Sitting of 30 May 1854

Preamble
The House met, and forty Members not being present at Four o'clock, Mr. SPEAKER adjourned the House till Thursday.

MINUTES.
PUBLIC BILLS.—1a Middlesex Industrial Schools; Consolidated Fund (£8,000,000) (No. 2); Public Statues; Gaming-Houses; Legislative Council (Canada); Encumbered Estates (West Indies).
2a Prisoners Removal.
3a and passed—Manning the Navy; Navy Pay, &c.; Second Common Law Procedure, 1854.

RAILWAY AND CANAL TRAFFIC REGULATION BILL.
Order of the Day for the House to be put in Committee read.
LORD CAMPBELLsaid, he deemed it his duty again to enter his protest against this Bill. He had been in hopes that upon further consideration the objections to the Bill which presented themselves to his mind in the first instance would have been obviated when he came to consider it more maturely; but he was sorry to say that the opportunity for reflection had strengthened instead of weakening them. Since he last addressed their Lordships on this subject he had had an opportunity of consulting many of his learned brethren on the bench respecting it. His learned brethren and himself were willing to undertake any duties which the Legislature might impose upon them; they would set an example of obedience to the law, and of respect to the Legislature; but having consulted the Judges at a meeting they had had upon this subject, they were unanimously of opinion that the duties which they were asked to undertake under the provisions of this Bill were not judicial duties; and the great majority of them stated they were not properly competent to perform those duties. That those were not judicial duties he thought there could be no question. Ordinarily, a Judge had to interpret the law, and the law was placed before him for that purpose; but by this Bill no law was laid before the Judges which they could interpret or enforce. The code which the Judges had to interpret and enforce under this Bill was stated thus—
"That every railway company, canal company, and railway and canal company, shall afford all reasonable facilities for the receiving and forwarding of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic in any respect whatsoever; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and every railway company and canal company, and railway and canal company, having or working railways or canals which form part of a continuous line of railway or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving

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by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals, or railways and canals, as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf."
That was not a code which the Judges could interpret; it left them altogether to exercise their discretion as to what they might deem reasonable. They were, besides, to form a just judgment on all matters of complaint relating to railway management that might come before them; and they were to lay down a code of regulations for the government of railway companies. The Judges, and himself among them, felt themselves incompetent to decide on these matters. He had spent a great part of his life in studying the laws of his country; but he confessed he was wholly unacquainted with railway management, as well as the transit of goods by boats; he knew not how to determine what was a reasonable fare, what was undue delay, or within what time trucks and boats should be returned, He believed he had correctly represented the feelings of all his learned brethren on the bench in reference to this Bill, with one exception, whom he mentioned with honour, respect, and reverence—he meant the learned Chief Justice of the Court of Common Pleas, than whom there was no Judge on the bench more zealous or more efficient; and that learned Judge, whilst he agreed in thinking that these were not judicial duties, had no doubt that his brethren on the bench would be able to work the Bill properly. He (Lord Campbell) would humbly suggest that if the discharge of the duties imposed by the Bill should devolve on the Court of Common Pleas, where there were Judges as learned and efficient as ever sat in Westminster Hall, it would give satisfaction to the country; at the same time, however, ho did not propose to throw on other Judges a task which ought not to have been imposed on any of them. They should have a lay tribunal for the decision of questions of the nature contemplated by the Bill, and not one composed of the Judges. It had been proposed in the House of Commons last year, that there should be a department of the Government to which matters of this kind should be referred; and, he thought, that would have
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been a more desirable plan than the one now under consideration. Having said this much, he had only to observe that it was not his intention to move any Amendment to the Bill. If their Lordships should be pleased to impose on him duties for which he felt himself incompetent, he would endeavour to perform them to the best of his ability; but, lie must again say, these were not judicial duties, and that they ought not to be imposed on the Judges.
THE LORD CHANCELLORsaid, he could not but think, in spite of the remarks which had just fallen from his noble and learned Friend, that if their Lordships should give their favourable attention to this Bill, and if it should pass into law, there would be no practical difficulty found in its application to the evils which it was framed to remedy. His noble and learned Friend (Lord Campbell) had said their Lordships would be entering upon an anomalous course if they imposed on the Judges duties which were not judicial. To some extent that was true; but his noble and learned Friend must recollect that their Lordships had now to deal with a very anomalous state of things, He must remember that they themselves as passengers, and their horses, goods, and commodities, were not now conveyed along the Queen's highways as formerly, but upon highways belonging to individuals; and that had given rise to enactments calculated to meet this new state of things, and very different from those which formerly prevailed. The question now was whether anything could be suggested that was likely to render this mode of travelling more satisfactory to the public. His noble and learned Friend had said these were questions which ought to have been confided to what he called a lay tribunal—and, looking at the subject theoretically, he entirely concurred in that opinion. But his noble and learned Friend could not have forgotten that they had been already confided to a lay tribunal. There was a Board of that kind, presided over by a very able man, in existence until recently, and, not having given satisfaction, it was abandoned consensu ominium. He (the Lord Chancellor) had at first suggested that the party complaining should bring his action under the sanction of the Board of Trade; but it was objected to his proposal that it was the machinery of a lawyer, and not of a practical man. What did this Bill propose? Why, that in case there

