HL Deb 30 May 1854 vol 133 cc1145-56

Order of the Day for the Third Reading read.

Moved, That the Bill be now read 3a.


said, he felt it to be his duty to make a few observations on this Bill, in order that it might not be supposed that he concurred in the hostile criticisms of his noble and learned Friend opposite (Lord St. Leonards). The Bill was, as his noble and learned Friend had observed, the most important measure with respect to the administration of justice that had been laid before Parliament for a considerable time. It introduced more important changes than had been introduced into the law of England since the time of Edward I., and he was happy to be able to say that he entirely approved of it. Some of the experiments it made were undoubtedly hazardous, but he thought they were all laudable, and he hoped the result would be satisfactory. His noble and learned Friend (Lord St. Leonards), in a speech which was distinguished by his usual ability, had disparaged the whole of the Bill; but though he felt a great respect for the opinion of his noble and learned Friend, he must say that he approved of the measure. His noble and learned Friend in the first place expressed very great hesitation respecting the enactment that Judges shall hereafter have power to try issues of fact. Now, if that were to apply to all issues of fact, he would most heartily share in his apprehensions. Where there was conflicting evidence, and in many cases where character was concerned, and where substantially a trial took place respecting the commission of criminal offences, though in the form of a civil action, a jury presided over by a Judge was the best tribunal that ever was established. But there were many cases where the facts were not at all in dispute—which turned on a question of law—and which he thought might be better determined by a judge without calling on a jury to help him, and which a jury was very little capable of performing. The power proposed to be given to the court of deciding with respect to the cases that might be tried by a Judge alone was indispensable, for otherwise a Judge might be called upon to try a case involving a question of murder, or the most atrocious offence. Suppose there had been an action for a libel imputing to the plaintiff that he committed murder, would it be proper that a single Judge should try that case? Nor would it be enough to say that a Judge should try all actions of contract, for there might be an action of contract—for example, an action on life insurance or fire insurance, where the defence might be that the plaintiff had insured the life, and caused the death by foul means, or had set fire to his own house—it would not be proper for a Judge to try such a case without the assistance of a jury. Then, with regard to what his noble and learned Friend had said with respect to the clauses which his noble and learned Friend called the arbitration clauses—he (Lord Campbell) must say he entirely approved of them, because he did not consider them to be arbitration clauses, but clauses referring to a single functionary, matters that could not be properly decided by a Judge or jury—such as matters of account. It was enacted by this Bill, that as soon as an action was brought, if respecting matters of account, either party by application to the court might, in the first instance, refer the case to a single individual, who could sit de die in diem until the whole was wound up and determined. And see the scandal that would avoid! At present a Judge, sitting to administer justice with the assistance of a jury, had a case brought before him which he and the jury were totally incompetent to try, and which must be referred to arbitration. It was now so referred after enormous expense had been incurred in retaining counsel, summoning witnesses, and paying the jury, all which expenses were thrown away; whereas by the new system which he (Lord Campbell) hoped his noble and learned Friend would approve of, all that scandal would be obviated, because, as soon as the writ was issued, there would be an order made by the court referring the whole matter to a single individual to decide it. The next point was with respect to the unanimity of juries. Generally speaking, he approved of the principle of the unanimity of juries, and wished that princi- ple should be infringed as little as possible; but see what was the practice. For the purpose of obtaining that unanimity they at present resorted to the barbarous expedient of locking up the jury without refreshment or fire, and there they were all to remain until they were of one mind. And, according to the common law, if they did not agree when the Judges were going from one county to another, the jury were to be put in a cart and brought to the boundary of the country and that discharged them. He was delighted that a change was proposed; but the change that was proposed in the first instance, he could, from his own experience, say would have operated very disastrously, because it was this—that after the jury had been shut up for twelve hours, having coals, candles, and all manner of comforts, and after sitting for that time in a comfortable room, if at the end of that time they did not agree, they were, as a matter of right, to be discharged. If that provision had stood, he would take upon himself to say that it would have led to an infinite number of abortive trials. One of the parties might have a friend on the jury, or there might be a wrongheaded man upon the jury—and he would know the consequences must be that by sitting for twelve hours in a comfortable room, in the first case the juror could protect his friend, and in the other the juror could prevent the reception of the verdict at which the eleven other jurors had arrived. Or it might be that two or three persons would disagree with the others, and prevent the nine or ten other jurors from prevailing; and it would constantly happen that there would be abortive trials, all the expense would be lost that had been incurred, and there would be great delay and vexation. He considered the compulsory system was better than that, and as proof of it he could say that since he had had the honour of being a Judge he had not once been called upon to discharge a jury, though he had been obliged to lock them up several times. When the Bill came before the Committee he had the honour to propose that if at the end of the twelve hours there were nine of the jurors agreed in a verdict, the verdict of the nine should be taken as the verdict of the twelve, but always liable to any objection that might be raised by the parties to that verdict. It