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Parliamentary Report : Debate on the Local Courts Dill. the table. The noble earl upon that occasion, and learned friend publicly and openly avowed. after referring to the opinion of Blackstone, The operation of this bill was formerly to be which he (Lord Lyndhurst) had already quoted, confined to the county of Kent and to one of and after stating that the results in Wales had the northern counties; and after the experibeen exactly what Blackstone had predicted as ment had been tried and found to succeed, aplikely to follow from an opposite system toplication was to be made to Parliament for its that which he had been describing, asked “Is extension to other parts of the kingdom. But it possible to describe more accurately the now let their lordships mark the difference. state of Wales? We have the despised juris- Abandoning the principle of this old bill, his diction, the suspicion of partiality, the con- noble and learned friend now proposed to give flicting practice.” That was the ground upon a power to his Majesty's government to estawhich the noble earl pressed upon the other blish as many courts at any time and at any House of Parliament the necessity of altering place as it might deem convenient. When he the constitution of the judicature of that part saw that the former provisions of this bill were of the British empire. On that occasion, as abandoned, that greater powers were given to he had already told their lordships, he was the government in their stead, he could not present in the other House of Parliainent; help looking at this bill with greater jealousy and then he heard another individual argue the than perhaps he ought otherwise to have done. same question exactly upon the same prin- He could not help thinking that it was intendciples. These were his expressions :-“The ed at once, and without trying any general first objection to the system of Welch judges experiment, to establish this bill in full operawas that they never changed their circuits : to tion. whatever circuit they were appointed, over that But his noble and learned friend had purthey continued to preside; and thus it hap-sued his argument still further. In the course pened that they became acquainted with all the of it his noble and learned friend had referred sandholders of the neighbourhood, with the to the existence of local courts in other coungentry, nay, even with the very witnesses who tries, and to their operation in those countries. came before them. The names, the faces, the Into that part of his argument he readily and very characters of these persons soon became willingly followed his noble and learned friend. familiar to them, and out of this grew likings That system, as their lordships were well aware, and prejudices which never did and never had for some time past been established in could cast a shadow of shade over the twelve France. He requested their lordships to take judges of Westminster-hall.” He need not up any book that had been written by French mention to their lordships the name of the in-lawyers on that subject, and after reading it, to dividual who used that phraseology; their form an idea of the practice of those courts, lordships were already well acquainted with and of the nature of their system ; influence, his style, for they were in the habit of listening partiality, corruption, or the suspicion of corto it almost every night with mingled feelingsruption, were the prevailing features in it. of delight and instruction. Abolish the twelve Establish the same system here, and might not or the fifteen judges of Westminster-hall, be- precisely the same consequences result from cause they become, by going their circuits it? “Oh, no,” said his noble and learned twice a year, liable to partiality, or, what is friend, “ we have tried this system in Scotland almost as bad, the suspicion of partiality ; but and nothing of the kind has happened there." establish, at the same time, a set of judges who To that assertion he (Lord Lyndhurst) frankly are to be going for years, and for several times replied, “No, you have not tried that system. in each year, the same narrow circuit, who are I adınit that local courts are at present estato reside constantly within it, and who, by blished in Scotland; but you, the highest law residing within it, are likely to become ten authority in the country, have told us that times as familiar as the present judges with those courts must be purged and purified bethe faces and characters of the parties between fore they can become all that you wish them.” whom they have to decide, and of the witnesses That local courts had been established in whom they have to examine! Could their Scotland he readily admitted; but that they lordships, if they had not seen the present bill, worked abominably he would prove by the have believed that his noble and learned friend admission of his noble and learned friend himon the woolsack would have consented to pro-self. He well recollected, that on certain petipose to them the reintroduction of a system tions being presented from the inhabitants of which was pregnant with evils even ten times Scotland by Mr. Cutlar Fergusson, his noble worse than those which he had always been and learned friend had expressed his feelings so active in denouncing and remonstrating respecting those courts in the following terms: against ?