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were arrangements made by two railway companies which were inconvenient—and sometimes such arrangements were intentionally inconvenient—any person might make a complaint to one of the Judges, who, if he was satisfied that, primâ facie, there was ground for complaint, might refer the matter to an engineer or some other competent person to determine what was best to be done. The railway companies were perfectly satisfied with that provision; and if there was a prospect of its affording to both persons concerned a practical relief in an inexpensive and effectual mode, why should it not be attempted? His noble and learned Friend had said the Judges were perfectly unacquainted with these matters; but his noble and learned Friend must not forget that these were questions which already frequently came under the consideration of the Judges and juries, and the functions imposed upon the Judges by this Bill would be much the same thing as those he now fulfilled when trying a cause before a jury. In the latter case he had to sum up the evidence and explain the law to the jury; and what would he have to do under this Act? He would hear the evidence, and having heard would have to apply the law accordingly. They had now to do through the medium of a jury what under this Bill they would have to do alone and he (the Lord Chancellor) believed they would find no sort of difficulty. There was an apprehension, doubtless, in the minds of some of the Judges, that they would feel some difficulty in undertaking the duties sought to be imposed on them; but the learned Chief Justice of the Court of Common Pleas had stated to him that he saw, practically, no difficulty at all in the matter. With respect to the suggestion made by his noble and learned Friend, he (the Lord Chancellor) did not see any difficulty in confining the cases arising under the provisions of the Bill to the Court of Common Pleas, especially as it was not so overburdened with business as the other courts were. He thought it would be a useful amendment to the Bill to confine the business to that Court; and if, on a trial, it should not be found to work satisfactorily, it would be the duty of the Government to devise something better. On the whole, he was of opinion that this was likely to be a very useful measure.
LORD STANLEY OF ALDERLEYsaid, he had no objection to the proposal of confining the actions to be brought under this
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Bill to the Court of Common Pleas. He had received a letter from Chief Justice Jervis on the subject, which he would read to their Lordships:—
"47, Eaton Square, May 25.
"My dear Lord Stanley,—I have no objection to your stating in the House of Lords and elsewhere, if you please, that in my opinion the Railway Traffic Bill may be worked by the Judges, if they will take the trouble to work it. It will certainly give them some trouble, but, as I do not see a more satisfactory way of settling questions in which the public have a deep interest, the Judges ought not, in nay opinion, to decline the duty, merely because it will be difficult. I ought to add that the majority of the Judges seem to think that the proposed work is not of a judicial character, and ought not to be imposed upon them."
Such was the opinion of the Chief Justice, and he had no doubt the Bill would work well.
LORD CAMPBELLsaid, that it would be a mistake to suppose that the Judges wished to shirk taking upon themselves the trouble which the Bill would impose upon them. All that he intended to contend for was, that the duties were not strictly of a judicial nature, and ought to be discharged by some other tribunal.
EARL FITZ WILLIAMsaid, he rejoiced to think that these questions were likely to be referred to one of the Judges, at least, who would undertake their consideration con amore; because there could be nothing more unwise on the part of the Legislature than to impose duties upon a body of men who were not likely to discharge them cheerfully and willingly. He entertained a very decided opinion, however, that questions of this kind could never be satisfactorily settled except by a department of the Government specially provided for that purpose. With respect to the observation of his noble and learned Friend on the woolsack, that a department to which such questions were wont to be referred had been abandoned consensu omnium, he begged to call to his noble and learned Friend's recollection that it was abandoned consensu omnium because at that period the railway interest was particularly strong. As railway matters were now conducted, it was clearly necessary that we should have a Board who would listen to the complaints of the public and have something like an autocratic power to remedy them. This Bill certainly afforded no remedy for the existing evils, for the railway directors would snap their fingers at, and entirely disregard it.

