HL Deb 06 May 1856 vol 142 cc1-9

ORDER of the day for the Second Reading, read.


said, that in asking their Lordships to give a second reading to this Bill, he would briefly state its principal objects. The local courts had become part of the confirmed jurisdiction of the country, and their establishment was so rooted and they had become so useful, that any attempt to impair their efficiency would be very improper and injudicious. Three years ago he issued a Commission to inquire into the working of these courts—for it was naturally to be supposed that sixty different tribunals, some of them administering justice in eight or ten places, must fall into inconsistencies if not into errors in dealing with the subjects that were brought before them, and it was therefore important that the whole system, should be revised. Last year the Commissioners made their first report, and they pointed out a great number of trifling errors in the existing law, and mistakes of practice which had crept in and which required remedying, and this Bill had been framed with the view of carrying their suggestions into effect. With regard to the details of the Bill, it consisted of some forty or fifty independent proposals, the object of which was to remedy evils each separately being of a minute character. There was one point connected with this subject to which his noble and learned Friend (Lord Brougham) had frequently called their Lordships' attention, and which had always called up in him something like a feeling of shame—habent confitentem reum—that whereas the richer class of suitors who applied for justice to the superior tribunals, had the advantage of judges and court-houses provided for them by the State, the poorer class of suitors in the County Courts had to pay for their own judges and for the places in which they sat to administer justice, because the object of the fees levied in the County Courts was to render those courts self-supporting. It was undoubtedly the first duty of every Government to provide for the administration of justice; but he was not one of those who would look at the question with so scrupulous an eye as to say that the suitors should pay nothing towards the expenses of judicial tribunals. The object ought to be to relieve the man who had suffered the wrong, and throw the costs on him who had committed it. The country provided tribunals, and the suitor not only recovered his fair amount of damages but also his expenses, or had to pay them if he lost his cause; and therefore if the wrong-doer in all cases paid the expenses it might be right that the expenses should be paid by the suitors. But unfortunately that could not be always the case, and sometimes the debtor against whom judgment went was not able to pay. Therefore it was that the Government was bound to provide Judges and tribunals. That reasoning did not apply to those courts which, though nominally courts of justice, were in fact institutions for the administration of property. That principle did not, however, fairly apply to the County Courts, in which the rights of those who had been wronged were enforced; and yet those tribunals had originally been made self-supporting, and the consequence was that an amount of fees was levied in them which, in comparison with the amounts recovered, could hardly be justified. Those fees were divided under two heads—first, a fund for providing court houses, and next, one out of which all other expenses were defrayed. The amount levied in 1854, under the latter category, was £230,000; and under the former between £40,000 and £50,000; making an aggregate raised in fees of about £278,000. Of this, the salaries for the Judges, at £1,200, took £72,000. The Government, therefore, now proposed to pay the salaries of the Judges, and to provide court houses from the Consolidated Fund, and to levy in fees only about one-half of the £278,000 now so raised. That was, perhaps, the main object of the Bill; but, being financial, it could not be effected under their Lordships' authority. It would, however, be submitted to the other House with the sanction of the Government. At present, the County Court Judges were paid salaries of not less than £1,200 nor more than £1,500, at the discretion of the Treasury. This was a most objectionable mode of remuneration, and one that would not be tolerated for an instant in regard to the Judges of the higher courts. He remembered that when the late Lord Denman was appointed Lord Chief Justice, it was arranged that he should receive only £8,000 instead of £10,000, as heretofore; but he retained a legal right to have the larger sum. That state of things led to much animadversion; for it was said to be most improper that it should rest with the Government whether they should pay the Lord Chief Justice £8,000 or £10,000 a year, at their own discretion. In selecting the Judges of the County Courts, who should receive the extra £300 (the source for paying which was the surplus arising from fees) the Treasury proceeded upon the best statistical data it could obtain, and decided with as much impartiality as possible to award the legal increase to twenty out of the whole number, eighteen of whom were paid £300 additional, and the other two £150. Those whose salaries remained at £1,200 were—not unnaturally perhaps—dissatisfied with this arrangement, and many applications were made to the Government to induce it to fix them all at £1,500. In allotting salaries to judgeships, they ought to consider, first, what it was necessary to pay in order to obtain competent men; and, secondly, what would be sufficient to enable them to fill that position in society which the discharge of their duties required—for it would be a very low and vulgar mode of regarding the question to look upon judgeships as things that might be put up, as it were, by auction for the lowest bidder. His own idea was that though it would be impossible to say that £1,500 would be an improper sum, yet, seeing how many able and fit men there were ready to fill the office for £1,200 he did not feel warranted in recommending an indiscriminate rate of £1,500 for all County Court Judges. His Bill, therefore, only secured the salaries as they now existed, of course without depriving those who had already received the additional allowance of their right to have it continued. Such was the best decision on this point at which, after viewing it in all its bearings, he could arrive. It was a point, however, over which their Lordships had no real jurisdiction; and it would now rest with Parliament to pronounce its own judgment on the matter. The Commissioners recommended a variety of smaller changes of detail relating to the position of the deputies and clerks of the Judges. For instance, it would dispose of the doubts which had arisen with regard to the legality of acts done by a deputy when the judge, clerk, or bailiff appointing him had died. The Bill would settle those points. The question of the precise amount of costs which a suitor should he entitled to recover had engaged the attention of the Commissioners. By the law as it at present stood, if an action for debt was proved in a superior court, and the amount recovered was not more than could have been recovered in the County Court, the plaintiff did not get costs unless the Judge certified that it was a proper action to bring in the superior court; and if a person sued in a local court, having concurrent jurisdiction with the County Court, the costs were larger than in the County Court. What ought to be enacted should be, that if the action was not tried in the County Court no more costs should be recovered than would have been recovered in the County Court. The recommendations of the Commissioners, however, differed in this respect from the views that had been advocated by other competent persons. The only pledge he could give was that the subject should receive his careful consideration. Mr. Pitt Taylor, an eminent County Court Judge, who dissented in some particulars from the other Commissioners, had recommended that, whereas the County Courts had at present exclusive jurisdiction in actions for debt under £20 and in those for wrong under £5, their jurisdiction should for the future be equal in both cases. The reasoning by which Mr. Taylor had supported this view appeared so cogent that he (the Lord Chancellor) had embodied the recommendation in the Bill. It was for their Lordships, however, to decide whether it should be retained or expunged. In conclusion, he moved that the Bill be now read a second time, on the understanding that it should be committed proformâ on Thursday, and resumed after the holidays. It had been suggested to him that the Passage Courts at Liverpool and at Bristol were very useful courts, and he did not propose to interfere with them.