“ It had frequently happened, as the law at His noble and learned friend on the wool-present stood, that a delay had taken place of sack had said that this bill was only an experi two years, and in some instances of five years, ment. Now, it appeared to him to give to his before a cause could be finally adjudicated beMajesty's ministers the power of establishing fore this officer. In causes concerning accounts as many of these local courts as they might such delays were frequent. The written pleadthink fit. The bill forinerly introduced on this ings from the two parties went on for a long subject was precise and definite, and that very time, and amounted to an immense mass of circumstance led him to believe that there was papers. The sheriff- substitute had to go more meant by this enactment than his noble ihrough them all, and in the fulness of time he
Parliamentary Report: Debate on the Local Courts Bill.
gave his decision on the matter. It might thing. The lawyer's fees are fixed at a low then be brought by appeal before the sheriff- rate, but the passion for litigating a point indepute, who might reverse the decision, or creases with indulgence to such a degree that order it to be referred to the Court of Session, these victims of cheap justice, or rather cheap and from that court it inight finally be brought law, seldom stop while they have a dollar left." by appeal to the House of Lords." There Then there was another testimony to the same were stages, too, he recollected, in these ap- effect in Faur's Memorable Days in America. peals from the sheriff-substitute to the sheriff-| Faux says :-“ Litigation frequently arises here depute; and he recollected well that his noble from the imaginary independence which one and learned friend had told them, that the man has, or fancies he has, of others; to show usual course on those appeals was for the which, on the least slip, a suit is the certain sheriff-depute to affirm the process of the court result, it is bad for the people that law is below by taking the papers, and by writing | cheap; as it keeps them constantly in strife upon them, after he had read them, the word with their neighbours, and annihilates that “adhered." In some county or other it was sociability of feeling which so strongly characmuch doubted whether the sheriff-depute ever terizes the English.” perused the papers that were sent to him by Having referred to these instances, he would way of appeal, and in order to discover that now call the attention of their lordships to the fact, some rose leaves were placed between the manner in which it was expected that this bill pages of his brief. The papers came back with would work. First, with regard to the practhe word “adhered" endorsed upon their titioners of English law. He contended that back, but on examination it was found that to no set of men did the liberty of England the rose leaves, to use his noble and learned owe more than it did to the members of the friend's phrase, remained unruffled. He used English bar. They had been, on the one hand, this circunstance to prove that this experi- the safest guardians of the people against the ment had not been tried successfully in Scot- assaults of arbitrary power, and he had no land. At present the practice of the Scotch doubt that they would prove themselves, on courts was adınitted to be a nuisance. Whe- the other, the strongest barriers of the throne ther when the written pleadings should be against democracy and republican power. abolished, and viva voce evidence should be Now, this bill was, in his opinion, destructive admitted in their stead, the nuisance would be of the independence of the English bar. As abated, was another question, into which he soon as the provincial courts were established, was not called upon to enter on the present which were to take away from Westminsteroccasion. II
hall two-thirds of the business now transacted There was another country, besides Scot- in it, they would have an immense body of land, in which this system had been tried, provincial barristers. Many of the barristers and he would now read to their lordships the now practising in Westminster-hall would opinion which Captain Hall had published abandon their town practice and convert therregarding its operation in the United States, selves into provincial barristers. Need he tell desiring them continually to bear in mind that their lordships that such barristers would be the habits of Americans were, with some slight / inferior in learning, would be inferior in talent, exceptions, the habits of Englishmen. He would be inferior in intelligence, would be would apologize to their lordships for detain inferior in all those great and glorious qualiing them at such length, were he not conscious fications which had so long distinguished the that he was now only following the path' and bar of England ? Let their lordships look treading in the steps of his noble and learned again to the mode in which this bill would friend, in order to make good his position. operate on the bar. It would take two-thirds Captain Hall said :-“ The principles of bring of the ordinary business from the assizes, ing justice home to every man's door, and of where