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House in Committee.
Clauses agreed to, with Amendments.
LORD STANLEY OF ALDERLEYsaid, that he had no objection to insert a clause for the purpose of making the liability of the railway companies as common carriers more clear. The clause had been drawn by the noble and learned Lord opposite (Lord Lyndhurst).
LORD LYNDHURSTsaid, that the clause was drawn in such a manner as to embody as nearly as possible the provisions of the 11 Geo. IV. (the Common Carriers Act). As the clause at present stood, it was proposed to give the owners of horses and cattle killed or injured by the negligence of the servants of a railway company, the power to recover a sum not exceeding 50 l. for a horse, 12 l. for a head of horned cattle, and 50 s. for a sheep or pig.
LORD STANLEYthought that these sums were too high, and therefore suggested that the clause should be agreed to in blank, and that the figures should be inserted after further consideration on bringing up the report.
Clause agreed to.
Report of Amendments to be received on Thursday next.

MANNING THE NAVY BILL.
Order of the Day for the Third Reading read.
THE EARL OF HARDWICKEsaid, that the more he considered the provisions of this Bill the more he was convinced that, if it became law in its present form, it would be productive of serious inconvenience to the Navy. He knew that in the present state of the House and of public feeling it was in vain to attempt to prevent its passing; but he nevertheless felt convinced that the functions of prize agents could not be properly performed by the machinery which was to be established by this Bill. A circumstance, indeed, had just occurred which strongly corroborated the views he entertained on this point. A prize having been taken in the Baltic by the James Watt had been brought into the river for condemnation. The prize agent then found that certain charges to the amount of about 15 l. had been incurred for the wages and provisions of the prize crew, and on applying to the Admiralty to know whence he was to procure funds to satisfy the demand, he was informed through Admiral Berkeley that the charges and expenses incidental to the prize would be
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paid out of the proceeds when it was condemned. But the fact was, that as the ship was not yet brought up for condemnation, no one could presume to say whether she would be condemned or not. Now, under the old system the prize agent appointed by the ship's crew took upon himself the whole charge of the prize, defrayed all the incidental expenses, and took the risk of being repaid if the vessel was condemned. He had on a former occasion stated his objections to giving this Bill a retrospective action, and he hoped that his noble Friend (the Duke of Newcastle) would now assent to the introduction of an Amendment to guard against this. Another point on which he wished to insert an Amendment was the following. The noble Duke had stated that little or no injury would accrue to the Navy agents from this measure, because other Acts give them a great interest in the distribution of the value of prizes taken, to the amount of 2½ per cent upon the proceeds. Now, in this statement there was a confusion between the Navy agents and the prize agents—the former, who were the parties referred to in the former Acts of Parliaments, being the agents of the individual officers, and not of the crews. He wished, therefore, to secure to these persons what was given them by former Acts, and which the noble Duke said that he did not seek to deprive them of; and he would therefore move the insertion in Clause 26 of words declaring that this Bill was not intended to deprive a ship's crew or officers of the right of appointing agents, under a power of attorney, who should be authorised to receive the prize money from the Paymaster General, and to distribute it. He should also propose to insert another Amendment with the view of preventing the Act from having any retrospective operation.
THE DUKE OF NEWCASTLEsaid, that it was not the fact that any loss would accrue to the captains and crews of the vessels which took prizes in consequence of the cessation of the practice of allowing Navy agents to transact the whole business connected with a prize previous to its condemnation. It was true that, in a case to which the noble Earl referred, the prize agent had been informed by the Admiralty that the captain's agent would be liable for the expenses attendant upon bringing the prize over for condemnation. But the fact was that the captain of the vessel taking the prize was at the present moment liable

