HL Deb 24 August 1860 vol 160 cc1760-73

rose, pursuant to notice, to call the Attention of the House to the Measures of Law Reform introduced into this House: —My Lords, I have to ask your Lordships to give a first reading to a Bill which has been framed expressly to repeal a great number of statutes. There is no idea that the Bill should be proceeded with during the present Session of Parliament; but the wish is that it may be read a first time, in order that it may be printed and circulated, and that your Lordships may be prepared to consider it when Parliament shall meet again. There is now going forward what is called an expurgated edition of the statutes—an edition, that is, leaving out all those statutes which have been repealed, or have expired, or have become obsolete. With respect to the statutes that have been expressly repealed, there is, of course, no doubt whatever: hut there are a great many statutes that have been only impliedly repealed; for a most vicious system of legislation has prevailed of declaring all statutes repealed which are inconsistent with the enactments of the particular measure which may be under consideration at the moment. Hence it is very difficult to say what particular statutes are in force and what have been repealed. We have most laboriously attempted to distinguish between them; but there is a difficulty about it, and to be certain, a Bill has been prepared expressly repealing all statutes which have not before been expressly repealed, so that they may be safely omitted from any future edition of the statutes, and then the statutes which are now so bulky will collapse into a very moderate size. I hope, therefore, your Lordships will allow this Bill to be read a first time.

Permit me now to call your Lordships' attention to the Bills that I have introduced during the present Session of Parliament with a view to legal reform. Deep disappointment has been expressed, and loud complaints have been made and re-echoed that the present Session has been a complete failure with respect to law reform. I admit that a good deal more might have been expected than has been accomplished; hut at the same time I think the expectations were exaggerated, and the description of the failure is very much overcharged. I impute no blame to any party or any individual that the full expectations which were entertained have not been realized. I shall ascribe it to adverse and inevitable circumstances. But I can take no blame to myself, and I am sure your Lordships are free from all blame, for you have in the most exemplary manner received all proposals for legal reform which have been made during the Session, and have done all in your power to carry them into effect. With your Lordships' permission I shall briefly mention the Bills that I myself have had the honour to introduce. They are no fewer in number than sixteen. Some of them have passed, others only await the Royal Assent; but others, I am sorry to say, have not succeeded elsewhere, and must await some more favourable opportunity for becoming the law of the land. The first Bill I had the honour to introduce was called the Court of Chancery Bill, and had for its object to enable me to discharge the remaining Masters in Chancery and to do away altogether with the system of having such officers. It is wonderful that the institution of Masters in Chancery should have continued so long. At last, however, a Bill was brought in for its abolition; but, still, the abolition was to be gradual, and the Masters were to be released from time to time. Several of them still remain, and it was found necessary to make provision for the performance of the duties discharged by them, and, likewise, the staff of clerks allotted to the Master of the Rolls and the Vice-Chancellors was found to be insufficient. It had been arranged that those clerks should do, under the auspices and by the direction of the Master of the Rolls and Vice-Chancellors, what ought properly to have been done by the Masters in Chancery; and the Bill I had the honour to introduce "as to enable that new system to be carried into effect. I am happy to say that the Bill has received the concurrence of the other House, with a few unobjectionable Amendments, to which I shall ask your Lordships to agree, and it only awaits the Royal Assent to become the law of the land, when I have no doubt it will be productive of very beneficial results. The next Bill which I had the honour to introduce was called the Companies Bill. It was a Bill consolidating all the Acts of Parliament respecting joint-stock companies, and regulating everything connected with those companies from their original formation until they are finally wound up. That subject has been under the care of several successive Governments. The Bill was, I believe, most elaborately prepared. I did what I could to improve and perfect it, and I entertained the hope that it would now without difficulty have passed through both Houses of Parliament. Your Lordships entirely approved it; both sides of the House concurred in passing it; we sent it down to the Commons on the 5th of March: out although it was very frequently on the Orders of the Day it was not reached until almost the end of the Session. As it had been so elaborately prepared I was in hopes that it might be taken almost in confidence, and that the object which successive Governments have had in view would at last be accomplished. However, when the day arrived on which it was to be read a second time, objections were made, and it was thought necessary to withdraw it. A more serious disappointment still was experienced in connection with the Bills which I next introduced. They were seven in number, and their object was the consolidation of the