§ Mr. F. Maule moved the second reading of the County Court's Bill.
§ Sir F. Pollock
did not rise to oppose the bill, and he thought, that after the opinions expressed for so many years in favour of its principle, it was not to be expected that any opposition would be given to the second reading of a measure having such a title and such a preamble. Nevertheless, he thought it due to the Government to explain the views which he entertained of many of the provisions, and some of the most important clauses. He would give a short history of the proceedings taken on this subject, so that the House would see it was only consistent with the honour of Parliament that some such measure as the one under consideration should be passed. In 1823 a report on the subject was laid on the Table of the House, and in the same year, in consequence of a motion of Lord Althorp, a bill was introduced, but only read a first time. In the following year the bill was brought in, read a first and second time, and passed, but was lost in the House of Lords. In the succeeding year the noble Lord brought in a similar bill, giving compensation to those who were supposed to have vested rights or interests in the abuses of the system. A committee was was then appointed to ascertain who were the parties entitled to compensation, and he believed nothing more was done. In 1826, no report being made, no step was taken on the subject: but in 1827, his right hon. Friend (Sir R. Peel), after concluding his labours in consolidating and improving a large portion of the criminal law, brought forward a bill founded on the general principle contained in Lord Althorp's report. The bill was laid on the Table and read a first time, but he believed was not further proceeded with. In the next year the same measure was re-introduced and read a first and second time, but a commission having been appointed to ascertain the practice of the superior courts, his right hon. Friend expected that the labours of that commission would enable compensation to be given, so as to prevent an accumulation of compensation at a future period, and the bill made no further progress. In 1829 the noble Lord, who was afterwards Lord Chancellor under 173 Lord Grey's Government, announced his Local Courts Bill, which was brought in in 1830. In 1831, the House was occupied with the Reform of Parliament, and nothing was done. The same was the case in 1832; but there was a good excuse for this, as at that time a commission of inquiry was appointed. In 1835, when he had the honour of being Attorney-General, one of the earliest questions put to him by the present Attorney-general was, had the Government any intention of introducing a bill for the recovery of small debts? His answer was, that he should very shortly give notice of bringing in such a bill. A few days afterwards, his right hon. Friend quitted office on the Irish appropriation clause, and his hon. Friend, the present Attorney-general, succeeded him, and then forgot his question. He was not more awake to it, nor did he take any step in it during the next Session. In 1838, Lord John Russell introduced a bill for the purpose of giving to quarter sessions a mixed criminal and civil jurisdiction. In 1839, a bill was introduced, waking arrangements which were altered in committee, on which he believed the present bill was founded, and which gave opportunity for the recovery of small debts. Every individual who had spoken on this subject had admitted, that at present a grievance existed which ought to be remedied. When a debt to be recovered was below a certain sum, by the present system, the delay and expense actually amounted to a denial of justice. There had been but one expression in Parliament after Parliament, that something ought to be done to remedy this. He thought it important, that it should be known how this important measure had stood over. There were some points on which the bills which had been brought in differed. In some of them, it was provided, that the sheriff should have an assessor, to be appointed by the Lord-lieutenant, and that his salary should depend on the justices. But this was no feature of the present bill. It was impossible not to look at this bill but in conjunction with the bill which followed it in the Orders of the Day (the Bankruptcy, Insolvency, and Lunacy Bill), and at the enormous patronage which they created. These bills would create fifty officers, whom the Government had the power of appointing, when and where they pleased, as occasion might arise, He thought the 174 measure proposed in 1839, by the noble Lord, and the measure now brought in by the Under Secretary of State for the Home Department much to be preferred to the one recommended by the commissioners, or to that introduced by Lord Brougham, in the House of Lords. It was much better to improve an existing system, than to introduce a new one. All the preceding bills had provided that assessors should be appointed from barristers of a certain standing; Lord Althorp's bill said seven years' standing, Lord Brougham's ten years, and the bill of 1829, before it went into committee, provided, that the assessors appointed, should be barristers of at least seven years' standing or attornies of one of the superior courts of Westminster, recommended by three of the judges. The bill came out of committee with these alterations—that the assessors appointed instead of being a barrister of seven years' standing, might be a barrister without any standing at all; and, instead of having an attorney recommended by three judges, they might have an attorney appointed with no recommendation at all. Nor was that all; a certificated special pleader, who after all, was but a candidate for the bar, who had kept a certain number of terms, was qualified for all these offices. He mentioned this, because it appeared to him quite essential that they should not adopt the views of the committee. The question, also, whether jurors were to be used or not, was one about which very great doubt had been and might, he thought, very fairly be entertained. In this bill, and several of the others, there was a power to examine the parties themselves, and to do away with the well-known principle of the English law, that they were not to examine interested witnesses. This principle might be admitted, when inquiring into very small matters, as in the Court of Requests; it might not then