young men recently called to the bar making the administration of it cheap, have went to learn experience, and to form themhad a full experiment in America; and greater selves to the practice of the courts, and to practical curses, I will venture to say, were succeed to those vacancies in their profession never inflicted on any country.” Speaking of which the death of some and the elevation of the state of Pennsylvania, he adds :-“ They other members of it were daily opening to their have done away with nearly all the technicali- hopes and to their ambition. The business ties of the law; there are no stamps, no spe- done at the assizes would be so small in consecial pleadings, and scarcely any one is so poor quence, that young men would cease to go the that he cannot go to law. The consequence is circuits, and the little business that was left å scene of litigation from morning to night. would be absorbed and monopolised by the Lawyers, of course, abound everywhere, as no provincial counsel. Now, it ought to be revillage containing above 200 or 300 inhabitants collected, that froin the members of the bar is without one or more. No person, be his the Judges and the Chancellor must of necessituation or conduct in life what it may, is free sity be selected. Let their lordships remember from the never-ending pest of law suits. Ser how deep an interest they had in upholding the vants, labourers, every one, in short, on the character and maintaining the dignity of that first occasion, flies off to the neighbouring class of men from whom the future Chancellor lawyer or justice of the peace to commence an must be selected. Again, the judges who action. No compromise or accommodation is were to preside in these local courts were to ever dreamt of; the law must decide every be barristers of ten years' experience, and men
of irreproachable character. Now, he would tell process and no plea," said his ‘noble and their lordships, that if they sent such a man to learned friend; “I'll merely have a notice live by himself in the country, and not to asso- inserted in the schedule.” Now, if this be a ciate with his equals in legal knowledge and cha- wise mode of proceeding in causes of small racter, the chances were, that in the course of amount, why may it not be successfully applied five years that man would degenerate into a in the courts of Westminster-hall to those mere drone. He would ask their lordships whe- cases where the cause of action exceeds 201.? ther a man of such a character, ay, or of such a If there should be neither process nor pleading class, was a fit person to be Lord Chancellor in the progress of actions in Westminster-hall,
He had looked at the foriner bills introduced process and pleading would undoubtedly cost on this subject by his noble and learned friend, you nothing. If, then, the plan of abolishing and at the table of fees which those bills sanc. them in the local tribunals be wise,-and he tioned; he had found those fees to be so low did not mean to say that it was wise, -why that none but very needy altorneys would workfor might it not be grafted on the plans now them. You would thus have in the lower de- adopted in the courts of Westminster-ball ? partment of the profession a set of men on As to the wisdom of the plan, one word whose honor and integrity you could place no might perhaps be quite sufficient. Their lordreliance; you would have them promoting ships had recently passed a bill giving to the chicanery and encouraging litigation, for no judges of the courts in Westminster-hall the other object than to recompense themselves by power of drawing up the pleadings in such a the multitude for the small amount of their manner, upon distinct points, that each of the fees; and thus you would degrade the legal parties knew what the other intended to prove profession at once from its highest members upon the trial, and thus was prevented from to the lowest, by involving judges, barristers, carrying to the assize town a number of unneand attorneys in one common poverty and ruin. cessary witnesses. Now, under this bill there If he (Lord Lyndhurst) had heen fortunate were no pleadings, there were no distinct points enough to possess the powers of eloquence to be proved upon the trial, and thus it comwhich belonged to his noble and learned friend, pelled the parties to the suit, and the witnesses, he would have placed before the eyes of their all to go to trial,--the one not knowing what lordships a picture of such hideous deformity was to be proved against them, and the other on this topic, as would have caused them to being ignorant of the points to which they might turn from it with shuddering and horror. be called to give their evidence. He had now
