168 Parliamentary Report: Debate on the Local Courts Bill. and learned friend publicly and openly avowed. The operation of this bill was formerly to be confined to the county of Kent and to one of the northern counties; and after the experiment had been tried and found to succeed, application was to be made to Parliament for its extension to other parts of the kingdom. But now let their lordships mark the difference. Abandoning the principle of this old bill, his noble and learned friend now proposed to give a power to his Majesty's government to establish as many courts at any time and at any place as it might deem convenient. When he saw that the former provisions of this bill were abandoned, that greater powers were given to the government in their stead, he could not help looking at this bill with greater jealousy than perhaps he ought otherwise to have done. He could not help thinking that it was intended at once, and without trying any general experiment, to establish this bill in full operation. the table. The noble earl upon that occasion, after referring to the opinion of Blackstone, which he (Lord Lyndhurst) had already quoted, and after stating that the results in Wales had been exactly what Blackstone had predicted as likely to follow from an opposite system to that which he had been describing, asked "Is it possible to describe more accurately the state of Wales? We have the despised jurisdiction, the suspicion of partiality, the conflicting practice." That was the ground upon which the noble earl pressed upon the other House of Parliament the necessity of altering the constitution of the judicature of that part of the British empire. On that occasion, as he had already told their lordships, he was present in the other House of Parliament; and then he heard another individual argue the same question exactly upon the same principles. These were his expressions :-"The first objection to the system of Welch judges was that they never changed their circuits: to 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 landholders 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 lordships were already well acquainted with his style, for they were in the habit of listening to it almost every night with mingled feelings of delight and instruction. Abolish the twelve or the fifteen judges of Westminster-hall, because they become, by going their circuits twice a year, liable to partiality, or, what is almost as bad, the suspicion of partiality; but establish, at the same time, a set of judges who are to be going for years, and for several times in each year, the same narrow circuit, who are to reside constantly within it, and who, by residing within it, are likely to become ten times as familiar as the present judges with the faces and characters of the parties between whom they have to decide, and of the witnesses whom they have to examine! Could their lordships, if they had not seen the present bill, have believed that his noble and learned friend on the woolsack would have consented to propose to them the reintroduction of a system which was pregnant with evils even ten times worse than those which he had always been so active in denouncing and remonstrating against? His noble and learned friend on the woolsack had said that this bill was only an experiment. Now, it appeared to him to give to his Majesty's ministers the power of establishing as many of these local courts as they might think fit. The bill formerly introduced on this subject was precise and definite, and that very circumstance led him to believe that there was more meant by this enactment than his noble form an idea of the practice of those courts, Parliamentary Report: Debate on the Local Courts Bill. 169 creases with indulgence to such a degree that these victims of cheap justice, or rather cheap law, seldom stop while they have a dollar left." Then there was another testimony to the same Faux says:-" Litigation frequently arises here from the imaginary independence which one man has, or fancies he has, of others; to show which, on the least slip, a suit is the certain result; it is bad for the people that law is cheap; as it keeps them constantly in strife with their neighbours, and annihilates that sociability of feeling which so strongly characterizes the English." 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 order it to be referred to the Court of Session, and from that court it night finally be brought by appeal to the House of Lords." There were stages, too, he recollected, in these ap-effect in Faua's Memorable Days in America. peals from the sheriff-substitute to the sheriffdepute; and he recollected well that his noble and learned friend had told them, that the usual course on those appeals was for the sheriff-depute to affirm the process of the court below by taking the papers, and by writing upon them, after he had read them, the word "adhered." In some county or other it was much doubted whether the sheriff-depute ever 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 bur. They had been, on the one hand, this circumstance 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 admitted 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. 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 themregarding 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 a 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 from 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 everybe barristers of ten years' experience, and men 170 Parliamentary Report: Debate on the Local Courts Bill 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 former 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 attorneys 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-hall? partment of the profession a set of men on whose honor and integrity you could place no reliance; you would have them promoting chicanery and encouraging litigation, for no other object than to recompense themselves by the multitude for the small amount of their fees; and thus you would degrade the legal profession at once from its highest members to the lowest, by involving judges, barristers, and attorneys in one common poverty and ruin. If he (Lord Lyndhurst) had