was thought by his noble and learned Friend on the woolsack that instead of nine to three the numbers should be ten to two, and that suggestion was adopted; and such having been the opinion of the Committee, he trusted their Lordships would adhere to it. He was fully convinced that if their Lordships should adopt that resolution no inconvenience would follow, and that it would work most admirably. The next point had regard to the oaths. He was the last person who would propose to abolish oaths altogether. He was sure, with the general feeling prevailing in this country, there would be an opinion that justice could not be satisfactorily administered unless upon sworn testimony; but at the same time there were persons whose religious opinions were opposed to the taking of oaths, and who held themselvest hound in all cases by the Divine command, "Swear not at all." It was now proposed, in order to meet those cases, that if it appeared to the Judge that the witness had a sincere objection to take an oath, he might be examined upon affirmation, as was at present done in regard to Separatists and Quakers; and he (Lord Campbell) considered that that would be a great improvement. He should, however, have been better pleased if there were a general enactment, and he was sure it would have a most salutary effect. Under the law as it now stood, a Judge was bound to commit a man to prison who refused to take an oath, although that man was doing nothing but acting in accordance with the dictates of his conscience. That was not only cruel towards the witness, but also towards the parties who were deprived of his testimony, and any of their Lordships and their posterity might be put in peril of their honour and their fortunes in consequence of the testimony of a witness, whose testimony was essential, being cut off from them because he had a religious objection to take an oath. There was only one other point on which he thought it necessary to trouble their Lordships, and that was what was called the fusion of law and equity. For centuries there had been a broad line of demarcation between courts of law and equity, the consequence of which had been that parties were often obliged to go into a court of equity, and then to a court of law, and back again to a court of equity, before a single case could be finally decided. The principle of the clause in this Bill was, that one court should hear and finally adjudge one case, without the necessity of resorting to another court. Of that principle he most highly approved, and he had no doubt that it would work beneficially. His noble and learned Friend had pointed out that in Scotland there was only one court, and that all cases were finally adjudged in it; and he argued that it arose from that circumstance that there were a great number of appeals from Scotland. There were various reasons why there should be many more appeals allowed from the courts of Scotland than from the courts in England, and amongst others, that they were appeals from one set of Judges reared in one system of jurisprudence to another set of Judges reared in another system of jurisprudence, who entertained very different notions, and who might very likely be disposed to reverse what shocked their prejudices, and therefore the number of appeals from the Scotch courts was no argument against one court. No one honoured more than he did the decrees pronounced by his noble and learned Friend (Lord St. Leonards), but he would tell him that if there had been appeals from his decrees when he sat in the Court of Chancery to the Court of Session in Scotland, some of his decisions would have been reversed. He was sure, with the assistance of his noble and learned Friend, and other eminent lawyers, the common law Judges would be able in a satisfactory manner to discharge the functions now intrusted to them, and which were very different from the railway functions which it was atteumpted to impose upon them, for in the present case they would be acting judicially, and they would have authorities to refer to and direct them. He would put a case that would illustrate the present working of the law. Suppose an infringement of a patent, or of a copyright; the party would have to go to the Court of Chancery for an injunction; the Judge in Chancery would say that be must go to a court of common law to establish his right; but when he had done so, he must come back again to the court of equity, and commence again; and all this led to enormous expense. An instance had occurred about three years ago which strongly illustrated the case. There was a nuisance at Clapham, caused by the perpetual ringing of bells, and an application was made to the Court of Chancery to grant an injunction. The Court of Chancery said, "We have at present no power to grant your application. You must go to a court of law, and establish your right." An action was consequently brought and tried upon the Home Circuit. The trial lasted several days, and there was a verdict for the plaintiff, establishing the nuisance. But no sooner was judgment pronounced than the bells began again, sounding another peal—not exactly the same, but very similar—and the court of common law having then no power to interfere, it was necessary to file a bill in the Court of Chancery for an injunction. Then there was a hearing of seven days before one of the Vice Chancellors; after that hearing, the injunction was granted. Would it not have been most reasonable that the court of common law in which the action was tried for the nuisance should have had the power to grant that injunction against the repetition of the nuisance and to enable that Court to grant an injunction in such cases was one of the objects of the Bill, and he repeated his belief that it would act most beneficially. Within the limits that were allowed, there were a great many matters of equity that could be most satisfactorily disposed of in courts of law. Take a case. Suppose an action was brought against a surety, and the defence was that the suretyship was constituted by an instrument not under seal; as the law now stands, the court of law could take cognisance of the whole matter; but if the surety were constituted by what was called a deed signed, sealed, and delivered, then the court of law had no jurisdiction, and it would be necessary to go into a court of equity. Such distinctions as these should not be allowed. He thought a Bill which proposed to remedy such anomalies was a most valuable measure; and if none other of importance should be passed in the present Session, he considered it would not be a Session barren of good results.


