Sitting of 29 February 1828

STATE OF THE COMMON LAW.
Mr. Brougham Mr. Brougham moved the order of the day for resuming the adjourned debate on the
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motion:—"That an humble address be presented to his Majesty, respectfully requesting that it may be his majesty's pleasure to cause a commission to issue, to inquire into the abuses which have been introduced in the course of time into the administration of the Laws of these Realms, and of the Courts of Common-law, and to report on what remedies it may seem fit and expedient to adopt for their removal." The hon. and learned gentleman said, he would take that opportunity of throwing out a suggestion as to the course which the discussion upon the question ought to take. The general subject which he had introduced to the notice of the House might not improperly be divided into several separate heads or chapters. It might happen that some members would desire to touch upon only one of these heads; some, for instance, on the topic of the Welch judges, some upon that of the magistracy, some upon the system of pleading, and others on the proposed interference with the courts of Equity. All these were most important questions, and there would probably be a great deal of discussion upon each of them; but what he was anxious should be done was this—that after his hon. and learned friend, the solicitor-general, had made his general reply, which he would have the privilege of doing from his being in possession of the House, if any member should enter upon the discussion of any one of the single topics, no member who followed him should touch upon any; other topic than that one. If this course were pursued, he thought a vast deal of confusion and repetition would be avoided. He was sure that the course he suggested, instead of lengthening the debate, would shorten it, and at the same time render it more useful and fruitful of information.
The order of the day being read,
The Solicitor-Generalsaid, that in rising to offer to the House the observations which he felt it his duty to make upon the question, he laboured under no ordinary difficulty. The subject which his hon. and learned friend had brought under the notice of the House was large and embarrassing, being no less than the whole system of municipal law in this country; and further, branching out into the legal policy of the most distant dependencies of the nation. The minuteness of detail with which his learned friend, in the course of his address, explained the various topics which he submitted to the

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consideration of the House, rendered it extremely difficult for him to compress within the ordinary compass of a speech, and not to fatigue his hearers, all the observations which presented themselves to his mind, on this momentous subject. He would not detain the House with longer preface, as it would be necessary for him, to a certain extent, to enter into considerable detail, but would at once proceed to point out those parts of his learned friend's address, with respect to which he took a view in some degree different from that of his learned friend, and also to state to the House in what portions of the subject he agreed in almost every particular with his learned friend, and was desirous that his propositions respecting them should be carried to a successful result.
Before he proceeded further, however, he thought it right to state, that having communicated with the noble lord who presided over the law, and with the right hon. the Secretary of State for the Home Department, he had been given to understand, that there was no objection on the part of the Crown that a commission should issue to inquire into the formation and progress of a suit of law in the superior courts of Wesminster-hall, from its inception to its termination. Further, the Crown had no objection that either that commission, or some other, should inquire into and investigate the state of the law relating to real property, with the view of suggesting, for the consideration of the Crown, or of the House, those alterations which might be necessary—if any were necessary—with respect to the mode of holding and transmitting real property. In his humble judgment it would be a matter of convenience that there should be two commissions, or that, if there were only one, the two branches of inquiry should be submitted to two different sets of persons. Those persons acquainted with common law, having applied their studies differently from those acquainted with the subject of real property, a great deal of their labour would be thrown away upon the latter question. He believed that if the suggestion which he threw out were adopted, no additional expense would be created, for he apprehended that the labour of the committee appointed to inquire into the formation and progress of a suit at law would be, comparatively speaking, of a light and easy nature; for there were none of the regulations and alterations proposed
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by his learned friend on this subject, which had not presented themselves, from time to time, to the minds of almost every practitioner of the law, and which had not, he might say, received an universal verdict of assent from the learned persons who had the direction of the courts of law.
His hon. and learned friend, in the course of his address to the House, had not given a very favourable picture of the law to which he had professionally applied himself. He accounted for this by supposing that his learned friend being, very naturally, anxious to carry his object, thought it necessary to make a rather over-charged statement of the machinery and different circumstances connected with the administration of the law. He felt it necessary, therefore, before he touched upon the peculiar divisions of labour, and the subject matter to be introduced to the consideration of the commission, to endeavour to set the House right on some of the various points which his learned friend had treated of with much ability and ingenuity, and in some instances with a considerable degree of that raillery which he had always at his command. In the first place, he must say that his learned friend had not given a very fair view of the question, when he was pleased to state that the law, in its present condition, was the same as it had been for ages past. His learned friend had collected together and presented in a very powerful manner to the attention of the House, the various singularities and peculiarities connected with the law. These circumstances, when brought under the notice of the House thus boldly, and without any accompanying explanation, would, doubtless, appear absurd. According to his learned friend, the profession to which he belonged was in the same state in the time of Alfred as it was at the present moment. Now nobody knew better than his learned friend the various alterations which had, from year to year, been grafted on the old laws, those laws had been altered from time time, to meet the gradual wants and exigencies of society, which was the best mode of effecting reforms on such a subject. Amongst other things his learned friend had applied himself to ridicule the forma of ancient writs, which he said were perfectly unintelligible to those upon whom they were served. Now, his learned friend must be perfectly aware that recently an important alteration was made on this subject, which at once set aside his ob-

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jection. The alteration to which he alluded was this—that the object of the writ was now printed, in the simplest possible form of words at the bottom of the document. Nobody now alluded to the ancient form of the writ, but merely read the printed notice at the bottom of the paper.
My hon. and learned friend (continued the Solicitor-general) has stated, in his address to the House, that it was not his intention to make any observations on the laws of real property. He did not, however, adhere to his determination; for in his speech he went largely into the doctrine of real property, and treated it with very great wit, and with as little mercy as he had treated the ancient writs. I do not mean to follow my learned friend through his observations on the subject. I shall only make one or two remarks upon the particular points at which he glanced. I can only say, that I do hope for the sake of the real property of this kingdom, that the substantial part and principle of the existing laws will be preserved, whatever may be done with the forms. No man who has attended to the law of real property—the most important branch of our laws—can be ignorant that by the power of entail, the estate is locked up during only the life of the present generation—that is to say twenty-one years. If, therefore, it be intended that the labours of the commission should merely get rid of the unnecessary expenses attendant upon the legal security and transmission of real property, I most heartily agree with my learned friend, and shall promote the objects of that commission; but I shall oppose it, if the most wholesome doctrine of our law is to be subverted—the doctrine that, during the life of the father, the party having the estate for his life, the son and inheritor should have no power of disposing of the estate till it be vested in him—that nothing can be done with the estate, although inalienable, until the eldest son come of age, and that he should then be unable to do any thing with it without the consent of his father. Thus no person for the purpose of imposing upon the son, whilst his judgment is weak, and his passions strong, will bargain with him without requiring the consent of his father. The father and the son may be parties to the sale.
My learned friend then proceeded to state, that, in his opinion, copyhold tenures were desirable to be got rid of. Really, Sir, in my opinion, all such cases must be
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left to the individuals, as in other matters of agreement between landlord and tenant. The learned gentleman had compared our laws in this respect with the ancient laws of France, where if you went into different provinces, you found such different laws and customs, as seriously to affect the nature of property and the rights of persons. But surely, Sir, it is too much to say, that the mere customs of particular manors in England have any resemblance to the ancient diversities of laws and customs in the provinces of France; the custom, for instance, that lands descend generally to all—the custom that they descend to the youngest son—Borough-English—does not create any essential difference, or any embarrassment whatever to the people of this country. The parties know very well whether they were born in one manor or in another, and where their lands are situated. If we take up the subject upon the basis of abstract rights and natural equity, I know not that lands might not descend equally to all the children, as is the law at the present day in France. There is nothing contradictory to good sense in this part of our law; and therefore I do not see any necessity for altering these laws of property as the parties are willing to agree to the laws of the manors and places in which they are born. The very tenacity with which these forms and laws have been adhered to, shows at once the affection and veneration which the people have for them, and I see no advantage in alteration commensurate with the inconveniences of the change. There are very few parts of the country in which this anomalous custom of Borough-English prevails; and where it does prevail, the parties may, by will, prevent the descent.
One topic on which my learned friend has considerably dilated is, the Court of Chancery. Now, I will at once say that I do not mean to make a single observation on that part of the subject; first, because my learned friend, in setting out, disclaimed any intention of calling the House to come to a decision respecting the Court of Chancery, which is already in the hands of another hon. and learned member; and secondly, because I conceive it to be foreign from the purposes for which the commission is required; namely, to investigate the conduct and management of a cause from its commencement to its termination, and the state of the law regarding real property. My learned friend wishes

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the question of the jurisdiction of the courts of civil law to be brought under the review of the commission. This may be a subject worthy of the consideration of government. Some beneficial alterations may perhaps be made respecting those courts; but at the same time I do not think that an inquiry into that subject can, with propriety, rank itself amongst the labours of the present commission; indeed, I am of opinion that it would rather retard the beneficial result of their labours. My learned friend has expressed his objection to the mode of constituting the judges in those courts. Whether the mode of appointing those judges be capable of improvement, I will at present, neither affirm nor deny; but I will assert what I think no one will be disposed to deny, namely, that the men now acting as judges in the courts, carry with them the approving voice of the profession. The recent appointment of the judge in the Consistory court is a striking example of the excellent judgment which regulates the choice of judges to those courts. This also affords me an answer to another observation of my learned friend, respecting certain other judges in the courts of common law; for the appointment to which I have just alluded shews, that persons who sit on the same side of the House with my learned friend, are sometimes called to fill the highest offices in the courts, and that it does not enter into the contemplation of those who have the appointments at their disposal, to ask what has been the party politics of an individual, but whether he is qualified for the situation in which it is proposed to place him.
My learned friend has likewise complained of the constitution of the court of Delegates. The court of Delegates must be considered in the nature of a court of appeal from the other civil courts. The court may probably admit of improvement. On that point I will give no opinion. I only mention it at all lest it may be supposed that I have passed the subject by, without having turned my thoughts to it. Though I do not mean to say that the constitution of the court is perfect, yet, as the civil law has always been subordinate to the common law, I am by no means disposed to consider it a defect, that a common-law judge is joined with the civil-law judges in the court of Delegates. I think, however, that it may be an advantage, if instead of the younger doctors acting as judges in the court of Delegates, the judges from the other
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civil courts presided there. But the subject is one, which would not, I think, properly come within the labours of the committee, although, if they should think it right to direct their attention to it, and suggest any improvement, there can be no possible objection to their doing so.
From the court of Delegates my learned friend has taken a sudden flight to the courts in India, whither I think the House will concur with me in thinking that I need not follow him. My learned friend has strongly urged the advantage which would result from establishing the trial by jury in the native courts more efficiently than it at present exists. I should be sorry if any observations falling from me should have the effect either of retarding that measure, if it would be an improvement, or of pressing it forward, if it would be mischievous. I will therefore observe what I consider to be only a discreet and proper silence. Others better acquainted with the subject will have an opportunity of expressing their opinions upon it, which I am sure will be much more valuable than any suggestions I can offer. My learned friend has brought forward only one case to illustrate this branch of his subject, and I cannot help thinking it was unfortunately selected. He stated that, a jury being brought together for the purpose of trying a man who was charged with murder, eleven of the jury obstinately wished to find him guilty, but were at length turned round to a contrary opinion by the cleverness of the twelfth juror, a young Brahmin. Now, I think this instance is rather an authority against than for the establishment of the institution of trial by jury in India; for they appear to have given the decision the wrong way. I must repeat, however, that I should be sorry to do any thing which would militate against the introduction of so useful a system into India if circumstances should require it.
The next thing of which my learned friend has complained, is the manner in which justice is administered in the court of Privy Council. I am not prepared to say that greater expedition may not be employed in the investigation of causes in that court. My learned friend is a little unjust, however, when he is pleased to state that the causes in the Privy Council are decided by persons brought together apparently without any reason, and having very little knowledge of the subject matter under discussion. My hon. and learned

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friend should recollect that a judge of great experience, from one of the courts of equity is always considered the arbiter of justice in the Privy Council. The Master of the Rolls is always there, if not as a matter of duty, in compliance with custom; and custom so rigidly observed, that I believe the court is seldom considered formed unless he is present. Now, if there be one person like the Master of the Rolls qualified to investigate the matters which come before the court, it matters little whether the individuals associated with him are distinguished by equal ability. It should be recollected, also, that the causes decided in the Privy Council, are not brought suddenly before the court. They come before the judge accompanied with a statement of the previous proceedings in them, with the arguments on each side, and, indeed, every circumstance connected with them. These particulars are lodged with the judge, who, as well as the other members of the council summoned, have time to consider them. With respect to the persons summoned, the rule universally observed is, to bring together those persons who have practised in the different colonies from which the appeals respectively proceeded. For instance, if the appeal were from India, there are summoned, besides the Master of the Rolls, such members of the Privy Council as have exercised functions in the Indian courts. A practice of the like nature is observed with respect to appeals from other colonies. The object is always to bring together as much local information as possible. The counsel employed are always selected from the different municipal courts. There never could be a particular bar to attend that court, because there never would be sufficient business to raise one. If there are counsel on each side from those different courts—persons brought together who possess local information on the points under discussion with an eminent judge from a court of equity to decide—could there, I would ask, be a more competent tribunal for objects to which it is devoted?
My hon. and learned friend began his observations upon a very important branch of our laws, both in my estimation and in the opinion of the community. I allude to the justices of the peace. I must say that my learned friend has not treated this subject with the liberality nor with the justice which it deserves. I do not think a more estimable body of persons exist in
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this country than the gentlemen in the commission of the peace—nor any who perform their duties with more rectitude. Let us see how my learned friend has stated the case. Has he argued it with candour, in a maner that will bear scrutiny, or that is likely to assist his cause with an intelligent assembly? My learned friend has brought forward a few instances which have appeared in the courts of law, in which complaints have been made against magistrates for offences alleged to have been committed by them in the execution of their duty. But he is totally silent upon the steady uniform course of justice administered, from year to year, throughout this vast and populous empire. Does my learned friend know the number of magistrates throughout England and Wales? The number is not less than 4,500; besides those who are occupied in cities and towns corporate. These persons carry on what I may call the every-day domestic administration of this kingdom. I must say, when I consider the number, or look at the variety of causes submitted to the decision of justices of the peace, I cannot sufficiently appreciate the use they are of to the community. Let us consider "Burn's Justice," with its five volumes, the vast variety of cases in settling small disputes, and preventing litigation, and in deciding cases of wages—let us consider the complexity of these cases, and the passions excited by them; and can we be surprised, that a case of false judgment is now and then brought against a magistrate in the court of King's-bench? To me it appears wonderful that the cases are so few. The first and most prominent source of these complaints is, the licensing of alehouses. From this duty the magistrates are, I believe, anxious to be relieved. I believe a greater boon could not be conferred upon them, than that of taking this duty out of their hands and putting it in the hands of other persons. It has occurred to me that, instead of allowing of appeal from the petty to the quarter sessions, it would be an improvement to place the power of signing licences at once and exclusively in the quarter-sessions. This is merely a suggestion of my own, which I throw out for the consideration of others; but I think such a measure would remove from the magistracy some of the odium under which they at present labour.
My learned friend says, that he does not like that magistrates should be appointed

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by the lords lieutenant of counties. Who, I would ask, is more proper to appoint them? Somebody must name them. It is impossible they can be drawn by lot out of an urn. Ought the power of appointing magistrates to be in the lord lieutenant, who has a personal knowledge of the greater part of those whom he appoints, or in some other officer of the crown? If the judges of assize were to appoint them, those learned persons must get the necessary information respecting their character from a third party. If the power of appointing were in the Secretary of State for the Home Department, the same objection would apply. Is it not better that the lords lieutenant, who are on the spot, and possess the best means of obtaining personal knowledge of the individuals they may choose to appoint, should on their responsibility exercise that power? My learned friend, however, is particularly nice in his ideas respecting the qualification of magistrates. He says he does not like a clerical magistrate, because his views are not sufficiently enlarged—he is not what is called "worldly" enough. Then, again, he considers the squire magistrate too worldly. But when my honourable and learned friend disposes of so large and important a body as the unpaid magistracy, he is bound to provide the country with something else. Would my honourable and learned friend have a paid magistracy? If we had a magistracy of that nature, a magistracy paid by the Crown, would he not avail himself of the occasion it would afford him, of talking of the increasing influence of the prerogative; and would he not sometimes be heard to complain, that the bench of magistrates, like the bench of judges, was seldom accessible to the gentlemen who sat on my learned friend's side of the House. My learned friend does not seem to like either clergy or laity in the commission, nor does it appear whom he does like, or in what manner he is inclined to dispose of the trust. He has, probably with a view to raise a laugh at my expense, alluded to the fact of Cromwell having sat in that House, not for the University but for the town, of Cambridge; but he has not quoted to the House, a speech by the same remarkable individual which seems to bear some resemblance to the state of my learned friend's own mind. Cromwell is known to have declared, that "what he would not like that he could tell; but what he would like that he could not tell." So
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it seems to be with my learned friend, upon many points connected with the extensive subject of his motion. But that is not enough to prepare the way for legislating on such important matters. There should be something plain and distinct before the House.
My hon. and learned friend says, that he does not like the way in which Crown cases are managed, and has urged a variety of objections, with his accustomed ingenuity and eloquence, against various parts of the present practice; but, however plausible they may appear in his statement, they will vanish into empty air upon a fair examination of their merits. It shall be my endeavour to follow my learned friend through every prerogative on which he has touched,—to grapple with every objection he has put forward one after another, and I am satisfied to stand or fall by the result. My hon. and learned friend has mentioned a case in illustration of the injustice to which the subject is exposed in suing for property in possession of the Crown by petition of right. He has stated that the only way in which property, once possessed by the Crown, can be obtained is by a legal process, entitled the Petition of Right, but that the officer of the Crown can object to grant the petition of right in the first instance, and by that means defeat the just claim of the subject, without taking the decision of any tribunal on the case. As for the instance selected by my hon. and learned friend in support of this allegation, the House will do well to consider it more maturely. The case was as follows: in the reign of Henry 8th. sir A. Brown, then Master of the Horse, had received an estate which was entailed in his heirs male. In failure of heirs, the estate went back to the Crown—
Mr. Broughamobserved, that he had mentioned no names in his statement, and had abstained from doing so for fear of disturbing any existing titles.
The Solicitor-General.— I thought my hon. and learned friend had mentioned one name, but as I find myself mistaken, I will follow the example of my hon. and learned friend. In the case of which he has been speaking, the estate went back to the Crown—and what did the Crown do upon that occasion? It acted as it always has done in such cases—looked out for the person who came nearest to the situation of a claimant, in order to present that person with the estate. Nothing is more common than such proceedings on the

