Imatges de pÓgina

for any loss that might accrue if she were not condemned. The vessel was brought over for condemnation at his risk, and he was the ultimate loser if it was not condemned, although, no doubt, the prize agent paid the expenses in the first instance. He could not accede to either of the Amendments which his noble Friend had suggest ed. He objected to that which related to the proposed retrospective operation of the Bill, because there was no ground for saying that the measure would have any such operation. On the contrary, its whole scope and bearing were entirely prospective; and it was the intention of the Admiralty that the prize agents should settle all matters now before them under the existing law. The other Amendment was equally unnecessary, because the existing law, which this Bill did not affect, secured to the Navy agents the commission of 2 per cent on the prize money distributed through their agency. He doubted whether such a provision as that which had been proposed by his noble and learned Friend could be correctly introduced in that House of Parlament. He was not quite clear upon the subject; but he rather doubted whether the House of Commons, according to the very stringent construction they put upon their rules, would not consider that provision of his noble Friend would be a violation of them. He saw no necessity for dwelling upon the subject, and thought the Amendment totally unnecessary, and only calculated to raise doubts where they had never previously existed.

would take leave to bear his testimony to the great merits and invaluable services of the prize agents, and would remind their Lordships of the panegyrics that had been pronounced upon them by the highest judicial authorities in such matters and by the highest personal authorities, including amongst them his late and illustrious Friend Lord St. Vincent. The inestimable services rendered to the Navy by those parties were such that Lord St. Vincent had said that were it not for their help he knew a number of cases in which gallant officers would not have been able to join their ships and engage in the service of their country. From his own experience in the courts of prize, he could state that, in one case, upwards of 50,000l. had been obtained by captors through the exertions of the prize agents, not one farthing of which would have been obtained if the provisions of this new plan were then in existence, and if the Crown-appointed officers had had the management of the proceedings. In that case, the law officers of the Crown had given a decision against the parties; it was a question of prize and head money under the Slave Trade Act in the Eastern Seas, and the opinion of the law officers of the Crown was clear that the captors had no right whatever, and if their case had been left to Crown-appointed officers it must needs have followed that their case would not have been prosecuted, and not one farthing of that large sum which was decreed to them by the court below, in spite of the opinion of the law officers of the CrownLORD BROUGHAM said, he did not the court of appeal confirming the judgthink the reasons assigned by the noble ment-would have been held to belong to Duke were sufficient to persuade their those very meritorious parties. There was Lordships not to accept the Amendments. another case of 70,000l. head money and The noble Duke had said he was quite bounty money; that was a case of capture, confident no doubt could be raised on the and the King's Advocate gave an opinion question involved in the first and most ma- against the captors, and if it were left to terial of the Amendments, namely, whe- a Crown-appointed officer, as a matter of ther or not this Act would have a retro- course he would have followed the opinion spective effect; but if his noble Friend had of the King's Advocate, and of that been as long acquainted with prize courts 70,000l. not a farthing would have reached and courts of law as he had been, he would the meritorious parties, the captors, who, find it much better to add a few words to by the exertions of the prize agent, obliged the length of a Statute than to leave it to the payment of that sum. He need not the astuteness of counsel or even to the de- remind their Lordships of the other argucision of learned Judges, whether Judges ments that could be used, with regard to at common law or in the prize courts, to the services of these agents, the large cadetermine whether a provision was retro-pital they employed, the great skill and exspective or not. The same observation applied to the other Amendment; and in both cases it would be better, by the insertion of a few words, to guard against the possibility of doubt. He (Lord Brougham) The Duke of Newcastle

perience they brought to bear on the interests of the parties employing them; and he could not help feeling considerable apprehension as to what may be the result of the change.

Bill read 3a.

THE EARL OF HARDWICKE moved, as an Amendment, that the Bill should not apply to any captures, &c., made by any of the officers and crews of Her Majesty's ships or vessels prior to the 1st of June,


jury to help him, and which a jury was very little capable of performing. The power proposed to be given to the court of deciding with respect to the cases that might be tried by a Judge alone was indispensable, for otherwise a Judge might be called upon to try a case involving a question of murder, or the most atrocious offence. Suppose there had been an action for a libel imputing to the plaintiff that he committed murder, would it be proper that a single Judge should try that case? Nor would it be enough to say that a Judge

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Order of the Day for the Third Reading should try all actions of contract, for there read.