Moved, That the Bill be now read 2a.


, while cheerfully admitting that the Bill had much merit, expressed his regret that the Lord Chancellor should not have adhered more closely to the recommendations of the Commissioners—able and zealous men, who had applied themselves most sedulously to the task of improving the County Court system. Although two of the Commissioners were learned and able colleagues of his on the bench—Mr. Justice Erle and Mr. Justice Crompton—the noble and learned Lord preferred to commit himself to the guidance of Mr. Pitt Taylor, a Gentleman whom he (Lord Campbell) had the privilege to call his friend, and for whose talents he had the highest respect, but of whom he must also observe that in many of his views and opinions he was by no means prepared to concur. Mr. Taylor seemed ambitious to make himself a second Chief Justice of England. Even though he should succeed in that object, he (Lord Campbell) would not entertain for him a diminished regard, for his abilities would adorn any position however eminent, and qualify him for any task however arduous. But it would be unreasonable to suppose that similar praise could with propriety be awarded to his fifty colleagues in the County Courts. They were, no doubt, in the main, zealous and efficient magistrates, and they discharged their duties in an exemplary manner; but it might be questioned whether it would be desirable to intrust them with the decision of all manner of cases, however dissimilar and complicated. The County Courts were excellent tribunals, and must now be regarded as permanent institutions of the country, but they had been founded for the express purpose of determining small cases which did not require the same amount of skill and learning that was demanded in the superior courts at Westminster Hall. The vast majority of the County Court Judges were satisfied with their present powers; but Mr. Taylor would revolutionise the whole system and give them an unlimited jurisdiction. The Bill of his noble and learned Friend proposed to depart entirely from the recommendation of the Commissioners, and to place the management of this matter in the hands of his (Lord Campbell's) friend, Mr. Pitt Taylor. An example of the tendency of the Bill might be given in the provision, that if a person bringing an action for malicious prosecution, libel, assault, &c., in one of the superior courts did not recover more than £20 damages he should have no costs. This would effectually shut the doors of Westminster Hall against suitors who wished to resort to it for the vindication of their characters. No plaintiff in such an action can be sure of recovering a larger sum; and henceforth all personal actions must be brought in the County Court, before a Judge who may be incompetent, from, whom there is no appeal except with his own consent, who has no Bar to control him, and whose proceedings are unnoticed by the public press. On these grounds he would ask his noble and learned Friend on the woolsack to reconsider this measure, but he should not oppose its going through Committee pro formâ—although he would repeat that he regretted that the noble and learned Lord should have departed altogether from the recommendations of the Commissioners—recommendations which a regard to the due administration of justice required that the Legislature should adopt.