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part of the Crown. Even in the case of illegitimate children, who have no claim whatever, they are often allowed to inherit when there are no other claimants. Nay, the humane principle is carried so far, that even adopted children had been recognised by the Crown as heirs to the estates which otherwise must have reverted to the Crown. I mention these facts to show, that the property which, in failure of issue, reverts to the Crown, is dealt with in the most benignant manner, and is not appropriated with the avidity which may be supposed from the manner in which the subject has been treated. But, to return to the case in question. In 1797, the property granted in the way described fell to the Crown through the failure of heirs male; however, it seems there was a daughter, and though it was impossible she should claim as an heir male, the Crown made a lease of the forfeited lands to her and her husband, under the Statute of Anne. The property remains in her possession, or that of her descendants; but, in 1815, up starts a person, who says he has a right to claim through the heirs male of the original grantee. Now, supposing him to possess a well-founded claim to the property, it is only for him to proceed by ejectment, in order to turn out the present possessor; but no, says the learned gentleman, who was counsel for the claimant—"We will not avail ourselves of this mode of proceeding: we will lay a case before the Attorney-general, and claim the benefit of a writ of right." The party pursued this course, but the Attorney-general, perceiving that the claimant had another remedy, decided that it was not a case for the interposition of the authority vested in him by the Crown, and very properly, as I think, refused to act in the way required, or expend the public money for the advantage of an individual. If the party had a good title—and my learned friend asserts there never was a better—then it was extremely imprudent on his part to stand upon punctilio, and because a petition of right was refused, to decline proceeding by the ordinary mode of ejectment. I cannot help thinking the party was a better subject for a commission of lunacy than a writ of right pleaded in this manner. It is difficult to imagine why the claimant alluded to, should have given such a decided preference to the petition of right, above the simple process of ejectment; but perhaps it is possible to assign one
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motive—perhaps he found it more convenient to try it on the petition of right, which would leave him no costs to pay in the event of failure, than on the other principle, which must saddle him with costs, if he failed to make good his claim. But, whatever his motive might have been, I will say that the Attorney-general did right in refusing to interpose the prerogative, and that he would have abandoned his duty, if he had permitted the prerogative to be misapplied, and the public money to be wasted, in the litigation of private individuals.
The next point adverted to by my hon. and learned friend was the state of the law as it related to the comparative privileges of the Crown and the subject, with respect to demurrers. My hon. and learned friend complained, that a person who demurred to the law was obliged to admit the facts alleged against him, and could not go back from that admission; while no such, restriction was imposed on the Crown. But, in fact, the law does nothing more than place the Crown and the subject in the same position. It is no answer to this statement to say, that the Attorney-general, on the part of the Crown, can demand a trial at bar before the four judges, and that the subject has no right to demand it. The law is such, I allow: but the practice is, that, whenever the subject can make out a case which ought to entitle him to a trial at bar, it shall never be refused him. The right of demanding it was vested in the Crown, upon the presumption that the officer of the Crown will never exercise it, except in such cases as clearly justify its use—in such cases as would call upon him to grant it to the subject, if he had the same plea to submit; so that in reality the law in this respect does nothing more than place the Crown and the subject upon equal terms, recollecting all along that the prerogative is employed by a responsible officer. In a late case it is true the Attorney-general withdrew the record, and thus removed the case from the jurisdiction of the court, before the jury could return their verdict. But with respect to that case I have something to say. In the first place it is scarcely necessary for me to explain to the members of this House, what is meant by a nonsuit, though I hope that none of them have ever experienced what it is. They are all aware, that a suitor can withdraw himself from court at any time, in which case he suffers what is

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called a nonsuit; but the king cannot be nonsuited, for he is always present in the contemplation of law. The power vested in the Attorney-general removes this difficulty from the Crown, and merely places it on the same footing with the subject, in respect to the withdrawing of causes.
There is another topic alluded to, upon which I, to a certain extent, agree with my hon. and learned friend. He tells us that the Crown neither pays nor receives costs in actions at law. This, however, I conceive to be a mere matter of fiscal regulation. It may be a question how far it would be right to employ the public money in Crown law proceedings. The House must be aware that in all actions the Crown is only a party where the objects are the recovery or protection of the revenue. But, Sir, it is for us to consider whether it be not the more proper course to prevent the Crown paying the public money in such cases. In my opinion, if the Crown were to pay and receive costs in legal proceedings, it would have to receive in a hundred cases where it paid in one; but it frequently happens that persons proceeded against by government for frauds on the revenue are unable to pay the expenses of those proceedings. But, Sir, notwithstanding this opinion of mine, I feel quite convinced that every hint or suggestion which hon. members may think it right to throw out on the subject will meet with the attention it deserves.
I now come to what has been said by my hon. and learned friend as to the power possessed by the Crown of preventing a tales being granted in certain cases. A recent case occurred upon this point, upon which, I hope the House will allow me to trespass upon its attention while I enter upon a few details: and sure I am, that there never was any case in which less injury was inflicted on individuals by an Attorney-general than there was in this. But before I enter into those details, I feel called upon to say a few words upon the general principle of this question; and I maintain that in cases where the Crown finds an improper conviction, it has a right to grant a pardon; it has a right to exercise its brightest prerogative, in extending mercy to persons unlawfully accused, or unfairly condemned. I now come to the special case alluded to by my learned friend. A smuggler was to be prosecuted, and a special jury were appointed to try the case. Now, Sir, I apprehend that upon the decision of important public cases, no man
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will dispute the propriety of appointing-men of high public character and respectability as the jurors to whom the cases are to be submitted. This is a power alike exercised by the Crown and the parties by whom the Crown proceeds. But does it follow, where a special jury is appointed on the part of the Crown, that if a rainy day, or any other accidental circumstance, should prevent eleven of that jury from attending, the Attorney-general must pray a tales, and the question be decided by a common jury? The object in view in such cases is the investigation of truth—an object which must be frustrated if causes are to be hurried on in this manner. I say, Sir, that such a course of proceeding would injure instead of serving the cause of justice. If a special jury be required, in order to obtain an impartial and unprejudiced decision in certain cases, then, I say, that it is right to vest the power of calling for, and waiting for such a jury, in the discretion of some responsible law-officer of the Crown, whose duty it is to prevent the premature introduction of Crown proceedings. Sir, you cannot make a body of laws so perfect that they will, in all cases, proceed equably, without interruption or hindrance—you cannot have a system of laws that will work with the precision and effect of a steam-engine—all the parts moving together, each without interruption to the others. The affairs of men, the business of life, is much too various and complicated to admit of any thing like this; there are too many lets and hindrances to allow the machinery of the laws to act always and under all circumstances in an even and unvariable manner. This I willingly admit: the defect is inseparable, from the existing state and constitution of society. It is impossible to have a perfect system of law, so perfect as never to admit of change, never to require alteration. I now come to the particular case in question, which has been alluded to by my hon. and learned friend. He designated it as a case of great cruelty and injustice, and endeavoured to throw the blame of the transaction upon the exercise of the royal prerogative by the law-officers of the Crown, who, on the occasion in question, refused to pray a tales. It appears that a person of the name of Law was prosecuted with four smugglers in the court of Exchequer. Mead was one of the witnesses against him, but on the second trial the smugglers escaped.

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Immediately upon that event, eighteen indictments for perjury were commenced against the witnesses. Mead was convicted on the first trial; after which the second was called on. What I am prepared to contend for is, that if the Attorney-general knew, as he did know, that the defendants had been taken by surprise, that statements had been made which could be clearly disproved, and that the verdict already given could and would be set aside as soon as the facts were made known;—if that was the case, I am prepared to contend that the Attorney-general was right in not allowing seventeen more victims to be sacrificed to public clamour and artful litigation. The truth is precisely so. The Attorney-general was aware that there were new facts to be adduced, and abundant evidence to be brought forward, which could not fail to establish the innocence of the defendants, and therefore he refused a tales. But what followed? No sooner had the court met again, than the verdict was set aside with costs—with large and liberal costs. My hon. and learned friend has said, that after great expense, the man, Law, was ruined. But what is the fact? The fact is, that the witnesses were all ringing the changes against those who were prosecuted for perjury. They had the same story to go through, the same statements to make against all, so that of course when the first was acquitted, he was acquitted with full costs. The costs were first laid at 2,000 l. They were subsequently reduced, by the master, to 350 l., but eventually they were raised to 600 l., with a power to refer back to the master again if the party complained of the amount. The costs were never complained of; at least the party never went back to the master. In short, after a full review of the circumstances, it is impossible that any man can come to any other conclusion, than that the public officer did his duty. But my hon. and learned friend has told them that this was not all. He has told us that a song was sung, and that Mead having shot at his opponent, killed him on the spot, for which he was only found guilty of man-slaughter. If it is intended to be insinuated that Mead was guilty of murder, all I shall say is, that no murder was ever committed with less premeditation. The circumstances were simply these:—The men who had been witnesses against the smugglers returned home to a village near Scarborough, where
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they were treated with great indignity by Law and his friends. One of the men was beaten violently, and threatened to be thrown into the sea. Mead was also threatened with similar or worse treatment. On the same fatal night, the same mob proceeded to the house of Mead: it was two o'clock in the morning when they arrived there. They did not confine themselves to singing the irritating song: they clamoured, and threatened Mead. Law himself mounted on horseback, encouraging and joining in their tumultuous proceedings. At that moment, terrified for his safety, in the confusion of the scene, a shot was fired by Mead which killed Law. I am borne out in this account of the occurrence by the charge of Mr. Justice Holroyd, who presided at the trial of Mead, and who is known to be a judge of as great humanity, patience, moderation, and discernment, as ever sat on the bench. That learned judge said in his charge to the jury, that the prisoner had acted on the belief that he expected violence before he fired the shot; that the mere singing of the galling song was not the provocation upon which he had acted, but the violence of the deceased and his party at such an hour, before the door of the prisoner, coupled with their conduct and threats on the day before, had put him in fear of his life, and thus palliated the fatal act. After such a statement from the learned judge, I am warranted in saying, that I am borne out in the assertion, that my hon. and learned friend need not have felt so much surprise at finding the charge of murder terminate in a verdict of manslaughter.
I have now, Sir, stated the grounds of disagreement—if I may use such a word—between my hon. and learned friend and myself, upon certain points connected with his motion. They are not wide, nor of a very grave or serious nature. I have stated my opinions; but I do not set up my judgment against my learned friend's experience and information. I am sure that I, in common with the whole House, must feel indebted to my learned friend for the valuable hints which he has thrown out upon this important subject. I must, however, state one word as to my learned friend's objects in appointing this commission; and I think that the whole of his observations reduce themselves to this—that it is advisable to have cheap law, or, in other words, that we are bound to make it

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as cheap as we can. Sir, I agree in this as a general principle. I should like to cut off as much as possible the extraneous forms and intricate labyrinths of legislation; but I do fear that too much is expected from the commission upon these points. It is impossible not to perceive that law may be made much more accessible to the bulk of society than it is at present. But if you wish to keep the administration of the law respectable—if you wish to have it revered throughout the country, as it now is in the persons of your judges—you never can have it so cheap as it is in France, where a single justice of peace presides in most cases. If you mean to carry on your assize business as it is at present conducted, attorneys must be employed, witnesses must be brought forward and supported; in some cases for a considerable time, and in all cases at a heavy expense. These forms of our legal proceedings will, I hope, remain unaltered. I trust that we shall have, upon the whole, a considerable saving of expense in our legal proceedings; but I repeat, that I fear that that saving will not equal the expectations of many who support the motion for the commission. The commerce and establishments of this country are of such a nature, that our laws must necessarily be of a complicated nature. A simple code of laws would answer well for a simple state of society, but if you wish to make your laws beforehand—if you wish that they should have a perpetual operation, then, I say, they must of necessity be of an intricate and complicated nature. Why, Sir, we have at this moment more law in a single Turnpike-bill than would be sufficient to govern an Indian territory under any of its ancient dynasties. And why is this? It is because we wish to leave as little as possible to the discretion of our judges. Our laws are declared beforehand; and if society is so complicated that its interests cannot be provided for but by an extensive body of laws, there must be a class of men accustomed to explain them. Such a class is, under these circumstances, actually necessary for the benefit of the people, in order that the great body of them may not be distracted from their labours by considering the nature and operations of those laws which the complicated state of society has produced. The evils complained of are therefore rather the result of the accidental circumstances of the times, than of the laws themselves.
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Now, Sir, I ask, whether you think it possible to get men of talent, of education, and of honour—a body of gentlemen who will undertake the task of making themselves acquainted with this body of laws—unless they see almost a certainty of acquiring a fortune by their labours? The expense of administering the law is, I am prepared to contend, not so much the fault of the law itself, as of the complicated state of society; and therefore, until you can get rid of that cause, and until you reduce society to such a state that every man may be his own lawyer, you cannot cheapen its administration beyond a certain point. I do not say that I do not wish law to be made cheaper, but that I think there is a minimum of cheapness, beyond which you will rind it impossible to go. But, Sir, I am prepared to say that cheapness is not all that ought to be taken into consideration. The angry passions which the law excites, the tearing witnesses and jurymen, and attornies, from their homes and avocations, and the placing them in scenes of riot and temptation, all combine to make the law a greater evil than the expense makes it. Indeed, law may be had too cheap, and then it becomes an unmitigated evil. If law were so cheap as to cost nothing—if it were possible to suppose that society could exist under a state of things which would give law cost-free to every man who applied for it—if by some strange miracle the finance committee were to find our revenue in such a flourishing condition as to justify it in recommending that the expense of suits should in future be defrayed out of it, the country would be in such a situation, that it would not be worth living in. The hand of one man would be perpetually raised against the hand of another; no fancied grievance would be allowed to sink into oblivion; no petty assault would be either forgiven or forgotten; and the courts would be occupied with the endless quarrels of the peevish and the discontented. It therefore operates as a wholesome check on the spirit of litigation, that there should be in law a dearness commensurate with the exigency which requires an appeal to it—a dearness, which, when it does not check individuals in the pursuit of a real right, or impede them in gaining satisfaction for an injury inflicted, is much more beneficial to society than a cheapness which places it within the reach of every vindictive and malicious spirit.

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I come now, Sir, with a greater degree of satisfaction to that part of my observations, in which I shall have to explain the points where I think the proposed commission may be useful. I think, then, Sir, that in many points of pleading and practice it may be very useful. I will begin first with the subject of pleading. I think that my hon. and learned friend, after his humorous description of the evils of special pleading, proposed something which was very like a return to a practice in the law from which we have not been many years relieved. Until the time of lord Mansfield, a general form of declaration was not allowed to be used, as indebitatus assumpsit. Lord Holt had seen the utility of it, but had said that he would be a bold man who ventured to employ it. Lord Mansfield, however, adopted it, and by his authority brought it into general practice. What is the objection to it? My hon. and learned friend said, that there were seven causes of action concealed under it, and had asked with great simplicity, how was a defendant to know which of them was to be employed against him. Now, in reply to this objection, I will tell my learned friend, that though there undoubtedly are seven causes of action included under this form of declaration the parties to the suit must necessarily know what they had to do with each other. For instance, if indebitatus assumpsit were brought to recover the amount of the fees of an office which a person had unjustly usurped, could that person have any doubt, when he saw the declaration, as to what was the cause of the action brought against him? I put it to my hon. and learned friend, whether, on any of the numerous occasions in which he must have been engaged for defendants in actions of assumpsit at the assizes, any attorney has ever suggested to him, "We are in a lamentable situation—we do not know why we are dragged here—we have no suspicion of the cause of action against us? I am inclined to think that my learned friend has never had any such suggestion made to him; for sure I am that if it had been made to him, my learned friend would have laughed in the attorney's face; so certain is it that the previous dealings between the parties must have made the defendant aware of the nature of the action brought against him. Mark the importance, by the way, of using this general form of declaration. It saves you, in all probability, from a nonsuit. If you were to state at full length
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all your ground of action, skilful must be that navigator who could steer your bark through all the quicksands of the law, and prevent its striking against the rock of nonsuit. My hon. and learned friend, however, seemed to have forgotten that even though the declaration were to tell him nothing, there is an easy process by which he can obtain a bill of particulars of the plaintiff's demand. The very moment he thinks proper to go to a judge's chambers, he obtains at once, and as a matter of course, all the necessary information which he desires; and yet, for the alleged want of this information, my learned friend would deprive the suitor of the benefit of the general form of declaration which lord Mansfield recommended, and would lead the profession back to the time when such a process of pleading was not permitted to it.
My learned friend next stated the objections to which he thought the sweeping plea of the general issue was liable. I agree with my learned friend in thinking, that nothing could be more expedient to the ends of justice, than that a defendant should put upon the record the particular defence which he intends to set up on the day of trial, in order that both parties may be prepared with evidence to decide the question at issue between them, and may be enabled to sift the credit of their respective witnesses. Such a mode of proceeding, amongst its other advantages, would tend to diminish the costliness of law, by rendering it unnecessary to take down to the assizes the multitude of witnesses, whom it was often necessary to have there in readiness to rebut any defence which may be unexpectedly set up by the adverse party, and thus the object of cheapness would be certainly and satisfactorily obtained.
I will not carry the House through all the details of my learned friend's speech, as it would be a useless waste of their time and patience to mention the different points on which I have the happiness to agree with him. I will, therefore, frankly admit, without descending to particulars, that my hon. and learned friend appears to me upon points of practice, to have made several very useful and valuable suggestions. Nothing could be more expedient, nothing more useful, than that the committee should inquire into the powers which the different courts possess for executing their ultimate process. Nothing can, in my opi-

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nion, be more absurd than that money should not be taken as well as goods in execution—nothing more inconsistent than that stock should be held sacred from the touch of a bonâ fide judgment creditor. Without pursuing the course of the details into which my hon. and learned friend has gone—details which certainly are most interesting in themselves—I must say that there can be nothing more proper than that an execution fairly issued should be carried into full effect; at least so far as regards the personal property of the debtor. Whether an execution should be in the same manner awarded and enforced against his land, further than it is now levied under a writ of elegit is a question of a most grave and important nature, and I will not prejudice it by expressing any opinion beforehand. After due consideration has been given to it in the committee (and I think it does require the most serious consideration), that question will be well attended to, upon the suggestion of the committee coming before the House.
With respect to one or two other propositions of my hon. and learned friend, I am happy to be able to express my concurrence with them. In the first place, as to the advantage which the administration of justice would gain by the addition of another judge to the court of King'sbench, I agree with him that it might be extremely useful; and I have no doubt that the suggestion will be attended to in the proper quarter, and that an additional judge will be appointed. The object of withdrawing the common motions from the course of the business of the court will then be attained; but as it has been properly proposed, that this additional judge should not be inferior in rank or dignity to his brethren, he will of course, sit as one of the court, either week by week, or term by term, as may be found most convenient, in order to carry into full effect the remedy against the loss of time which the common motions now occasion the more important business of the court.
I agree also with my hon. and learned friend in thinking, that it would be a desirable thing to throw open the court of Exchequer. It has, in reality a concurrent jurisdiction with the other courts; and when a bar has been formed there—and until a bar has been formed, the alteration will produce but little benefit—I see no reason why the legal business of the coun-
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try should not flow in as free a channel in that court as in any other at the present moment. By this means, too, another court of Equity will be formed, which may relieve the business of the court of Chancery, whether by sending cases of a particular description thither, or by permitting the lord Chancellor to order those cases to be discussed there, as he now sends them to the Rolls court, or to that of the Vice-chancellor.
I am ready also to relieve my hon. and learned friend from the difficulty which he feels with regard to the shortness of the vacation, and the inconvenience of the present system of the two moveable terms; as it seems to me, that without any inconvenience, the now moveable terms of Easter and Trinity may be fixed, so that the professors of the law may know when their annual labours will cease, and when they may expect to be restored to their friends and their home. My learned friend mentioned the 10th of April, a day which I am afraid will not be found entirely convenient; for such arrangements must be made as will enable the learned judges, who have gone either on the long circuits (the Northern or the Western for instance) to return to town before the commencement of the term, as they must all sit in court at the beginning of the term, in order to open the court with a proper degree of solemnity. The object, therefore, will be to fix a day as early as possible, subject only to the necessity of securing the presence of all those whose duty it is to administer justice in the court.
I agree also with my learned friend, that the inquiries of the commission may be well extended to the subject of the Welsh judicature. The members of the commission will find out what appear to them to be the most wholesome and proper regulations that can be made, and we can afterwards adopt their suggestions, or not, as further consideration may shew us to be expedient.
There is one other point on which I wish to say a few words, and that is with regard to the remuneration which the judges are to receive. My learned friend proposes that they should be remunerated by fees. I must say, Sir, that that proposition does not meet my views, nor do I think it at all consistent with the dignity which the judges ought always to preserve. We have but just got out of