said, that, notwithstanding the statements of his noble and learned Friend, he still retained the opinion he had before expressed with regard to the proposed fusion, as it was called, of law and equity, though he had never doubted that there were cases in which the principles of equity might be applied by the courts of common law. He would, without further observation, proceed to submit to their Lordships the Amendments he had to move to the Bill. The first Amendment was in Clause 17, from which he proposed they should omit the words "ten or," the effect of which would be, that if eleven of the jurors, instead of ten or eleven, as proposed by the clause, should agree in opinion at the end of twelve hours, they should be able to deliver that decision as the verdict of the jury. He could not bring himself to consider that it would be wise to break in upon an ancient institution to the extent now proposed. The recommendation of the Select Committee which sat on this Bill was relied upon by the noble and learned Lord on the woolsack in favour of this change; but no stress had been laid upon the recommendations of the Commissioners who reported in favour of retaining the principle of unanimity among the jury, and who were opposed even to his (Lord St. Leonards') proposition for requiring the agreement of eleven. The next objection that he had to this Bill related to the provision enabling a Judge in his discretion to allow a person stating that he had a scruple against taking an oath to make a declaration in lieu of swearing. Now, the present law certainly permitted Quakers, Moravians, and Separatists, to affirm instead of taking an oath in a court of justice; but then, in each of these cases, there was this security, that the witness allowed to affirm was a man who, in the face of the world, and to the particular knowledge of everybody around him, had joined a particular sect, and they knew that he was influenced, or affected to be influenced, by religious motives in objecting to an oath. But there was a wide distinction between the cases where declarations were allowed instead of oaths under the existing law and the proposition contained in this Bill, because this Bill would enable any man, upon his own mere unsupported assertion that he had a religious scruple, to evade the taking of an oath; thus doing away with the means which the law had hitherto afforded for ascertaining that, although the witness refused to take an oath, he did so because he belonged to a religious sect whose tenets were opposed to the taking of oaths, and was therefore a man who was nevertheless bound by religious obligations. As to the provision with regard to the discretion of the Judge, how was the Judge to get at a man's secret motives, and to tell that in his refusal to take an oath he was influenced by conscientious scruples? It was clear, there fore, that this ostensible safeguard was no real safeguard at all, and was perfectly illusory. But look at the inconsistency and absurdity in which this Bill would involve them. The exemption from the necessity for making an oath was confined to common law procedure, so that in the courts of equity, if this Bill passed, every litigant would still be bound to swear, whereas in the common law courts he need only affirm. Thus, on one side of Westminster Hall a man must take an oath as the law now stood; and, on the other side, he would be relieved from taking an oath, under the provisions of this Bill. Again, a witness might, under this Bill, make a declaration before the Judge of a superior court; but if he went before a magistrate, he must take an oath. It was clear that if a change of this kind was to be made at all, it ought to be made general in its character, and not partial and exceptional.