criminal law. That undertaking had been going on for many years under successive Chancellors, but finally under the auspices of my noble and learned Friend Lord Cranworth, when he presided over the Statute Law Commission, and subsequently under my own superintendence. The great object was that the criminal law of Ireland and the criminal law of England should be assimilated. It at first seemed a very difficult undertaking; hut eventually, I believe, the difficulties were completely overcome. Your Lordships appointed a Select Committee to consider the Bills, seven in number, which I introduced. That Select Committee consisted of all the law Lords and of a considerable number of lay Peers, Chairmen of Quarter Sessions, and others who had paid great attention to the administration of justice, and who were in every way competent to give material assistance in perfecting these Bills. After sitting a good many days we got through the whole of them; we reported them to the House; your Lordships passed them, unanimously, and I was in hopes that they would succeed in the other House of Parliament, It is vain to think of codifying or consolidating if an immense volume of positive law is to be considered in detail by a large deliberative assembly. No code ever was or can be so considered. Confidence must be reposed in a certain number of persons who are competent to the task; and if a great number of Bills, with an immense multitude of clauses in each, are to be debated in a Committee of the Whole House of Commons, I despair of consolidation or codification. I had most flattering promises from many Members of the other House. Trusting to those promises, I supposed that we had at last accomplished our object; but when the time arrived for the trial there were certain Members of the House of Commons who thought that all these Bills ought to be canvassed clause by clause in a Committee of the Whole House; the necessary result of which was that they were withdrawn. I was deeply mortified at that result, because I am not able to foresee the time when, if such a course be adopted, any consolidation of the statute law can be adopted. The next Bill which I introduced was on a much smaller scale, and had a happier success. Its object was the administration of the law in regard to the administration of poison. As the law stood, unless death resulted from the administration of poison, or poison was administered with the intention of causing death, its administration was no crime; and the object of my Bill was to enact that the administration of poison with the intent of endangering life, or doing bodily harm, should be a felony; if with the intention of annoying or injuring it should be a misdemeanour. That Bill was rapidly passed, and in a few weeks it received the Royal Assent. The next Bill that I introduced to your Lordships was the Law and Equity Bill, and its objects were to enlarge the equitable jurisdiction of the Courts of Common Law so as to enable them to decide any question of equity which might incidentally arise, and to improve what I may call their pure procedure. The first part of that Bill, although recommended by the Common Law Commissioners, was disapproved by a majority of equity Judges and by Members of your Lordships 'House for whom I have a sincere respect. After a most able and permanently valuable memorial in its favour from the Lord Chief Justice of England, Sir Alexander Cock burn, and two of his colleagues, recommending all its provisions, it was referred to a Select Committee, when a number of clauses, upon which I set great value, were rejected, and it was, in my opinion, materially mutilated. At the same time, by the clauses which were retained, the equitable jurisdiction of the common law courts was so extended as to enable them to release from forfeiture for non-payment of rent, or non-insuring, and also with respect to the proceeding of interpleader—an alteration which has been found most beneficial. All the clauses of the Bill respecting common law procedure were agreed to, and in this partially damaged state the Bill was sent to the other House. It has been approved by that House, and now waits for the Royal Assent; and I will venture to say that by that Bill alone, damaged as it is, more is done to improve the administration of justice in the courts in Westminster Hall than was done by all the Acts which were passed in the sixty years' reign of George III., the longest in the history of this country. In those days legal reform was not thought of, and the object of all the Bills which were passed was to create new felonies and render our penal code more rigorous. The object of the next Bill was to put an end to the most scandalous abuse which had arisen, of English bankrupts going to Scotland for the purpose of there getting rid of their liabilities. My attention was first drawn to this subject when I happened to be at Tobermory in the Hebrides. In that place I found a number of Englishmen, and to my astonishment I was told that they were bankrupts who had come there to be "whitewashed." They amused themselvs for forty days in grouse shooting and deer stalking, and then petitioned the Sheriff or the Court of Session to he discharged from all their engagements. It was found that the Courts of Scotland were bound to take cognizance of these cases; and my Bill provided that in all cases in which the majority of the creditors did not reside in Scotland the Courts might stop these proceedings by dismissing the petition. I am happy to say that that Bill passed both Houses, and has received the Royal Assent. The next Bill had for its object to facilitate the despatch of business in the Divorce Court, and to provide for the more effectual prevention of collusive