But he would ask their lordships was the called the attention of their lordships to the first Gost nothing in this proposed alteration of the step in the suit. law? Let one-tenth part of the cost which | The next was the interlocutory proceed this bill would occasion to the country be inge. He was now addressing himself to some applied to the improvement of their present noble lords who were themselves lawyers, system, and all the defects in it, which his and was speaking in the presence, and in the noble and learned friend deplored so vehe-hearing perhaps, of some of the ablest men of mently, would be done away with for ever. the profession; and he took upon himself to According to the calculation of his noble and aver that interlocutory proceedings were more learned friend, a sum of 150,0001. would be cleaply conducted through the medium of the necessary to form this new establishment: but Post-offiee in London, than they could be in he should not be acting fairly to their lordships any district where the suitor had to follow the if he did not acquaint them that he had been judge, either in person or by his attorney. informed by practical men, that the cost of it The interlocutory proceedings must often be would be somewhere between 250,000L. and taken upon the spur of the moment. An at300,0001. He admitted that neither their torney in these focal courts would often be lordships nor the country could pay too much compelled, on behalf of his client, to take horse for clear, precise, and accurate justice ; but and follow the local judge as fast as he could to pay such a sum as he had just mentioned ride; whereas now he wrote to his agent in for vague, indefinite, and uncertain justice, London to attend at the judge's chamber, was an absurdity too gross for the other house without any additional fee to his client; for of Parliament ever to sanction. He contended the fee of the agent and the fee of the attorney that there was not the slightest necessity for were all one, the two parties dividing it equally this measure: and here he would ask their between themselves. This part, then, of his lordships to consider what was the mode by noble friend's plan, would increase instead of which his noble and learned friend arrived at diminish the cost of an action at law. the conclusion that this bill would establish Now, as to the trial; half the expense of cheap process. He (Lord Lyndhurst) con- the trial consisted of fees paid to the court and tended, that it was unnecessary to detach from to its officers. Let these fees, then, be aboWestminster-hall the causes which were to be lished; let no fees be paid either to the court transferred to these new tribunals. What were or to its officers. All the fees taken in courts the different stages of a suit? There was of justice are now the property of the public. process,-then caine the interlocutory proceed- The publie had a right to abolish them; for, ings, and lastly, the trial itself. Those were if be mistook not, a bill was recently introthe three stages. Now, let their lordships duced into Parliament enabling the Govern mark how his noble and learned friend arrived ment to abolish the fees taken in courts of at the first of these stages. “L'll have no justice, even without making any compensation
Parliamentary Report : Debate on the Local Courts Bill.
to the present receivers of them, “But then,” to which it was not at present applied, and he said his noble and learned friend,“ these local would therefore extend it throughout the courts are to be established in small districts, country, providing fit tribunals to superintend and therefore the witnesses will not have the its operation. He would frankly avow that he trouble and expense of travelling so far as would extend it beyond 51. they travel at present.” Was it necessary for He had hitherto considered the principle of his noble and learned friend to go all the his noble and learned friend's bis). He did lengths of this bill to effect that saving, when not wish to enter into its details at present, there was already introduced into the other lest he should fatigue their lordships ; but he House of Parliament another bill, enabling the must mention to them two or three of its de Crown to subdivide counties, and to hold the tails as a sample of it as a whole. Nothing assizes in different places within those subdi- was more easy than to throw out a general visions, in order to prevent these very evils ? idea of legislation; nothing more difficult than Why was his noble and learned friend guilty of to carry into effect a plan which should rethese exaggerations? He knew the school in medy defects existing in the laws, without crewhich his noble and learned friend had been ating greater defects than sbose to which it is brought up. At every assize held at York intended as a remedy. Now, for instance, there were 200 causes, and out of those 200 under this bill, an individual conceives that he causes his noble and learned friend had gene- has a good cause of action for 301.; he brings rally had 150 briefs. At York the witnesses his action accordingly in the superior courts, were generally kept a week, sometimes a fort- but during the proceedings preparatory to the night, before they were examined. All this trial one of his witnesses dies, or at the trial had perverted the mind, and blinded the judg- fails to attend: the consequence of this is, that ment, of his noble and learned friend. In the he gets a verdict for less than 301., and thus smaller counties of England this was by no loses all his costs. That was an injustice means the case. But even if it had been the arising out of this bill, and owing its existence case, the