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that system of remuneration; and I certainly can see no reason why we should return to it. It is said that such a mode of payment would tend to make them get through more business, but that is one reason why I cannot consent to it; for, among other objections, I think it is not the least, that the people who had causes in court, might be led to imagine that the judges had an over hastiness in getting on with causes, and some plaintiffs might therefore be induced to choose particular courts where they thought their cases would be more rapidly disposed of than in the others. I think it, Sir, a more dignified and proper course that they should receive a fired and stable remuneration, than that they should receive payment by the means of fees. I the more wonder at this proposition on the part of my hon. and learned friend, as, in another portion of his speech, he expressed his dissatisfaction that the judges of the Admiralty court should be so paid. If, Sir, it is right that the judges of one court should not be remunerated by fees, I think it equally right that those of another should be prevented from receiving payment for their services in that manner; and I am, therefore, consistent with myself, when I declare, that agreeing as I do with my hon. and learned friend, that the judges of the Admiralty court ought not to receive fees, I also maintain that the judges of the Common Law courts ought not to receive them. I think that neither the one nor the other ought to be paid in that manner.
Sir, I have not yet mentioned the Court of Common Pleas. With respect to what has been suggested as to the opening of that court, I beg to say, that so far as my individual judgment goes, that court should be permitted to remain as it is at present. I say so, because, in the first place, that court is already open out of Term time, and any counsel may appear there and plead for either plaintiff or defendant; a fact well known to all the profession; and to no man better than to my learned friend, who has often practised there. In Term time that court sits with the same regularity as any other; it is occupied as many hours of the day, and gets through the same business, as the other courts. If, therefore, it has full employment in Term time, and its bar is open out of Term, I see no particular reason that calls on us for an immediate decision on the proposal for an alteration with regard to it. There is,
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however, another reason, which I think will almost convince even my learned friend that the alteration he has proposed is not expedient. The establishment of the Serjeants is an extremely useful practice for the bar. Every one knows that there are many gentlemen who, from their situation in the profession, are not able to receive that rank which depends on a gift from his majesty (the number of whose legal servants may at that moment be full); and it is, therefore, useful that such individuals may, at their own request (and it is never any thing more than a request that is necessary), be permitted to acquire that pre-audience in the courts, and that rank on the circuits, which the gift of the Crown alone, in other respects, can confer. The institution in that respect is, therefore, useful; and it is not to be supposed that men will go to the expense of taking on themselves the degree of the coif, if they are not certain of obtaining its emoluments. I have, however, another reason for my objection to this part of my learned friend's proposition, which I conceive to be without an answer; and that is the remark I have already made, that open whatever court you may, you will not draw business into it until you get a bar there properly constituted. This has been the great difficulty of the court of Chancery, where, in consequence of there being two courts of concurrent jurisdiction sitting at the same time, and no particular bar formed for each court, the business of both is frequently interrupted. This too, I understand, to be the great fault of the courts in Ireland, where the barristers of each of the Four Courts being able to practise in all, and none of those courts having a bar confined to practise there alone, it has often happened, that when a cause has been called on no barrister has been present; to avoid the evil of which the names of eight or ten barristers may often be seen marked on the back of one brief, in order to ensure the appearance of some one or other of them, when the cause comes before the court. If this be true, and if what I have already stated be correct, I ask why are we to disturb the bar of the court of Common Pleas, since, if the wave of counsel flows and reflows, as circumstances may require, I say that you will take away the certainty of their attendance, without offering any corresponding and commensurate advantage. For these reasons, Sir, I would not disturb the

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present constitution of the court of Common Pleas.
I have not yet said a single syllable on One of the most prominent parts of my learned friend's speech—I mean that part of it in which he discussed the question of evidence. I have hitherto abstained from making any observation upon it, because in my opinion it would be a better and a safer course, if we determine to alter the existing law of evidence, to have the alteration made by a separate legislative enactment. It is one of the most important questions that the House can entertain. All the other alterations which my learned friend has proposed apply to what I, speaking comparatively, will venture to call the mere fringes of the law. If we should prove to be wrong in altering the process of the law relating to executions levied upon property, or on any other of the forms regarding the mere administration of the law, we may soon retrace our steps; but the law of evidence is the master-key of the whole; it is a principle running through every part of the law; and any one who proposes to alter it should produce a bill considerately prepared and deliberately matured, containing the exact alterations he wishes to introduce, and should not leave it open to the vague and hasty suggestions of any persons whatever. I observe that this has always been the course pursued with regard to the alteration of other important laws. The statute of Limitations, the statute of Frauds and Perjuries, introduced by sir M. Hale, and the statute of Anne, were all legislative alterations proposed in the manner I have mentioned. This House has many stages to secure the proper consideration of a measure; for instance, the bringing up of the report, and the committee upon it, are intended to offer opportunities for the suggestion of improvements; but, notwithstanding all these advantages, I do think, that with respect to this most important subject, the law of evidence, the course I have mentioned ought to be pursued, rather than the adoption of a wider system.
I may now, Sir, be permitted to say, that there are many alterations which, in due time, will be brought forward through the labours of the noble and learned lord at the head of the court in which my hon. and learned friend and myself practise. I believe, that in the course of the session, there will be laid upon our table two bills, which have
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been prepared under the direction of that noble personage. One of them is intended to prevent any case from being taken out of the statute of limitations except by a declaration in writing—to prevent any insolvent from being bound by a subsequent promise, except by a promise in writing—to prevent an infant from being bound after he comes of age to provide for any extravagant debts which he may have incurred before, except by a promise in writing, and to take away the absurd distinction which exists in practice, between not making a person responsible for the debt of another except by guarantee in writing, and the making him responsible for any debt which that person has contracted owing to a false representation he might have given of his circumstances. Such an act, I conceive, would effect a very beneficial change in the present state of the law, and would be extremely useful in various other respects. The other bill is intended to obviate the evils arising from the objections, which are so continually taken upon variances. It will give to the suitor the power of alteration up to the last stage of the action on payment of costs, when the alteration is evidently not made with a view to mislead the adversary, and when the objection taken upon the variance is only resorted to for the sake of turning the party round, and of preventing him from obtaining his just demand. Besides these two bills, I know, though I have no authority to name it, that there is now in contemplation a design to pass an act of a healing and quieting nature, which will prevent us from the necessity of going back to the period when king Richard went to the Holy Land, the only period at which a title can be said to be safe—which will bring down to a limited and reasonable period the time when the title of individuals can be considered in safety—which will perpetuate harmony in those high classes of society, between whom it is so essential that harmony should prevail, and which will tend to fix the rights of property on a more secure basis than any measure which was ever yet proposed to parliament.
I believe, Sir, that I have now come to the close of the observations which I have to offer to the House on this important subject. Whether my hon. and learned friend will receive me as a fellow-labourer in the same vineyard with himself, or whether he will consider me to be too luke-

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warm to afford him any effectual support in the consummation of his plans, it is not for me to say: but if I am thought worthy to be his fellow-labourer, I declare, that though I shall wish to preserve the plant under which our ancestors have slept, and under which we ourselves have flourished so long, I will not be slow to remove the tendrils which have sprung from it, when I am convinced that instead of advancing they retard its growth. If time shall have caused it to send forth superfluous and unnecessary branches, no one will use the pruning knife with more unrelenting severity. At the same time that I say this, I must also say, that I am anxious to transmit to posterity the laws of England, the same in substance as we received them from our ancestors. I would make no alterations in them which I do not in my conscience consider to be rendered necessary by the encroachments of time or the exigencies of the country. I thank you, Sir, for your patient hearing, and sit down with expressing my concurrence in the motion of my hon. and learned friend.
Mr. George Lambsaid:—Sir, the Solicitor-general has complained of my hon. and learned friend, the member for Winchelsea, for having ill-treated the justices of the peace. I must say, that I am surprised to hear him make this accusation; and I am the more surprised, because, from something which fell from an hon. member yesterday, it seems that the same opinion is entertained by others. I do think that there is nothing more improper than to exhibit an excessive soreness of feeling at any attack, when that attack, instead of being made on good men, clearly applies only to the unworthy members of a particular body. But if my hon. and learned friend has ill-treated the magistrates of the country in his attack, they have been equally ill-treated by the learned Solicitor-general in his defence of them. As one of the proofs that my hon. and learned friend's attack was improper, he has stated the number of justices of the peace in the United Kingdom, and the paucity of cases which come from them before the King's Bench. Why, Sir, that is the very case which my hon. and learned friend makes against them. But few appeals come from their jurisdiction before that court, in consequence of the difficulties thrown in the way of bringing them there. In saying this I do not undervalue the services of men who render justice to
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their fellow subjects cheaply, and, I believe, honestly and conscientiously. I do not agree with the objection made to the mode of their appointment, because I do not think the lord chancellor, or the Secretary of State for the Home Department, among their other numerous avocations, would be able to obtain such a local knowledge of the gentlemen of the distant counties in England, as would enable them to exercise the power of appointment with a sound discretion. Nor do I think it right to consider that the interference of the chancellor has never been more than merely nominal; for I know several cases in which he has interfered; certainly not to strike out the name of any gentleman recommended by the lord lieutenant or actually in the commission of the peace, but to supply the omissions of the proper officer.
With regard to the licensing system, that is a very different thing; and I fully agree with my hon. and learned friend, that that system should be altered. I should have felt this a difficult question to deal with, but the learned Solicitor-general has taken away the difficulties by stating, that the magistrates are anxious to give up their power over it. God be praised for this declaration [cheers]! I trust a bill will soon be introduced upon this subject. I recollect there was once a bill, requiring the magistrates to give a reason for refusing to grant a licence; and I recollect too on the debate there appeared such great unwillingness on the part of the magistrates to give reasons, like Falstaff, on compulsion, that it caused a fair inference, that they never did or could give reasons from any lesser motive [hear, hear! and a laugh]. It is clear, therefore, that the present system requires some alteration. The Game-laws are another objectionable part of the jurisdiction of the magistrates, and I hope to see them amended. But if they are, I still fear a fondness for game will bias the opinions of the magistrates at the quarter-sessions. It is not merely when a poacher with game actually in his possession is brought before them, that they act with severity; but when a felon, against whom only a whisper is circulated on a bench that he is a poacher; and it is seldom that the highest punishment which the law allows is not inflicted for his crime. I agree, therefore, with the present mode of nomination; and whatever other objection may be made, I

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confess, that at present I know no better mode of bringing justice home to the very doors of the people than the present; but my objection is to the local prejudice which must bias the mind of the magistrate, as to every offence committed in his neighbourhood. It is remarkable, Sir, that our laws, which took such especial care to prevent the influence of this local prejudice, that in appointing itinerant justices who were to have no connection with the counties where they administered justice, and in preventing (till very lately) those justices from trying cases in the counties in which they were born;—I say it is remarkable, Sir, that these same laws, contemplating a set of justices connected most intimately with the counties in which they were magistrates, should have fortified them in every manner against every remedy that might be attempted to be enforced against them, in matters of either a civil or criminal nature.
My hon. and learned friend has pointed out the difficulties of pursuing magistrates criminally; nor are those difficulties less in attempting to enforce a civil remedy against them. The statutory difficulties which a plaintiff has to contend with in such case, are very great. He must give a notice within one calendar month; he must bring his action within three months; that action must be tried in the same county in which the justice resides; the justice has the opportunity of tendering amends; and if he does tender them, and the jury should afterwards think them sufficient, the plaintiff must pay double costs, while, if he fails in stating that the act of which he complains was done wilfully or maliciously, he can only recover two-pence above the costs to which he has been put. In many cases these rules are very severe in their operation. I recollect too, when I was at the bar, there was a rule which I believe is still law, that any outstanding conviction at the quarter-sessions was a bar to a civil action. Now, if we consider the difficulties which many statutes throw in the way of a man who seeks to quash a conviction—if we recollect the immediate notice he is compelled to give—the security he must enter into for the prosecution of his suit, and for the payment of costs in case of defeat, it must frequently happen, that an ignorant person convicted before a magistrate, may, though innocent, lose his power of appeal, and be instantly barred from all chance of re-
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ceiving compensation for any injury done to him. I do not wish to see any other alteration, than that magistrates should be made responsible as other officers, are, for what they do. Where they act wilfully and maliciously, they should be responsible criminally; and where they act through mere mistake, but their error creates a civil injury, they should be responsible in damages, without proof that the act was either wilful or malicious. I think that county magistrates ought to be brought to that state in which Fielding recommends all magistrates' clerks to be. When 'squire Western was going to commit the chambermaid to Bridewell, for calling his sister "an ugly old cat," luckily, says Fielding, "the justice's clerk had a qualification, which no justice's clerk should be without, namely, a little knowledge of the law;" and he, therefore, warned his master that he could not commit to Bridewell merely for ill breeding. It is remarkable that Fielding did not venture to recommend this to the county magistrate himself, that he considered quite out of the question. Therefore, I am glad to observe that the march of intellect has since that time not been at a stand-still among county magistrates; for I know several who have not merely some, but a great, understanding in the laws of the realm.
On the whole, then, Sir, I merely wish that magistrates should be taught to consider this knowledge as indispensable, and to administer so as to execute justice, and not justiceship, which, as Fielding also observes, is indeed a syllable more than, justice.
I feel alarmed, Sir, at saying any thing upon the subject of special pleading in the presence of so learned a special pleader as the Solicitor-general—though, by the way, he was my junior when I was at the bar—but I do not approach the subject with the awe of my hon. and learned friend—an awe which reminds me of the schoolmaster who would never teach any son more than his father knew. We are not informed how he ascertained the quantum of information possessed by the father; probably to save his own trouble he assumed it to be the smallest possible quantity. Certainly this will not much contribute to the increase of knowledge. The march of intellect would be rather retrograding if any such "school-master were abroad." But how much did it tend to produce due sub-

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ordination in families and such a rule would also have tended to prevent my learned friend from vilifying the science he had imbibed from the learned solicitor to the face of the legal parent who begot him [laughter]. When I was first called to the bar, I know that that rhetoric, or perhaps I should say logic, of the bar—special pleading—was very much praised; but I had not long been a member of the profession before I set it down as the creator of delay, and expense, and mystification [hear]. I do not think there is any thing more useless—not even the professorship of Casuistry still retained at our Univerities—than what is called the logic of special pleading. What is said in defence of it? The action of indebitatus assumpsit is acknowledged to be a world of rigmarole; but it is said, that the parties know the question in the cause, and it is therefore defended. But I ask, if the parties really have this knowledge, where is the necessity for stating in a number of different ways the same cause of action at so much length, and with so much affected nicety? I am warranted in what I say, by my learned friend's acknowledgment of the total uselessness of the indebitatus assumpsit. In stating the guards by which justices are protected against civil actions for misperformance of their duty, I only object to some of the regulations, because appropriated to a particular class of persons. I perfectly agree that the tender of amends might be of greater advantage if it were made general; and there seems no reason why it should not be made to apply to actions, ex delicto, as in the case of justices.
As to the question of arrest on mesne process, where a debt has been contracted without imputation of fraud, I am of opinion that there ought to be no remedy at all against the person; but in proportion as the remedy against the person is weakened, I would strengthen the remedy against the property. The honest trader ought to know when to give credit on the foundation of property; and on no other foundation ought he ever, in my judgment, to give credit; and if he proceeds with due caution he will generally be secure.
My learned friend opposite touched but lightly on the question of evidence; he thinks it ought not to be made part of the consideration by the commission, which I am happy to hear is to be appointed;
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but if he had attended to the speech of my hon. friend below me, he would have found that the bills which the noble lord at the head of the court of King's-bench is preparing, do not apply to many of the points urged. My hon. friend below made some observations on the propriety of admitting parties as witnesses; and if they were to be liable to be produced on subpœna, and compelled to give their testimony—such a proposition, I own, would stagger me. I, however, see no reason, why parties should not come into court to tell their own story and to be subjected to cross-examination. But whether or not admitted in this way my hon. and learned friend's objection still remains—that the practice in this respect is not uniform. Hudibras may here be quoted as a high authority in point:—
"Does not in Chancery every man swear
"What makes best for him in his answer?"
And why is the practice to be confined to that court? There he gives his own story upon paper, and why is he not to tell it viva voce in a court of Common Law? No man can dispute, that the decisions of the law, in many instances, are extremely absurd. What can be more absurd than what takes place with regard to releases? A witness is called who has an interest, and a release is handed to him in order to enable him to give his evidence. What is the inference? Either that he knows the release will be restored and cancelled the moment he steps down from the box, or that the interest on his part is so small, that it could produce no influence on his mind.
I will not now touch upon the propriety of admitting the affirmations of Quakers on their own behalf, because I think I see some objections to it, founded upon the prejudices peculiar to that sect; but I wish to come to a point which I have long considered, and which I had meant to bring before the House as a separate measure, but it may be very convenient to state it now. And here I may remark, that I do not quite concur with my learned friend below me, for he said, that he did not wish to do away with the necessity of having two witnesses in cases of perjury.
Mr. Broughaminterposed. His hon. and learned friend was mistaken; he had contended the very reverse. He had objected to all that are called presumptions in construing and weighing evidence, and he had maintained that as one. It was a rule of evidence, that an accomplice was