divorces. It enabled the Judge Ordinary himself to dispose of cases of divorce in which he required no assistance, and to call in assistance whenever he thought it advisable. It also empowered the Queen's Proctor to employ the Attorney General or the Queen's Advocate to investigate cases in which suspicion of collusion was entertained. That Bill was sent down to the other House at an early period of the Session, but, owing to the state of business, for some time remained untouched. At last, when it had undergone a thorough examination by the microscopic eyes of some Members of the House of Commons, it was discovered that it infringed the privileges of that House. And here I must take leave to say that upon this occasion the House of Commons has behaved in the handsomest and most liberal manner. The Speaker delivered a most admirable and lucid judgment, in which he declared that there had been an infringement of the privileges of the House; and such an infringement I must admit that there had been, because one clause of the Bill provided that the Queen's Proctor should be paid his fees as the fees of his office, which, as it turned out, are paid out of the Consolidated Fund. I must admit that that was a breach of the privileges of the other House. It was done incautiously, and I cannot take much blame to myself for it, as it escaped the vigilant eyes of those who assist us in detecting what are called "privilege clauses." The House of Commons, instead of, as they would have been fully justified in doing, rejecting the Bill, have, in the handsomest manner, seeing that there was no intention on the part of this House, or of any Member of it, to infringe their privileges, allowed the Bill to pass, making an entry on their Journals that this is not to be drawn into a precedent. The Bill has passed, and now awaits the Royal Assent. The next measure to which I will allude is the Endowed Charities Bill, in the bringing in and carrying through of which I was exceedingly indebted to my noble and learned Friend who sits opposite (Lord Cranworth), who formerly introduced a Bill of very much the same nature. That measure enlarges the jurisdiction of the Charity Commissioners, and enables them to carry on the administration of small charities without any application whatever to the Court of Chancery. The peculiarity of this tribunal of the Charity Commissioners is that its proceedings are unattended with any fees or any expense whatever. With all my respect for the Court of Chancery, I cannot pay the same compliment to that illustrious tribunal. By reason, then, of the enactments to which I refer, these Charity Commissioners, who are men of great learning, ability, assiduity, and zeal, are now empowered to appoint trustees, make orders as to leases, and do all that is necessary for the administration of these charities without going to the Court of Chancery—a formality which used to produce great delay and much waste of the charity estates. The only other Bill with the history of which I have to trouble your Lordships is a Bill to authorize the fiord Chancellor, with the assistance of the other Equity Judges, to carry into effect the recommendations of the Commissioners who were appointed to consider the mode of taking evidence in equity suits. The appointment of that Commission was recommended to my noble and learned Friend Lord Lyndhurst, and it has made valuable reports. It was thought that the Lord Chancellor, by the authority of former Acts of Parliament, or by the inherent authority of the Court, might have carried those recommendations into effect; but my noble and learned Friend Lord St. Leonard's entertained a different opinion, and accordingly, I introduced a measure which was not only approved by your Lordships, but which was passed by the other House of Parliament; and I have the satisfaction of saying that we have made great progress in carrying out the recommendations of the Commissioners. I have no doubt that at the end of the long vacation orders will be framed and published, under the authority of the Lord Chancellor and the Equity Judges, by which those recommendations will become binding on the practice of the Court, and will be attended with very considerable advantage to the public. My Lords, there is another Bill, which is, however, still before the House of Commons, and of which, as its fate yet remains in the balance, it therefore does not become me to say much. I mean the measure which proposes to enact that when a divorce a vinculo matrimonii has been duly pronounced by the Scottish Courts, it shall be held equally valid all over the island, instead of being valid only in one part of it. The Bill, as sanctioned by your Lordships, also provided, in order to give due solemnity and weight to the proceedings of the Scottish Courts in pronouncing divorces, that they should only take cognizance of those cases in which the parties are domiciled in Scotland; thereby putting an end to that most discreditable practice of pronouncing sentence of divorce where the parties come into Scotland for the purpose of procuring the divorce and of committing the very act upon which the application for it is founded. My Lords, if the other House of Parliament shall he pleased upon reconsideration to admit the two clauses which they at first expunged from this measure I shall rejoice, as a very great improvement will thus he effected in the law both of England and Scotland; but should the House of Commons, unfortunately, do otherwise, still, my Lords, I think I have shown that there have been various measures passed through this and the other House of Parliament, and which will become law on the Royal Assent being given, by means of which great benefits will be conferred on the country.

