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sure could not be exaggerated; but he (the Lord Chancellor) must take leave to say, even at the risk of offending their Lordships, that it was utterly impossible to imagine that the great bulk of the Members of that House could fully enter into the merits or demerits of the larger portion of the details of the Bill. He would, in the first place, explain the circumstances under which the Bill had been framed. Some time ago a Commission was issued to very learned persons, directing them to institute inquiries with the view of proposing considerable amendments in procedure at common law; they made their report, and two years ago, a Bill, founded upon that report, was passed, which effected most extensive changes in the mode of proceeding at common law. He was sure he would be borne out by the opinion of his noble and learned Friend the Lord Chief Justice, when he said that the working of the change had been most admirable, and had conferred the greatest benefit upon the suitors in the common law courts.
LORD BROUGHAM said, the benefit to the suitor did not consist in the improvement of the quality of the article, but in the lowering of its price.
result was that several important alteratoins and amendments had been made in the Bill, and in that shape he had sub. mitted it to their Lordships; but, thinking that a measure of this nature could not receive too much consideration, it was referred, on his proposal, to a Select Committee, which was attended by his noble and learned Friends Lord Brougham, Lord Campbell, and Lord Lyndhurst, and also by other noble Lords, who, although not lawyers, were perfectly competent to form a just opinion upon the questions which were discussed. Some further alterations were made in the Bill by the Committee, some provisions were added to it, and, after having undergone that ordeal, the measure now came before their Lordships. What, then, were the objections urged against the measure by his noble and learned Friend opposite? That noble and learned Lord (Lord St. Leonards) in the first place suggested doubts as to the expediency of the clause which provided that parties who wished to have their causes tried by a Judge without the machinery of a jury might-subject to the regulations of the courts-have that desire gratified. He (the Lord Chancellor) owned that this was not a provision of which he himself was greatly enamoured, because he thought that juries, constituted as they were of a body of persons taken miscellaneously out of a county, were often very much im. proved as citizens, and rendered more intelligent by discharging the duty of jurors; but, although his own feelings were not very favourable to the change, he could not think it desirable that the suitor should be made to pay for the education of the
THE LORD CHANCELLOR: The Commissioners subsequently presented a second report; and, after looking through it, he requested their Secretary to frame a measure founded upon the Report, without, however, pledging himself to adopt alavishly all the recommendations of theCommissioners. In some cases, not con sidering their suggestions beneficial, he did not adopt them, and, in other cases, he added to their proposals; but, sub-community, and therefore he considered, on stantially, the present Bill embodied, for the most part, the recommendations of the Commissioners. Whatever blame might attach to him with reference to this measure, he certainly could not be charged with having introduced it unadvisedly; for, feeling that the subject was one in which the great bulk of their Lordships would not take a very lively interest, and with regard to which they could not possess the professional knowledge necessary for enabling them to form opinions, he, with his noble and learned Friend the Lord Chief Justice, and one of the Judges from each of the courts, met the Commissioners, and they went through the Bill clause by clause, discussing the merits and feasibility of the various provisions. The
the whole, that the change proposed in the existing system was a reasonable one, and one against which it was impossible for him to set his face. The noble and learned Lord objected to another clause with reference to juries. Their Lordships were aware that, by the present law, it was necessary that a jury should be unanimous in their verdict. Now, he quite concurred with his noble and learned Friend that, with all its anomalies, the necessity of unanimity had not been productive of any great degree of practical injustice; but he felt that, when they were making a change in the law and remodelling the constitution of juries, it was impossible to give this subject the go-by, and refuse, from any pedantic adherence to the established order of
things, to sanction the change. It was ne- Lord said, "Why not go into a court of cessary to consider whether the system of equity?" but no one knew better than his unanimity should be continued or modified. noble and learned Friend that there was The Commissioners did not recommend no equity in such cases; and the usual that the necessity of unanimity should be course was, when cases of this kind had dispensed with, but they proposed that the gone on for a little while, that both parties barbarous and absurd practice of locking agreed to refer them to arbitration. Now, up juries without food or fire until they in order to prevent parties to such cases agreed to a verdict should be discontinued, from incurring expenses to the amount and that, if at the end of twelve hours of hundreds of pounds, by bringing their juries had not agreed, and did not ask cases to trial, paying fees to counsel, unanimously for time for further considera- and subpoenaing