Lords Sitting of 22 June 1860

MINUTES.
PUBLIC BILLS.—la Local Boards of Health, &c; Local Government Supplemental. 3a Fisheries (Scotland).
LAW AND EQUITY BILL.

  SELECT COMMITTEE MOVED.
  THE LORD CHANCELLOR, in rising, pursuant to notice, to move that this Bill be referred to a Select Committee, said their Lordships had now to determine what course to take upon this very important Bill, which they had read a second time without a division. He ought, perhaps, to apologize for the delay which had oc-

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  curred in again bringing the Bill under their Lordships' notice; the delay had arisen from a communication he had received from the Lord Chief Justice of England and two of his learned brethren, who acted as Commissioners to inquire into the practice and procedure of the Courts of common law. The equity Judges had presented a memorial, which at the request of the noble and learned Lord who sat near him (Lord St. Leonards), he had laid before their Lordships, in which they expressed their disapproval of the Bill. He hoped be need not assure their Lordships that he had a sincere and profound respect for the equity Judges—a respect which, if possible, had been increased since he had the honour of being associated with them. They were most learned, honourable, and devoted public functionaries, and he rejoiced that he had always been able to act with them with the most perfect harmony. But their opinions being hostile to the opinions of the common law Judges, headed by the Lord Chief Justice, it was impossible that he could act upon the recommendations of the Commissioners, without giving every possible opportunity for the full consideration of the provisions of the measure, The objections of the equity Judges would be found in the memorial which he most earnestly implored their Lordships to read, since it was written with great ability, and deserved their deepest attention. The question was whether any further equity jurisdiction should be given to the Courts of common law? He trusted that their Lordships would have no objection to the course he proposed, which was to refer the Bill to a Select Committee, consisting of all the law Lords and as many lay Lords as would do them the honour of assisting at their deliberations. He regretted to have received from his noble and learned Friend (Lord St. Leonards) notice that he intended to oppose his Motion—on what grounds he could not easily conjecture. A monstrous misapprehension existed on this subject. People supposed that the Bill was meant to destroy the Court of Chancery, that it established a new and dangerous innovation, and would lead to fatal consequences. This was as far as possible from the fact. The principle was laid down by the Equity Commissioners, that equity jurisdiction should be given to the Courts of common law, so as to enable them to bring to a conclusion the causes that legitimately originated in those Courts. The principle briefly might he expressed in the
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  words "one Court for one cause." If an equitable defence arose in a Court of common law the Bill proposed to give that Court the power of deciding the question, so that the parties might not be put to the expense of going before another tribunal, of engaging another staff of counsel, and of being subjected to the expense and vexation of a double litigation. From an early time a portion of equitable jurisdiction had been conferred upon the Courts of common law, which had always been exercised beneficially. So long ago as the reigns of William III. and Queen Anne, an equity jurisdiction was given to the Courts of common law with respect to actions on bonds with a penality for the performance of contracts. In the reign of George II. this equitable jurisdiction was further extended; and whereas there used to be no mode of obtaining a discovery from either party in an action at law, save by filing a Bill in equity, the parties by recent legislation were mutually examined, and an inspection of all material writings was granted, so that the necessity of appealing to a Court of equity for those purposes had been entirely obviated. It was the aim of the present measure to give a further equitable jurisdiction to the Courts of common law. The Bill extended to Courts of law the jurisdiction enjoyed by Courts of equity in cases of forfeiture from non-payment of rent. By the Act of George II., the Courts of common law had a right to grant relief before trial: After trial, however, they had no right to interfere, the forfeiture took place, the lease had been broken, and the tenant might be ejected. The Court of equity had jurisdiction in similar cases for six months after the trial. Why, he asked, should it be necessary to appeal to the Court of equity when the action had been brought in the Court of law, and when that Court was as well able to form a judgment on the case as the Court of equity? There was another ground for extending the jurisdiction of the Courts of law of the greatest importance. There was at present no protection to property during litigation, and it might be destroyed or rendered useless by one of the parties, without the Court having power to interfere. It was necessary to apply to a Court of equity in such cases. But by the Bill it was proposed to give the common law Courts power to protect the property during litigation. It was further provided that injunctions might be granted in cases where