heen fortunate enough to possess the powers of eloquence which belonged to his noble and learned friend, he would have placed before the eyes of their lordships a picture of such hideous deformity on this topic, as would have caused them to turn from it with shuddering and horror. As to the wisdom of the plan, one word might perhaps be quite sufficient. Their lordships had recently passed a bill giving to the judges of the courts in Westminster-hall the power of drawing up the pleadings in such a manner, upon distinct points, that each of the parties knew what the other intended to prove upon the trial, and thus was prevented from carrying to the assize town a number of unnecessary witnesses. Now, under this bill there were no pleadings, there were no distinct points to be proved upon the trial, and thus it compelled the parties to the suit, and the witnesses, all to go to trial,-the one not knowing what was to be proved against them, and the other being ignorant of the points to which they might be called to give their evidence. He had now called the attention of their lordships to the first step in the suit. the profession; and he took upon himself to aver that interlocutory proceedings were more cheaply conducted through the medium of the Post-office in London, than they could be in any district where the suitor had to follow the judge, either in person or by his attorney. The interlocutory proceedings must often be taken upon the spur of the moment. An attorney in these local courts would often be compelled, on behalf of his client, to take horse and follow the local judge as fast as he could ride; whereas now he wrote to his agent in London to attend at the judge's chamber, without any additional fee to his client; for the fee of the agent and the fee of the attorney were all one, the two parties dividing it equally between themselves. This part, then, of his noble friend's plan, would increase instead of diminish the cost of an action at law. But he would ask their lordships was the cost nothing in this proposed alteration of the faw? Let one-tenth part of the cost which The next was the interlocutory_proceedthis bill would occasion to the country beings. 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. According to the calculation of his noble and learned friend, a sum of 150,000l. would be necessary to form this new establishment: but he should not be acting fairly to their lordships if he did not acquaint them that he had been informed by practical men, that the cost of it would be somewhere between 250,0004. and 300,000Z. He admitted that neither their lordships nor the country could pay too much for clear, precise, and accurate justice; but to pay such a sum as he had just mentioned for vague, indefinite, and uncertain justice, was an absurdity too gross for the other house of Parliament ever to sanction. He contended that there was not the slightest necessity for this measure: and here he would ask their lordships to consider what was the mode by which his noble and learned friend arrived at the conclusion that this bill would establish cheap process. He (Lord Lyndhurst) contended, that it was unnecessary to detach from Westminster-hall the causes which were to be transferred to these new tribunals. What were the different stages of a suit? There was process, then came the interlocutory proceedings, and lastly, the trial itself. Those were the three stages. Now, let their lordships mark how his noble and learned friend arrived at the first of these stages, "I'll have no Now, as to the trial; half the expense of the trial consisted of fees paid to the court and to its officers. Let these fees, then, be abolished; let no fees be paid either to the court or to its officers. All the fees taken in courts of justice are now the property of the public. The publie had a right to abolish them; for, if he mistook not, a bill was recently introduced into Parliament enabling the Govern ment to abolish the fees taken in courts of justice, even without making any compensation Parliamentary Report: Debate on the Local Courts Bill. 171 to which it was not at present applied, and he would therefore extend it throughout the country, providing fit tribunals to superintend its operation. He would frankly avow that he would extend it beyond 51. He had hitherto considered the principle of his noble and learned friend's bill. He did not wish to enter into its details at present, lest he should fatigue their lordships; but he must mention to them two or three of its details as a sample of it as a whole. Nothing was more easy than to throw out a general idea of legislation; nothing more difficult than to carry into effect a plan which should remedy defects existing in the laws, without cre ating greater defects than those to which it is intended as a remedy. Now, for instance, under this bill, an individual conceives that he has a good cause of action for 30%.; he brings his action accordingly in the superior courts; to the present receivers of them. "But then," said his noble and learned friend, "these local courts are to be established in small districts, and therefore the witnesses will not have the trouble and expense of travelling so far as they travel at present." Was it necessary for his noble and learned friend to go all the lengths of this bill to effect that saving, when there was already introduced into the other House of Parliament another bill, enabling the Crown to subdivide counties, and to hold the assizes in different places within those subdivisions, in order to prevent these very evils? Why was his noble and learned friend guilty of these exaggerations? He knew the school in which his noble and learned friend had been brought up. At every assize held at York there were 200 causes, and out of those 200 causes his noble and learned friend had generally had 150 briefs. At York the witnesses were generally kept a week, sometimes a fort-but during the proceedings preparatory to the night, before they were examined. All this had perverted the mind, and blinded the judgment, of his noble and learned friend. In the smaller counties of England this was by no means the case. But even if it had been the case, the new bill, to