might be an action of contract--for examMoved, That the Bill be now read 3a. ple, an action on life insurance or fire inLORD CAMPBELL said, he felt it to be surance, where the defence might be that his duty to make a few observations on the plaintiff had insured the life, and this Bill, in order that it might not be caused the death by foul means, or had supposed that he concurred in the hostile set fire to his own house-it would not be criticisms of his noble and learned Friend proper for a Judge to try such a case withopposite (Lord St. Leonards). The Bill out the assistance of a jury. Then, with was, as his noble and learned Friend had regard to what his noble and learned observed, the most important measure with Friend had said with respect to the clauses respect to the administration of justice that which his noble and learned Friend called had been laid before Parliament for a con- the arbitration clauses-he (Lord Campsiderable time. It introduced more im- bell) must say he entirely approved of them, portant changes than had been introduced because he did not consider them to be into the law of England since the time of arbitration clauses, but clauses referring to Edward I., and he was happy to be able a single functionary, matters that could to say that he entirely approved of it. not be properly decided by a Judge or Some of the experiments it made were jury-such as matters of account. It was undoubtedly hazardous, but he thought enacted by this Bill, that as soon as an they were all laudable, and he hoped the action was brought, if respecting matters result would be satisfactory. His noble of account, either party by application to and learned Friend (Lord St. Leonards), the court might, in the first instance, refer in a speech which was distinguished by the case to a single individual, who could his usual ability, had disparaged the sit de die in diem until the whole was whole of the Bill; but though he felt a wound up and determined. And see the great respect for the opinion of his noble scandal that would avoid! At present a and learned Friend, he must say that he Judge, sitting to administer justice with approved of the measure. His noble and the assistance of a jury, had a case brought learned Friend in the first place expressed before him which he and the jury were very great hesitation respecting the enact- totally incompetent to try, and which must ment that Judges shall hereafter have be referred to arbitration. It was now so power to try issues of fact. Now, if that referred after enormous expense had been were to apply to all issues of fact, he incurred in retaining counsel, summoning would most heartily share in his appre- witnesses, and paying the jury, all which hensions. Where there was conflicting expenses were thrown away; whereas by evidence, and in many cases where charac- the new system which he (Lord Campter was concerned, and where substantially bell) hoped his noble and learned Friend a trial took place respecting the commis- would approve of, all that scandal would sion of criminal offences, though in the be obviated, because, as soon as the writ form of a civil action, a jury presided over was issued, there would be an order made by a Judge was the best tribunal that ever by the court referring the whole matter was established. But there were many to a single individual to decide it. The cases where the facts were not at all in next point was with respect to the unadispute which turned on a question of nimity of juries. Generally speaking, he law-and which he thought might be better approved of the principle of the unadetermined by a judge without calling on a nimity of juries, and wished that princi

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

beneficially. His noble and learned Friend was a verdict for the plaintiff, establishing had pointed out that in Scotland there was the nuisance. But no sooner was judgonly one court, and that all cases were ment pronounced than the bells began finally adjudged in it; and he argued that again, sounding another peal--not exactly it arose from that circumstance that there the same, but very similar-and the court were a great number of appeals from Scot- of common law having then no power to land. There were various reasons why interfere, it was necessary to file a bill in there should be many more appeals allowed the Court of Chancery for an injunction. from the courts of Scotland than from the Then there was a hearing of seven days courts in England, and amongst others, before one of the Vice Chancellors; after that they were appeals from one set of that hearing, the injunction was granted. Judges reared in one system of jurispru- Would it not have been most reasonable dence to another set of Judges reared in that the court of common law in which the another system of jurisprudence, who en- action was tried for the nuisance should tertained very different notions, and who have had the power to grant that injuncmight very likely be disposed to reverse tion against the repetition of the nuiwhat shocked their prejudices, and there- sance? and to enable that Court to grant fore the number of appeals from the Scotch an injunction in such cases was one of the courts was no argument against one court. objects of the Bill, and he repeated his No one honoured more than he did the belief that it would act most beneficially. decrees pronounced by his noble and Within the limits that were allowed, there learned Friend (Lord St. Leonards), but were a great many matters of equity that he would tell him that if there had been could be most satisfactorily disposed of appeals from his decrees when he sat in in courts of law. Take a case. Suppose the Court of Chancery to the Court of Session in Scotland, some of his decisions would have been reversed. He was sure, with the assistance of his noble and learned Friend, and other eminent lawyers, the common law Judges would be able in a satisfactory manuer to discharge the functions now intrusted to them, and which were very different from the railway functions which it was attenmpted to impose upon them, for in the present case they would be acting judicially, and they would have authorities to refer to and direct them. He would put a case that would illustrate the present working of the law. Suppose an infringement of a patent, or of a copyright; the party would have to go to the Court of Chancery for an injunction; the Judge in Chancery would say that he must go to a court of common law to establish his right; but when he had done so, he must come back again to the court of equity, and commence again; and all this led to enormous expense. An instance had occurred about three years ago which strongly illustrated the case. There was a nuisance at Clapham, caused by the perpetual ringing of bells, and an application was made to the Court of Chancery to grant an injunction. The Court of Chancery said, "We have at present no power to grant your application. You must go to a court of law, and establish your right." An action was consequently brought and tried upon the Home Circuit. The trial lasted several days, and there

an action was brought against a surety, and the defence was that the suretyship was constituted by an instrument not under seal; as the law now stands, the court of law could take cognisance of the whole matter; but if the surety were constituted by what was called a deed signed, sealed, and delivered, then the court of law had no jurisdiction, and it would be necessary to go into a court of equity. Such distinctions as these should not be allowed. He thought a Bill which proposed to remedy such anomalies was a most valuable measure; and if none other of importance should be passed in the present Session, he considered it would not be a Session barren of good results.