said, that having had occasion to trouble their Lordships repeatedly before on the subject of this Bill, he would only now say a very few words in answer to what had fallen from the noble and learned Lord who had just spoken. It appeared to him that there was one great fallacy running through all the reasonings that he heard upon the subject of oaths, and that was that it was always assumed that the giving of evidence was the privilege of the witness, and not—which it really was—the right of the suitor. If a suitor could only bring forward a single individual who could give the requisite testimony, and that individual had religious scruples against taking an oath, why was the suitor to suffer because his witness was over-scrupulous and over-conscientious? He had never heard an answer to that argument. It was quite obvious that the party primarily to be considered was not the witness, but the man who wanted the testimony of that witness. Well, the noble and learned Lord asked, what security had they that a man who said that he had conscientious scruples against taking an oath, entertained those scruples in sincerty? He (the Lord Chancellor) asked in return, what security had we now that a man was a Separatist or a Quaker—nay, what security had we that a man who had once been a Separatist or a Quaker, but was not one now, was sincere in his continued scruple to take an oath?—because the last Act of Parliament on this subject expressly stated that any person being a Quaker, Moravian, or Separatist, or who had once been a Quaker, Moravian, or Separatist, but who still retained his conscientious scruple against taking an oath, should be allowed to make a declaration in lieu of an oath. And observe, they were speaking of a class of persons in whose countenance there was generally the evidence whether they were speaking the truth or not, and it was only because men who came forward in this way were really scrupulous, that they did not save themselves from trouble by taking the oath. At all events, there could be no question that it was for the interest of the community that the testimony of such persons should be given, and given in the manner binding on their consciences, namely, upon affirmation. Let their testimony, therefore, be so given, valeat quantum. He admitted that testimony upon oath was generally the most satisfactory, but if they could not get that, let them get the next best testimony that they could. It bad been decided by Lord Hardwicke that a Hindoo witness should be sworn by breaking a piece of china and throwing it over his shoulder, because that was the form most binding upon his conscience; and that was manifestly the sound principle to proceed upon. He (the Lord Chancellor) would riot deny that it would be more consistent with the principle if they extended it to every court in the kingdom; but he recollected that it was only by slow degrees that great changes had hitherto been made. The first relaxation of the oath wag made for the Quakers alone, and was limited to civil proceedings only; and when that was done his noble and learned Friend might, if he had lived in those days, just as well have then urged his argument based on the inconsistency of the proceedings, and asked, "What! do you want to have Quaker testimony, and do you only require it in civil cases, and not in criminal proceedings?" A great lawgiver of antiquity said that they must not look for the best laws, but for the best laws possible under any given state of circumstances; and he (the Lord Chancellor) said, that after the experiment now proposed—if experiment it was—had been tried, as it could be most safely and usefully tried in this instance, and had been found to work successfully, as he believed it would do, then there would be no difficulty in introducing a larger and more general measure; and he trusted, indeed, that the present measure might lead to that beneficial result.