be improper to call the parties themselves; but when this bill extended to slander, to libel, to seduction, and to an action for criminal conversation, he should like to know what his learned Friend (the Attorney-general), would say to putting the defendant in an action for criminal conversation into the witness box, to be called on to admit or deny his guilt? He thought they should best consult the dignity of the administration of justice by exculpating the parties themselves from giving evidence in their 175 own favour. He thought it questionable whether the unlimited power of trying actions for libel, and slander, and seduction in country places, where such trials had never been held before, should be given. Though it was highly desirable, that the poor man as well as the rich, should have the opportunity of obtaining justice, yet this power might stir up a spirit of litigation. He understood the bill to be an echo of the report of the commission of 1833; but there was one thing in it not found in the report, namely, the power of imprisonment in execution, which he must say, he thought was liable to great abuse He thought it much better not to give any such power. If the payment of a debt could not be obtained by seizing the goods and chattels of a party, he protested against putting him in prison for it. There was another matter, also of great importance—the having a concurrent jurisdiction with other courts. They intended to introduce this bill at Liverpool; but Liverpool would be glad to be let alone; it had already a very good borough court. Bristol, also, would petition against this boon, if granted to them; and there were in various parts of England local courts which at present gave entire satisfaction. How was it to be ascertained whether the appointment of an assessor was wanted or not. Lord Althorp's bill had this provision, that the appointment should be made on a resolution of magistrates at sessions that such appointment was wanted. The present bill gave the Minister the power of making or withholding the appointments, not with the voice of the inhabitants, not from the resolution of the court of session, not on the certificate of authorised persons interested in seeing that the court should not be holden unnecessarily, but the court was to beholden in such places as Her Majesty might think fit to appoint. There was also a clause dividing the counties into districts—a power which, in the act introduced by the right hon. Baronet the Member for Tamworth, was exercised by the courts of session themselves. He would now call their attention to the bill next in succession in the orders of the day, giving the Lord Chancellor the power to nominate twenty-five more judges beyond the twenty-five appointed by the bill now under consideration; he alluded to the bill enabling the Lord Chancellor to direct certain proceedings, in Chancery, bank- 176 ruptcy, insolvency and lunacy to be carried to the county courts. The legitimate mode of ascertaining whether judges were wanting or not would be by petitions being laid on the Table of that House. He must say, that this bill, as it was now framed, appeared to him one of the most dangerous and unconstitutional it had ever been his lot to meet with. When Lord Althorp introduced his bill in 1833 he never dreamed of giving the power of appointing twenty judges to the Crown. He altogether acquitted the hon. Member opposite, and the noble Lord too, of any corrupt motive: but while he gave them full credit for wishing nothing more than the public weal, still he could not forget that the public out of doors would look upon this bill as an attempt to open a new source of patronage by the creation of fifty places at salaries of 1,500l. a-year—a patronage, too, not to be exercised immediately, but to be kept in reserve. The public, "We shall see before some great political division six new places given away—after the division, perhaps, half a dozen more." He should like to have pointed out the places where these appointments were to be made—the names of the districts where the services of these judges were required. If after these facts had been stated, the table of that House were not covered with petitions from the public, be would vote for the bill of hon. Gentlemen opposite. But if it were the intention of the noble Lord, and his hon. and learned Friend opposite, to give to the Crown the power of creating this patronage, then he must say, that with the single exception of the exorbitant power given to the Poor Law Commissioners, of making edicts, having all the force of acts of Parliament, he had never met with a more unconstitutional measure than the one now before the House. This matter had been in progress for four years, a longer period than the average duration of Parliament. Parliament might end immediately; it was certain that it could not last very long. The noble Lord the Secretary for Ireland might again entertain the feeling that he would not consent to be member of the Government on sufferance. Other Members might feel that it was not fitting that the experiment now trying on this country should go on much longer. With the narrowest possible majority in that House, and with the people against them, the thing was impossible. He would 177 ask any Member of the Government whether he did not know that after Easter circumstances might arise which would render a resignation inevitable? Was this, then, a time to create fifty new places?—to be conferred on whom? Why, on gentlemen who had not yet come to the bar—unfledged lawyers—men of no standing—men who had but just put on their wigs and gowns. But the clause on which he look with the greatest alarm was that one which made attornies eligible to the office of judge. These men might be agents for boroughs, gentlemen perfectly conversant with the management of borough A or county B. He should be sorry to hear it said of the Government that this bill bill had been passed, and others postponed, for the purpose of putting them in possession of fifty more places to give away in the event of a general election. He was perfectly ready to go into committee on this bill for the purpose of carrying out a measure such as the public had been long led to expect, and he should feel happy to concur with his hon. and learned Friend in making whatever could be made of it, so as to bring it to perfection before it should pass into a law.