I must likewise observe that other noble and learned Lords, Members of this House, have introduced important measures of a similar character. The noble and learned Lord behind me (Lord St. Leonards) brought in a very valuable Bill, which has become law, for the amendment of the law of property. My noble and learned Friend opposite (Lord Cranworth) also introduced a measure which has received the approval of the other House, called the Trustees and Mortgagees Bill. My noble and learned Friend Lord Brougham has likewise proposed further improvements in our legal system. These facts, I think, prove that it is a monstrous exaggeration to say that this Session has been a total failure in respect to law reform.

I will now draw attention for a moment to what your Lordships have done, not in your legislative but in your judicial capacity; and I am happy to state that by the assiduous and devoted co-operation of the law Lords the legal business of this House is now in a more satisfactory state than it ever has been hitherto. I remember the time when there were such arrears that an appeal stood for years and years on your Lordships' list before it could be disposed of. Recently there has been a very great improvement. The usual course has been to dispose, if possible, of all the appeals set down for hearing before the Session began by the time Parliament was prorogued; and I believe, although great efforts have been made, that has hardly ever been accomplished. But I am happy to say that during the present year we have been able to dispose, not only of all appeals set down for hearing before the commencement of the Session, but also of several appeals which were set down while Parliament was sitting. During the present Session the House has disposed of fifty-two appeals, some of them of very great interest; and there are now only twenty-four waiting to be heard, which will have to be tried at the beginning of next Session. It used to be said that Chancery suits never came to an end. As a specimen of the despatch with which business is now done, let me mention a single case, one in which the Westminster Palace Hotel Company was concerned. That joint-stock company have constructed for an hotel a large building, part of which they let to Sir Charles Wood, the Secretary of State for India, for the purpose of conversion into a Government office for a time. That arrangement was objected to by certain of the shareholders; and on the 17th of May in the present year a Bill was filed by which this Chancery suit was begun. The cause was heard before Vice-Chancellor Page Wood on the 31st of the same month, and a decision given in favour of the defendants. There was an appeal from that judgment to the Lords Justices, which was heard on the 11th of June. The Lords Justices were divided, and therefore the decision of the Vice-Chancellor remained undisturbed. There was then an appeal to the House of Lords, which came on to be heard on Monday, the 6th of August. It was heard on that day, and on the 7th—or the very next day—it was finally disposed of. Thus the entire litigation was begun and ended between the 17th of May and the 7th of August of the same year. That state of facts, I think, scarcely justifies complaint of the tardiness of judicial proceedings. I will not, my Lords, attempt to chalk out what may be done in a future Session of Parliament, but I will say this, that if I have then the honour to hold the office which I now fill, and if it please God to give me health and strength, I shall endeavour to do my best to follow up the path of law reform, and to expedite the judicial business of your Lordships' House. On the other hand, if, as may very well happen, another should succeed me, I will most cordially co-operate with him in the performance of his judicial duties and the promotion of his law reforms.