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not to be believed unless confirmed; and where there was oath against oath, a second witness, or something that might amount to a distinct and irrefragable corroboration was required. He thought, that in cases of perjury there ought to be something to turn the balance. The rule at present was too inflexible.
Mr. G. Lamb.—I am happy to find that I do not differ from my hon. and learned friend, as much as I expected. The difficulty of convicting in cases of perjury is one of the great blots in the law, both civil and criminal. Perhaps this topic is not so naturally connected with the common law as with the criminal law. Every one at all connected with criminal proceedings, must have constantly seen perjured alibis set up, and not always unsuccessful; but whether successful or not, no one of the abandoned characters, who thus give their testimony, is ever brought to punishment. Looking at the rule of law which requires two witnesses to convict a man of perjury; the reason, and the only reason (which sounds plausible and unanswerable at first) for it is, that an oath having been taken on one side, there ought to be two on the other, in order to give the preponderance. If this be a correct rule, why is it not applied to other cases? Suppose one witness swears a robbery against a prisoner at the bar—that prisoner establishes an alibi, or otherwise disproves the charge by fifty witnesses, yet not only does the judge not, as in the case of perjury, stop the prosecution on account of the two contradicting witnesses, but the jury nine times out of ten convict the man upon the single oath. I believe I am right in stating that there is no rule in law against convicting a man on the unconfirmed evidence of an accomplice. Within the last ten years, if my memory serves me, a conviction of the kind has taken place, which was upheld by a superior court. This is vast in the rule, for an innocent man may be forced by circumstances, or deluded into the commission of a robbery: he may impeach his accomplices, and come into court as a witness, as much entitled to credit as if he had never committed the crime. I have taxed my ingenuity to find out any sufficient reason for this rule in cases of perjury. Lawyers are so fond of it, that they have endeavoured, on this ground, to account for a similar rule in cases of treason. They say, that two witnesses are there necessary, because, as every subject has
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taken, or is supposed to have taken, the oath of allegiance, that is one oath which it is necessary to oppose by two others, in order to produce a preponderance. It reminds me of an instance of a special pleader, a member of a very learned and pains-taking branch of our profession, who, in an action for an assault, framed the declaration as for a breach of contract: he reasoned thus:—Every man is bound by a tacit obligation to keep the peace towards the rest of the king's subjects. The assault was, therefore, a breach of the obligation, and the party assaulting was then liable to be sued by indebitatus assumpsit. I do not mean to call in question the soundness of the rule of two witnesses, in cases of treason; for it stands upon the ground of a wholesome constitutional privilege of the Crown to guard a man from being borne down by the weighty hand of power. But it occurred to me, that in cases of perjury, it might be said that the contradiction of the oath constitutes the crime. This may form a legal distinction, but none as regards the ultimate result. Whether the jury discredit the former oath sworn by the prisoner, or the oaths of the witnesses who testify to his innocence, the immediate consequence is just the same, namely, the conviction of the accused. Suppose the step I suggest to be taken, will it deter persons from giving evidence? For I admit that if such would be the effect, we ought certainly to adhere to the existing practice. But I ask, what honest man going to tell a plain story in a court of justice, will inquire whether he can be contradicted by two witnesses? Whereas to the rogue, who intends to perjure himself, the rule is a guide-post to direct him in the course he must take. He has only to shape his story in such a way that only one witness can be called to contradict him, and he may perjure himself to his heart's content without the slightest risk of punishment. The rule, therefore, is in fact a rule to facilitate perjury, and to perplex the course of justice. It seems almost as absurd as the old practice of the wager of law, or the case of compurgators, which it very much resembles.
I was very glad to hear my learned friend, the Solicitor-general, among other changes, recommend the reformation of the Welch judgeships. I have a great respect for the persons who fill those appointments; but, borrowing a metaphor from another profession, we may call them

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the "Yellow Admirals" of the bar; and I hope soon to see them rated efficient. I hope, that whatever judges are substituted for them, they will be placed upon a footing with the judges of England: and, above all, I hope they will be excluded from seats in this House. It seems to me an anomaly that a judge should have a seat in the House of Commons, while at the same time I admit that it is of great importance that there should be one common-law legal authority, liable to be questioned and to be called upon to give his opinion in the other branch of the legislature. I trust I shall never again see the chief justice of the King's-bench shut out from the House of Lords. It is due to the dignity of his station and to the importance of his functions, and to that practical responsibility which ought always to be kept up. Sancho Panza said on one occasion, that if it rained mitres not one of them would fit his head; but since of late it has rained coronets, which seem to fit all heads, I think three or four in the course of a century to chief justices of the King's-bench, cannot well be grudged.
I have now, I believe, but one more remark to make, and but one objection to the reforms, and that relates to the increase of our ponderous Statute-book. I am sorry to see that the old, plain, and intelligible, common-law has been thrust aside, to make way for acts of parliament. Some of the bills of the right hon. gentleman opposite (Mr. Peel) have certainly tended to lessen the evil of which I complain; but there is such a beautiful certainty in the practice of the common-law, that I trust nothing will ever find its way into the Statute-book that can be kept out of it. My hon. friend behind me seems to disagree with me upon this point, and perhaps, if he will not take my opinion, he will not refuse that of no less a man than lord Bacon, who, in his "Proposal for amending the Laws of England," has these expressions:—"In all sciences they are the soundest that keep close to particulars; and sure I am there are more doubts that rise upon our Statutes, which are a text law, than upon the common-law, which is no text law."
The Attorney Generalsaid:—In the course of the observations which I may make upon this question, I will state on what points I concur with, or differ from, the hon. and learned gentleman who introduced it. In the first place, I agree that
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a commission ought to issue, but I cannot agree that the commission should have the comprehensive character which he proposes. The hon. and learned gentleman would have it embrace all possible matters of inquiry—every title in "Viner's Abridgment" or "Comyn's Digest"—all that relates to the constitution of our courts. The principles of the law—the administration of the law—the practice of the law—in short, the law in its totality is to be pressed into this interminable commission. To the constitution of such a body: I cannot consent; but to a commission t with limited objects and intelligible means; I am ready to consent. It is not my intention to travel over the speech of the hon. and learned gentleman, and I have dissected it into its component parts, in order that I may not pass irregularly from one topic to another. He is, as every body knows, a great special pleader, and, therefore, was aware that it is a high legal sin to couple tort and assumpsit, and in his speech I mark no traces of any such confusion. But his subjects are so multitudinous, that if I were to make a distinct speech upon each of them, I should be obliged to weary the House to-night, for as long a period as he delighted it on the former occasion. I beg his attention, and that of the hon. member for Aberdeen (who, I see, is engaged in conversation with an hon. neighbour, doubtless on the I subject of arrest on mesne process, which he is anxious to bring forward, and I will not long prevent him from doing so), to one point in the outset.
I admit, with the hon. and learned member, that at present there does exist such a pressure of business in the court of King's-bench, that the judges, who ought to confine their learning and abilities to subjects of comparatively higher importance, are obliged to devote their attention to far inferior matters. I allude to business in chambers and to taking bail. At present the highest and gravest questions of law, such as come before the court on special verdicts and special cases, are argued before and decided by three judges, while the chief justice is sitting at nisi prius. The learned member stated this as a great public grievance, and I allow that, to a certain extent, he is right. The particular mode of relief was also mentioned I by him—the appointment of a fifth judge. If the inferior business of the court were I intrusted to a fifth judge, it will, follow

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that the other judges, including the chief justice, would be able to devote their attention exclusively to the more important branches of their judicial duty. Until lately, no legal question of magnitude was determined in the absence of the chief justice of the King's-bench; but the nisi prius business at Guildhall, which in the time of lord Mansfield was two hundred causes, and in the time of lord Ellenborough four hundred causes, have now swelled to from six hundred to eight hundred causes, so as to render it impossible for lord Tenterden to go through the nisi prius business, and sit in Banco with his brethren, to decide nice points of law on special verdicts and special cases. I beg to say, in concurrence with the hon. and learned gentleman, that this state of things occasions a heavy loss to the science of jurisprudence; and that it is a solecism and a contradiction in the administration of the law, that the most difficult points are determined in the absence of the distinguished individual, who, from his station, may be presumed most competent to decide them. The project has, therefore, been entertained, for appointing a fifth judge for the court of King's-bench. My hon. and learned friend, in the court of Exchequer, a few days ago, did me the favour to state, that there were few points on which we could agree; and I now reply, that from his talents and ingenuity, there are few men with whom I should be more happy to concur; but when he proposes at once the opening of the court of Common Pleas, he must himself be aware that many weighty considerations must be taken into view before such a step can be taken. One of them is this—that it is not the lot of all who are at the bar, like myself, to have received favours from the Crown and to hold office under it. I cannot be devoid of sympathy for my brethren who have not been so fortunate, and I am, therefore, unwilling to make the acquisition of rank merely depend upon the pleasure of the Crown. Beyond all doubt, the Crown, if it thinks proper, can exercise its right, and refuse to make a barrister a sergeant, in the same way that it can refuse a silk gown or a patent of precedency; it is equally in point of fact in arbitrio of the Crown; but in point of usage, an individual of a certain standing, reputation, and talents, who wishes to obtain it, is never refused the rank of Serjeant. I cannot consent to deprive the bar of this facility,
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although I may agree that there are many subjects on which it may be proper to open the court of Cómmon Pleas. The practice of that court might, perhaps, be beneficially assimilated to that of the King's-bench; and on the court of Exchequer I shall make no remark on account of my coincidence in opinion with my hon. and learned friend.
Passing to some other points, the hon. and learned member made some observations upon the constitution of the Privy Council, and he made two heads of complaint against the administration of justice in that court. One head of complaint arose out of appeals; and the increase of them has arisen from the increase of our colonial possessions, the increase of our trade, and the increase of our general prosperity. Under the precedency of the Master of the Rolls, it is allowed that no needless delay has occurred; but still an augmentation of the momentum of despatch may be desirable. On the second head of complaint, namely, the sort of individuals who sit in the Privy Council, I am quite at variance with my hon. and learned friend. It has been the immemorial practice—(I do not mean that it is as old as the time of Richard 2nd, and I am glad to see that that date, for the extension of human memory, is likely to be cut down a little)—that the Master of the Rolls should preside. My hon. and learned friend asserts, that the other members are not lawyers. He must remember when sir W. Grant, lord Stowell, and the Dean of the Arches (who I am glad to say still holds that office, notwithstanding the mistake into which some people have been led), sat together for the decision of appeals. My right hon. friend (sir J. Nicholl) is still almost constantly present; and while the court is so attended, I cannot agree in the objection that has been raised to the want of judicial talent in the Privy Council.
From the Privy Council, my hon. and learned friend, with a little confusion of subjects, proceeds at once to justices of the quarter-sessions and licensing magistrates. I will not open this extensive title, although he has gone over the whole of "Burn's Justice," and has complained of the insufficiency and improper conduct of those who are in the commission of the peace. I take the liberty of saying, that, this part of the subject does not belong to us. If it be true that the licensing system is bad, that magistrates are too fond of

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committing, or are guilty of other malversations, it may be right to bring in a bill or bills to remedy the evil; but those are not subjects to be delegated to a commission. My hon. and learned friend alluded to the practice of the late chancellor lord Eldon. I am sure that my hon. and learned friend is much too good-natured a man to make any remarks calculated to carry an unmerited reflection; and I am sure, also, that the House will be satisfied, that no chancellor ever conducted himself more properly or constitutionally. Lord Eldon was obliged to rely upon the opinion of some one. He I could not know all the persons in all the counties fit to be in the commission of the peace, and very fitly confided in the recommendation of the lord lieutenant, and did not, as the learned member proposed, take the suggestion of the Secretary of State. It has been made a matter of complaint also against lord Eldon, that he never would consent to strike an individual out of the commission; and his reason was, this:—Soon after he came into office application was made to him to strike out the name of a magistrate for misconduct: he refused, until he saw a regular record of the conviction, and it afterwards turned out, that the magistrate accused was acquitted, and successfully prosecuted for perjury several of the witnesses against him. His conduct, therefore, in refusing to strike individuals out of the commission was the conduct of a judge and of a man of honour, and highly constitutional. As to the fitness or unfitness of leaving any particular person out of the commission, party might be there said to interfere; especially if the proposition came from a lord lieutenant, to whose arbitrium it seems to me it would be improper to confide the matter. At all events, I am satisfied that the subject does not belong to the commission we are about to appoint.
As to the licensing system, I agree with my learned friend in thinking, that the publicans are merely the vassals of the brewers; and if parliament, country gentlemen, or magistrates, would take up that subject separately, with a view to a beneficial change, it might be extremely proper. It is not, however, a question fit for lawyers sitting under a commission; and it would be most heterogeneous, when mixed up with matters on which they could profitably bestow their learned attention.
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My learned friend proposed, at the outset, that the laws relating to real property should be left out of the question, because, by-and-by, these were to be made a subject of separate inquiry: hence he told me that he should pass them over; but his learned friend did not keep faith with himself, and complained of the great intricacy and confusion of trusts, which constituted the most laborious part of the business of the court of Chancery: he would, therefore, abolish trusts altogether; but I will take leave to say, that such a project is impracticable and visionary. Trusts are created by the management of property subject to mortgages, portions, and all the other incidents of property. Necessity has therefore been the origin of trusts, which my learned friend asserts are a breach of the Statute of Uses, but which cannot be done away with, unless you can do away with the necessity that created them.
Another part of the scheme of my learned friend would be extremely useful, if it could be carried into execution. He says—" I will abolish all contingent remainders—all limitations of real property," that is to say, he would compel the owners of estates not to be capricious or arbitrary in the disposal of them. He must be about as clever as the man who invented sleep, to carry such a project into effect, for he must oblige all persons who sit down, or lie down, to make their wills, to speak so clearly and definitely, and to use such unambiguous terms, that courts of Law and Equity would never be puzzled about the meaning of a testator. He cannot intend that a man should not be allowed to limit his estate as he pleases, and to subject it to all the varieties contingent on property. Though I admit that my hon. and learned friend is ingenious to the very extent of ingenuity, yet I think it is beyond the grasp of any project he ever formed, in the wildest dream of his fancy, to make people always use language perfectly intelligible.
My hon. and learned friend, in his speech which was so long—not that I wished it to be shorter, like the discontented man, in complaining of what he wants, forgets what he has—he complained, and I believe the complaint struck many members with great force, of the want of a court of Arbitration, to which people might go previously to their entrance, on a course of litigation, and have what,

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in technical language, we term an imparlance with each other, where they might shake hands and settle their differences, by going before an arbitrator, and thus save all the expenses of litigation. This court of Arbitrators would hear all differences and adjust them without cost or contest. Why he forgets that this very thing exists at present. He forgets that, by an act of king William's reign, any parties may agree to have a judge and constitute him their arbitrator. This, then, becomes a rule of Westminster-hall, and the arbitrator is placed under the superintendence of the court. This is the very thing my learned friend wants.—But perhaps he does not mean a mode of voluntary arbitration; but a court of compulsory arbitration. Perhaps he means that there should be some authority to which any suitor, willing to compromise his rights, should be able to have recourse, in order to compel the defendant, whether he will or not, to submit to arbitration. But, certainly, according to my view of the constitutional spirit and feeling of the inhabitants of this country, they would not endure a tribunal having such tremendous power, with a judge to be named by the Crown. Whatever my learned friend may invent in his fanciful Utopia, the people of England would not suffer the existence of a court of Arbitration, which should have power to say to any party, "You shall come to us: we will strangle and put an end to your litigation, and compel you to submit to our arbitration." Unless I err greatly in my estimation of my countrymen, such a tribunal would be not slightly unpalatable to British feelings.
I shall next advert to some other matters, which, as they were treated by my learned friend, carried with them considerable plausibility. He spoke much of a mode to abridge law-suits, of a short-hand style of administering justice which should supersede litigation in the shape in which it is now carried on. I have only two words to say as to his remarks on the abolition of fines and recoveries. The late lord Chancellor, to whom my learned friend has attributed the praise he deserved, was the first who called attention to this subject. He, it was, and not any one who sat before him in Chancery, who directed that money left by will to be laid out in land, should be actually so laid out, without the party being put to the expense of the conveyance and stamps, and afterwards of the fine and
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recovery in order to obtain the fee-simple. But to save all these expenses, if an individual was in a situation, by fine and recovery to obtain the fee-simple the holder need not go through these forms to satisfy the purchaser against the tenant in tail, but the lord Chancellor will give the money out on petition, without putting him to the trouble and expense of these formalities, I do not deny that some mode of fine and recovery, more compendious and less expensive, might be carried into effect. But I say, that the principle must be maintained, that the estate should not be permitted to go to any other persons than those intended by the testator, and this object can perhaps be attained without the perfect and complete form of fine and recovery, according to the existing mode of varying the remainders. If my learned friend has any adequate substitute to offer, I will not oppose myself to it: but I will not permit the main object to be defeated, by allowing the original gift to go to other persons than those for whom it was intended. If that principle can be preserved, I am not here to resist any plan for cutting down the forms and saving expenses in fines and recoveries.
My learned friend will see, by the course of my observations, that I am not disposed to pick out points to cavil at; but that I wish fairly to meet his project, and see in what part of it I can agree with him. Many of his topics are, I think, impracticable, or, if practicable, not connected with the matters which are fit for the proposed commission. The practical question is—what ought and what ought not to be submitted to that commission? It is several years since I left the courts of Common Law. I never regretted my absence from them so much as now, when I am wholly abstracted from them. It would have given me often the pleasure of meeting my learned friend whose great talents and eloquence I so much admire, however we may differ as to political measures. In his speech my learned friend paid a well-merited compliment to lord Mansfield, as a consummate scholar and enlightened philosopher, having the largest expanse of mind, which he was yet capable of narrowing to the smallest circle, and in practice pursuing to the minutest consequences. My learned friend will permit me to remind him, that in the person of that learned individual we have one instance of the vicissitudes in the character

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of the law. It is not forty years since lord Mansfield was praised by Mr. Dunning, Mr. Wallace, and all the eminent common lawyers, as may be seen in the reports of Douglas and Burrows, for entering upon that course which my learned friend now purposes to abolish. Before his day, it was not allowed to bring actions generally for money had and received—actions of assumpsit as they are called. Lord Mansfield was eulogised for dropping the technical mode which before prevailed. But it is now the complaint of my learned friend that the plaintiffs demand is not set forth with sufficient clearness in actions of assumpsit; and he wishes to have the form of special pleading restored to what it was forty years ago, when it was more strict and precise. He would compel the pleaders to specify expressly on the face of their pleadings the nature of the action, which lord Mansfield allowed them to state in a more general form. My learned friend does not concur with lord Mansfield. I have made inquiries of my friends in Westminster-hall, and I find they go along with my learned friend, the Solicitor-general, in the opinion which he has given as to the present practice of pleading. The defendant may always know by a judge's bill of particulars, for 6s. 8d.; and this is what my learned friend would have specified in the declaration. I am very much afraid that the suitors would be losers, instead of gainers, by restoring the old mode of pleading. The present mode causes a great saving of paper, time, and expense.
I concur with my learned friend, the Solicitor-general, that the consideration of the rules of evidence is not part and parcel of this subject, and that it would be much better settled by this House in a distinct act of legislation, so that we might clearly understand the principles on which it was founded. There is one part of the speech of my learned friend (Mr. Broughham) in which I do not concur: it is that in which he recommended that the real estate should be subject to the payment of simple contract debts. A bill to this effect was introduced some years ago by sir Samuel Romilly, than whom no person had more experience in this branch of the law, but he failed in carrying it through the legislature. I am decidedly of opinion, that an alteration of the law to this effect would involve the most mischievous consequences. A man's estate after his decease would be
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liable to all kinds of frauds. If every common debt before a man's death became a burthen on his kind like an instrument or a judgment, such inducements would be held out to fraud, that I cannot at all accede to so dangerous a principle.
Before I allude to the next point, I must declare it to be one in which I cannot agree, though I admit it is a project extremely ingenious. At present, where a demand exists in the nature of a debt, if the money sued for is paid into Court before the action is tried, there is an end of it. This is a principle of obvious justice. But my learned friend asks—"Why not extend this rule?" If an assault, a libel, or any other wrong be done to any man's person or property, and he brings an action where he cannot anticipate what the damages awarded to him may be, as they depend on the arbitrium of the jury, there, also, I would allow the principle of paying a sum into Court which should put an end to the action and exempt him from costs, unless the jury gave more damages. But there is an essential difference in the case of one person who is endeavouring to enforce an obligation by an action, and that of another who is defending his character. In the latter case is a plaintiff to be met by the payment of 20 l. or 30 l. into Court? The object of a trial for libel is in its final end not to obtain money but the defence of character. So in cases of assaults, the object is to vindicate the respectability and character of the party aggrieved by the action. It is not brought only to recover 5l. of money, but to uphold the reputation of the plaintiff. Ought this object to be defeated by the libeller paying 10 l. into Court, and saying, "That is as much as a jury would give you; there is an end to your action?" I am sure my learned friend, on re-consideration, will find this principle totally inapplicable to the cases in that class of actions.
In most of the topics advanced by my learned friend, the Solicitor-general, I concur in the main. I concur with him that the commission should confine itself to the practical conduct of an action, and not touch the general principles of the law, but simply matters of a technical nature. Within these limits, and subject to this restraint, I have no objection to the Commission. I assure the House, and particularly my learned friend, that I have bestowed no small degree of labour in dissecting his opinions, and arranging them under