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for any loss that might accrue if she were not condemned. The vessel was brought over for condemnation at his risk, and he was the ultimate loser if it was not condemned, although, no doubt, the prize agent paid the expenses in the first instance. He could not accede to either of the Amendments which his noble Friend had suggested. He objected to that which related to the proposed retrospective operation of the Bill, because there was no ground for saying that the measure would have any such operation. On the contrary, its whole scope and bearing were entirely prospective; and it was the intention of the Admiralty that the prize agents should settle all matters now before them under the existing law. The other Amendment was equally unnecessary, because the existing law, which this Bill did not affect, secured to the Navy agents the commission of 2½ per cent on the prize money distributed through their agency. He doubted whether such a provision as that which had been proposed by his noble and learned Friend could be correctly introduced in that House of Parliament. He was not quite clear upon the subject; but he rather doubted whether the House of Commons, according to the very stringent construction they put upon their rules, would not consider that provision of his noble Friend would be a violation of them. He saw no necessity for dwelling upon the subject, and thought the Amendment totally unnecessary, and only calculated to raise doubts where they had never previously existed.
LORD BROUGHAMsaid, he did not think the reasons assigned by the noble Duke were sufficient to persuade their Lordships not to accept the Amendments. The noble Duke had said he was quite confident no doubt could be raised on the question involved in the first and most material of the Amendments, namely, whether or not this Act would have a retrospective effect; but if his noble Friend had been as long acquainted with prize courts and courts of law as he had been, he would find it much better to add a few words to the length of a Statute than to leave it to the astuteness of counsel or even to the decision of learned Judges, whether Judges at common law or in the prize courts, to determine whether a provision was retrospective or not. The same observation applied to the other Amendment; and in both cases it would be better, by the insertion of a few words, to guard against the possibility of doubt. He (Lord Brougham)
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would take leave to bear his testimony to the great merits and invaluable services of the prize agents, and would remind their Lordships of the panegyrics that had been pronounced upon them by the highest judicial authorities in such matters and by the highest personal authorities, including amongst them his late and illustrious Friend Lord St. Vincent. The inestimable services rendered to the Navy by those parties were such that Lord St. Vincent had said that were it not for their help he knew a number of cases in which gallant officers would not have been able to join their ships and engage in the service of their country. From his own experience in the courts of prize, he could state that, in one case, upwards of 50,000 l. had been obtained by captors through the exertions of the prize agents, not one farthing of which would have been obtained if the provisions of this new plan were then in existence, and if the Crown-appointed officers had had the management of the proceedings. In that case, the law officers of the Crown had given a decision against the parties; it was a question of prize and head money under the Slave Trade Act in the Eastern Seas, and the opinion of the law officers of the Crown was clear that the captors had no right whatever, and if their case had been left to Crown-appointed officers it must needs hive followed that their case would not have been prosecuted, and not one farthing of that large sum which was decreed to them by the court below, in spite of the opinion of the law officers of the Crown—the court of appeal confirming the judgment—would have been held to belong to those very meritorious parties. There was another case of 70,000 l. head money and bounty money; that was a case of capture, and the King's Advocate gave an opinion against the captors, and if it were left to a Crown-appointed officer, as a matter of course he would have followed the opinion of the King's Advocate, and of that 70,000 l. not a farthing would have reached the meritorious parties, the captors, who, by the exertions of the prize agent, obliged the payment of that sum. He need not remind their Lordships of the other arguments that could be used, with regard to the services of these agents, the large capital they employed, the great skill and experience they brought to bear on the interests of the parties employing them; and he could not help feeling considerable apprehension as to what may be the result of the change.

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Bill read 3a.
THE EARL OF HARDWICKmoved, as an Amendment, that the Bill should not apply to any captures, &c., made by any of the officers and crews of Her Majesty's ships or vessels prior to the 1st of June, 1854.
On Question, their Lordships divided:—Content 34; Not Content 47: Majority 13.
Bill passed, and sent to the Commons.

SECOND COMMON LAW PROCEDURE, 1854, BILL.
Order of the Day for the Third Reading read.
Moved, That the Bill be now read 3a.
LORD CAMPBELLsaid, he felt it to be his duty to make a few observations on this Bill, in order that it might not be supposed that he concurred in the hostile criticisms of his noble and learned Friend opposite (Lord St. Leonards). The Bill was, as his noble and learned Friend had observed, the most important measure with respect to the administration of justice that had been laid before Parliament for a considerable time. It introduced more important changes than had been introduced into the law of England since the time of Edward I., and he was happy to be able to say that he entirely approved of it. Some of the experiments it made were undoubtedly hazardous, but he thought they were all laudable, and he hoped the result would be satisfactory. His noble and learned Friend (Lord St. Leonards), in a speech which was distinguished by his usual ability, had disparaged the whole of the Bill; but though he felt a great respect for the opinion of his noble and learned Friend, he must say that he approved of the measure. His noble and learned Friend in the first place expressed very great hesitation respecting the enactment that Judges shall hereafter have power to try issues of fact. Now, if that were to apply to all issues of fact, he would most heartily share in his apprehensions. Where there was conflicting evidence, and in many cases where character was concerned, and where substantially a trial took place respecting the commission of criminal offences, though in the form of a civil action, a jury presided over by a Judge was the best tribunal that ever was established. But there were many cases where the facts were not at all in dispute—which turned on a question of law—and which he thought might be better determined by a judge without calling on a
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jury to help him, and which a jury was very little capable of performing. The power proposed to be given to the court of deciding with respect to the cases that might be tried by a Judge alone was indispensable, for otherwise a Judge might be called upon to try a case involving a question of murder, or the most atrocious offence. Suppose there had been an action for a libel imputing to the plaintiff that he committed murder, would it be proper that a single Judge should try that case? Nor would it be enough to say that a Judge should try all actions of contract, for there might be an action of contract—for example, an action on life insurance or fire insurance, where the defence might be that the plaintiff had insured the life, and caused the death by foul means, or had set fire to his own house—it would not be proper for a Judge to try such a case without the assistance of a jury. Then, with regard to what his noble and learned Friend had said with respect to the clauses which his noble and learned Friend called the arbitration clauses—he (Lord Campbell) must say he entirely approved of them, because he did not consider them to be arbitration clauses, but clauses referring to a single functionary, matters that could not be properly decided by a Judge or jury—such as matters of account. It was enacted by this Bill, that as soon as an action was brought, if respecting matters of account, either party by application to the court might, in the first instance, refer the case to a single individual, who could sit de die in diem until the whole was wound up and determined. And see the scandal that would avoid! At present a Judge, sitting to administer justice with the assistance of a jury, had a case brought before him which he and the jury were totally incompetent to try, and which must be referred to arbitration. It was now so referred after enormous expense had been incurred in retaining counsel, summoning witnesses, and paying the jury, all which expenses were thrown away; whereas by the new system which he (Lord Campbell) hoped his noble and learned Friend would approve of, all that scandal would be obviated, because, as soon as the writ was issued, there would be an order made by the court referring the whole matter to a single individual to decide it. The next point was with respect to the unanimity of juries. Generally speaking, he approved of the principle of the unanimity of juries, and wished that princi-