could not help thinking that his hon. and learned Friend had taken a most extraordinary course on the present occasion. He first of all blamed him and other Members of the Government for having allowed year after year to pass without bringing forward this measure, and then turned suddenly round and said, "You are bringing forward this measure not at all with a view to the public good, but in order to extend the patronage of the Crown." With regard to the delay which, it had been alleged, had taken place, he would appeal to the nation whether since 1835 the Government had not exerted itself to the utmost to improve the laws and amend the institutions of the country? His hon. and learned Friend had never once adverted to the Municipal Bill. He ought not to have forgotten the bill with respect to the execution of wills, a bill which bad been applauded by all the rest of the profession, although it had met the disapprobation of the right hon. and learned Gentleman the Member for Ripon. The present bill was introduced in 1839; it was then referred to a select committee composed of Members taken from both sides of the House. The right hon. Baronet, the 178 Member for Pembroke, took the lead on that occasion. They were, as he understood, unanimous on all the clauses except the one regulating the appointment of the judges. The right hon. Baronet, the Member far Pembroke, thought that the judges ought not to be appointed by the Crown, but rather that they should receive their appointment from the lords or the ladies of manors, fearing that the manor courts might be prejudiced by the improvements made in the county courts. The right hon. Baronet stood alone on that question: his objection was overruled, and the bill was reported by the committee exactly in its present shape. He thought it therefore rather too much to complain of the manner in which the bill was framed, and to charge the Government with having brought it forward solely for the furtherance of party purposes. A more gratuitous and unfounded charge he never heard. The object of this bill was to remove a blot from the administration of justice in this country. The present state of the law (as had been justly observed by his hon. and learned Friend opposite) amounted to a denial of justice to all persons seeking to recover debts under a certain amount. In suing for a debt under 20l. the costs were generally three or fear times the amount recovered. If you went to the county courts, you found no competent judge; if you went to the manor courts you were still worse off; if you went to Westminster you were ruined by costs. The defect had been felt for centuries and had been pointed out by Lord Bacon, Lord Hale, and the most enlightened writers on our jurisprudence, but up to the present time no remedy had been applied. He thought that, as his hon. and learned Friend had expressed no intention of opposing the second reading, he might have reserved the objections which he entertained to certain clauses until the bill was in committee. He might, if he chose, move in committee that the judges be appointed by the lords or the ladies of manors—by the sheriff, or by the lord-lieutenant. By whom were these judges to be appointed? New judges there must be. The defect of the bill introduced by the right hon. Baronet, the Member for Tamworth, was that it did not appoint any new judges whatever, but left the jurisdiction still exercised by the sheriff or his deputy, both of whom were changed every year, and who would be wholly incompetent to decide the graver questions, which by the proposes extension of their jurisdiction to amountd 179 of 20l. would be brought before them. He saw no chance of securing the appointment of persons capable of fulfilling the duties of the office unless that appointment were made either directly by the Crown or by some one who would be responsible to Parliament. The intention, of the bill was to appoint judges at once all over the country. Wherever power of appointment was given to the Crown the same terms were made use of. In the bill appointing the Vice-Chancellor the terms used were identical with those employed in the present bill. Therefore the apprehensions of his hon. and learned Friend were altogether groundless; and when his hon. and learned Friend asserted that suspicions were entertained out of doors he could not help thinking that his hon. and learned Friend threw out insinuations with a view to pervert the public mind, and generate suspicions which but for him would have had no existence. He did not wish to enter then into the details of the bill; but he must say that he objected to the clause respecting the imprisonment of the person, and should wish to see it expunged, or greatly modified. He should have no objection to a limited imprisonment for the non-payment of the instalments of a debt, if upon investigation by the judge he should be of opinion that the default was a culpable one on the part of the debtor. He believed that this bill would supply a defect which had long existed; and that the House generally would feel that his hon. and learned Friend opposite had not shown much good taste in selecting the present occasion for an exhibition of party feeling, and an attack upon the Government.