new bill, to which he had just refer to its very principle. The noble baron then red, would obviate the difficulty; for counties proceeded to contend that the commissioners might be subdivided, and the assizes held in as had recommended one thing, and that his now many places as His Majesty, with the advice ble and learned friend had adopted another, of his council, might be pleased to appoint, with regard to this bill. It was a clause in this But then, said his noble and learned friend, bill that every action should be brought in the 4 witnesses are kept at the assizes a long and place uchere the party resided. indefinite time.” Here again his noble and The Lord Chancellor. That is a mistake in learned friend was misled by his own theatre. the printing of the bill. A line has been of action. At York and at Lancaster the dropped in the copying, and entirely altered aşsizes might last ten days or a fortnight; but its meaning. on the circuit which he had himself gone-as, Lord Lyndhurst said, as such was the case, for instance, at Nottingham, Derby, and Lei- he would not press bis objection on that point cester-all the causes were generally tried in any further. There was also a clause in the two days; and thus the public were put to no bili by which the defendant was to have the great inconvenience, inasmuch as a great part right of summoning the plaintiff or plaintiffs of the witnesses were dismissed at the end of to attend before a judge, and to be examined as the first day, and the rest at the termination of to the cause of action. Now, he would state the second.
very briefly the hardship of such a regulation. There was one difficulty, but that not an He would suppose that a house in Liverpool jusurmountable difficulty, with which he (Lord furnished goods to a tradesman in Surrey, and Lyndhurst) felt that he had to contend on this that the Liverpool house was obliged to bring occasion ; but it was his duty, and the duty of an action against him for the recovery of their their Lordships, to struggle to surmount diffi- value. Suppose the defendant to claim his culties, rather than adopt this monster of a right to examine the plaintiffs, and each membill. At present there were only two circuits ber of the firin as a co-plaintiff, in person, of the judges in the year. Now, he admitted before a judge; in that case all of them must that in the interval between the summer and attend upon pain of an arbitrary penalty. In the spring assizes a creditor might be pre- such a case would not the house at Liverpool vented for eight months from getting judg- prefer to sit down content with its first loss, ment against his debtor. To remedy this evil rather than incur a second loss of 101. or 151. let there be three assizes in the year, and let for each partner, on occasion of his journey to the judges be compelled to take upon them. London? Would not the members of the firm selves this additional labour, rather than the say, “ We had better abandon our cause than country, be compelledi to submit to the mis- all of us take a journey to London?" chievous alteration of its laws now projected Again, the judgments, recovered in these by the noble and learned lord. He had thus local courts are to be liens on land. Now, stated a brief outline of the plan which he would when a judgment is recovered against an inpropose to their adoption, in lieu of that pro-dividual in the Superior Courts, it is signed posed by his noble and learned friend. Hewould and docketed, and every body knows where to also give a summary jurisdiction for the recovery look for it; but when these local courts are of debts of a small amount. He thought that established, where are you to look for the charges that principle was applicable in many instances on a man's estate? You must find out every
place in which a man has resided, and examine to trial in those countries without suing out a the court-rolls there before you can find whe-writ of reconciliation, and he understood that ther he has or has not any charge upon his in those two countries, as elsewhere, 1.15th of estate. Proceeding onwards to execution, we all the actions commenced were settled upon find that a defendant can assign his lands to that first step. He had now done. He thanked the plaintiff for the satisfaction of his debt; but their lordships for the calm and dispassionate in the clause giving the defendant that power, attention with which they had listened to his there is no arrangement made that the plaintiff statements. In this question he had no pershall hold the surplus of the land above his sonal feelings to gratify, no personal interest debt for the benefit of the defendant, and that to serve. This question could not in any he shall afterwards give the defendant a full point of view be considered as a party quesand true account of it. From this circumstance tion, and he was quite sure that none of their it was evident that his noble and learned friend lordships would deal with a proposition affecthad not drawn up this bill himself, but that sing the impartial administration of justice, as he had employed some great bungler to ar- such a question. He had told his noble and range its parts and adjust its clauses.