The noble and learned Lord then presented a Bill for repealing divers Acts and Parts of Acts which have ceased to be in force; and moved that it be read 1ª.


said, lie hardly knew whether to congratulate his noble and learned Friend on the woolsack upon what he had accomplished, or to condole with him upon what he had failed to achieve. As regarded the Court of Chancery, certainly not much had been done this year. The Bill to which his noble and learned Friend had first called attention was one of a very slight character, because the Masters in Chancery had already been dismissed under previous legislation, and there was only one of those officers now left. As to the Bill which had been founded on the Report of the common law Judges, who were appointed to consider the procedure of the law Courts, and who proposed to transfer to themselves every part of the jurisdiction of the Court of Chancery—he took the liberty of pointing out that there were several requisites they could not fulfil; they had not the time, they had not the knowledge, they had not the practical experience, they had not the machinery for the performance of those duties. After considerable examination up-stairs, those clauses which, in his opinion, would have done much mischief, were omitted; and the remaining clauses, which related to common law procedure, including two or three clauses, which were very innocent, were passed into a law. Another Bill, which had been referred to by his noble and learned Friend, was introduced and passed to give effect to the Report of the Commissioners appointed to inquire into the mode of taking evidence in the Court of Chancery. That Bill made a very great change indeed in the Court of Chancery. In his opinion, however—but he differed from his noble and learned colleagues on the subject—if carried into effect, it would disorganize that Court, and form a great obstacle to the despatch of business. It enabled, for the first time, any suitor to require the Court of Chancery to hear oral examinations of witnesses; and, there being two Examiners whose income had been very much increased in consequence of the greater duties at present imposed on them, the result of carrying this last Act into execution would be to make their office a sinecure; for if parties went before the Examiners, their statement would have only the effect of an affidavit, and no one would go before them to make an affidavit. So far as regards the Court of Chancery, therefore, not much had been done in the way of beneficial reform. Indeed, it did not require much to be done. He believed it was working ad- mirably, the excellent Judges who were presiding there giving their time and attention to their duties in a way which well entitled them to receive the approbation of the country. With respect to the consolidation of the criminal law, undoubtedly a vast deal of time and attention had been bestowed on it. His noble and learned Friend had alluded to his own exertions on that subject; but he should remember that they had all had their share in the labour. When he (Lord St. Leonards) was on the woolsack in 1852, he undertook the consolidation of the criminal law, and had bestowed much time and research on the subject. He had papers on the subject which would require a strong man to lift. He would stake his existence that the Criminal Law Bills now before the House of Commons had cost the country not less than £100,000. They had been the subject of Commissions and Reports, Bills drawn, Bills put on one side, contemplated improvements, for the last thirty years; and really, unless they were taken by either House with something like confidence in the powers that be, they would never be passed. He was to some extent responsible for these Bills, having, when sitting on the other side of the House, served on a Select Committee to whom they were referred with Lords Lyndhurst, Brougham, Truro, Cranworth, and the Lord Chief Justice (now Lord Chancellor). They proceeded very laboriously and successfully with their investigations till they came to a definition of "murder." Sir Edward Coke's definition was thought so imperfect that no one would adopt it. Every Member of the Committee tried his hand at a definition of his own, but without meeting the general acquiescence; and at last his noble Friend, then Lord Chancellor (Lord Cranworth), committed something like a murder on the Committee itself by issuing a Commission to consider the subject, thereby virtually bringing the Committee to an end. As to the other measures to which his noble and learned Friend had referred, he entirely disapproved of the Bill with reference to the Divorce Court, and he believed if such a measure had been proposed when the Bill for the establishment of that Court was before their Lordships, not one of them would have voted for it. When the original Bill was in Committee, he told them that he was perfectly satisfied that the great names and offices of the associated Judges rendered it a mere delusion to suppose that the Divorce Com t would ever have their services; and the sequel proved he was right: they did not attend: and now this Bill was introduced to transfer the power of the full Court to the Judge Ordinary. If it had been originally proposed to give the power of granting divorces to a