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ple should be infringed as little as possible; but see what was the practice. For the purpose of obtaining that unanimity they at present resorted to the barbarous expedient of locking up the jury without refreshment or fire, and there they were all to remain until they were of one mind. And, according to the common law, if they did not agree when the Judges were going from one county to another, the jury were to be put in a cart and brought to the boundary of the country and that discharged them. He was delighted that a change was proposed; but the change that was proposed in the first instance, he could, from his own experience, say would have operated very disastrously, because it was this—that after the jury had been shut up for twelve hours, having coals, candles, and all manner of comforts, and after sitting for that time in a comfortable room, if at the end of that time they did not agree, they were, as a matter of right, to be discharged. If that provision had stood, he would take upon himself to say that it would have led to an infinite number of abortive trials. One of the parties might have a friend on the jury, or there might be a wrongheaded man upon the jury—and he would know the consequences must be that by sitting for twelve hours in a comfortable room, in the first case the juror could protect his friend, and in the other the juror could prevent the reception of the verdict at which the eleven other jurors had arrived. Or it might be that two or three persons would disagree with the others, and prevent the nine or ten other jurors from prevailing; and it would constantly happen that there would be abortive trials, all the expense would be lost that had been incurred, and there would be great delay and vexation. He considered the compulsory system was better than that, and as proof of it he could say that since he had had the honour of being a Judge he had not once been called upon to discharge a jury, though he had been obliged to lock them up several times. When the Bill came before the Committee he had the honour to propose that if at the end of the twelve hours there were nine of the jurors agreed in a verdict, the verdict of the nine should be taken as the verdict of the twelve, but always liable to any objection that might be raised by the parties to that verdict. It was thought by his noble and learned Friend on the woolsack that instead of nine to three the numbers should be ten to two, and that suggestion
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was adopted; and such having been the opinion of the Committee, he trusted their Lordships would adhere to it. He was fully convinced that if their Lordships should adopt that resolution no inconvenience would follow, and that it would work most admirably. The next point had regard to the oaths. He was the last person who would propose to abolish oaths altogether. He was sure, with the general feeling prevailing in this country, there would be an opinion that justice could not be satisfactorily administered unless upon sworn testimony; but at the same time there were persons whose religious opinions were opposed to the taking of oaths, and who held themselvest hound in all cases by the Divine command, "Swear not at all." It was now proposed, in order to meet those cases, that if it appeared to the Judge that the witness had a sincere objection to take an oath, he might be examined upon affirmation, as was at present done in regard to Separatists and Quakers; and he (Lord Campbell) considered that that would be a great improvement. He should, however, have been better pleased if there were a general enactment, and he was sure it would have a most salutary effect. Under the law as it now stood, a Judge was bound to commit a man to prison who refused to take an oath, although that man was doing nothing but acting in accordance with the dictates of his conscience. That was not only cruel towards the witness, but also towards the parties who were deprived of his testimony, and any of their Lordships and their posterity might be put in peril of their honour and their fortunes in consequence of the testimony of a witness, whose testimony was essential, being cut off from them because he had a religious objection to take an oath. There was only one other point on which he thought it necessary to trouble their Lordships, and that was what was called the fusion of law and equity. For centuries there had been a broad line of demarcation between courts of law and equity, the consequence of which had been that parties were often obliged to go into a court of equity, and then to a court of law, and back again to a court of equity, before a single case could be finally decided. The principle of the clause in this Bill was, that one court should hear and finally adjudge one case, without the necessity of resorting to another court. Of that principle he most highly approved, and he had no doubt that it would work