LORD ST. LEONARDS said, that, notwithstanding the statements of his noble and learned Friend, he still retained the opinion he had before expressed with regard to the proposed fusion, as it was called, of law and equity, though he had never doubted that there were cases in which the principles of equity might be applied by the courts of common law. He would, without further observation, proceed to submit to their Lordships the Amendments he had to move to the Bill. The first Amendment was in Clause 17, from which he proposed they should omit the words "ten or," the effect of which would be, that if eleven of the jurors, instead of ten or eleven, as proposed by the clause, should agree in opinion at the end of twelve, hours, they should be able to

deliver that decision as the verdict of the jury. He could not bring himself to consider that it would be wise to break in upon an ancient institution to the extent now proposed. The recommendation of the Select Committee which sat on this Bill was relied upon by the noble and learned Lord on the woolsack in favour of this change; but no stress had been laid upon the recommendations of the Commissioners who reported in favour of retaining the principle of unanimity among the jury, and who were opposed even to his (Lord St. Leonards') proposition for requiring the agreement of eleven. The next objection that he had to this Bill related to the provision enabling a Judge in his discretion to allow a person stating that he had a scruple against taking an oath to make a declaration in lieu of swearing. Now, the present law certainly permitted Quakers, Moravians, and Separatists, to affirm instead of taking an oath in a court of justice; but then, in each of these cases, there was this security, that the witness allowed to affirm was a man who, in the face of the world, and to the particular knowledge of everybody around him, had joined a particular sect, and they knew that he was influenced, or affected to be influenced, by religious motives in objecting to an oath. But there was a wide distinction between the cases where declarations were allowed instead of oaths under the existing law and the proposition contained in this Bill, because this Bill would enable any man, upon his own mere unsupported assertion that he had a religious scruple, to evade the taking of an oath; thus doing away with the means which the law had hitherto afforded for ascertaining that, although the witness refused to take an oath, he did so because he belonged to a religious sect whose tenets were opposed to the taking of oaths, and was therefore a man who was nevertheless bound by religious obligations. As to the provision with regard to the discretion of the Judge, how was the Judge to get at a man's secret motives, and to tell that in his refusal to take an oath he was influenced by conscientious scruples? It was clear, therefore, that this ostensible safeguard was no real safeguard at all, and was perfectly illusory. But look at the inconsistency and absurdity in which this Bill would involve them. The exemption from the necessity for making an oath was confined to common law procedure, so that in the Lord St. Leonards

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courts of equity, if this Bill passed, every litigant would still be bound to swear, whereas in the common law courts he need only affirm. Thus, on one side of Westminster Hall a man must take an oath as the law now stood; and, on the other side, he would be relieved from taking an oath, under the provisions of this Bill. Again, a witness might, under this Bill, make a declaration before the Judge of a superior court; but if he went before a magistrate, he must take an oath. It was clear that if a change of this kind was to be made at all, it ought to be made general in its character, and not partial and exceptional.

THE LORD CHANCELLOR said, that having had occasion to trouble their Lordships repeatedly before on the subject of this Bill, he would only now say a very few words in answer to what had fallen from the noble and learned Lord who had just spoken. It appeared to him that there was one great fallacy running through all the reasonings that he heard upon the subject of oaths, and that was that it was always assumed that the giving of evidence was the privilege of the witness, and notwhich it really was-the right of the suitor. If a suitor could only bring forward a single individual who could give the requisite testimony, and that individual had religious scruples against taking an oath, why was the suitor to suffer because his witness was over-scrupulous and over-conscientious? He had never heard an answer to that argument. It was quite obvious that the party primarily to be considered was not the witness, but the man who wanted the testimony of that witness. Well, the noble and learned Lord asked, what security had they that a man who said that he had conscientious scruples against taking an oath, entertained those scruples in sincerty? He (the Lord Chancellor) asked in return, what security had we now that a man was a Separatist or a Quakernay, what security had we that a man who had once been a Separatist or a Quaker, but was not one now, was sincere in his continued scruple to take an oath?-because the last Act of Parliament on this subject expressly stated that any person being a Quaker, Moravian, or Separatist, or who had once been a Quaker, Moravian, or Separatist, but who still retained his conscientious scruple against taking an oath, should be allowed to make a declaration in lieu of an oath. And observe, they were speaking of a class of persons in

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