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  a wrongful act was committed or begun; and there was also a provision by which the Court in which any action was commenced was empowered to grant conditional relief in any case where a Court of equity would grant similar relief against further proceedings in such actions. Various other changes were proposed which he hoped would meet the approbation of their Lordships. He believed that all the powers given to the common law Courts by the Bill could be safely and beneficially conferred upon them. It was objected that if this Bill were to pass all equitable rights would be brought into the Courts of common law; but that would not be so; for it was only where legal rights were sought to be recovered in a Court of common law that the provisions of the Bill would come into operation. Another objection was taken to the form of appeal; but there would always be the ultimate appeal to the House of Lords, and their Lordships would have an ample opportunity of reviewing any decision that was brought under their notice. The last objection of which he had any knowledge was, that the common law Judges were not competent to dispose of questions of equity. That was a very delicate point; but Lord Chief Justice Cockburn and two of his learned brethren had declared their belief that the suggestion of incompetency was perfectly unfounded. Those learned Judges had no interested motives; they had quite enough to do at present, but they were willing and able to administer the law in an extended shape, All these however were subjects that could be better discussed in a Select Committee than in the Whole House, and therefore he should propose that the Bill be referred to a Select Committee.
  Moved, That the Bill be referred to a Select Committee.
  LORD LYNDHURST: I apprehend the only question before your Lordships at present is, whether this Bill shall be referred to a Select Committee or not. I cannot understand how it is possible to put a negative upon the Motion. I object to many parts of the Bill; but what do I find is its present position? It has been read a second time. The subject-matter of it has evoked from the equity Judges opinions adverse to the Bill. We have also upon the table the opinions of common law Judges in support of the Bill, and in answer to the objections of the equity Judges. Before we can take any further steps we must discuss these different opinions, and
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  we cannot discuss them in this House. The question is too difficult, too complicated to be dealt with here, and we must of necessity refer it to a Select Committee. Let that Committee be composed of the law Lords with whom some lay Lords may also be associated. I most strongly recommend your Lordships to accede to the Motion of my hon. and learned Friend upon the woolsack.
  LORD ST. LEONARDSsaid, it had been his intention to divide the House upon the question of the second reading; but having been prevented from doing so, he wished to take the present opportunity of taking their Lordships' opinions upon the principle of the Bill. If their Lordships were prepared to say that the equity jurisdiction should be extended to the Courts of common law, then there could be no objection to referring the Bill to a Select Committee, in order to frame clauses that would best carry out that intention. But if the House should be of opinion that the equity jurisdiction ought not to be extended to the Courts of law, then there would be no necessity for a Select Committee. The Bill came before them in an extraordinary shape. It had been referred to the Master of the Rolls and the three Vice-Chancellors, who unanimously reported against it; and the two Lords Justices, although it had not been referred to them, had written a letter condemning the Bill in strong terms. The noble and learned Lord on the woolsack then referred to the Common Law Commissioners. The Commissioners were four in number. Three of them who at the time of their appointment were eminent counsel at the bar had since become Judges—one of them Lord Chief Justice of England. The fourth Commissioner was Mr. Walton, the senior Master of the Court of Exchequer. These four gentlemen made the Report to which his noble and learned Friend had referred; and these three of them, who were now on the bench, had made the communication referred to; Mr. Walton, the fourth Commissioner, not being a party to it. The fact was that the common law Judges had not the knowledge which was necessary to enable them to discharge these duties. Equity differed from the law in this respect. An equity lawyer must make himself partially acquainted, at all events, with a great portion of the common law, especially with that affecting property. He must do so because, according to the familiar maxim, equity followed the law,