§ Sir E. Sugden
disclaimed any party feeling on his own part, but he did recollect many measures connected with the administration of justice which were made party questions. Such occasions were, indeed, considered the most favourable for party contention, and, therefore, he was the more astonished at hearing the surprise expressed by the Attorney-general at what had fallen from his hon. and learned Friend the Member for Huntingdon, who had shown no party feeling on the subject—["hear" and laughter.] He saw there was a sensitiveness on the opposite side. He should be surprised if the noble Lord opposite felt sore at being reminded of his own declaration, that he would no longer be a Minister upon sufferance; and as regarded the other observations which had been made, his hon. Friend had 180 said that he acquitted the Government, but that he was afraid the people out of doors might not coincide in that opinion. It therefore appeared that his hon. and learned Friend was endeavouring to excuse the Government rather than to make a charge against them. Now, for his own part, he should certainly not treat this as a party question, but, on examining the provisions of the bill, and considering for what purposes they might not only be executed, but perverted, he would call upon the House not to confine its scrutiny to the bills now before it, but to recollect the other measures as connected with the administration of justice which were pending; also the state of the courts to which those measures were to apply. There was a bill for the appointment of two equity judges, which involved the question whether part of the busines under the Court of Review should be restored to the Court of Chancery. The noble Lord had very adroitly thrown the blame upon him, of the country not having two equity judges, because he had threatened to divide the House on the question. But, although he was put forward as the ostensible cause of the postponing of that measure, there were some little arrangements which rendered it desirable that it should not be passed. He wished the House and the country to know what was taking place now the bill was brought in; and he (Sir E. Sugden) gave notice that he would offer no opposition to the appointment of the first judge, but that he might take the sense of the House on the question of the second. The bill had been standing ten days ago for committee, and the noble Lord put it off till the 22nd of March, a month from the time for which it had been fixed. Now was it for this bill for which the country was represented to be clamouring that the other was postponed? He should like to know why that bill was postponed, and this, which was not intended to be carried immediately into execution, was passed. The country was aware that the Court of Review was an entire failure. He did not speak of the commissioners, whose office might be made very useful; but he thought the noble Lord was called upon to lay before the House his intentions with respect to the Court of Review, because he was throwing indirectly on the jndges, by these bills, the business of the Court of Review, and he was, therefore, entitled to ask the 181 noble Lord why be did not at once abolish that court. His two new judges could without difficulty do the requisite business, as the administrative part of the business of the court might go to the commissioners and to the Court of Appeal. The first thing that the House had to look to was that the Court of Review should be abolished, and the next question to which they ought to direct their attention was with respect to the Court of Insolvency. That court sent judges to try insolvent cases on circuit. These new judges, it appeared, were to have delegated to them the powers of the insolvent judges. Now the country was entitled to know what was the intention of the Government with respect to these two courts—the Court of Insolvency and the Court of Review, and to expect that an arrangement should be brought into this measure, or introduced in a separate bill, for the determination of the constitution of those two courts. There was another important point to which he wished to cull attention. The noble Lord proposed to transfer the present business of the Court of Exchequer to these judges. Thus he threw a great part of the business of the Court of Review, a great part of the business of the Court of Insolvency, and a great part of the business of the Court of Exchequer upon the new judges in Chancery; and yet he left the business of those courts where he found it, doing nothing at all to meet the increase of business. If the noble Lord looked at the report of the committee, he would find that Mr. Justice Alderson said that, with management, one judge at law might be spared from the present business, and his labours appropriated to other purposes. Now, there was a remarkable circumstance connected with this measure. The Government had issued a commission to inquire into bankruptcy and insolvency; and all the commissioners with the exception of one, Mr. Commissioner Law, made a joint report, from which that one disagreed on grounds which were certainly worthy of consideration. The Attorney-general seemed, however, to be aware that this bill, however it night be borrowed in part from other bilk, was, in fact, founded upon the report of that commission. Not one word had been uttered in the House on that point. Was this the way in which the House was to be treated. A voluminous report was made by commissioners appointed by the Government—a measure was brought in, 182 founded on that report, and not a word was said about the report. The commissioners were of opinion that bankruptcy ought to be very much encouraged, and that a man ought to be enabled to make himself a bankrupt and to make bankrupts of others with greater facility than could be done now. They were of opinion that there ought to be but one court to deal with the affairs of debtors in general, whether they were traders or not—whether they were bankrupts or insolvents—one court for the administration of the effects of all persons in debt. The object hitherto seemed to have been to see with how much facility you could break a man up. He certainly had no sympathy for fraudulent debtors. He had very great sympathy for those whose property was taken by the incurring of improper debts, but on the other hand he had also great sympathy for the struggling debtor, situated as thousands were, who, if they had been broken up by the old system, as they would be by the new, would never have been able to stand against the difficulties which many of them had surmounted. He thought it unwise, therefore, to make provisions by which, if a man could not meet his engagements within two or three days, he was to be broken up. But to return to the recommendations of the commissioners. They thought there ought to be local judges, twenty-two or twenty-three in number, to go circuits, to have the powers of the commissioners of bankrupts, the