| learned friend some time since that he should There was another point in which he con- consider this bill with candour and fairness. sidered that this bill would be very prejudicial. To the best of his ability he had so considered What was the great cause of the frauds so it, and he now thought its principle so miseften detected by the courts of justice ? Frau chievous that he felt himself bound, in disdulent assignments. A creditor obtains judg- charge of the duty which he owed to his coun. ment against a debtor, and then a whole day is try, to Westminster-hall, and to himself, to often occupied in investigating whether the arrest its progress at this stage. He should debtor has not executed a fictitious assignment therefore propose that this bill be committed to defeat the just claim of his creditor. Now, on this day three months. the bill of his noble and learned friend had facilitated these fraudulent assignments in a The “ question” being called for, the Lord most extraordinary way. The property of a Chancellor replied. We are unable, for want of debtor is by judgment of these courts to be room, to report his Lordship's second speech. yested in the creditor ; the consequence will
On the question being put, the Contents be, that to neutralize this clause, a fraudulent were declared to have it, and though there was. debtor will get himself sued by a fictitious some dissent, no division took place; and the creditor, judgment will be hurried on between House went into committee on the Bill, pro them with the greatest rapidity; the property forma. will thus be transferred into the power of the fictitious creditor, and, at the conclusion of the transaction, the real creditor will find him
PRACTICAL POINTS OF GENERAL self deprived of his only source of remedy.
INTEREST. The means by which he is to get rid of this fictitious assignment are not mentioned in this
No. XLVII. bill. There were other matters of detail into
MAGISTRATE. which he should not enter; but he thought
In the case of Broughton v. Mushoe, Moore,
in the case that these were sufficient to prove his proposition, that nothing was more easy than to point | 408, a Justice of Peace was held to be justified out faults in an existing system of legislation, in commanding a constable to take a defendant and nothing more difficult than to remedy those faults, without introducing into it evils
into custody till the next day, he not having an still more dangerous and diffusive. He had opportunity to examine him. In the following little more to address to their lordships, unless case, however, it was held that a magistrate it were a word or two upon a visionary scheme for erecting a Cour de Reconciliation. As his
has no authority to detain a person, known to noble and learned friend had said nothing him, till some person attends to make a charge about any such court, he supposed that he had
against him. It seems doubtful, therefore, abandoned it as a part of his project. His noble and learned friend knew well that such a
whether the case of Broughton v. Mushoe can court had been tried in France, in Switzerland, now be considered law. in Belgium, in Holland, in Geneva, and that it had been abandoned in them all, because it On an indictment for false imprisonment of, had signally and lamentably failed. The only and for assaulting William Henry Carmichael case in which it had succeeded was in Den Smyth. Mr. Smyth, being called as a witness, mark and Sweden, and even in those countries said, “ On the 15th Dec. 1830, I was at the accounts had been given of its success which Bow Street Police Office. I went to complain had entirely misled his noble and learned against Goddard the officer. I went in consefriend. His noble and learned friend had told quence of a rule of the Court of King's Bench. them that in those countries so many causes Sir Richard Birnie and Mr. Halls were sitting. went into court, so many were adjusted, and Sir Richard Birnie refused to hear the case, so many came out of it and proceeded to trial. and referred me to Mr. Halls. I refused to Now, he was informed that you could not go submit to Mr. Halls, as the rule was addressed