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different heads. I have not gone through the whole of them, because my learned colleague has stated many points in which I concur, and to which I do not, therefore, advert particularly. I do apprehend that extreme mischief would result from delegating to the Commission the large and indefinite quantity of matter which my learned friend proposes. I would limit their labours to the particular parts which are within the view of my learned colleague. Though I concur with my learned friend in his general design, I differ from him as to eight out of every ten of his propositions. They may all form very fit Subjects of separate and distinct examination, but I object decidedly to their being considered in the manner proposed.
Mr. Fergussonobserved, that the hon. and learned gentleman, the Solicitor-general, had objected to the general inquiry into the abuses of the law, sought for by the hon. and learned member for Winchelsea, and had proposed to limit the power of the Commission to two objects: first, to the state of the law respecting real property; and secondly, to the progress of an action at law from its inception to its termination. He would confine the few observations he had to make, to the latter of these propositions, which, taken in the enlarged sense in which he thought it ought to be taken, would include every abuse and defect in the proceedings of our common-law courts, from the commencement of an action (including the arrest) up to judgment and execution; and he hoped that no part of the law or of the practice, which obtained in the course of these proceedings, would be withdrawn from the cognizance of the Commissioners. He objected to their being limited to the mere practice of the courts, by which comparatively little good would be done.
On one question of great importance, both the hon. and learned gentlemen (the Attorney and Solicitor-generals) had been silent; and, although the former remarked on the circumstance of the hon. and learned mover of this question, and the hon. member for Aberdeen communicating together on the bench opposite to him, and seemed very well aware, that their communication referred to that important subject; yet, from any thing which fell from either of the two learned and hon. gentlemen, he could not collect whether or not it was intended, as he hoped it was intended, that the law as well as the practice of ar-
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rest for debt should be submitted to the consideration of the Commissioners. It was a subject of the first importance, and so considered in every country. In most countries, the arrest of the person was not in general permitted before judgment, not even in commercial countries, except on bills of exchange and other negotiable securities. Without giving any opinion on the law of arrest as obtaining in this country, it would be sufficient to say, that great oppression and vexation might, and he believed did often arise out of it. Independently of malicious arrests—arrests without cause, and where no debt was due, an arrest might operate most mischievously and oppressively, where there was a debt really due. Let it be remembered that no previous demand on the party was in general required before he was arrested. He might be arrested at an hour or in a place where bail could not be found, and might for a time at least be imprisoned for a debt which he justly owed indeed, but which he had never refused to pay, and which he had always been ready to pay, if it had been demanded of him. It might be right to consider, whether arrest should be permitted in any case, on mesne process, unless a previous demand had been made, or upon affidavit, of the parties intending to abscond, whereby the plaintiff might be in danger of losing his debt. On the other hand, it was to be considered, how far the transactions of the commercial and trading world would be affected by such a provision; and he thought that the commissioners ought to inquire into this point, and take the evidence of merchants and bankers of London, Liverpool, and other great trading and commercial places, as to the operation and effect on their dealings, if such a provision were to be made law.
The hon. member said, that one of the greatest impediments to the administration of justice in our common-law courts had been truly pointed out by his hon. and learned friend, who had moved the present question. He meant the inequality of business in the three courts of Common Law, in Westminster-hall, whereby one court was oppressed with business, whilst another had much less, and the third had scarcely any thing to do. He doubted whether the remedies for that evil, which had been suggested, were sufficient. It had been proposed to open the courts of Common Pleas to the bar in general, and that in the Exchequer the number of solicitors should not be

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limited as at present, and that the practice should be thrown open to that branch of the profession generally. But the learned: Solicitor-general had objected to opening the court of Common Pleas, and amongst other reasons he had given one which; was the very best, if it were well founded; namely, that the court of Common Pleas had now as much business as it could do. But was this really the case, and if so, what what was it owing to? It was well known, that the causes in the King's-bench were in number in a proportion of about three to one to those in the Common Pleas. If the court of Common Pleas could do no more than it does now, and the court of King's-bench could contrive to get through three times the quantity of business which was done in the other court, what sort of men were the judges of the Common Pleas, and what sort of angels were the judges of the King's-bench? All parties, however, seemed to agree, that the barons of the Exchequer might do a good deal more than they do at present. What he had to propose would, he thought, be a short and effectual remedy for the evil complained of. Let the cognizance of Pleas of the Crown be reserved, as at present, to the court of King's-bench, and matters of revenue to the court of Exchequer; and, if necessary, let pleas of land, and questions in general respecting real property, be confined to the court of Common Pleas; but let the three courts be thrown open to suitors in all other cases, and the practice not confined in. any of them to a particular class or description of practitioners. But he would do more—at least he would submit it as a matter for consideration, whether it would not be right, that the proceedings in all the cases in which the three courts had common jurisdiction, should originate in an office common to all of them; that the causes should be entered in a common list, and that there should be but one cause-paper in Westminster-hall, from which the causes should be taken in rotation by the different courts. He never could see, that there was either good sense or justice in giving the plaintiff the choice of the court in which he would bring his action. Why should not the defendant have the option as to the court in which the action against him was to be tried? If the plaintiff had his favourite court, his favourite judges, and his favourite counsel, so might the defendant; and he saw no more justice in allowing the plaintiff to originate his action
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in one court, than there would be in allowing the defendant to remove it into another. He believed, that in no country but this, had the plaintiff any choice as to the court in which he would bring his action; and even in this country, it was not originally intended that he should; for when each court had its own distinct and appropriate jurisdiction it depended not on the choice of the suitor, but on the subject matter of his complaint, in what court it should be heard and determined. He proposed that the three courts should be equal in authority; that no writ of error should lie from one of these courts to the other of them, and that one and the same court, as the Exchequer Chamber, should be the court in which all their proceedings should, in the first instance, be reviewed.
He agreed with his hon. and learned friend, the member for Winchelsea, in a great deal, but not in all that he had said on the subject of pleadings. The pleadings were, in many cases, most prolix. In the ancient pleadings there were seldom more than one or two counts, where perhaps a dozen were now used. But unnecessary counts might be struck out, and the party using them made to pay the costs, whenever the courts saw a case which called upon them so to interfere. He could not, however, agree with his hon. and learned friend in respect to the indebitatus count in assumpsit, which he (Mr. F.) considered a great improvement in pleading, and certainly could not be taxed with prolixity. He allowed that pleas, grossly inconsistent, ought not to be permitted to be joined, and the general rule of law was against them, although certain pleas were permitted to be joined, which were open to that objection; for instance, in debt on bond, the general issue and payment. But he could not think that the different modes of pleading payment, such as solvit ante diem, solvit ad diem, and solvit post diem, were so objectionable in practice as had been stated. The plea of solvit ante diem was indeed unnecessary, as the fact might be given in evidence under the plea of solvit ad diem, but the plea of solvit post diem, which was given by statute, was a most useful and necessary plea. If the bond were not paid at the day, the penalty was forfeited, and payment after the day did hot save it. The substance of the defence ought to be, that the bond was paid, and it would be hard to send the defendant to a court of Equity, having paid the bond, although

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after the day, with interest up to the day of payment. But, unless for the plea of solvit post diem, recourse must be had to a court of Equity to prevent a forfeiture.
There was another point in which he was not prepared to agree with his hon. and learned friend—that of compelling the parties to shew to each other, in all cases, the written instrument on which they relied. In the case put by his hon. and learned friend, of the receipt, he did not see, that it ought to have been communicated to the opposite party. He did not see why a fraudulent plaintiff should be put into possession of the defendant's case, in order that he might seek for the means of rebutting it.
Mr. Broughamsaid, the case he had put was that of an executor plaintiff.
Mr. Fergussonsaid, that no doubt made a difference, but he had understood his hon. and learned friend to have laid down the principle generally as applicable to all cases.
There was one point more on which he would trouble the House.—It referred to the court of the Privy Council, and the observations which the introduction of that topic had led his hon. and learned friend to make respecting the administration of justice in a part of the British empire, in which he (Mr. Fergusson) would always feel a deep interest. In respect to the court of the Privy Council, he was very much disposed to concur in the description which had been given of it by his hon. and learned friend. He had attended there one day, when a case of great magnitude was heard upon appeal. It was one which he, as counsel, had conducted before the Supreme Court at Calcutta, and in which he had succeeded in obtaining the judgment of the court for his client. The interest involved in the decision of the case was not certainly of less amount than 20,000 l. per annum; but in place of the array of judicial talent and authority, which one might have expected to have seen on the judgment-seat of the Privy Council, according to the description given of it by the hon. and learned Solicitor-general, he saw no lawyer there except the Master of the Rolls, a most able and efficient judge, as he admitted him to be. The other judges consisted of one who had been an ambassador, and another who had been governor of an Indian settlement, he believed of Madras; but who could not be expected to afford much information,
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or to give much assistance, in a question of Hindoo, or any other law. He (Mr. Fergusson) said, that he thought the Court of Appeal which had to decide, in the last resort, on the property, rights, and interests, of eighty millions of people, required to be very differently constituted. The business of such a court ought not to be the secondary duty of any judge, as it was of the Master of the Rolls. The court of the Privy Council ought to be composed of the highest judicial characters, assisted by persons conversant in the laws and customs of the country, from which the appeal, in each particular case, came. He trusted that the right hon. gentleman (Mr. Peel), who had always shewn himself ready to correct the abuses, and advance the improvements, of the law, would take this most important question—the constitution of the Privy Council, and the mode of administering justice there, into his most serious consideration.
Before he sat down, he would say a word or two on the subject of what fell from his hon. and learned friend on certain points connected with the administration of justice in India. He was not prepared with his hon. and learned friend, to go the length of saying, that trial by jury ought to be introduced into the Company's Courts in India.—He meant the Country Courts, as distinguished from the courts called the King's Courts. He conceived that, in order to introduce the trial by jury, there ought to be a public—a body of independent men, to serve as jurors; whereas, in the provinces of India, he did not know where such a body of men, in the present state of society in that country, was to be found. He feared that, among the natives of India, the verdict of a jury would be the verdict of the judge, who would, in fact, decide the case, freed from all responsibility.
His hon. and learned friend had brought before the House, in the course of the former debate, a case of certain claimants who had contested the right to the estate of the Ranee of Ramnad, which had been under appeal for many years, and was still undecided; whilst the estate itself, consisting of a territory of great value, remained in the custody, as it were, of sheriffs' officers. Now, without knowing the circumstances of the case, he thought it might, and probably would, be found, that none of the claimants could give the necessary security to be put into possession, pending

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the appeal; in which case, as in all other similar cases, the officers of the government were intrusted with the care and management of the property for the benefit of the claimant, who might be found finally entitled to it. This was any thing but an oppressive measure. It was obviously necessary to guard it against spoliation and waste. This case had certainly been unaccountably delayed in its progress to the Privy Council, or in that court itself, if no decision had yet passed upon it. It had been surmised that parties in India might not be apprised of their right to appeal to the king in council.—This was not the case. The parties were always apprised of their right to appeal by a Bengal regulation of 1797, subsequently adopted by the other presidencies, on the security for the costs of the appeal being given by the appellant (for this was always required), each party had notice, that he should take the necessary steps for prosecuting and defending respectively the cause before his majesty in council. Two official copies of the whole proceedings were transmitted to the Privy Council, and copies were to be furnished to the parties, who were to pay for them as in other courts. The parties were at no loss, by a reference to Calcutta, to find the channel of transmitting their case home, and of having a decision passed upon it, if they were so inclined. But he believed that the parties often instituted appeals, without having any intention of prosecuting them with effect, merely for the purpose of vexing and harassing their adversaries. However, he thought that every additional facility that could be given, should be afforded to parties prosecuting and defending their rights at such a distance. It was in contemplation, he had heard, that an agent should be appointed by the court of Directors to act for the parties who did not follow up their appeals; but he was afraid, that the acts of such an agent could not bind the rights of parties who had never given their consent to his agency.
From what his hon. and learned friend had said, it might be inferred, that the estates and properties of the natives of India were decided upon by young and inexperienced persons—by writers, who went out ignorant of the language, as well as of the laws, customs, and usages, of the people to whom they went to administer justice. Now, what was really the case?
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The persons who went out, as represented by his hon. and learned friend, received no judicial appointment for several years after their arrival in India. Their first appointment, after having been reported qualified for the public service, was that of assistant to a judge or magistrate, by whom cases of small importance might be referred to his assistant. Upon an average it could not be reckoned, that a person would be advanced to the station of judge in less than ten years; to that of Judge of Appeal and Circuit, in less than twenty, or to that of Judge of the Zudder Dewany and Nizamut Adolut, the highest courts of civil and criminal jurisdiction in India, in much less than twenty-five or thirty years of judicial service. The courts of Zudder Dewany and Nizamut Adolut he had known filled by persons of eminent talent, and great judicial experience and knowledge. He would instance Mr. Henry Colebrooke, Mr. Harrington, Mr. Courtenay Smith, and an hon. member of that House, the member for Huntingdon (Mr. Stuart).
It might be supposed, from what was said, not by his hon. and learned friend, but by others, that the administration of criminal justice in India was such, that there was no protection for the life of man. Was this any thing like the fact?—On the contrary, there was no country where the life of man, was fenced round with more guards than in India. Take, for instance, a case of homicide. There was the inquiry of the Darogah in the first instance, in the nature of a coroner's inquest. These proceedings were in writing, and returned to the magistrate. Before the magistrate, depositions in writing were taken as in England, which were returned to the court of Circuit, before whom the prisoner was tried. That court was composed of either one or more judges of persons of the standing and experience which he had mentioned. There was another most important judicial functionary necessary to the constitution of a court of Circuit. He meant the Moutavie, a Mahomedan law-officer, a person generally of great learning, sagacity, and penetration, who was present during the whole trial, assisted in the proceedings, all of which were in writing, and decided the case by his futwa, subject, however, to the approbation of the judge, who was not bound to carry the judgment into execution in any case, if he considered that the futwa

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had been given on defective evidence, as contrary to the principles of the Mahomedan law. In such case it was referred by him to the court of Nizamut Adalut, who, on consulting their Mahomedan law officer, decided finally on the case. No judgment by which a prisoner was condemned to death, or perpetual imprisonment, could be carried into execution, without a reference to that high court. Upon the whole, he thought it would be found, that the judicial system, which had been introduced by the English nation into India, was a great improvement on that which prevailed under the former government and that the natives of those countries felt, that their properties and their lives had a security and protection now afforded to them, which had not been known at any antecedent period. He did not think that the judicial system of India was open to that indiscriminate censure which had been passed upon it by persons who could possess little or no knowledge on the subject; but he admitted, that it was a system, in which there were very considerable defects and imperfections, which he believed no persons were more desirous of finding the means of remedying than those in whose hands was placed the administration of the government of that vast and important part of the British empire.
The hon. gentleman concluded by saying, that, although by the admission of the law-officers of the Crown, all had not been conceded which his hon. and learned friend, the member for Winchelsea, had required, much had been granted, as much perhaps as could reasonably be expected, and more, he believed, than could have been hoped for at any former period.
Mr. Secretary Peelsaid, it had struck him that it would be some advantage to the House, at the present period of the debate, especially after the subject of the administration of law in the colonies and other topics had been introduced, which did not strictly apply to the question before the House—if he took that opportunity of explaining to the House the advice that it was the intention of the government to give to the Crown, with respect to the motion which the hon. and learned gentleman had submitted to the House. If he had understood the speech of that hon. and learned gentleman aright, it seemed to be rather an explanation of his general and particular views on the topics concerning
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which he thought it proper to recommend an alteration, though he had not laid down in what those alterations were to consist. He believed that the motion of the hon. and learned gentleman was, "That an humble Address be presented to his majesty, praying, that he will be graciously pleased to issue a commission for inquiry into the defects, occasioned by time and otherwise, in the laws of the realm of England, as administered in the courts of Common Law, and the remedies which may be expedient for the same." Now, it appeared to him, that it would have been more consistent with the objects of the hon. and learned gentleman, and with the practical results which it was hoped would be derived from the measure, if some limit were laid down as to the extent of the inquiries of the commission. The hon. and learned gentleman had, indeed, himself pointed out some branches of the law which he thought it desirable not to touch upon, because they had already been taken up by others. In the first place, he had given up the courts of equity, because the equity question had been long placed in the hands of an hon. and learned member, and had been so well attended to that it was unnecessary for him to interfere with it. Secondly, he had abandoned the commercial code. That was a very important part of the law of this country, but that branch, the hon. and learned gentleman, in express terms, left out. The third branch which he had cast aside, was the Criminal law of this country. That branch also the hon. and learned gentleman had excluded, and in stating his determination not to interfere with it, he had expressed a hope that it was not his (Mr. Peel's) intention, to abandon that course which, for four years ago, he had taken, for the purpose of ameliorating that portion of the law. Now, he could assure the hon. and learned gentleman, that he had not the least intention to abandon his labours, with respect to the improvement of the Criminal law. He had found, on his re-appointment to the situation which he now held, that during his absence from office, one branch had been prepared—he meant that which referred to offences relating to the person; and he could therefore state, that the alterations proposed on this subject would certainly be submitted to parliament in the course of the present session, though he believed that the first steps on the sub-