commissioners of lunacy, and all the powers proposed to be vested in the judges to be created by these bills, and yet net a word was said on the subject of their report. The majority of the commissioners—there being only one exception—had said that arrest of the person in execution ought to cease. He could never agree in the bill as it stood on this point. In all other bills a maximum of imprisonment for small debts had been stated; but here was left by law a man's discharge quite indefinite. He was disposed to say, although he felt the inconvenience of abolishing arrest for debt, yet in the case of small debts, where they were bringing the court to every man's door, and giving execution against him within eight days, he doubted whether that ware a wise provision. Let the House recollect that this was not, as it had been called, the poor man's bill; it was the bill of the middle 183 classes, of the shopkeeper, and the tradesman recovering debts from the labourer and the artisan. The poor man had not to carry his superior to the small debts court, but his superior had to carry him thither; and these judgments might be held in terrorem over him to compel him to continue his dealings at a particular shop. He was disposed, therefore, to think that in a Small Debts Court Bill there ought to be only execution against the goods and not against the person, but at least if you took the person you ought to discharge him within a limited time in proportion to the amount; the bill was objectionable on this ground. His object, however, in rising, was to say that the House was taken by surprise in consequence of not having the proper explanations afforded. He said the noble Lord ought not to create new courts and new judges without considering what surplus of labour and time there was which might be applied to the purpose. Every one was agreed that there ought to be a Small Debts Bill, and that it was unseemly that there should be so many applications for separate bills, and that some general measure was not adopted. It was necessary that these two bills should be considered as one, and he complained of their being separated. However, the House had the two bills before them, though they might be considered as one. There were at this time about 400 county courts and courts of requests in operation in the country for many of the purposes intended by these bills; and besides sufficient persons to do all the business of the courts of review and the business of insolvent courts, there were 700 country commissioners, that was, 140 lists, five persons in each list. Most of this great machinery had already been adapted to the exigencies of the times, and more of it might have been so adapted without any great violence. The bill did not affect to abolish the county courts, though it did the courts of requests, but why they should abolish the latter he could not divine. The class of persons for whose benefits those courts were established still existed, and he could see no reason why the courts should be put an end to. If the House or the country thought that this was a Small Debts Bill they would find themselves much deceived. It was no such thing: if it had been he should not have offered the objections which he 184 now urged against it. The bill of his right hon. and learned Friend (the Attorney-general), which was a Small Debts Bill, he to a great extent approved, though he did not pledge himself to its details. But what was the dispute between them as to the nature of these courts? He was surprised to hear his right hon. and learned Friend (the Attorney-general) say, that nobody had ever found fault with the principle of this bill. Why, this was a measure which possessed all the vices, but none of the virtues, of the bill, which Lord Brougham, as Lord Chancellor, brought in in the House of Lords in 1833, and which was opposed by Lord Lynd-hurst with the most convincing arguments that he ever read, so that the noble Lord had really left nothing for any one to do but to take up and read his arguments, in order to make the House of the same opinion. Whoever would read the debate on the question, could not fail to rise from its perusal with both pleasure and instruction. But now his hon. and learned Friend said, nobody ever disapproved of this measure. Why the House of Lords rejected a measure ten times better than this, totally different from it, for whereas that bill had some good in it, this had none. [The Attorney-General: What of the court of reconciliation?] Oh, that was a little bit of phantasy of the learned Attorney-general. He would not surely laugh at his own Lord Chancellor, whom he thought the hon. and learned Gentleman was bound by his retainer to support. Ten years ago he asked for a court of reconciliation, when every body laughed. There was, therefore, no such court, and people were obliged to go to a justice of the peace for a reconcilement; but, instead of that, on going there, they were sure to fall out. If they had a court of reconcilement in the Bill, it would add an item to the measure, but would not add to the reconcilements. He considered the present bill was well calculated to frighten the country. He looked with jealousy upon such a thing as the appointment of some fifty judges being vested in the Crown, or the Lord Chancellor as an officer of the Crown, and regarded it as an unconstitutional power. His right hon. Friend, in his first bill, said, that the number of judges should be twenty-four, and that they must be barristers of ten years' standing. The committee made a report that they 185 should not be of less than ten years' standing, and it was thought that it might be objected that a sufficient number of men, properly qualified, would not be found in the profession. At this moment they wanted two new judges in equity, and then there would, of course, follow the appointment of registrars, clerks, and other officers; they had bills before the House concerning other judges, and for fifty judges under this bill. Why this was a wholesale legislation! It was the creation of courts without end. But there was a boldness in the proceedings of the Government which he could not but very much admire. It was not a little shoplifting concern, it was a highway robbery; but its magnificence and extent were an extenuation of the faults that might be found in it. The expense he would venture to say—he did not know that he could put it at much less—would be between 300,000l. and 400,000l. a-year. It was true that the present was a time of great prosperity—our country was in no danger from foreign aggression—we were quiet at home and our income greatly exceeded our expenditure, and therefore we could afford to spend 300,000l. or 400,000l. a-year upon seventy-six new judges; the only difficulty being the appearance of the "no patronage" Government. He had some recollection of having heard some time ago that the Government were determined to proceed on "no patronage" principles—how