single Judge, he was satisfied that Parliament would never have listened to it. He did not wish to detract from the credit to which his noble and learned Friend on the woolsack was entitled for law reform; but he must say that much in that way had not been accomplished. He thought if there was anything to he deprecated it was an excess of legislation, particularly on law reform. Sound law reform was, indeed, of the utmost importance; hut it was very seldom they could get men to agree as to what was law reform. Alterations of the Courts were easy enough, especially when accompanied with expensive compensations and other such arrangements— they went down very easily; but real law reform—beneficial alterations of the law—were the most difficult things possible to accomplish. These observations would show how little had really been accomplished. His noble and learned Friend had also in the course of his speech referred to the position of the judicial business, both in the Court of Chancery and in that House, as being highly satisfactory; but it was hardly fair, he thought, to institute a comparison on the point between the present and former times, inasmuch as ever since the Lords Justices of Appeal had been appointed, and since the Court of the Master of the Rolls had been made a Court always sitting, the business of the Courts of equity had taken a different course from that on which it formerly proceeded. The consequence of that change was that the Lord Chancellor was able to afford a degree of attention to the business brought before their Lordships which he had not previously been able to bestow. His noble and learned Friend, in illustration of the despatch with which cases in the Court of Chancery were adjudicated, had instanced the case of the Westminster Palace Hotel Company; but it must be borne in mind that that was a case in which no evidence was required to be adduced, the question at issue turning upon the construction of a single word, and that many such cases were constantly decided with trifling delay. It remained for him simply to thank his noble and learned Friend on the woolsack for what, during his period of office, he had accomplished in the direction of law reform.


said, his noble and learned Friend who had just spoken had twitted the noble and learned Lord on the woolsack with not having done more to effect a reformation in the procedure of the Court of Chancery; but the fact was that very little was in that respect required to be done, and nothing could, he thought, be more mischevious than that the Lord Chancellor should introduce measures to the notice of Parliament with the view of effecting alterations which were not called for. He did not agree that nothing had been done for the improvement of the Court of Chancery. By means of the new system of taking oral evidence in the Court of Chancery, a very useful Reform had, in his opinion, been imported into its proceedings; fur there could, he thought, be no better mode of ascertaining the truth before any tribunal than that of summoning the parties interested in a suit before the Court, and hearing what they had to say in the matter. With respect to the proposal to give the common law Courts a co-ordinate jurisdiction with equity Courts in disposing of the great bulk of equitable business, he was strongly of opinion that although the common law Judges might in a short time fit themselves for the satisfactory discharge of the duties which the carrying of such a measure into effect would cast upon them, yet they did not, as at present constituted, possess the requisite machinery to deal with such business in a manner so adequate to its proper discharge as the Court of Chancery, which was supplied with a staff of officers to keep accounts, make the necessary inquiries with reference to heirs at law, next of kin, and other matters. If it were proposed to furnish the common law Courts with such machinery, the question of giving them a co-ordinate jurisdiction in equitable matters assumed, of course, another shape; otherwise the proposal to confer upon them such jurisdiction was one to which, notwithstanding it might have very high authority in its favour, he could not give his assent. Having said thus much with regard to the Court of Chancery, he might be allowed briefly to observe that what had occurred in the case of the Criminal Law Consolidation Bills ought not to be lost sight of; much good had already been done, and the lesson should not be thrown away. In his opinion the best course to take in those instances, in which extensive consolidation with Amendments was contemplated, being, in his opinion, to introduce all the Amend- ments in the first place, and then to proceed with the work of consolidation. In conclusion, he would simply remark, while congratulating his noble and learned Friend on the mode in which arrears of judicial business had been got rid of, as contrasted with the state of things in previous Sessions, that the fact of such arrears existing was not to be attributed to any fault on the part of his immediate predecessor (Lord Chelmsford), or of his own (Lord cranworth's), so much as to the circumstance that a great portion of the best time of the year for the despatch of such business had been consumed in general elections. Bill read 1ª