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ject would be commenced in the other House of Legislature. The House would probably bear in mind, that it was no very long time ago since he had introduced a bill for the purpose of consolidating the enactments relative to juries, so that now all the former statutes were repealed and embodied in one. He had likewise introduced a bill, for the purpose of bringing all offences against property within one statute, and for embodying the malicious injury of property in another; so that now, in short, the whole law of offences against property was contained in two acts. There still remained, however, two important branches which required to be introduced to the notice of the House, as belonging to the criminal law of the country. One of those branches was the offences against the person, of which the proposed modification was already prepared, and nearly ready to be submitted to parliament; and the other was the law of forgery, which latter was a most important topic, and might therefore probably soon call for the attention of the House. An hon. gentleman had complained of the great increase of the Statute-book; but he thought that if that hon. member would take into consideration the bulk, which was certainly the most important point, he would find that by the arrangement, which had been adopted at his suggestion, there was not above one statute now for ten times that number formerly, and that the diminution in size was still more considerable, by means of the consolidation which had been carried into effect.—According to the view that had been taken of the subject by the hon. member who had spoken last, an important branch had been excepted from the examinations of the commission, which he seemed to think might have been introduced with advantage. Now, he was quite ready to admit the importance of the branch alluded to, but he did not think that questions of this sort, which applied to foreign and colonial interests, could be properly considered as coming within the inquiries of the commission. As far as he could see, its tendency would be, to divert the attention of the commission from objects more immediately within its pursuit, and to make the commissioners, by calling upon them to investigate a subject, the evidence and facts of which were scattered and far removed, entail a heavy burthen of expense upon the country, without any adequate
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gain being derived from it.—He also doubted the prudence of forming the commission on the plan laid down by the hon. and learned mover, especially as he thought the appointment of one committee not sufficient, if the law of real property, and the practice of pleading before the superior courts, were both to be topics of inquiry. He felt bound to state his express opinion, that it would have been much better to have confined the views of the commission to some definite objects, and to have had two commissions instead of one. This arrangement appeared to him to be much preferable to the one proposed; for though it was an old saying—and a saying for which they had sacred authority—that "in the multitude of counsellors there is wisdom." yet he doubted whether a number of commissioners were more likely to arrive at wise conclusions than a few. He thought it would prove, that the commission would be so encumbered, that continual derangements would take place, from their being so many different views to be brought together. It appeared to him, that if the commission was to consist of five members instead of so many, much more business would be got through, and in a much more effectual manner. Of course he did not mean to say, that in thus limiting their number, they were to decline receiving such assistance as might be proffered by others; but he was sure that there were many important branches of the law which must become objects of inquiry, that would derive infinitely greater benefit from one or two professional persons, than from a much larger number of persons who were unacquainted with the proceedings that would be examined into. The reports of those professional persons might be embraced in the report of the commission; and he was therefore sure, that if there were two commissions appointed, the number would be sufficient. Supposing that the progress of actions through the superior courts of law was to be the object of inquiry for the one commission, and the transfer of real property—or in other words and more common acceptation, convey ancing—the object of the other, it was clear that greater expedition would be obtained than if one commission had the labour through the vast mass of evidence that those two objects united must necessarily produce.
He was also desirous that, when the commission should issue, the Crown

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should not be precluded from making an inquiry, by its legal advisers, into other objects by which it was possible that much good might be effected, without any additional expense being incurred: and he might more particularly allude to one part of what he thought might well become a portion of its inquiry, which was the alteration of the terms from the order in which they now stood. He did not believe that on this question there would arise any great difficulty; for, as far as he knew, the concurrent opinion of every lawyer was, that such an alteration would be highly expedient and advantageous. The only present difficulty was, that the leisure which occurred at Easter should extend to the bar; and he thought that this might be arranged by the Crown, without the aid of a commission.—With respect to what were to be the objects of the inquiry of the commission, he thought it desirable that the House should fully understand what questions were likely to devolve upon it; because, when the House should once be in possession of what were to be the principal objects to which the commission was to direct its attention, they would be able to understand that any discussion at present upon those points would be premature, and that much time would necessarily be saved to the House, by the postponement of the discussion of any question which it should, on all hands, be agreed was a fit object to be referred to the commission. He could assure the hon. and learned gentleman, that he was by no means jealous of the inquiry that he proposed to institute; all that he was anxious about was, that it should be fully defined what were to be the objects which the commission was to have in view; and it was with this feeling that he thought an address, such as the following might be substituted for the one which had been proposed by the hon. and learned gentleman—"That an humble Address be presented to His Majesty, respectfully requesting that His Majesty may be pleased to take such measures as may seem most expedient for the purpose of causing due inquiry to be made into the origin, progress, and termination, of Actions in the superior Courts of Common Law in this Country, and matters connected therewith, and into the state of the Law regarding the transfer of Real Property.'" He had certainly made up his mind in favour of there being two commissions, and he thought that it would
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be much better to try the matter that way, than by the introduction of bills into the House. With respect to the Writs of Error bill, which had been introduced last session, looking at it abstractedly, he could see no objection to it; but, unless other alterations were carried into effect to bear that Act out, it would be of no use.
There was one part of the hon. and learned gentleman's speech which he had heard with much regret, because with respect to it he conceived that his proposition was totally inefficient for any practical purpose. He alluded to what the hon. and learned gentleman had said with respect to the great body of the magistracy of this country. For his own part, he knew not how the appointment of the magistracy could be placed in better hands than in those of the highest officer under the Crown; and, in the appointment, he could not see how that high officer could discover the fitness of the individual, except through the medium of some local authority. To suffer such a duty to devolve on the judges would be, in his opinion, infinitely more open to objection, than to leave it to the lord Chancellor. He knew that, with respect to the sheriffs, the judge's opinion was taken; but he did not believe that any advantage was derived from that fact; and indeed how could there, when it was considered how very short the stay of each judge was in the county while passing round on the circuit—never exceeding a week, or, at most, a fortnight at a time. He therefore thought he might safely say that the nomination of the sheriffs, as practised at present, offered no inducements to transfer the appointment of magistrates from the custos rotulorum of the county. The hon. and learned gentleman, in finding fault with the system of the unpaid magistracy, appears to have rested the principal strength of his argument on this point, contending, that if the chancellor appoints the magistrate, at least his choice should not be derived from the lord lieutenant of the country to which the magistrate belonged. In examining this question, it would only be necessary to compare the state of England to that of Ireland. In the latter country, as there was more than one person from whom the necessary recommendation came, no one was looked upon as responsible; and the consequence was, that persons were elected who never could have obtained the office

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had the regulation been the same there as it was in England; and he had always felt that, if one responsible officer could be found in Ireland similar to the lord lieutenant here, it would be a great improvement in the magistracy of that country. In the course of his argument, the hon. and learned gentleman had contended, that half of the mischief of the system was, that the act that was done was not the act of any particular individual, by which two-thirds of the moral responsibility was got rid of. But what would the hon. and learned gentleman have in the place of the present system? He believed that there were in this country about four thousand five hundred magistrates, and though he believed that there might be individual instances of misconduct in members of this numerous body, yet he knew, from experience, that there was no body of men so jealous of the behaviour of the members of their corps as these very magistrates, in most of the complaints that were made of the obnoxious conduct of individuals, it happened that the charge was brought forward by some of his brother magistrates, in order that the subject might be fully investigated; so jealous were they of the honour of their body, and so anxious that no misconduct should escape punishment—no offender pass unnoticed, without bringing the penalty that he deserved on his head.
With respect to the licensing system, there certainly might be some abuses of it; but how would that be improved by the judges having a control over the appointment of the magistrates? And, if this was so before any alteration took place, the hon. and learned gentleman ought to show what was the local authority on which he intended to confer those powers which were at present vested in them. In touching on such important and extensive subjects as these, it was necessary to look at the whole system: it should be first inquired whether it deserved to be condemned, and then what system might advantageously be proposed in its place. For his own part, he thought that the supercession of the magistrates who were at present acting throughout the country would be a very great evil. He was an advocate for the plan at present existing, because he thought that it contributed to the bringing together of the higher and lower orders of society. The justice of the country must be administered in some way or another; and he should be glad to
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know in what way it could be administered half so satisfactorily as at present? If the unpaid system was to be changed into a paid one, the consequence would be that there would be an immense number of stipendiary magistrates established. And what would be the salary of that body? In London it had been found necessary to supersede the gratuitous magistrates by the appointment of a stipendiary police; but Mr. Bentham, a gentleman whose works were pretty generally known, objected to the payment of 800 l. a year, and said that in France the Juges de Paix, who officiated in a way somewhat similar to our police magistrates, had but a yearly income of from 200 l. to 300 l. a-year, and he therefore contended that 300 l. or400 l. a-year; ought to be enough for those of this country. But supposing this to be the amount fixed, was it likely that any number of gentlemen, well acquainted with the law, would be found to undertake such an office for that remuneration? And even then, in whom was the appointment to be vested? Was it to be in the Crown or in the local authorities? Was it to be paid out of a county rate, or out of the public funds? If the latter, what a vast increase of expense there would be to the country; besides which, it would be the means of adding a large number of stipendiary retainers to the Government. Nevertheless, he thought that if such an alteration should take place, it would be better that it should remain with the Crown than with a local authority, as there would be a better security in case any improper person should be appointed. If it were to be in some local authority, there would be great danger that it would be a source of patronage to certain parties, and that the appointments in some instances would rather take place from favour than from merit. He knew that there were some parts of the country where the administration of justice was kept back by the accumulation of manufactures in the neighbourhood, which was not only the means of increasing crime, but of diminishing the number of magistrates, as such works as those frequently contributed to drive away country gentlemen: such cases as these might be found in the Staffordshire Potteries, and in the Welsh iron districts. He did not pretend to deny that there were faults in the unpaid magistracy system, but he, nevertheless, thought it better than any other that could be proposed. Even if he was pre-

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pared to acquiesce in the assertion, that the system of appointing magistrates was defective to the extent which some hon. gentleman wished the House to believe, he confessed he knew of no system which could possibly be adopted in its place. It was too much the fashion, among a certain class of persons, to censure the conduct of the great body of the magistracy of England. That there were in that body, as in every other numerous class of men, a few who might prove justly liable to that censure, he did not mean to deny; but as a great body, called upon to fulfil one of the most important duties of society, he knew of none in this or in any other country, who performed that duty with greater zeal, with greater integrity, with a more honourable devotion to the interests of their fellow subjects, and with a more satisfactory effect upon the minds of those who were placed under their control. And he contended that, after all, the impression created by any public institution upon the public mind, was the main consideration to be attended to. He could not indeed divest himself of the belief, from all he had heard, and all he had read, that there was a conviction upon the minds of the peasantry of this country favourable to the present system of magisterial appointments, and that the tenantry and neighbours of a country gentleman in the commission of the peace were satisfied there was better and more substantial justice done by their landlord, than they could possibly hope to receive from any stipendiary magistrate, appointed at 500 l. a year, or at any other sum, or in any other way which might be devised. That was his conviction; and he believed there was not a member of that House, who would not allow that what he had said upon the subject was in strict conformity with the general impression. If, however, it could be clearly proved that any of this body had misconducted themselves, he was as filling as any other man to consent to any measure which might ensure their removal or their punishment. If, as had been observed on more than one occasion, abuses had been allowed to creep into the administration of impartial justice, particularly in the licensing system, he admitted that the subject deserved the most serious consideration; and if it was found that any of the abuses of that nature were connected with the too unlimited power of the magistrates, he did not hesitate to say, that
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a remedy ought to be applied to the evil, and that it ought to be checked in that manner which might be found the most speedy and the most effectual. He apprehended, however, that the evil of the licensing system was connected, in a much greater degree, with what was called the small jurisdictions, than the great body of county magistracy.
It was not to be supposed that his knowledge or attainments would permit him to go into all the extensive subjects embraced in the speech of the hon. and learned gentleman, upon all those various technical and professional points which that speech involved; he trusted to the acuteness and experience of his hon. and learned friends, the law-officers of the Crown. At the same time he might be permitted to say that, although he was willing to agree generally to the course which the hon. and learned gentleman had recommended, he thought it would be better that the House should not pledge itself to any particular course, or adopt any particular view upon these subjects; but that they should on the contrary, send the matter to the Commission without the adoption or declaration of any particular opinions, as they would thereby be in a better condition to apply a deliberate consideration to the plans or remedies which that Commission might recommend hereafter. He believed that they were all engaged—the government, and every individual member of that House—in the pursuit of one common object; namely, the improvement of the administration of justice, and the removal of those abuses which may have crept in from the effect of negligence, or the lapse of ages. That such was their common view must be admitted by all, and he confessed he could not conceive what could be the object of any government in protecting or maintaining these abuses. Of this he was certain, that the greatest and the most substantial claim a government could have upon the country, would be an honest desire to secure to the people an impartial, a speedy, and an inexpensive, administration of justice. The matters involved in the hon. and learned gentleman's speech, although deserving the most serious consideration, were, however, too numerous, and involving interests too important, to be disposed of as subjects of legislation, without the deepest inquiry, and the most mature reflection. Those important subjects affected the continuance of a system of

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things, and a practice of law which had been established for ages, and which was interwoven with all the prejudices, and associated with all the customs and manners, and institutions of the country. Philosophers might affect to disregard these feelings or these prejudices; but in the eyes of all practical men, they were objects deserving the most serious attention. The hon. and learned gentleman had, on a former evening, introduced the name of Cromwell as a member for Cambridge, and as a practical reformer, and had spoken of his great qualities in that respect. He was willing to give credit to all that had been said of him as a practical reformer, and was the more inclined to acquiesce in the statement from the compliment paid him by Mr. Burke, in quoting from the favourite poet of that reformer the following lines:—
"Still as you rise, the State, exalted too,
Finds no distemper while 'tis chang'd by you—
Chang'd like the world's great scene, when, without noise,
The rising sun night's vulgar light destroy."
He did not know whether the person to whom these lines were originally applied deserved them; but he agreed in the opinion which Mr. Burke had given in quoting them, and in the propriety of bringing about a change in this way. Let the subject be seriously considered, let changes be made if they were required; but let them not be made violently or suddenly, and without attention to prejudices which were interwoven with society. With these feelings he was ready to co-operate with the hon. and learned gentleman, who, from the whole tenour of his speech, seemed to entertain the wish that he entertained; namely, that inquiry should precede reform; and it gave him much more pleasure to have an opportunity of thus cooperating with the hon. and learned gentleman, than to propose any adverse amendment to the motion now before the House.
Mr. Sugdenthen addressed the House. He observed, that it was quite impossible that the numerous, complicated, and varied systems which were touched upon in the speech of his hon. and learned friend, the member for Winchelsea, could be intimately known by all or by any one of the members of the commission, however numerous. The first thing they must do, would be to divide the commission into a number of sub-commissions, if he might be allowed the phrase; and each sub-com-
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mission must then commence its inquiry into that particular branch of law with which its members might happen to be most conversant. Nothing could be more natural than that such a division must take place. One set of commissioners would sit upon an inquiry into the practice of Common Law. Another would enter upon an investigation of that part of our legal system with which he had the honour to be connected, the practice and principles of a court of Equity—and a third would turn their attention to the duties of that part of the profession who generally transacted their business at chambers, and were known by the name of conveyancers. It would seem, therefore, that if the proposition of the hon. and learned gentleman, for an extended commission, was agreed to, that their inquiries must either from their extent be ineffectual, or attended with this great inconvenience—that they were to be divided into separate bodies, who were to investigate separate portions of the objects of inquiry; while the whole report, which was to contain the aggregate mass of the recommendations of the commission, and which is suffered to come before the House with the sanction of all the members of that commission, would not emanate from the minds of all those members, but from the few who were acquainted with and interested in the objects of the inquiry.
No one was more desirous than he was to see the abuses which may have gradually crept into the administration of the law effectually reformed; but he confessed be looked with no little alarm at the disposition which he saw beginning to prevail, of attempting rash innovations, and striking, under the vain hope of amendment, at the root of that system, under which the country had flourished for ages. Laws, he considered, not to be so much made by the wisdom of man as to have been formed and improved by time; and he thought that nothing was more absurd in that point of view, than to suppose that any individual, however profound his wisdom, or extensive his knowledge, could form a code of laws, for the purpose of governing the property and rights of the people, and thereby supersede all the wisdom of the ages which were past. He hoped, therefore, that the House would riot sanction too large or too extensive an inquiry, which might have the effect of setting men's minds afloat upon points which the experience of time had sanctioned, although the reasons

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which supported them, or the principles upon which they were founded, might not be immediately apparent.
He had already declared, that he was not ready to go the full length of the proposition of his hon. and learned friend upon the extent of the commission; but he saw no objection to the commissions proposed by the right hon. Secretary. He begged leave, however, to say a few words upon that part of the propositions of the right hon. gentleman which went to the appointment of additional judges to the courts of Common Law. He believed it was admitted that it would be highly inexpedient to meddle with the court of Common Pleas; for nothing could be more true than what was observed by the learned Solicitor-general, that the gentlemen connected with one bar, were not likely to leave their own bar to practise at any other. He thought, however, that the court of Exchequer might with the greatest advantage be remodelled; and that if an extra judge was appointed to that court, upon whom would devolve the equitable jurisdiction, the whole of the cases in Equity might be despatched with all the rapidity—if rapidity was desirable—which the public could require. No one could possibly doubt that the present, judges of the court of Chancery were incapable, not from any deficiency of ability, but he might say unequal to the despatch of all the business which came before them; but if their exertions were united to those of the judges appointed in the court of Exchequer, in the manner proposed, he had no doubt the system would work well, and that the court of Chancery would then be able to get through all the cases which came before it, with as much celerity as any of the other courts, in proportion to the nature of its proceedings. In making these observations upon the courts of Equity, he thought it right to observe, that if a judge was so appointed in the court of Exchequer, it ought to be understood that no appeals were to go from his decisions. If appeals were to go from a third judge of Equity so appointed, he was convinced that, in a very short space of time, the head of the court of Chancery would be, by the number of appeals from the decision of the other courts, rendered incapable of exercising any original jurisdiction. Be was not, indeed, quite certain that appeals might not be very much reduced in number, if they were to be obtained only at a greater expense; At the present moment, an appeal
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might be entered into on the payment of the small sum of five pounds ten shillings, or some trifle of that kind; and he knew, of his own knowledge, that they were often so entered with the single hope of a something turning up, in the course of the proceedings which might prove favourable to the party's view of the case. He was sure that the noble lord who presides with so much skill and ability over the proceedings of the court of Chancery, might, by a very few beneficial rules, stop up the progress of much of this species of litigation.
The hon. and learned member for Winchelsea, at the commencement of his address, had stated his determination not to interfere with the proceedings of the court of Equity, or with the system which regulated the disposal of real property; and yet it was not a little singular to find, after such a statement, that much the greater part of his speech was directed against the proceedings in Equity, and with regard to real property. In the first place, the hon. and learned gentleman, in speaking upon the question of taking account, seemed to be of opinion that there ought to be a greater number of masters appointed to take accounts in the court of King's-bench. Now, whether the accounts were taken by the Master of the King's-bench, or the Master of Chancery, they were taken precisely in the same manner, and it made no difference whatever, therefore, whether the accounts were taken by a Master in Chancery, sitting in Southampton-buildings, or by a Master of the King's-bench-walk. No great benefit, therefore, could be derived from that alteration.
His hon. and learned friend had then proposed to extend the Statute of Uses, as far as related to absolute trusts. He contended, that it was impossible to do any thing of that kind, and for this reason—that as long as the wants and necessities, and social condition of mankind, rendered it requisite that their estates should be vested in trustees, or placed in the hands of mortgagees, so long would they find means to evade any provision of the legislature to the contrary. It would be to reject all the experience of past ages, to say that such would not be the result of his hon. and learned friend's interference, for the Statute of Uses did once, in point of fact, do the very thing which his learned friend desired; but when men began to find that it was necessary to their wants