painful, then, must it be to men who really intended to carry out that principle to have forced upon them—involuntarily—an extent of patronage that would be sufficient to appease the most greedy desires for patronage that could possibly exist. He would now state to the House what Lord Brougham thought should be the character of these judges. He said, that, as to judges of ten years' standing, that was not intended to be the only qualification for a local judge. The person chosen for a judge must be selected for his learning as well as his standing, he must be a man of unsullied honour and unimpeached integrity; above suspicion as to his skill and experience, and such a man as would do honour to Westminster Hall. No Minister should dare to appoint a man whose character was not such as could be sanctioned by the public voice. His Lordship agreed that the controul of the judges in Westminster Hall was necessary; he said, however, that he had not 186 brought in a bill for the purpose of insulating as well as localising the administration of justice, and for studding the whole country over with courts of justice, unconnected with each other, and placed beyond the controul of the courts at Westminster. His Lordship allowed an appeal from the local courts to the courts in Westminster Hall on all matters relating to points of law. Why, Lord Brougham had spoken more disrespectfully of this bill than anything he had pretended to say. He said that he had not studded the country with courts not under the jurisdiction of Westminster Hall, but this bill did so. The courts contemplated to be established by the present measure, went beyond the noble Lord's bill in many respects; while his Lordship said, "I must have judges of great standing and integrity, who must be approved of by Westminster Hall; even then I will not trust them without giving the courts in Westminster Hall a prevailing voice over them;" but this bill exonerated them from all responsibility of this description, and proposed that a Sergeant-at-law, or Barrister-at-law, or a certificated special pleader, or an attorney might be appointed. Well might his hon. Friend, the Attorney-general, say, that that bill differed from the noble Lord's; it was very true that it did. They had taken no limits, and might as well have inserted in their bill "any professional man," and then they might take an attorney who was a man without practice and without a knowledge of the law. This showed that the Government had not been anxious not to restrict the appointments to a small class. As one of them whose duty it was to watch over the interests of the people, he was bound to say, that it was the duty of this House to see that powers were not given to the Crown that were liable to abuse. By this bill there was to be no counsel or advocate allowed without the leave of the judge, and there was to be no attorney employed if the damages to be recovered were not above 40s.; but if an attorney should be employed, and the damages for example were not above that sum, he would receive nothing. So that, if a man brought an action for trespass or libel, and the damages recovered were only 40s. his attorney would not be awarded a farthing. There was another point. The plaintiff was to pay 5 per cent. on the sum to be recovered towards a building—for there 187 was a building mania in the bill; and another 5 per cent. as a deposit for costs. If the sum were not recovered the attorney was not to be entitled to costs; and if the whole sum were recovered he was only to receive 10s. 6d. for all his trouble and advice. With an attorney for the incompetent judge, an attorney for the clerk, a jury of only five, selected in a most objectionable manner, and with no counsel before them, they must expect attornies in such a case to make up by quantity for what they lost in quality. The great objection to a local courts bill was, that it would encourage attornies to create all possible feuds and disorders in their neighbourhood. At present the law was sure. In ninety-nine cases out of one hundred, a man might be told whether he was likely to succeed or not. The judges administered the same law; there was a constant communication kept up between them, and there was an appeal to the higher courts when any difference arose between them. This kept up a current of pure law throughout the country, of the great advantage of which few people were aware. There were few counsel of eminence in their profession who did not give thousands of opinions every year, and whose opinions had not the effect of strangling many cases which would otherwise be carried into court, but which the parties were induced to abandon Upon being informed that the Mile of the law was against them. Now it must be clear, that if these fifty judges were scattered throughout the country, a great diversity of decisions would arise; but the bill provided no means for correcting that difference of opinion. In certain cases, indeed, there might be a removal to a higher court. But there was no attempt in the bill to give an appeal so as to correct differences of opinion. If at starling, good men were appointed to act as judges under such a system, they would deteriorate; it was not in human nature to prevent such a result. For those who were acquainted with the practice of courts of request knew it was not pretended that the rules of law were strictly followed; they were departed from to meet the hardships of particular cases, and the effect of that course was to plunge the whole country into doubt. It was not pretended that the business of these courts was strictly judicial, the duty of the judge being to settle squabbles 188 about debts, one party swearing that the money was due to him, and the other declaring that he did not owe it. The usual course was to settle the dispute by cutting it short and asking the defendant how he would pay it. But under this bill the business would not stop there. The right to the possession of land, or to tithes, or to tolls, would become questions to be tried in these courts. Lord Brougham gloried in the fact that he had followed the report of the commissioners, and that he had not attempted to bring such questions into his courts, although he was so particular in having barristers of ten years standing, who should be men of high qualifications and sterling integrity for judges. Not merely small debts were to be disposed of in these courts, but actions of all kinds for the recovery of damages; actions for slander, libel, seduction, criminal conversation, and actions against magistrates and others for false imprisonment. These were cases which might lead to endless disputes, or at all events would certainly involve many grave and important points of law—cases in Which questions of character, rather than fact, would be raised; and by whom were they to be decided? By an attorney, perhaps, of two days' standing. What chance was there then for a man seeking reparation for injuries, or resiting