention to such matters were aware that there had been a sort of demand among legal reformers for what they called "fusion;" the doing away with all distinctions between law and equity. Most unquestionably if they were going to establish a code for some newly-peopled island that had just appeared in the Pacific Ocean, no man would ever dream of having two concurrent systems—one of law, and one of equity. There ought to be one system of law, and one only. But he (the, Lord Chancellor) was never one of those who thought, when they had a system that suited the habits and feelings of the people, that it was advisable, merely from a desire to make that system more theoretically right, to run the risk of introducing changes which might lead to great practical difficulties. His notion of fusion was to endeavour to arrive at it step by step, so that sooner or later they might get to the same point; and he thought the Bill proposed to effect objects which would materially tend to the desired end, and be attended with great convenience to all persons. His noble and learned Friend had conjured up a host of difficulties; but he would beg to call their Lordships' attention to what the Bill really did contemplate. If there was one principle of which all law reformers ought to be enamoured more than another, it was, in his opinion, that one court should have power, in all its stages, over one cause, so that wherever a suit was instituted in a particular court that court should be able to carry the case through all its stages, and to do complete justice between the parties. All that the present Bill proposed was—whereas at the present time, when a suit was instituted at common law, there were many things which could not be met otherwise than by allowing the parties to recover at law, and then filing a bill in equity, because there might be rights which could not be determined at common law—to bring the suit so within the jurisdiction of a court of common law that it might be enabled to determine upon the whole case. He could understand that ardent reformers might complain that they were proceeding very slowly, and not with that zeal, that ardour, and that enthusiasm with which they ought to proceed, but the last thing he could anticipate was, that they should say they were taking a step too far in advance. He would not detain their Lordships by answering the instances which had been given by the noble and learned Lord, but, anticipating there might be difficulties started, to a certain degree of a novel character, they had introduced into the Bill a most useful clause to the effect that, wherever the nature of the defence was such that the court of law could see it could not be dealt with for want of proper machinery, it was competent for the court to strike out the plea raising such defence, and say it must go to a court of equity. There might be a few individual cases of such a character as to require that proceeding, but he thought it would not happen to 99 out of 100. He could not understand what objection there was to that portion of the Bill relating to the power of mandamus. If, for instance, a railway company were bound to make an opening for him, in respect of its railway, from one field to another, and did not make it, he might bring his action for the recovery of damages accruing from the neglect, and he might probably have afterwards to apply to the court of Queen's Bench to compel them to do so. All that this Act provided was, that it should be done at once. So with regard to injunctions; for, although he might recover and establish a right at law, it was competent for a party to violate that right afterwards; but this Bill gave the court the power not only to grant damages, but injunctions to prevent the recurrence of the evil sought to be remedied. It gave the power, in fact, to the court to act as common sense would dictate—power to do complete justice itself and prevent parties being driven to another court to obtain those supplementary remedies which prevented the future infringement of the very right they had just established. The sections were extremely well worded by the gentleman who acted as secretary to the Commission; and, in fact, the whole Bill was ably drawn, and sought to accomplish most legitimate objects; he hoped, therefore, the Committee, would give their countenance not only to those clauses to which his noble and learned Friend had no objection, but to those also to which his observations had more particularly been directed.


observed that he would not trouble the House to divide upon his intended Motion as to the jury, as he saw plainly what the result would be.


said, he should abstain from making any observations on what had fallen from the noble and learned Lord, but should reserve to himself the power to do so at any future stage of the Bill.

Amendment negatived.

Amendments made; the Report thereof to be received on Friday next.

House adjourned to Friday next.