said, that the late Lord Chief Justice (Lord Denman), Session after Session brought in a general Bill, and not a political Bill of this nature, to relieve witnesses from the necessity of taking an oath, and the sense of their Lordships' House was on every occasion expressed against such a proposition. He therefore thought any attempt like the present, to introduce such a principle by the stealthy medium of a clause in a measure with which it had no sort of connection, should be firmly resisted by their Lordships. The noble and learned Lord (Lord St. Leonards) had shown the utter absurdity of adopting such a principle as this for the common law courts and excluding it from the courts of equity and every criminal court in the kingdom. Again, he understood it had been announced that the Attorney General intended to introduce in the other House a general Bill on this subject of oaths; and if that were so, such a Bill would cover the whole question, and render a partial measure like the present wholly unnecessary.


could not admit that the clause with regard to oaths that had been introduced into this Common Law Procedure Bill was a clause that had no natural connection with the general scope of the measure. On the contrary, he thought there was a most natural connection between the two. Neither could he allow the validity of the argument that the want of completeness in the principle as it now stood was any reason against its adoption as a part of this Common Law Procedure Bill. He (Lord Brougham) acted on the same principle as he had hitherto followed, in giving his hearty support to the whole of the great and most valuable improvements proposed by this Bill—improvements as great and as valuable he believed as any that had been introduced, he would not say within their Lordships' recollection, but almost since the period in which our Statutes had been in existence; and he gave that support not less readily, although in some most important particulars the Bill did not go by any means so far as he could wish. He (Lord Brougham) had himself had the honour of bringing forward two or three separate Bills on important branches of this subject—the law of evidence, the law of procedure, the unanimity of juries, and other matters that were dealt with in this Procedure Bill. Was he, then, to object to this Bill, and give it his negative, because it did not go so far as the provisions of the Bills went to which he had obtained the sanction of their Lordships—in a great measure at least, although not in all their stages. The Arbitration Bill which he brought in last year, and which he had brought in again this year, contained a vast number of most important provisions; and although he did not succeed in prevailing upon the Select Committee to agree to them, there could be no doubt that the most important of his provisions were incorporated in the present Bill. He was certainly of opinion—and it was perhaps a natural impression for him to entertain—that the provisions rendering arbitrations and references more effectual than they were now by law with respect to partnerships, charter-parties, and other points, were more effectually set forth in the Bills which he had introduced both in the last Session and in this; but still they were substantially acted upon in the Bill now under consideration, and therefore he felt deeply gratified, and he still lived in hopes that the other provisions of his Bills would be carried out on some future occasion. For these reasons, highly approving of this Bill, as far as it went in all these respects, he cordially rejoiced that it was about to receive the sanction of their Lordships. Upon the question of the oaths, he had only one word to add, namely, that numerous instances had come before him of cruel injustice being worked to the parties who were deprived of the benefit of the testimony of those persons whose consciences they might perhaps think were over scrupulous—but they had no right to say that they were over-scrupulous—that was assuming that these persons were wrong, and that we were right, which we were not justified in doing, for that assumption was the ground of all intolerance, and even of all persecution—we had no right, therefore, to say that they were over-scrupulous—they might be right in their scruples, although we thought that we were right; but that parties should be deprived of the benefit of testimony by means of the Legislature was a cruel injustice; and that persons should be liable to be imprisoned, and imprisoned too even for an indefinite time, because they, from conscientious scruples, refused to bear testimony in the manner required by the court, was, in his opinion, one of the most monstrous cases of injustice and cruelty combined of which any Legislature was ever guilty.

On Question, Resolved in the Affirmative; Bill read 3a accordingly.


moved the omission of Clause 21, which dispensed with the necessity of taking the oaths.

On Question, their Lordships divided:

Content 31; Not-Content 41: Majority 10.

DUKE. Mayo
Buccleuch Mornington
Bath Romney
Drogheda Stradbroke
Exeter Wicklow
Salisbury Vane
Beauchamp Canterbury
Clancarty Hawarden
Cawdor Strangford
Desart Cloncurry
Donoughmore Colville of Culross
Harrowby Colchester
Haddington Redesdale
Hardwicke Southampton
Lonsdale St. Leonards

Amendments made; Bill passed, and sent to the Commons.

House adjourned till To-morrow.