a vexatious suit, obtaining fair and ample justice? We should deal with human nature as we found it. The judges of such Courts ought to have a proper check upon them; and two things were necessary to keep them in order—a vigilant and an intelligent bar, and a court of appeal above them. Without these two checks very few of the judges would do their duty in a manner satisfactory to the country. Only by such means was the fountain of justice to be kept pure, and the impartial and improper administration of the law secured. It might be said that the bill would carry the means of obtaining justice to the very doors of the people. But surely it was not desirable to attempt to persuade men to litigate. They could not expect to persuade a man that another owed him 10s. for bread or beer, it was true; but it was possible to induce a man to bring an action for some supposed slander or suspected seduction, and thus the number of actions at law would be increased, which it would be better for the parties and for society to prevent. It 189 would be infinitely better for the poor that their time and their money should not be wasted in such litigation. By the second bill, which the hon. Gentleman reserved as a bonbon, these judges were actually to act as commissioners of bankruptcy, and the business of the Court of Review, which had commenced with four judges, and now had but one, was to be transferred to them. They were also to be commissioners of lunacy, and to deal with Chancery business. Thus cases involving the most difficult and important points of law were to be referred to these new and incompetent tribunals, and duties which they never could perform were to be imposed upon them. He believed the present measure to be one which would be repudiated from one end of the country to the other, when it was sufficiently known. It was evident that it had been prepared piecemeal, and without any adequate knowledge of the subject. He should, therefore, feel it his bounden duty in the future stages of this bill to give it his most strenuous opposition.
§ Mr. Fox Maule
said, at that hour of the night it was not his intention to enter at length into the subject of the bill before the House, and more especially when he heard bath the hon. and learned Gentlemen who had spoken upon it declare their approbation of its principle. But whilst they made this announcement they took the utmost pains to overthrow that principle by every word they had spoken; and it struck him that they gave their approbation to the principle of this measure rather from a feeling that they date not oppose it than from any real partiality in its favour. It was conceded, however, as a principle recognised by both sides, that redress should be brought home to the door of the poor man by a system which he should continue to designate—notwithstanding the ridicule of the right hon. Gentleman—as one of speedy and effective justice. [Sir E. Sugden: I never ridiculed it.] Throughout the right hon. Gentleman's speech the whole scheme was treated with absolute derision. He should not address himself to all the clauses of this bill. There were many matters touched on by the right how. Gentleman, which he admitted he did not feel competent to deal with from want of technical knowledge; but there were also several remarks made by the right hon. Gentleman which he should be sorry to a allow to go unanswered to the 190 public. In the first place, the right hon. Gentleman quarrelled with the qualification of the judges, taking for granted that the operation of the measure would be placed in the most unworthy hands, and endeavouring in every way to depreciate a measure which, he would venture to say, would be looked to with as much, if not more, interest than any bill before the House. The right hon. Gentleman said, that no period of practice was proposed as a standard of competency in the judges. That was not the fault of the Government; for when a measure fixing the period at seven years was introduced in 1832, and referred to a committee composed of Gentlemen from both sides, it came back precisely in the form in which it Was at present. It could not be denied that a vast mass of grievances existed, that A discrepant administration of the law took place; and it was to assimilate the law, not only in different districts, but through the whole of England, that a great and extensive—and, if the right hon. Gentleman wished—a bold change was to be attempted. If blame were attached by the public to such a proceeding, he was ready to take his share of it. And so far front attempting to conceal the number of judges, he placed it on the first page of the bill. He should next deal mm the objection that the purpose of this measure was concealed by dividing it into two bills. He would state at once why they were separated. The passing of the first measure was essential to the operation of the second; but the second might be rejected, and yet a beneficial reform be conferred by the first. He was sure that if he had united these bills he should have been met by the objection, "You are connecting things totally at variance, and the only remedy is to throw out your bill." It appeared to him that the right hon. Gentleman was somewhat disappointed that the opportunity was not allowed him of following that course. The first of these bills proposed the appointment of twenty-five courts for England. Lord Brougham's Bill proposed to make an experiment in a few courts with twenty-four superadded. Now, by this bill the whole work would be accomplished by twenty-five. The right hon. Gentleman dwelt on the monstrous expenses of these courts. Now, when that question was discussed, he should show that, instead of this being a vast expenditure, a saving 191 would be effected as regarded what was paid in reference to county courts, bankruptcy, and insolvency. He might refer to the report of the commissioners of bankruptcy for a complete answer to every one of the points urged by the right hon. Gentleman, a report by which the right hon. Gentleman said he was taken by surprise, though it must have been in his hands since July, 1840, the date at which it was printed. When the proper time for discussing the several clauses arrived he should be ready to meet the right hon. and learned Gentleman. He was not so wedded to any one of them, that he should not be ready to adopt any that might be shown to be better. But he hoped that hon. Members, when addressing themselves to the bill in committee, would do so calmly and without any harsh feeling. He cared not in whose hands the patronage of the judges was placed, his object was to give the lower classes of the country a ready access to justice. His only object was to carry a bill such as the hon. Member for Huntingdon had admitted it was the duty of the Government to introduce, and the duty of that House to pass in some shape. He would not detain the House longer, but he hoped they would permit the bill to be read a second time.