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and their wishes, that there should be trusts and limitations, they would find that they did make them in defiance of the Statute of Uses, just as they would again, in defiance of any of the provisions, which his hon. and learned friend might be able to introduce.
The remarks and propositions of his hon. and learned friend upon the subject of real property deserved the most serious consideration. If he could be brought to think that these propositions had for their object the subversion of the present law regarding real property, he, for one, should feel it his duty to vote against them. But as he believed the object of his hon. and learned friend was to sweep away the rubbish which time may have cast over the laws relating to such purposes, and as he knew that there was such rubbish, and that there were many such abuses which could be remedied, without in any instance defeating the right of any man to the possession of that property, he should be happy to give his concurrence and assistance.
The next subject to which his hon. and learned friend had referred was that of fines and recoveries; and he declared he did not know one lawyer attending Westminster-hall, who was not willing to give his vote for their entire abolition. If, however, his hon. and learned friend desired to alter the law relating to tenant in tail, upon regulating the disposal of the fee-simple, he was determined not to give that proposition his assent. He believed that the law in cases of that kind allowed one of the most perfect train of limitations over the disposal of real estates, which the ingenuity of man could devise. And with all the advantages which it afforded, there was nothing which in the slightest degree trenched upon the real property of the rightful owner. On the contrary, the limitations only took away the power of alienation, without in the slightest degree altering the nature of ownership. He would put the case in as plain a way as possible to the House. Suppose a man had a real estate, and was disposed to marry, his object would be to leave himself a life-interest in his property, and yet provide a jointure for his wife. If that wife should happen to die before him, he would also wish to have the power of altering the disposition of that jointure in favour of another, if he wished to marry a second time. Then there were to be provisions made
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for younger children, and power to be retained for letting lands for twenty-one years, upon lease. Now, observe how all these objects were accomplished by the train of limitations. The father was made tenant for life—the wife gets a jointure—the younger sons and daughters are provided for, and beneficial leases are granted, while it is in the power of the father, the moment the son becomes of the age of twenty-one, to alter all this, and reverse the arrangements, if he sees it expedient; but the son never can dispose of his interest during the life of the father. All these advantages it was proposed to cut away remorselessly, and merely to give the power to limit the estate for life, and to leave it to his son after his death. The French code upon the law of real property had this inconvenience, among others, that in order to simplify the law, it took away the power of limitation, and hardly gave any power of provision or settlement for the younger branches of the family.
There were many other subjects on which he wished to make some observations, but he would not then detain the House; and he would merely observe upon that point of the hon. and learned gentleman's speech which required the Statute of Frauds to be extended, and declared it necessary that no contract should be valid, unless stated in writing. He dissented from what was stated on that subject, and was prepared to contend that it was not desirable to require all contracts to be reduced into writing. His hon. and learned friend had quoted the saying of a very learned judge, that "every line of the Statute of Frauds was worth a subsidy." If that learned person had lived to this day, he would have added—"to the lawyers," for there was not a line of it which had not cost a subsidy to the country.
Sir James Scarlettsaid, that, if he had been disposed to differ with the right hon. Secretary who spoke last but one, in the conclusion he had come to upon this subject, he yet felt so strong a conviction of the right hon. gentleman's sincerity, and thought him so much entitled to the gratitude of the House and the country for his useful labours in reforming the Criminal-law, that he should most readily have surrendered his own opinion to the judgment and experience of the right hon. gentleman. He was bound to say, however, that he entirely concurred in the views taken by the right hon. Secretary upon

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every one of the topics which he had touched in his speech, and upon none more than upon that which concerned the institution and the appointment of the magistracy of England. He was ready to admit, that there were some defects in the system of their jurisdiction, but he firmly believed that it would not be possible to substitute for the unpaid magistracy any institution more free from defects, or better suited to the feelings of the people.
He should follow the example of the right hon. gentleman in abstaining from the discussion of those topics which were to form the subjects of investigation by the commissioners. He thought there was much propriety and good sense in avoiding a previous condemnation of that which was to be submitted to the inquiry of others, whose duty it would be to proceed upon their examination with unbiassed minds, and to report, for the subsequent consideration of the House, the evils which they found to exist, and the remedies which they recommended. He was not one of those who thought it either necessary or useful to excite by criticism and declamation, discontent, and a desire of change with regard to institutions of the deepest practical importance, unless he entertained a decided opinion both upon the advantage of the remedy proposed, and upon the probability of being able to apply it. For this reason he must own that he had entered the House with an opinion which inclined him rather to prefer the introduction of specific and well-considered remedies in the shape of a bill, to the large and almost boundless inquiry to which the speech and motion of his learned friend appeared to be directed.
He was the more inclined to this opinion, because it was justified by the example of all the useful reforms in the practice of the law which had taken place in modern times. The greatest and most important of all, was that which had been effected in the fourth year of queen Ann, which he might, by comparison, place among the modern times. That celebrated bill, for the amendment of the law, had been introduced by lord Cowper when keeper of the seals, with the concurrence of the judges, in the House of Lords, and had passed that House in a form much more extensive and efficacious than was found suitable to the opinions or the prejudices of the House of Commons of that day, by whom it had been deprived of many useful parts, and
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mutilated into the shape in which it was allowed to pass. With this example before him he had certainly been disposed to follow the same course, of maturely considering and digesting some specific plan of reform, and coming ready prepared with the remedies before he invited a discussion of the grievances. He was, however, far from attaching so much importance to this opinion as to make it the ground of opposition to the scheme of his hon. and learned friend; more especially when he had the satisfaction at once to find the principle of useful reform so freely adopted by the right hon. Secretary of State, and the proposed inquiry limited to more specific and practical objects than many of those which were within the range of his hon. and learned friend's speech.
Of that most extensive and inviting speech—a great part of which he had heard with much satisfaction—he could not help saying, that he believed no man who was not possessed of the genius, learning, and astonishing assiduity, which distinguished his hon. and learned friend could, in a short speech of six hours, have comprehended so vast a multitude and variety of important subjects. In that portion of it which he had the pleasure to hear, he had enumerated no less than twenty-nine different topics, each of which might well employ the discussions of the House during an entire session of parliament. It embraced the nature of our laws, their origin, the constitution of our courts of justice, the practice of all courts in England, in Scotland, in our colonies, in the East and in the West, the jurisdiction of the Privy Council, and indeed every part of our civil institutions and domestic policy, excepting the prerogative of the Crown; the jurisdiction of the House of Lords, and the representation of the People; and at the same time, whilst his learned friend was ranging over so wide a field, he had spread through his progress a degree of vivacity which he alone could have introduced to relieve the discussion of so many dull and uninteresting topics. He could find nothing so appropriate to the vastness of his learned friend's comprehension and imagination, as the words which, in the romance of Quintus Curtius, upon the exploits of Alexander the Great, were supposed to have been applied to the hero by certain Scythian ambassadors upon their introduction to him—"Si dii habitum corporis tui, aviditati animi parem esse voluissent, orbis te non

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caperet. Alterâ manu Orientem, alterâ Occidentem contingeres." His hon. and learned friend had, indeed, already raised one gentleman from the East, and he thought he perceived symptoms of another rising from the West. Like Alexander he hastened from Europe to Asia, and again from Asia back to Europe. It was not his intention to follow his learned friend. He would content himself by saying generally, that he approved of many of his observations, that he concurred with him in noting many of the defects, and in recommending some of the remedies he had pointed out. But he was bound to say, on the other hand, that there were many instances in which he was far from admitting the evils, and more still in which he doubted of the remedies which his hon. and learned friend had discovered. It was ever an easy task to point out the defects of human institutions, none of which could be perfect, but it was extremely difficult to find the true remedy, and often still more difficult when you had found it, to prevail on mankind to adopt it. In his own profession, for example, he was convinced that almost all men would agree in condemning certain abuses in the practice of the law, but that scarcely ten would be found to concur in any particular reform. Thus, by a very easy process of exposing faults, and through the impossibility of agreeing upon reforms, the time might soon arrive when we should be unable to endure either the evils or the remedies.
He trusted, therefore, that he might be forgiven when the defects of our institutions were brought under review, if he ventured to point out one peculiar excellency which, in his opinion placed them far above those of all other nations. It was the peculiar felicity of England, that the administration of justice was in the hands of the people. The unpaid magistracy were a part of the people deeply interested in maintaining their rights and liberties. The grand juries at the assizes and quarter-sessions, the petty juries every where were the people: they formed the main part of the whole machine for administering justice, both civil and criminal. This privilege, of which we had so much reason to boast, was the cause of many of the supposed anomalies and defects which deprived our system of that theoretical perfection without which some ingenious minds would never be satisfied.
The House would, perhaps, pardon him
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if he ventured to illustrate this position by a reference to the law of evidence, which had been adduced as a fit subject for censure by his hon. friend, the member for Dungarvon (Mr. G. Lamb). He was ready to admit that there were certain decisions upon the subject of evidence, which might well deserve revision; but he would say generally, that the nature of our tribunals for the determination of litigated facts, required that certain kinds of testimony should be altogether excluded, from which tribunals differently constituted might often derive information without any danger of being misled. When the historian in his study investigates some obscure and controlled question of fact in times that are past, it becomes him to consider every species of evidence from which light, however faint, may be procured. Even hear-say evidence is within his province, and may often furnish him with satisfactory information. If highly-educated judges or lawyers were to decide upon matters of fact, there would be no sound reason for excluding any species of testimony from men whose minds were accustomed to the nice investigation of probabilities, and competent to adjust exactly the weight that may be due to each description of evidence, and the personal motives that might affect the credit of each witness. But juries, who were the arbiters of fact in this country, were composed of men of various degrees of intelligence, and of various habits of life; fully competent to follow the broad and obvious lines of distinction, which most cases presented, with regard to the weight of testimony and the credibility of witnesses, but not adapted to the nice and metaphysical discussions which the consideration of doubtful and secondary evidence always involves. He was, therefore, of opinion, that constituted as our courts were, hear-say evidence could not be admitted without danger. He had often experienced that undue weight was given to it where it had been admitted, and that it had sometimes influenced the jury to a conclusion in which the judge could not concur. His learned friend had also alluded to the rejection of the testimony of the plaintiff or defendant in his own cause.
Mr. Brougham.—I never proposed the admission of hear-say evidence.
Sir J. Scarlett.—I never supposed my learned friend to have done so.
Mr. Brougham.—But you used the word "also."
Sir J. Scarlettsaid, he was ready to ask pardon of his learned friend for the use of that unlucky word "also," and, if he would not further interrupt him, would inform him, that he was alluding not to him, but to the hon. member for Dungarvon; who, besides other observations on the rules of evidence, though not relating to hear-say, had mentioned the rejection of the testimony of a party in his own cause. Now, he was conscious that he might be thought an incompetent judge of the merits of a system of which he was in the daily practice. It was too true, that men were apt to be prepossessed by their own habits and practice, and he perhaps ought to entertain a doubt of the value of his own opinion upon the rule in question. But he could state as a fact, that, during the course of a long personal experience, he never above twice or thrice in his life found it expedient to read the answer of an opponent upon oath obtained by a bill of discovery. In fact, men hardly ever thought themselves in the wrong in their own causes; the necessary result of which was, that they told their own story, even upon oath, so much in their own favour; that it was impossible for their antagonists to use it. A court of Equity would not permit the answer of a party to be read as evidence in his own behalf. And he was sorry, but bound to state, that in a very recent instance, when a court of Equity had directed a party to be examined in a court of law, in support of his own case, the most gross perjury had taken place. Upon this point, he repeated, that the constitution of the tribunal renders it proper to exclude such testimony. A judge might, perhaps, make due allowance for the passions and feelings which excite a party in his own cause; but if such evidence were adduced before a jury it would throw upon the advocate, in every case, the necessity of offering to them in each address, an essay upon human nature, and metaphysical dissertations upon the influence of motives upon the conduct and feelings of men, which would be thrown away before such a tribunal. Dissertations of this nature, as his hon. and learned friend, the member for Winchelsea, well knew were too frequent in the lengthy pleadings of the Scots' courts, which were addressed to most intelligent judges, but which, however proper in those courts, would serve only to confound and perplex a jury.
In making these observations, he was
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most anxious not to be understood as desiring to oppose any obstacle to any sort of practicable reform, even upon the law of evidence. Indeed he felt it due to himself to state, that there was no man more ready to lend a favourable attention to any suggestion for the amendment and substantial improvement of the institutions which he held in reverence; and he trusted he should not be accused by his hon. and learned friend of a desire to rob him of any portion of the glory which belonged to him, as the proposer of these inquiries, when he stated that, if he had continued in office, he was prepared to have submitted a bill to the consideration of the House for the purpose of accomplishing some of the objects which his hon. and learned friend had now in view. So long ago as the year 1812, he had, in communication with that most learned and excellent judge, the late Mr. justice Le Blanc, digested and prepared the heads of a bill, which it had been his intention to submit to parliament. But experience had taught him, soon after his admission into that House, that no measure of such magnitude could advantageously be proposed by one who did not possess the authority and influence of government; more especially if he were deeply engaged in pursuits which made his attendance in parliament uncertain. He had, therefore, vainly reserved it for an opportunity which was gone by almost as soon as it had occurred.
If he did not trespass too much upon the House, he would throw out for the consideration of his hon. and learned friends opposite, one of the suggestions which he had intended to make. He alluded to the process between creditor and debtor. It was easy to perceive that the law which regulated the interest of these parties could never be made agreeable to both. The creditor looked for expedition in the process; certainty in the law, despatch in the decision, facility in the execution: the debtor, on the other hand, naturally sought for investigation, caution, discussion, delay. It was impossible to satisfy the exigency of both. That in consulting the eagerness of the creditor for an expeditious termination, it was necessary to afford to the honest defendant some time for reasonable preparation, deliberate discussion, and security from oppression. The difficulty was, how to prevent the fraudulent or needy debtor from availing himself of all those delays and precautions which

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were provided for the security of the honest and the protection of the innocent. He had found that, generally speaking, the debtor was enabled by taking advantage of every means of delay which the practice of the courts afforded, to put off the day of final judgment for almost six months, and then, by the aid of a writ of error to add a few months more. But this time was gained at a great expense to both parties, often exceeding what was required, to pay the original demand. For example, the whole proceeding, from the commencement of the suit to judgment upon the writ of error, he had ascertained would cost the defendant above eighty pounds, which he either raised by small contributions amongst his friends from time to time, or eked out of his own earnings in order to put off the evil day of paying a just debt, which amounted at first, perhaps, to no more than thirty or forty pounds. The remedy he had thought of suggesting was this—that the delay which was now gained by a process most expensive to both parties, through indirect means, should be obtained cheaply and directly, provided it were made the price of a condition advantageous to the plaintiff. What he should propose was this:—Suppose a man to be served with a process, and to have no other immediate object than to gain time, he might be allowed to go at once before a commissioner, and obtain a delay of three months, upon giving competent bail, who at the expiration of that time should see the debt paid, or render him; or even a delay of six months, upon condition, that if he did not then pay the debt, the bail should be liable to pay it themselves. The debtor would thus be able to husband his resources, in order to make provision, against the day of payment, whilst the creditor, without being exposed to any further expense or loss, would improve his chance of recovering his demand within the usual time.—Another object which he had in view was, to limit the power of arrest to debts exceeding one hundred pounds. He did not mean to give an opinion at present upon the general subject of the law of arrest—whether the practice ought or ought not to be abandoned. He believed that when the commercial body came to be examined before the commission, the preponderating opinion would be found to be that it ought not to be given up. But he would do no more at present than observe, that, if the power of personal arrest were with-
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drawn, it would be necessary to give some very improved means of getting at the property of defendants, who otherwise might live, where they were fraudulently disposed, upon means placed entirely beyond the reach of their creditors; upon funds, for instance, supplied from the produce of money vested in foreign stocks, or upon the rents of estates abroad.—The hon. and learned gentleman concluded by declaring, that at so advanced an hour, he should refrain from longer occupying the attention of the House. He should always be ready to promote every reform which was consistent with the safety of the general system of the English law; and it was impossible for him too warmly to bear testimony to the talent and exertion with which his hon. and learned friend had brought the subject forward.
Dr. Phillimoresaid, he wished to offer a few words upon the constitution of a court in which himself had practised for many years; namely, the court of Delegates. The House would be aware that this court, which was the last tribunal of appeal from the maritime and ecclesiastical courts, had been a source of complaint for more than a century; repeated applications having been made within that time to the Crown to change the constitution of it. As the practice stood, the court was composed of three common-law judges, whom it was difficult to get together, and who, when assembled, were not familiar, from their professional habits and experience, with the civil law: and to assist these learned persons, three counsel from the court were added, who were necessarily always of those not immediately in the highest estimation, as those who were so were generally concerned on one side or the other in the cause. The delay which the difficulty of assembling the common-law judges led to, rendered the court almost valueless for the despatch of business. But the most glaring part of the grievance was the incompetency of the constitution of that tribunal: the decisions of the first civil judges were reviewed by judges not practising the civil law at all, and by assistant counsel, whose standing and reputation were by no means necessarily such as to qualify them for so delicate a duty. The hon. and learned member concluded by suggesting an improvement in the constitution of the court; the chief feature of which was, that one civil judge should, in all cases, sit with the court of Delegates, for the purpose of as-

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sisting it; that when the appeal was from an ecclesiastical court, a judge of the court of Admiralty should be in attendance; and an ecclesiastical judge, in the same way, upon every admiralty appeal.
Mr. Cartershortly observed upon that part of the inquiry, which was to apply to the power intrusted to magistrates. In his opinion, the power of transportation for life was a very dangerous one to be exercised at quarter-sessions by persons whose habits of receiving evidence, when not directed or controlled by any presiding barrister, were frequently highly lax and irregular.
Mr. Broughamcommenced his reply by assuring the House, that the patient attention with which he had been heard by the House on a former evening, when he brought the important subject of the administration of the law under its consideration, would induce him to trespass but for a short time on its patience at that late hour. It was the more unnecessary, indeed, for him to do so, as the observations which had been made that evening did not furnish any very ample matter of remark in reply from him. He had, in the first place, to discharge a duty imposed on him by his hon. and learned friend (sir J. Scarlett) who had been obliged to leave the House; namely, the explanation of a point which his hon. and learned friend had omitted to notice; and which he was about to enter upon after his observations on the speech of the hon. member for Dungarvon, but which he had been prevented from doing by his (Mr. B.'s) accidental interruption. The point to which he alluded, referred to the practice of special pleading, which had been attacked by the hon. member for Dungarvon. Upon this point he agreed with his hon. and learned friend; and he was glad to be confirmed in his opinion by an authority of such high experience and talent, that all that was wanting to render special pleading perfectly competent to its purpose, was to bring back the system to its ancient rigour and simplicity. He would have the pleadings made simple, to prevent misconstruction and misapprehension; but in confining the power to plead, and in diminishing the number of counts, he would not leave, as at present, the judges with the power of nonsuiting the parties, because some trivial and verbal mistake had been committed. That would be a great injustice. So many counts were now necessary, be-
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cause the court was always determined, on the slightest variance, to nonsuit. One of these evils made the other partly necessary; and he was aware that, if he were to reduce the number of counts in a pleading, without doing away the power of nonsuiting for slight variations, that he should cause a great many evils; he would, therefore, get rid of both. The connection between these two things illustrated the necessity of examining the whole law at once. If they were to get rid of the multitude of pleas without getting rid of the causes for nonsuit, it would introduce such confusion, that they might as well shut up the courts. To touch only a part of the law might cause much mischief; but it would be a great good to touch and amend the whole.—To the objections of his hon. and learned friend, who had left the House, he would make no further reply, than to state, that his hon. and learned friend must not consider, because he did not answer them, that he thought them unanswerable. His hon. and learned friend, who had left the House, had alluded to the great range of argument in his speech the other night, praising him, whilst he rallied him, for endeavouring to comprise in one speech, however long, twenty-nine heads of argument on the law and the administration of justice. Certainly he confessed that, at first sight, it did appear that there was some ground for the objection; but his answer was, that in order to gain the attention of the House once for all, he thought this course expedient. It was hopeless for him to be able to obtain the attention of the House, let him solicit it how he might, frequently. The subject was barren and dry; and it was impossible to treat it concisely. Could he expect that the House would attend to the same subject night after night, week after week, and session after session? The House also was not the only party to be considered. They sat there in the face of the country; and it was well known that there was no subject in which the people of England took more interest—and God forbid that this interest should ever diminish!—none which came, as was often said, "more home to their business and bosoms"—none which the people had more at heart—than an ample, unsparing, but judicious,—a temperate, but deliberate and advised,—reformation of the law, carried into execution by those hands, who, by previous experience, were best enabled to