said, that his noble and learned Friend (Lord Campbell) had really conjured up a phantom, he would not say of his brain, but of his imagination, with respect to Mr. Pitt Taylor, whom he appeared disposed to look upon somewhat as a rival. He seemed to imagine that it was intended to give what used to be called "the cushion" of the Court of Queen's Bench, by giving unlimited jurisdiction to the County Courts. With respect to the minority of the Commissioners having been so small as to have been reduced to one, all the Commissioners being on one side, and Mr. Pitt Taylor on the other, he (Lord Brougham) could only say that almost on every point of difference there had been four on one side and three on another. But the question rested on the merits, not on the recommendations of the Commissioners. Would not any one who had heard his noble and learned Friend, the Lord Chief Justice, suppose that the question raised by this Bill, instead of being confined to £50 in cases of debt, and £5 in cases of tort, was to give jurisdiction to any amount, whether in cases of debt or tort? The object was to make the remedy equal in both these cases, and for this obvious reason—that in the great majority of cases it was impossible to draw the line between the two. His noble and learned Friend had been a little mistaken in his history of the County Court legislation. His (Lord Brougham's) original Bills proposed to give jurisdiction up to £100 in debt, and £50 in tort. Now, by degrees, they were creeping on to the original dimensions of those Bills of 1831 and 1833, for at present the limit had been increased from £20 to £50 in debt and £5 in tort. One very important improvement in the Bill, which he was happy to find that his noble and learned Friend on the woolsack was disposed to adopt, was the improvement of what was called the optional clause. At present both parties by consent in writing had the power of having an action tried in the County Courts to any amount and of any kind. That was the law as it stood, and he hoped that it would be maintained, as the system of local judicature would be, which had taken such firm root that it would never be eradicated from the judicial system of this country. But his noble and learned Friend (the Lord Chancellor) proposed to give a better form to that optional clause, by providing that the consent should only be required in the first instance of the party who sued—that he should be allowed to bring his action in the County Court, but that where the damages claimed exceeded the amount prescribed by the Act, the other party, if he chose, might stop it, and limit the jurisdiction as it was at present. This would be a great improvement, for it would give effect to the optional clause. There was also another matter to which he must refer—a matter which had long been a subject of controversy between his noble and learned Friend and himself—he meant that system which made the County Court suitors pay for the expense of the administration of public justice. These suitors were left groaning under all the evils of law taxes long after those evils had been remedied in every other court of the kingdom. He believed that before long his noble and learned Friend would come round to his opinion on another point, owing, he (Lord Brougham) would not say to the liberality or generosity, but to the wise justice of the other House of Parliament, in providing a sufficient salary to these Judges. He thought that the salary of £1,500 a year was not too much to be paid as the remuneration for the learned Judges who had to perform these important functions. It was no test of the amount of remuneration to say that one court transacted more business than another. That was the worst test which could be applied; for it might happen that the Judge who tried the smaller number of cases might be required, from the nature of the questions raised, to be a man of superior acquirements to the Judge who tried the greater number of cases. But there was another test which was altogether out of the question—namely, that sometimes referred to by his noble and learned Friend on the woolsack, who said he should find no difficulty in obtaining the services of respectable men at the lower amount of salary. Would his noble and learned Friend permit him (Lord Brougham) to say, with all possible courtesy and respect, that he dreaded, from the application of such a test, not so much (as the Lord Chief Justice had imagined) that Mr. Pitt Taylor would be his rival in the Lord Chief Justiceship, but he was in a state of alarm for his noble and learned Friend on the woolsack, for he could see many more candidates likely to rival his noble and learned Friend on that principle; in fact, he saw a multitude—a cloud of witnesses—to the falsehood of the test adopted by his noble and learned Friend. Many men, he believed, would be found not equally capable with his noble and learned Friend, but of sufficient capacity to perform well the functions of his noble and learned Friend's high office, and who would be willing to do so for a much less sum. If his noble and learned Friend applied this test, he might be sure that there would be a host of candidates always ready for the office.


said, that he agreed with his noble and learned Friend on the woolsack with respect to the question of salary. He thought that it would be impossible to lower the salary of those Judges who now had £1,500 a year during their lives; but, considering the duties which these Judges had to perform, and that they were paid out of the taxes, he considered that the present salary was sufficient. The optional clauses carried the amount too high, but that was a question for the Committee. In other respects he supported the Bill, which he thought would accomplish the object for which it had been introduced.


recommended that the County Court Judges should be paid out of the Consolidated Fund.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the whole House on Thursday next.

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