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  and gave relief against and moderated the rigour of the common law. But as you must necessarily know what a thing was before you could give relief against it, so it would be found that there was no first-rate equity lawer who was not imbued with a fair knowledge of the common law. The common law Judges, however, had only to administer the common law; and, that being so, equity was to them utterly unimportant, except as a science which they might perhaps wish to know something about; they had not to found themselves upon the principles of equity; they had not to give relief against any rigour in the application of the rules of equity; and he hoped they would take no offence when he said that they were not and could not be expected to be, good equity Judges. Yet their Lordships were asked to transfer a great mass of equity business to the common law Courts. At present, if a man sold an estate, stipulating that the purchaser should be prepared with his conveyance and his money by the 10th of July, and if difficulties arose in consequence of which the purchaser was not prepared by the 10th of July, the seller could immediately bring an action in a court of law and recover damages; for time, in law, was of the essence of the contract. In equity just the reverse was the case, and unless it was expressly declared that time should be of the essence of the contract, or unless it could be shown that the purchaser had been guilty of unnecessary and wanton delay, equity would stop the action at law, decreeing specific performance of the contract between the parties. But if this Bill passed, and the vendor brought his action, a Court of common law must first decide, according to its I own rule, that time was, and afterwards must decide that time was not, of the essence of the contract. It would decree a specific performance without having the slightest means of carrying it into effect, and it would inevitably break down in the attempt. The Legislature had already confided to the Courts of law, every equitable power which they were competent to administer; but with this they were not satisfied. The Common Law Commissioners, in their Second Report, asked for all the jurisdiction which it was proposed to confer by this Bill; but the Legislature hitherto had only given them that which they could fairly exercise. Parliament would now have to decide whether it would give them a jurisdiction, which it had de-
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  nied them before, and whether it would interfere with a jurisdiction which worked so admirably as that of the Courts of equity. In equity there was now no delay; there were six courts, and seven Judges constantly sitting to decide the cases which came before them; and would Parliament be doing well to take away the jurisdiction of these excellent Judges and give it to the common law Judges, who already complained that they had not time to perform their present duties? He was strongly induced to take their Lordships' opinion on the principle of the measure; but, as it was unusual to do so on a Motion for referring the Bill to a Select Committee, he should on this occasion refrain from pressing for a division.
  LORD BROUGHAMconcurred with his noble and learned Friend (Lord Lyndhurst) in thinking that, there being a division of opinion between the common law and equity Judges, the proper way was to refer the Bill to a Select Committee. The design of the Bill was to extend still further the equitable jurisdiction which the common law Courts now possessed. It was said by many that this measure would operate to the restriction of common law and the extension of equity jurisdiction; and the objection of his noble and learned Friend (Lord St. Leonards) was, that the principle giving the common law Courts an equity jurisdiction was a bad one. Now, in his opinion (and he had been a sincere friend to what was termed law amendment for many long years), there could not be a greater mistake than to suppose that a general fusion, as it was called, of law and equity was possible in this country; and any attempt to effect such general fusion would only be productive of mischief. But what the noble and learned Lord on the woolsack said, was, that in many instances a certain equitable jurisdiction had been given to the Courts of common law, particularly of late years, and that this jurisdiction might be advantageously extended. Now, the principle of the present Bill, as he understood it, declared that where there was a legal right, and where that right was sought to be obtained in a Court of common law, it was better that Court should be empowered to deal with the whole subject matter; and if in the course of the inquiry any equitable objection should arise on one side or on the other, the parties should not be put to the expense, delay, and vexation consequent on being sent to a Court of equity,