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beneficially. His noble and learned Friend had pointed out that in Scotland there was only one court, and that all cases were finally adjudged in it; and he argued that it arose from that circumstance that there were a great number of appeals from Scotland. There were various reasons why there should be many more appeals allowed from the courts of Scotland than from the courts in England, and amongst others, that they were appeals from one set of Judges reared in one system of jurisprudence to another set of Judges reared in another system of jurisprudence, who entertained very different notions, and who might very likely be disposed to reverse what shocked their prejudices, and therefore the number of appeals from the Scotch courts was no argument against one court. No one honoured more than he did the decrees pronounced by his noble and learned Friend (Lord St. Leonards), but he would tell him that if there had been appeals from his decrees when he sat in the Court of Chancery to the Court of Session in Scotland, some of his decisions would have been reversed. He was sure, with the assistance of his noble and learned Friend, and other eminent lawyers, the common law Judges would be able in a satisfactory manner to discharge the functions now intrusted to them, and which were very different from the railway functions which it was atteumpted to impose upon them, for in the present case they would be acting judicially, and they would have authorities to refer to and direct them. He would put a case that would illustrate the present working of the law. Suppose an infringement of a patent, or of a copyright; the party would have to go to the Court of Chancery for an injunction; the Judge in Chancery would say that be must go to a court of common law to establish his right; but when he had done so, he must come back again to the court of equity, and commence again; and all this led to enormous expense. An instance had occurred about three years ago which strongly illustrated the case. There was a nuisance at Clapham, caused by the perpetual ringing of bells, and an application was made to the Court of Chancery to grant an injunction. The Court of Chancery said, "We have at present no power to grant your application. You must go to a court of law, and establish your right." An action was consequently brought and tried upon the Home Circuit. The trial lasted several days, and there
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was a verdict for the plaintiff, establishing the nuisance. But no sooner was judgment pronounced than the bells began again, sounding another peal—not exactly the same, but very similar—and the court of common law having then no power to interfere, it was necessary to file a bill in the Court of Chancery for an injunction. Then there was a hearing of seven days before one of the Vice Chancellors; after that hearing, the injunction was granted. Would it not have been most reasonable that the court of common law in which the action was tried for the nuisance should have had the power to grant that injunction against the repetition of the nuisance and to enable that Court to grant an injunction in such cases was one of the objects of the Bill, and he repeated his belief that it would act most beneficially. Within the limits that were allowed, there were a great many matters of equity that could be most satisfactorily disposed of in courts of law. Take a case. Suppose an action was brought against a surety, and the defence was that the suretyship was constituted by an instrument not under seal; as the law now stands, the court of law could take cognisance of the whole matter; but if the surety were constituted by what was called a deed signed, sealed, and delivered, then the court of law had no jurisdiction, and it would be necessary to go into a court of equity. Such distinctions as these should not be allowed. He thought a Bill which proposed to remedy such anomalies was a most valuable measure; and if none other of importance should be passed in the present Session, he considered it would not be a Session barren of good results.
LORD ST. LEONARDSsaid, that, notwithstanding the statements of his noble and learned Friend, he still retained the opinion he had before expressed with regard to the proposed fusion, as it was called, of law and equity, though he had never doubted that there were cases in which the principles of equity might be applied by the courts of common law. He would, without further observation, proceed to submit to their Lordships the Amendments he had to move to the Bill. The first Amendment was in Clause 17, from which he proposed they should omit the words "ten or," the effect of which would be, that if eleven of the jurors, instead of ten or eleven, as proposed by the clause, should agree in opinion at the end of twelve hours, they should be able to