§ Colonel Sibthorp
said, that the kind feeling of the Government towards the poor was well evinced by their Poor-law Amendment Bill.
§ Mr. Hawes
said, that when the hon. and learned Gentlemen opposite attacked the bill in the spirit displayed by them that night, he was led to suppose that the whole weight of their influence would be brought to bear against passing such a measure at all. With all the objections they had started, he could not perceive they proposed anything better. The principle of the bill had been before the House for twenty-five years, and all that the hon. and learned Gentlemen had done had been to object to the details of the present measure, and that without being prepared to substitute anything in their place. All they seemed able to say was, that the Government was grasping at an enormous amount of patronage. But when they said that they forgot there were 700 commissioners scattered about the country, to administer the law, and he really was astonished to find that "the head and front of the offending" of the bill was, in the estimation of those hon. Gentlemen, the 192 amount of patronage it would bestow. Numerous petitions had been presented to that House, praying for the extension of the jurisdiction of small debt courts, but he bad not heard of one petition which prayed that the judges of those courts should remain as they then were. The people required a superior class of judges, and how was the difficulty to be avoided of the patronage that would be created by their appointment? Did hon. Gentlemen opposite wish to delay the bill in the hope that they would one day enjoy the patronage it created? Much had been said about the expense; but when the proper time arrived, he was sure the hon. Under-Secretary would be able to furnish the House with statistics showing that a large saving would accrue to the public. He did not see how the right hon. and learned Gentleman could prove his statement, that the present measure was calculated for the middle classes, and not for the poor. He considered that the tendency of the right hon. and learned Gentleman's remarks was to disparage the cheap and speedy administration of justice. He appealed to the right hon. Baronet the Member for Tamworth, who, he was convinced, felt the great importance of the subject, and who he trusted would not permit narrow and technical arguments to weigh in his mind against a beneficial measure of such a nature as that before the House.
§ Mr. Shaw
said, that at that late hour, he would observe upon but one point of the bill before the House, and even that he was only induced to do, because he was himself personally connected with the administration of a system of local jurisdiction in Ireland, similar to that which the present measure proposed to establish in this country. What struck him forcibly, and the more so in constrast with the Irish civil bill jurisdiction, was the want of a provision in the bill for securing uniformity and certainty of decision, in matters of law. The bill required no qualification for the judges of the county courts, except that they should be either barristers, special pleaders, or attorneys of any or no standing—whereas in Ireland they must be barristers of at least six years' standing. Here they were to be debarred from practice; but in Ireland they were generally barristers in good practice, thus having their judicial decisions subject to the opinions of the pro- 193 fession with which they mixed, and their own professional character and prospects to sustain; but the most important difference of all was, that the bill then under consideration gave no appeal—but dotting the whole country over with local judges removed from practice in Westminster-hall, and each acting upon their own uncontrolled opinion, it would introduce contrariety of decision in the different districts, and that uncertainty which was, perhaps, the greatest of all evils in the administration of justice while under the Irish system, there was an appeal from the assistant-barrister to the next going judge of assize, who, if he had any doubt, reserved the point for the twelve judges, who conferred together in contradistinction to the practice which had been so frequently referred to in late discussions in that House, in respect of the elective franchise, though founded on precisely the same statutory jurisdiction, ruled the case according to the opinion of the majority; and these cases were reported, and regulated the practice of the inferior courts upon one uniform and fixed principle. He was as friendly as any Member of that House to bringing justice, to the utmost extent that was practicable, within the reach of every class and person in the community; but he thought bad law could not be cheap on any terms, and he was apprehensive that uncertain and bad law would be the result of the measure before them, unless some such correction as he suggested were applied to it. He approved of the principle of the measure. He was of opinion that it worked most beneficially in Ireland, and, if judiciously tried and carefully controlled, he saw no reason why the same good effects should not be produced by it in England.
§ Bill read a second time.