witnesses, the Bill gave tion, they should be discharged, and a new the power to a Judge--at the instance trial might be had. That was the form in of either party-if he thought it a case which the measure stood as it was originally that must come eventually to arbitration, introduced on the recommendation of the at once to refer it to arbitration before Commissioners. The subject received very unnecessary expenses had been incurred. great consideration, and the Lord Chief Jus- This was undoubtedly a new system in tice suggested this course-that juries, if England, but it was the common mode they did not previously agree unanimously adopted in Scotland of dealing with matupon a verdict, should be kept together for ters of account, and he could not but think twelve hours, and that if, at the expiration it possessed very great merits. The next of that time, ten or eleven of them were provision of the Bill to which his noble agreed in opinion-that was, if they agreed and learned Friend objected was one which in the proportion of five to one-or, à for- he (the Lord Chancellor) hoped would be tiori, if they agreed in the proportion of received with great approbation by a very eleven to one their verdict should be re-large majority of their Lordships, and by ceived as the verdict of the jury. This a very great majority of the country at course, he thought, possessed very great large. He alluded to the provision conadvantages over that proposed by the Com-tained in the Bill on the subject of oaths. missioners. Suppose there should be upon a jury one or two obstinate men-as he was afraid was sometimes the case-who knew that by sitting out for twelve hours and refusing to agree to a verdict they would be absolved from giving a verdict at all, and that there would be an end to the trial for a time at least, he feared obstinate men might be tempted to pursue that unreasonable course; but if such persons knew that, even if they persisted in disagreeing to a verdict in which ten or eleven of their fellow-jurors concurred for twelve hours, the verdict of the ten or eleven who were against them would be received as the verdict of the whole, he hoped the inducement to this unreasonable obstinacy would be removed. His noble and learned Friend had also complained of what he called the "arbitration clause.' Any one conversant with the proceedings of courts of common law knew that many cases were brought before them which it was impossible for a Judge to try. Suppose, for instance, the case of an action against a builder for work to the value of 5,000l., that amount consisting of items of 10s. or 20s., every one of which must be investigated. The noble and learned The Lord Chancellor
At present, prima facie, everybody who appeared as a witness was sworn; but a century and a half ago a law was passed allowing Quakers, Moravians, or Separatists, who objected to taking oaths, to make solemn affirmations instead, subject, of course, to the same penalties for affirming falsely as other persons were liable to for perjury on their oaths. This exemption, however, was not confined to Quakers, Moravians, or Separatists, for it had been extended by statute to all persons who had at any time been Quakers, Moravians, or Separatists, but who, having ceased to be so, stated that they still retained conscientious scruples against taking oaths. If, however, a person entertained scruples against taking an oath, but could not declare that he was or had been a Quaker, a Moravian, or a Separatist, there was no statute absolving him from the obligation of being sworn. Their Lordships must admit that this was a most anomalous state of things; and the present Bill provided that any person who was called as a witness, and who stated that he had conscientious scruples against taking the oath, should be allowed, instead, to make a solemn declaration; but this was not to be
permitted unless the Judge was satisfied concurrent systems-one of law, and one of the sincerity of the witness's objections of equity. There ought to be one system to taking an oath. It might be asked, of law, and one only. But he (the Lord Why are these parties to be relieved from the obligation of taking oaths? But it appeared to him that that was putting the question upon a most absurd foundation. The person to be considered was the party who required the testimony of the witness. It was entirely unimportant to the witness whether his testimony was received or not; but it was a serious misfortune to a tradesman, who was suing a debtor, if the only person who could prove the debt was a very honest man, who neither was nor had been a Quaker, a Moravian, or a Separatist, who might be a member of the Church of England, a Baptist, or connected with some other persuasion, but who entertained conscientious scruples against taking an oath, and whose evidence, therefore, could not be received. Ought the plaintiff another party-to be punished because a court of law refused to take his witness's evidence, except upon oath? That appeared to him most anomalous and absurd; and this Bill sought to put the matter on a more rational footing. His noble and learned Friend had pointed out, that when the Bill was introduced, the form of declaration recommended by the Commissioners was adopted, namely, "I, A. B, do solemnly, and in the presence of Almighty God, declare." It had been suggested, however, that many persons would regard that form as equivalent to an oath, and, therefore, the form was altered, and the words do most solemnly and sincerely declare were adopted. The form of declaration introduced into the Bill, in the first instance, was similar to that adopted in the first Act for the relief of Quakers and Moravians; but, in consequence of the objections entertained to the form by Quakers, the words "in the presence of Almighty God" were omitted under the authority of an Act of George II. His noble and learned Friend had referred to the equitable clauses of the Bill. Now, those who had paid attention to such matters were aware that there had been a sort of demand among legal reformers for what they called "fusion;" the doing away with all distinctions between law and equity. Most unquestionably if they were going to establish a code for some newly-peopled island that had just appeared in the Pacific Ocean, no man would ever dream of having two