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deliver that decision as the verdict of the jury. He could not bring himself to consider that it would be wise to break in upon an ancient institution to the extent now proposed. The recommendation of the Select Committee which sat on this Bill was relied upon by the noble and learned Lord on the woolsack in favour of this change; but no stress had been laid upon the recommendations of the Commissioners who reported in favour of retaining the principle of unanimity among the jury, and who were opposed even to his (Lord St. Leonards') proposition for requiring the agreement of eleven. The next objection that he had to this Bill related to the provision enabling a Judge in his discretion to allow a person stating that he had a scruple against taking an oath to make a declaration in lieu of swearing. Now, the present law certainly permitted Quakers, Moravians, and Separatists, to affirm instead of taking an oath in a court of justice; but then, in each of these cases, there was this security, that the witness allowed to affirm was a man who, in the face of the world, and to the particular knowledge of everybody around him, had joined a particular sect, and they knew that he was influenced, or affected to be influenced, by religious motives in objecting to an oath. But there was a wide distinction between the cases where declarations were allowed instead of oaths under the existing law and the proposition contained in this Bill, because this Bill would enable any man, upon his own mere unsupported assertion that he had a religious scruple, to evade the taking of an oath; thus doing away with the means which the law had hitherto afforded for ascertaining that, although the witness refused to take an oath, he did so because he belonged to a religious sect whose tenets were opposed to the taking of oaths, and was therefore a man who was nevertheless bound by religious obligations. As to the provision with regard to the discretion of the Judge, how was the Judge to get at a man's secret motives, and to tell that in his refusal to take an oath he was influenced by conscientious scruples? It was clear, there fore, that this ostensible safeguard was no real safeguard at all, and was perfectly illusory. But look at the inconsistency and absurdity in which this Bill would involve them. The exemption from the necessity for making an oath was confined to common law procedure, so that in the
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courts of equity, if this Bill passed, every litigant would still be bound to swear, whereas in the common law courts he need only affirm. Thus, on one side of Westminster Hall a man must take an oath as the law now stood; and, on the other side, he would be relieved from taking an oath, under the provisions of this Bill. Again, a witness might, under this Bill, make a declaration before the Judge of a superior court; but if he went before a magistrate, he must take an oath. It was clear that if a change of this kind was to be made at all, it ought to be made general in its character, and not partial and exceptional.
THE LORD CHANCELLORsaid, that having had occasion to trouble their Lordships repeatedly before on the subject of this Bill, he would only now say a very few words in answer to what had fallen from the noble and learned Lord who had just spoken. It appeared to him that there was one great fallacy running through all the reasonings that he heard upon the subject of oaths, and that was that it was always assumed that the giving of evidence was the privilege of the witness, and not—which it really was—the right of the suitor. If a suitor could only bring forward a single individual who could give the requisite testimony, and that individual had religious scruples against taking an oath, why was the suitor to suffer because his witness was over-scrupulous and over-conscientious? He had never heard an answer to that argument. It was quite obvious that the party primarily to be considered was not the witness, but the man who wanted the testimony of that witness. Well, the noble and learned Lord asked, what security had they that a man who said that he had conscientious scruples against taking an oath, entertained those scruples in sincerty? He (the Lord Chancellor) asked in return, what security had we now that a man was a Separatist or a Quaker—nay, what security had we that a man who had once been a Separatist or a Quaker, but was not one now, was sincere in his continued scruple to take an oath?—because the last Act of Parliament on this subject expressly stated that any person being a Quaker, Moravian, or Separatist, or who had once been a Quaker, Moravian, or Separatist, but who still retained his conscientious scruple against taking an oath, should be allowed to make a declaration in lieu of an oath. And observe, they were speaking of a class of persons in