913
carry it into effect for the benefit of the people, which, from an intimate acquaintance with the subject and long practice, were the best qualified to perform the task. The people, he believed, did not desire a sweeping reform—did not wish to see the whole altered—but they did wish to see the axe laid to the root of all abuses, but laid by deliberate, skilful, and dispassionate men, sparing all that was valuable, but cutting away what was useless. They did demand, that cheap and speedy justice should be the system of the country. They did not desire hasty or imperfect justice; for they were of opinion, as he was, that though cheap justice was a great good, great injustice was a great evil, let it be ever so cheap and speedy. He had had many opportunities of ascertaining the opinion out of doors, and from all the inquiries he had been able to make, he believed that the minds of the people of this country were earnestly bent on law-reform. Other reforms and retrenchments were indeed desirable, if there were any means of retrenchment, with thirty or forty millions of taxes. But, as men saw no hope of much retrenchment with these thirty or forty millions of taxes, they said, "at least let us have all the reform we can have in other matters." Thus it appeared to him to be his duty, when he brought the subject before the House, to cover a large space with the inquiry: the country looked for it; and if any part had been left untouched, it would have been said—"What signifies your doing this? why did you not do that? this is not objected to; do not meddle with this, but that." He had thought it therefore better to bring all the topics before the House at once; and if the House chose to take it up in parts, it might. Lest it should be supposed that he had indulged in a display of professional knowledge, he declared to the House that he had no vain or conceited motive whatever. God knew, he had had enough of professional displays in his time! But he was bound to do what he had done; namely, to suggest not a single alteration, or remedy of an evil, of which he had not practical experience, or of which he had not had actual knowledge, from being concerned for one party or the other in court.—He stated this to meet the objection that would be made to suggestions of speculatists, theorists, and men who were not practical lawyers, and by thus limiting himself, he thought he had ob-
914
viated all objections. It had been said' and truly said, that it was easy to complain of abuses, but very difficult to point out a remedy for them. No one was more sensible of the truth of this saying than he was. This arose from the imperfection of all human institutions; the errors in which it was much easier to discover than to rectify. It might happen that he had not been right in some of the remedies he had suggested for an abuse, although he was right as to the abuses themselves, because they were existing things: the remedies suggested for them could not be appreciated until they had been tried by the test of experience. He, however, had not stated a single evil for which he had not suggested—not dogmatically, but for inquiry and investigation—a remedy. In the course of the observations which had been made upon his speech, he did not think that any one part of it had been specifically objected to—there had been general objections, indeed—except on the subject of evidence, by his learned friend, the Solicitor-general; and his learned friend, Mr. Sugden, who had honoured him by answering a speech which had been made long before he was a member of parliament [a laugh]. His hon. and learned friend had evidently derived his knowledge of his (Mr. Brougham's) arguments, from sources to which he was not authorized to allude; but the uncertainty of such reports, where a little line and a half sometimes comprehended an argument which had occupied a quarter of an hour in the delivery, was obvious. He did not wish to say any thing disparaging of those gentlemen by whom the speech was abridged; they were doubtless very excellent gentlemen; they merited no unkindness from him; but it was evident that such reports, where a line and a half was given to every quarter of an hour, could not give any thing like a complete picture of a speech of such minute and delicate details, in which the mistake of a single word, of "fee" for "life," for example, might work the utmost confusion in the argument. It was dangerous to answer a speech, when only notes of it, like that to which he had alluded, had alone been seen; but his learned friend would learn better hereafter. His learned friend had quite mistaken him if he supposed that he wished to make any change whatever in the law respecting real property, or to alter, in any respect, the power which a man had over such property. He

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did not mean to say, "let us sweep away fine and recovery, and convert the first tenant in tail to the first tenant"—he did not mean that; but he meant that some precise and simple form of words should place the first tenant in tail in precisely the same situation that he was before he had suffered the recovery, or before he levied the fine. He meant to allow the tenant in fee, with the concurrence of the tenant for life, to bar a remainder as at present, but he would accomplish that by a more simple method. He was aware of the utility of this part of our law, and he would not alter it; for its use was to prevent young persons falling into improper hands, and interfering with the stability of family settlements. He would give the two tenants this power by a writ of enfeoffment, or by any valid assurance of two persons. He would not say that, in another country, such as the United States of America, a different modification of landed property might not exist; but in our mixed government, one element of which was a landed aristocracy, he thought we had chosen a happy medium, which it would be impolitic to touch or alter, securing as it did, on the one hand, to the parties a full power over their property, and securing the stability of the aristocracy, and still leaving on the other a sufficiency of land coming into the market for all the purposes of commerce. The law of England, he repeated, preserved, on this difficult point, a happy medium. He would let this part of the law remain as the foundation stone of all: he would only endeavour to make its operation perfect, by allowing all parties to do what the law now allowed them to do, as easily as possible. He agreed entirely with his learned friend, that the tenant in fee should retain all his power over the property; but he could not agree with him, that all the niceties of this part of the law should be preserved; for example, on looking into a very excellent book, "Sugden on Powers," he found such niceties there described, that while it was very difficult for a learned man to tell what powers he was conveying, and what the words he employed signified in the eye of the law, it was quite impossible for the unlearned man to do so. Instead of these niceties he would adopt some formulas, such as were supplied to unlearned magistrates, that the commitments they made out might be correct; and by such formulas he would allow property to
916
be devised and conveyed. There was then, he believed, no real difference between him and his learned friend, but as to the niceties of this part of the law.—He would next proceed to say one or two words respecting some other points that had been adverted to. He would first observe, that he had laid before the House a great number of facts, and not a little law, and that three weeks had passed since he had made his speech. This was as favourable as possible for those who wished to answer it. But, after all the pains and care of his learned friend, the Solicitor-general, he had not been able, with great candour, and as much kindness towards him as his duty to the House and regard for his own reputation would allow—he had not been able, after three weeks' consideration, to object to one tittle of that statement, with regard to the laws which he (Mr. Brougham) had made. With respect to the facts, his learned friend had stated that he had made one mistake as to the Exchequer; but his learned friend, it turned out, had mistaken the case; for in the one he alluded to, the Crown had defended Mead. His learned friend had defended his view, by saying the Crown had the power to pray a tales, because it was supposed the Crown was the prosecutor; but, in the case he alluded to, the Crown had been the defender of Mead, and by refusing to pray a tales, had stopped the course of justice. By this power, many persons might escape punishment who merited it; and he, therefore, hoped it would be reformed. In the case of Mead, after an expense of 10,000 l., the Crown—not, as was supposed, a disinterested party, but an enemy in the heart of the camp—stepped in, refused to pray a tales, and put an end to the prosecution. The conduct of Mead he considered as infamous as any man's conduct ever was. He had been found guilty by one jury, and the Exchequer jury, by their verdict, shewed that they regarded him as guilty of perjury; and thus, in fact, he was convicted by two juries. If Law had not been killed, if he had had another 10,000 l. to expend, Mead would have been found guilty a second time; but when Law was killed, under very suspicious circumstances, there was an end to the whole proceeding.—With respect to another case alluded to by the Solicitor-general, of the petition of right, what he (Mr. Brougham) objected to was, that the Crown should have the power of refusing to grant such a petition,

917
in cases in which the Crown was concerned, after a lapse of twenty years; and he complained that the Crown should not, in this respect, stand in the same situation as a private party.—His hon. friend, who had lately returned from India (Mr. Fergusson), had stated his own view of the case: he had alluded to it as it had fallen under his own observation. The description he (Mr. Brougham) had given of it was drawn from the notes of the judge. What he had complained of was the delay, and that the property should, in the mean time, be attached by a sheriff's officer. The law was, perhaps, wise, but the results he had stated were certainly sufficient to warrant all he had said on the subject. The hon. and learned gentleman then came to the subject of extending the trial by jury in the East Indies, and begged to read to the House an extract from a speech delivered in 1820, by the late sir Hardinge Giffard, the chief justice of Ceylon, which had just come into his possession. Previously, however, he begged to explain, that in mentioning the story of the Brahmin juryman of Ceylon—which, it was said, showed the danger of allowing natives to sit on juries—he had merely intended to show, that the vehement prejudice of a jury had been checked by one unprejudiced person, who had discovered such amazing ability in analyzing the evidence. The passages he should read were most important:—"It is too well recorded," said sir Hardinge, addressing the magistrates of Columbo, "and is within the personal knowledge of some of yourselves, that during the Candyan war of 1803, the revolt of some of our maritime districts added, in no slight degree, to the difficulties of that melancholy period. It has been my duty to examine the criminal calendars of that period, with a view to inform myself of the state of offences generally, and I have been both surprised and gratified to observe, that during this interval—an interval marked by violence and convulsion in the interior—there does not appear to have occurred in our maritime provinces a single instance of even a charge of turbulence, sedition, or treason, or of any offence bearing the slightest tinge of a political character. To what are we to attribute so remarkable a change? Certainly not to the superior character of the government; in mildness and benevolence Mr. North's administration was assuredly not exceeded by that of any of
918
his successors. But let us ascribe it to the true causes—to the long and steady experience of the blessings of a government, administered on British principles, and above all, to the introduction of the trial by jury. To this happy system, now deeply cherished in the affections of the people, and revered as much as any of their oldest and dearest institutions, I do confidently ascribe this pleasing alteration; and it may be boldly asserted, that while it continues to be administered with firmness and integrity, the British government will hold an interest in the hearts of its Cingalese subjects, which the Portuguese and Dutch possessors of this island were never able to establish." Sir Hardinge then cited a report of the advocate fiscal, who said, "Amongst the inhabitants of the maritime provinces, I know the jury system to be already a favourite; the wisdom of the Supreme Court has most happily adapted it, even to their prejudices." Now he (Mr. Brougham) said, "you had better trust to the hearts of the people of India than to 250,000 sepoys, who, though excellent troops, were, perhaps, of doubtful fidelity." The fiscal added, "Armies may waste away from climate or disease, and seasons and circumstances may baffle the utmost exercise of human foresight; but fixed on the attachment of the people to our jurisprudence, I look upon the security of the British interests in Ceylon to be impregnable." The idea of jury-trial in India was by no means novel and modern in its origin. A usage which closely resembled this mode of administering justice, as to principle, in times of great antiquity, prevailed throughout that country. It was essentially a species of arbitration, and decided such cases as came under the cognizance of juries, by a reference to five men, who gave judgment according to their opinion upon the evidence.—The next point to which he desired to refer, was an impression that he had passed one unsparing, universal, indiscriminate, and sweeping, censure upon the whole system by which magistrates, and every thing relating to magisterial jurisdiction were regulated. This was the charge to which any man was necessarily liable, who brought forward any system for the purpose of pointing out the errors which existed in it. Such a man, so engaged, did not stop to panegyrize the valuable parts of that system. His object was to shew that there were imperfections in it which ought to be corrected.

919
But it was not fair to call observations of that nature a vague and general accusation of the whole system. For himself, he highly respected the voluntary zeal which induced many individuals to take upon themselves the magisterial functions: he well knew that many of those individuals were highly useful and deserved the gratitude of the community. But that which he had said, and which he was prepared to maintain was, that, unless a change was made either in the mode of nominating or appointing magistrates, or in their manner of acting, or in their responsibility, the continuance of the present system must be pregnant with great evils. He had never doggedly maintained that the present mode of nomination must, under any circumstances be altered. His statement had been, that whether that mode was right or wrong, or even if it should turn out to be impossible to devise a better, at all events those judges should be so nominated that they might be under much more control than they were at present. If they continued to be appointed by the lord-lieutenant of the county, it must be recollected, that the lord-lieutenant was subject to less responsibility for his choice than other authorities would be; that he was liable to be biassed by local feelings; by private favour and affection; by the services which certain individuals might have rendered, or might be capable of rendering, his family; by the solicitation of friends; by a disposition to mutual accommodation, either with persons of rank and influence in his own county, or with the lords-lieutenant of other counties. But was not his argument irrefutable—that if that mode of appointment, acknowledged to be imperfect and exposed to inevitable abuse, must be resorted to, it became the more absolutely necessary that the individuals so appointed, should be made strictly responsible for the manner in which they exercised their authority? He had said, in his address to the House, on introducing this subject, that the judges of the land were responsible by name, and in their own proper persons, for the judgments which they gave. It was the judgment of lord Tenterden, or Mr. Justice Bailey, or Mr. Justice Holroyd, or Mr. Justice Littledale. Their decisions were liable to be reviewed over and over again. They were liable to be reviewed in their own courts, and they were liable to be reviewed by the assembled Judges in the other courts. And who were the individuals who were so responsible by name,
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and in their proper persons? Not insufficient lawyers, not ignorant men, not inexperienced persons, not individuals chosen by a lord-lieutenant; but individuals chosen by a minister responsible for the selection, and whose duty it was, out of the whole profession of the law, to nominate those who were most distinguished for their professional talents, for their extensive knowledge and experience, and for the soundness of their judgment. So chosen, and so superior these learned persons were responsible for their conduct in the manner which he had described. Yet the justices of the peace, not so chosen, not so qualified, were exempt from such responsibility. What was his conclusion? Not to abolish the whole unpaid magistracy of the country: he had never dreamt of such a thing; but to apply some remedy to the existing evil. To limit the number of sessions—to limit the number of magistrates sitting at the sessions—to make it clear that the same individuals would always be present, that of itself would be a considerable improvement. He was delighted to hear his learned friend state, that many of the magistrates would jump to get rid of that portion of their present duties which related to the licensing of public houses. He heartily concurred with his learned friend in the expediency of such a change; and he would jump, though perhaps he could not jump so high as some persons, to see it accomplished. He was most desirous to put an end to the licensing system. According to his learned friend, many of the magistrates thought it a great burthen and grievance to themselves; the people at large, he knew, thought it a great burthen and grievance to themselves. In God's name, therefore, why not get rid of it? And here he thought it but right to observe, that a friend of his had spoken to him on the subject of the letter which he had read the other night in the House, stating, that the establishment of the Goldenlane Brewery had for the time lowered the price of porter; and had assured him, that the statement was destitute of foundation. He repeated, that in the observations which had fallen from him on the occasion, to which he had so frequently alluded, in all that he had said of "justice's juice," &c, he had by no means intended to allude to the respectable portion of the country magistracy. But that great abuses existed in the licensing system was evident, even from the report of a committee of the House it-

921
self; in which report a frightful picture was drawn of the conduct of some of the licensing justices; and more especially of the clerical justices, who it was evident (he was sorry to say it) bore the bell in point of impropriety. That report made good the doctrine which he had lately held; namely, that a mixture of the ingredients of a clergyman and a justice of the peace, though each might be good in itself, frequently made a very nauseous compound.—There was one point on which he wished to say a few words. Since he had first brought the subject under the consideration of the House, he had been overwhelmed with letters. Ever since the matter had been circulated throughout the country, he had received from twenty to thirty letters a day respecting it. These letters came from two descriptions of persons;—from justices of the peace, and from practitioners in the law; the greater number perhaps from the latter. He was happy to say, with reference to the letters which he had received from magistrates, that so far were the writers from considering that he had been captious or unjust towards their body, that they expressed the greatest gratitude to him for what he was doing, and declared that no men could be more sensible than themselves of the necessity of a reform in the system; more especially in that part of it which related to the licensing of public-houses.—By the by, would the House permit him to make a single observation with respect to these letters? He begged, then, to express his hope, that the writers of them would not conceive that he was deficient in personal respect because he left them unanswered. Many of them contained highly valuable suggestions; information of great importance, with reference both to the facts and to the law. But, not having a secretary, he was wholly unable, with his other avocations, to answer one half of them, if he were to attempt the task. The consequence of this conviction was, that he had determined to answer none. He had thought it necessary to say this in vindication, not more of himself than of others. He had frequently seen members of that House annoyed, attacked, and threatened by correspondence in newspapers, who, fancying that they had more time and power by half than they really possessed, became exceedingly wrath when they found that their communications remained unanswered. Gentlemen in the country ought to recollect, that a member
922
of parliament could not reply to all the letters he received; and that his abstaining from doing so ought not to be attributed to any want of respect for the writer. Every county member knew how serious was the evil to which he alluded; and how frequently their correspondents thought themselves slighted when no offence of any kind was intended. To revert to the letters which he had received on this subject, the writers all, without a single exception, joined in declaring the necessity of a law reform; and in expressing their gratitude to the House of Commons, for having shown a disposition to entertain the question. He now came to the main point—the form in which the motion should be submitted to the House. He was quite ready to adopt the words recommended by the right hon. Secretary. At the same time, he certainly wished that some other subjects were comprehended. The commercial law, for instance, required great revision; and in no parts of it more than the law of merchant and factor, and the laws of partnership. The latter especially were so intricate, that it was frequently exceedingly difficult to determine what a partnership actually was—whether A was really a partner with B or not. He also lamented the exclusion of chancery proceedings from the inquiry; for he was persuaded that every attempt to reform the law of the country must be very imperfect, which did not contemplate recovering a great deal of business out of courts of Equity, and restoring it to courts of Law. On that subject he differed from much of what had been said by his learned friend the member for Weymouth. He was at a loss to understand why trusts might not be as well dealt with in Common Law as in the Equity Courts. Why not let trustees sue and be sued? Why not let mortgagers sue and be sued?—At that late hour he would not trespass further upon the House. He returned them his hearty thanks for the patience with which they had listened to him, both when he made his original statement and on the present occasion; and he would now move, "that an humble address be presented to his Majesty, respectfully requesting that his Majesty may be pleased to take such measures as may seem most expedient for the purpose of causing due inquiry to be made into the origin, progress and determination of actions in the superior Courts of Common Law in this country, and other matters connected therewith;

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and into the state of the law regarding the transfer of real property."—One word more. It was absolutely necessary that the greatest care should be taken in the choice of the Commissioners. Unless they were selected in the best possible way, and with reference not only to the general respectability and liberality of their characters, but to their sound and practical legal knowledge and experience, it would signify very little indeed what kind of Commission was appointed, or with what power it was invested. He did hope and trust, that a wise and beneficial course would be pursued; and that persons of peculiar qualifications, some as related to the law of real property, others as related to the law of actions, would be chosen for the purpose. He knew some persons of great zeal, and of most unexceptionable qualities and attainments—men divested of all party feelings and considerations—who were, he believed, perfectly disposed to sacrifice certain branches of their own practice, and, for a very moderate compensation, steadily and zealously to devote themselves to the proposed investigation.
The motion was then put and agreed to.