which he had just referred, would obviate the difficulty; for counties might be subdivided, and the assizes held in as many places as His Majesty, with the advice of his council, might be pleased to appoint. But then, said his noble and learned friend, witnesses are kept at the assizes a long and indefinite time." Here again his noble and learned friend was misled by his own theatre of action. At York and at Lancaster the assizes might last ten days or a fortnight; but on the circuit which he had himself gone-as, for instance, at Nottingham, Derby, and Leicester-all the causes were generally tried in two days; and thus the public were put to no great inconvenience, inasmuch as a great part of the witnesses were dismissed at the end of the first day, and the rest at the termination of the second. trial one of his witnesses dies, or at the trial fails to attend: the consequence of this is, that he gets a verdict for less than 30%, and thus loses all his costs. That was an injustice arising out of this bill, and owing its existence to its very principle. The noble baron then proceeded to contend that the commissioners had recommended one thing, and that his noble and learned friend had adopted another, with regard to this bill. It was a clause in this bill that every action should be brought in the place where the party resided. The Lord Chancellor.-That is a mistake in the printing of the bill. A line has been dropped in the copying, and entirely altered its meaning. Lord Lyndhurst said, as such was the case, he would not press his objection on that point any further. There was also a clause in the bill by which the defendant was to have the right of summoning the plaintiff or plaintiffs to attend before a judge, and to be examined as to the cause of action. Now, he would state very briefly the hardship of such a regulation. There was one difficulty, but that not an He would suppose that a house in Liverpool insurmountable 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 firm 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 102. 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 compelled to submit to the mis- all of us take a journey to London?" chievous alteration of its laws now projected by the noble and learned lord. He had thus stated a brief outline of the plan which he would propose to their adoption, in lieu of that proposed by his noble and learned friend. He would also give a summary jurisdiction for the recovery of debts of a small amount. He thought that that principle was applicable in many instances Again, the judgments recovered in these local courts are to be liens on land. Now, when a judgment is recovered against an individual in the Superior Courts, it is signed and docketed, and every body knows where to look for it; but when these local courts are established, where are you to look for the charges on a man's estate? You must find out every 172 Parliamentary Report.-Praetical Point. 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 ing 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 misoften 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 most extraordinary way. The property of a debtor is by judgment of these courts to be vested in the creditor; the consequence will be, that to neutralize this clause, a fraudulent debtor will get himself sued by a fictitious creditor, judgment will be hurried on between them with the greatest rapidity; the property 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 self deprived of his only source of remedy. The means by which he is to get rid of this fictitious assignment are not mentioned in this bill. There were other matters of detail into which he should not enter; but he thought that these were sufficient to prove his proposition, that nothing was more easy than to point out faults in an existing system of legislation, and nothing more difficult than to remedy those faults, without introducing into it evils still more dangerous and diffusive. He had little more to address to their lordships, unless it were a word or two upon a visionary scheme for erecting a Cour de Reconciliation. As his noble and learned friend had said nothing about any such court, he supposed that he had abandoned it as a part of his project. His noble and learned friend knew well that such a court had been tried in France, in Switzerland, in Belgium, in Holland, in Geneva, and that it had been abandoned in them all, because it had signally and lamentably failed. The only case in which it had succeeded was in Denmark and Sweden, and even in those countries accounts had been given of its success which had entirely misled his noble and learned friend. His noble and learned friend had told them that in those countries so many causes went into court, so many were adjusted, and so many came out of it and proceeded to trial. Now, he was informed that you could not go The " question" being called for, the Lord Chancellor replied. We are unable, for want of room, to report his Lordship's second speech. On the question being put, the Contents were declared to have it, and though there was. some dissent, no division took place; and the House went into committee on the Bill, pro forma. POINTS OF GENERAL MAGISTRATE. In the case of Broughton v. Mushoe, Moore, 408, a Justice of Peace was held to be justified in commanding a constable to take a defendant into custody till the next day, he not having an opportunity to examine him. In the following case, however, it was held that a magistrate has no authority to detain a person, known to him, till some person attends to make a charge against him. It seems doubtful, therefore, whether the case of Broughton v. Mushoe can now be considered law. On an indictment for false imprisonment of, and for assaulting William Henry Carmichael Smyth. Mr. Smyth, being called as a witness, said, " On the 15th Dec. 1830, I was at the Bow Street Police Office. I went to complain against Goddard the officer. I went in consequence of a rule of the Court of King's Bench. Sir Richard Birnie and Mr. Halls were sitting. Sir Richard Birnie refused to hear the case, and referred me to Mr. Halls. I refused to submit to Mr. Halls, as the rule was addressed |