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whose countenance there was generally the evidence whether they were speaking the truth or not, and it was only because men who came forward in this way were really scrupulous, that they did not save themselves from trouble by taking the oath. At all events, there could be no question that it was for the interest of the community that the testimony of such persons should be given, and given in the manner binding on their consciences, namely, upon affirmation. Let their testimony, therefore, be so given, valeat quantum. He admitted that testimony upon oath was generally the most satisfactory, but if they could not get that, let them get the next best testimony that they could. It bad been decided by Lord Hardwicke that a Hindoo witness should be sworn by breaking a piece of china and throwing it over his shoulder, because that was the form most binding upon his conscience; and that was manifestly the sound principle to proceed upon. He (the Lord Chancellor) would riot deny that it would be more consistent with the principle if they extended it to every court in the kingdom; but he recollected that it was only by slow degrees that great changes had hitherto been made. The first relaxation of the oath wag made for the Quakers alone, and was limited to civil proceedings only; and when that was done his noble and learned Friend might, if he had lived in those days, just as well have then urged his argument based on the inconsistency of the proceedings, and asked, "What! do you want to have Quaker testimony, and do you only require it in civil cases, and not in criminal proceedings?" A great lawgiver of antiquity said that they must not look for the best laws, but for the best laws possible under any given state of circumstances; and he (the Lord Chancellor) said, that after the experiment now proposed—if experiment it was—had been tried, as it could be most safely and usefully tried in this instance, and had been found to work successfully, as he believed it would do, then there would be no difficulty in introducing a larger and more general measure; and he trusted, indeed, that the present measure might lead to that beneficial result.
THE EARL OF WICKLOWsaid, that the late Lord Chief Justice (Lord Denman), Session after Session brought in a general Bill, and not a political Bill of this nature, to relieve witnesses from the necessity of taking an oath, and the sense of their
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Lordships' House was on every occasion expressed against such a proposition. He therefore thought any attempt like the present, to introduce such a principle by the stealthy medium of a clause in a measure with which it had no sort of connection, should be firmly resisted by their Lordships. The noble and learned Lord (Lord St. Leonards) had shown the utter absurdity of adopting such a principle as this for the common law courts and excluding it from the courts of equity and every criminal court in the kingdom. Again, he understood it had been announced that the Attorney General intended to introduce in the other House a general Bill on this subject of oaths; and if that were so, such a Bill would cover the whole question, and render a partial measure like the present wholly unnecessary.
LORD BROUGHAMcould not admit that the clause with regard to oaths that had been introduced into this Common Law Procedure Bill was a clause that had no natural connection with the general scope of the measure. On the contrary, he thought there was a most natural connection between the two. Neither could he allow the validity of the argument that the want of completeness in the principle as it now stood was any reason against its adoption as a part of this Common Law Procedure Bill. He (Lord Brougham) acted on the same principle as he had hitherto followed, in giving his hearty support to the whole of the great and most valuable improvements proposed by this Bill—improvements as great and as valuable he believed as any that had been introduced, he would not say within their Lordships' recollection, but almost since the period in which our Statutes had been in existence; and he gave that support not less readily, although in some most important particulars the Bill did not go by any means so far as he could wish. He (Lord Brougham) had himself had the honour of bringing forward two or three separate Bills on important branches of this subject—the law of evidence, the law of procedure, the unanimity of juries, and other matters that were dealt with in this Procedure Bill. Was he, then, to object to this Bill, and give it his negative, because it did not go so far as the provisions of the Bills went to which he had obtained the sanction of their Lordships—in a great measure at least, although not in all their stages. The Arbitration Bill which he brought in last year, and which he had

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brought in again this year, contained a vast number of most important provisions; and although he did not succeed in prevailing upon the Select Committee to agree to them, there could be no doubt that the most important of his provisions were incorporated in the present Bill. He was certainly of opinion—and it was perhaps a natural impression for him to entertain—that the provisions rendering arbitrations and references more effectual than they were now by law with respect to partnerships, charter-parties, and other points, were more effectually set forth in the Bills which he had introduced both in the last Session and in this; but still they were substantially acted upon in the Bill now under consideration, and therefore he felt deeply gratified, and he still lived in hopes that the other provisions of his Bills would be carried out on some future occasion. For these reasons, highly approving of this Bill, as far as it went in all these respects, he cordially rejoiced that it was about to receive the sanction of their Lordships. Upon the question of the oaths, he had only one word to add, namely, that numerous instances had come before him of cruel injustice being worked to the parties who were deprived of the benefit of the testimony of those persons whose consciences they might perhaps think were over scrupulous—but they had no right to say that they were over-scrupulous—that was assuming that these persons were wrong, and that we were right, which we were not justified in doing, for that assumption was the ground of all intolerance, and even of all persecution—we had no right, therefore, to say that they were over-scrupulous—they might be right in their scruples, although we thought that we were right; but that parties should be deprived of the benefit of testimony by means of the Legislature was a cruel injustice; and that persons should be liable to be imprisoned, and imprisoned too even for an indefinite time, because they, from conscientious scruples, refused to bear testimony in the manner required by the court, was, in his opinion, one of the most monstrous cases of injustice and cruelty combined of which any Legislature was ever guilty.
On Question, Resolved in the Affirmative; Bill read 3a accordingly.
LORD ST. LEONARDSmoved the omission of Clause 21, which dispensed with the necessity of taking the oaths.
On Question, their Lordships divided:—
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Content 31; Not-Content 41: Majority 10.

List of CONTENTS.

DUKE.

Mayo

Buccleuch

Mornington

MARQUESSES.

Pomfret

Bath

Romney

Drogheda

Stradbroke

Exeter

Wicklow

Salisbury

Vane

EARLS.

VISCOUNTS.

Beauchamp

Canterbury

Clancarty

Hawarden

Cawdor

Strangford

Derby

BARONS.

Desart

Cloncurry

Donoughmore

Colville of Culross

Harrowby

Colchester

Haddington

Redesdale

Hardwicke

Southampton

Lonsdale

St. Leonards

Amendments made; Bill passed, and sent to the Commons.
House adjourned till To-morrow.