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  but that the common law Court should have the power of dealing with the equitable matter. His noble find learned Friend (Lord St. Leonards) who opposed the Bill stated three objections to the decision to which the common law Judges had come on the subject—namely, that the common law Courts were overworked, that they had not the proper machinery, and that they were not competent for the purpose. From his noble and learned Friend he appealed to those Judges themselves, who declared that in point of time and labour they had no objection to the proposition now made; that they had abundance of time, and were not overworked, but were capable of taking this small fraction of addition to their labours. He could not help referring those who entertained objections to the proposed change in the proceedings of the Courts to that Report of the common law Commissioners in which the history of amendments in the law was traced with great accuracy, and where it was shown how matters, deemed at one time wild and dangerous innovations, had gradually, by the improvement of men's knowledge on the subject, become the law of the land. As a remarkable proof of this, they mentioned the changes effected in the law of evidence, by his (Lord Brougham's) Act of 1851, which had been found to work admirably, and to contribute greatly to the efficient administration of justice.
  LORD CHELMSFORDsaid, he hoped that the Bill would be very much altered before it was passed into law. There ought, in fact, to be two Bills, and, notwithstanding the authority of the common law Judges, his objection to many parts of the first portion of the measure was not in the slightest degree lessened. He was bound to say, at the same time, that the opinion of their Lordships upon the principle of the Bill ought to have been tested when the Motion was made for the second reading. That stage had been allowed to pass without opposition, and, inasmuch as there had been a rather sharp encounter between the equity and common law Judges, it was impossible for their Lordships to make up their minds on the subject without carefully considering the statements and opinions on both sides. Of course, that could not be done in the House itself. It would be infinitely better to refer the matter to a Select Committee, and when the Bill came out of the Committee their Lordships would be able to decide whether it should be passed into law or not.
  LORD KINGSDOWNsaid, that having carefully read the Memorial transmitted to the noble and learned Lord on the woolsack by the Common Law Commissioners, he must say that their observations had not removed, or even in the slightest degree affected, the strong objections which he entertained to the present Bill. The Bill had two objects entirely distinct, which should properly form the subject of two different measures, but which, unfortunately, had been united in one. One portion of the Bill gave what he believed was in principle an entirely new jurisdiction to the Courts of common law. The other was confined to amending the proceedings in matters which properly came under the jurisdiction of those Courts. To the latter, if brought forward in a Bill by itself, there could be no objection; but the case was very different with respect to the former. If the Bill was referred to a Select Committee, the objections entertained by many noble Lords to its first portion, consisting of no fewer than thirty clauses, would continue to exist in precisely the same force. The only difference would be that those clauses, if the Committee should not approve them, would be expunged; or, if the Committee should approve them, they would be the subject of a hostile Motion on the third reading of the Bill. To the latter portion of the measure there could be no objection whatever, except in so far as Amendments might be thought desirable in the details. He could not help looking with considerable apprehension to the course about to be taken. If the Bill was referred to a Select Committee, it must, of necessity, occupy some time in its consideration there. It must occupy some further time in its discussion in the House after it came out of the Committee; and, supposing their Lordships should ultimately give it a third reading, at what period of the Session was it likely to go down to the other House? What might be its fate there he would not, of course, presume to say; but at present, at all events, the omens were not auspicious. The consequence would be that we should lose, for this Session at least, the whole of the Bill, the portion which was desirable as well as that to which the strongest objections were entertained.
  THE LORD CHANCELLOR, in reply, said, that there had not been a single observation made to show that any one of the powers proposed by the present Bill might not be safely conferred upon the Courts of

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  common law. The common law Judges believed that without these additional powers they could not in a satisfactory manner administer justice in their Courts. He had no objection to add to the Motion as suggested by his noble and learned Friend (Lord Lyndhurst), the words "and that the opinions of the learned equity and common law Judges be also referred to the Select Committee." He proposed that the Committee should consist of the same Members as those who sat on the Consolidation of the Criminal Law.
  Motion agreed to.
  Bill referred to a Select Committee accordingly.
  The Lords following were named of the Committee; the Committee to meet on Tuesday next, at Four o'clock, and to appoint their own Chairman; and the
  "Observations on the Law and Equity Bill," presented to the House on the 23rd of March last, and also "Memorial of the Common Law Commissioners respecting the Law and Equity Bill," presented to the House on the 21st of May last, referred to the Committee:—

  Ld. Chancellor.

  L. Cranworth.

  E. Carnarvon.

  L. St. Leonards.

  V. Hutchinson.

  L. Wensleydale.

  V. Eversley.

  L. Belper.

  L. Lyndhurst.

  L. Chelmsford.

  L. Brougham and Vaux.

  L. Kingsdown.

  L. Abinger.

  L. Egerton.

  L. Overstone.

  EMPLOYMENT OF ENGLISH SHIPWRIGHTS AT CHERBOURG.
  VISCOUNT DUNGANNON, who had given notice to call attention to the reported employment of English shipwrights in the French dockyards, said, that since he had placed that notice on the paper, circumstances had occurred which rendered it unnecessary that he should put the question, and had placed the whole matter in a satisfactory point of view. He had put the question on a former day; and the noble Duke (the Duke of Somerset) had stated that his information was not correct as to a number of English shipwrights being employed at Cherbourg, and that the wages there were much lower than here, namely, four francs a day; and it was certainly very remarkable that on that very day three persons should have appeared at the Thames Police Court, stating that they had had an interview with the French Consul, who had told them that he would not advise them to go to Cherbourg, as they would certainly not get employment there. It was still more extraordinary that a few days subsequent to that period other work-
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  men should have applied at the Police Court for passports for the same purpose. But since that, only three or four days ago, one individual, who had been over to France, appeared before the magistrate, and said he considered it his duty to state, for the sake of others who might be tempted to go over, that upon his arrival he found that no employment was to be had there, that he fell into great distress and want, and had only been able to reach home through the kindness of the British Consul. In consequence of this statement he did not consider it necessary to press his Question, or to trespass on their Lordships time with any further observations, save that it was with very great satisfaction that he had heard that statement.
  THE DUKE OF SOMERSETsaid, that he had received another letter from the British Consul, at Cherbourg, stating that no British subjects were employed in the dockyard there. Some British shipwrights had gone over to Cherbourg in consequence of the statement which had appeared in the English newspapers; but not being able to obtain work had fallen into a pitiable condition, and bitterly repented their credulity. The Consul had sent them home again, and told them to warn their countrymen of the real state of the case. The highest wages given to shipwrights at Cherbourg was three francs a day, or not quite 2s. 6d. for twelve hours' work, the workmen not being allowed to leave the dockyard to take their meals. Besides that, the Consul informed him that no additional shipwrights were required at Cherbourg, some of those in the dockyard having lately been discharged, and the only vessel which was now being constructed there was a transport. It appeared to him (the Duke of Somerset) to be desirable that that statement should be made publicly known, in order that any unfounded expectations which might have been entertained in reference to that matter might be completely dispelled.

MILITIA AND CONSTABULARY. (IRELAND.)

  RETURNS MOVED FOR.
  THE MARQUESS OF CLANRICARDE, in moving for certain Returns with regard to the Irish Militia and Constabulary, said it was a question deserving consideration whether a large armed force, such as the police of Ireland, ought not to be brought under the operation of the Mutiny Act,

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  and enlisted for a certain length of time. At present they might quit the service, he believed, at the shortest notice. He was anxious to know on what system the embodiment and disembodiment of the Militia was conducted. He defied any one to discover any uniform principle which regulated the proceedings of the War Office in this respect. It was impossible to make a regiment of Militia effective in twenty-eight days' training, and it was therefore unadvisable to leave any regiment too long in a disembodied state. If 20,000 or 25,000 men were always kept embodied in rotation, and the Staff of the other regiments were kept up, it was clear that within a certain number of years there would be a force of 100,000 upon which reliance could be placed on an emergency, and which would be kept up at a cost of only 25,000 or 30,000 men. The noble Marquess then moved for—
  "Return of the Number of Men assembled for the last Training of each of the disembodied Regiments of Irish Militia, stating also the full Amount of Establishment of each Regiment; Also,
  "Return of the Periods at and during which each of the Regiments of Irish Militia have been respectively embodied since the Month of October 1854: And also,
  "Return of the Number of Policemen of the Irish Constabulary Force who have resigned their Employment since the Commencement of the present Year.
  Motion agreed to.
  House adjourned at a Quarter past Seven o'clock, to Monday next, Eleven o'clock.