Chancellor) was never one of those who thought, when they had a system that suited the habits and feelings of the people, that it was advisable, merely from a desire to make that system more theoretically right, to run the risk of introducing changes which might lead to great practical difficulties. His notion of fusion was to endeavour to arrive at it step by step, so that sooner or later they might get to the same point; and he thought the Bill proposed to effect objects which would materially tend to the desired end, and be attended with great convenience to all persons. His noble and learned Friend had conjured up a host of difficulties; but he would beg to call their Lordships' attention to what the Bill really did contemplate. If there was one principle of which all law reformers ought to be enamoured more than another, it was, in his opinion, that one court should have power, in all its stages, over one cause, so that wherever a suit was instituted in a particular court that court should be able to carry the case through all its stages, and to do complete justice between the parties. All that the present Bill proposed was-whereas at the present time, when a suit was instituted at common law, there were many things which could not be met otherwise than by allowing the parties to recover at law, and then filing a bill in equity, because there might be rights which could not be determined at common law-to bring the suit so within the jurisdiction of a court of common law that it might be enabled to determine upon the whole case. He could understand that ardent reformers might complain that they were proceeding very slowly, and not with that zeal, that ardour, and that enthusiasm with which they ought to proceed, but the last thing he could anticipate was, that they should say they were taking a step too far in advance. He would not detain their Lordships by answering the instances which had been given by the noble and learned Lord, but, anticipating there might be difficulties started, to a certain degree of a novel character, they had introduced into the Bill a most useful clause to the effect that, wherever the nature of the defence was such that the court of law could see it could not be dealt with for want of proper machinery, it was competent for the court
HOUSE OF COMMONS,
Tuesday, May 23, 1854.
MINUTES.] PUBLIC BILLS.-1° Benefices Augmentation; Church Rates; Income Tax (No. 2); Consolidated Fund (£8,000,000). MIDDLESEX INDUSTRIAL SCHOOLS BILL. On the Order being read for the consideration of this Bill,
to strike out the plea raising such defence, and say it must go to a court of equity. There might be a few individual cases of such a character as to require that proceeding, but he thought it would not happen to 99 out of 100. He could not understand what objection there was to that portion of the Bill relating to the power of mandamus. If, for instance, a railway company were MR. MULLINGS said, he wished to bound to make an opening for him, in move the omission of a part of one of the respect of its railway, from one field to clauses which empowered the committee of another, and did not make it, he might visitors, when there was a sufficient number bring his action for the recovery of da- of children of different denominations in a mages accruing from the neglect, and he school, to authorise the employment of mimight probably have afterwards to apply nisters of different denominations to afford to the court of Queen's Bench to compel religious instruction to the children, and them to do so. All that this Act provided to perform Divine service in such school. was, that it should be done at once. So He could not understand what would be with regard to injunctions; for, although done if one school happened to contain he might recover and establish a right at children of three or four denominations, law, it was competent for a party to violate whether the various services would be perthat right afterwards; but this Bill gave formed simultaneously or one after the the court the power not only to grant da- other, and, if so, which denomination would mages, but injunctions to prevent the re- have precedence. He wished the House currence of the evil sought to be remedied. to consider what might be the position of It gave the power, in fact, to the court to those industrial schools, if it should turn act as common sense would dictate-power out that a number of juvenile offenders of to do complete justice itself and prevent six or eight different religious persuasions parties being driven to another court to obwere taught in them at the same time. In tain those supplementary remedies which such a case they might have the Church prevented the future infringement of the of England service, the Roman Catholic very right they had just established. The mass, and the Jews' feast of trumpets all sections were extremely well worded by going on on Sundays at the same time in the gentleman who acted as secretary to the one industrial school of Middlesex. He the Commission; and, in fact, the whole believed there was no precedent for insertBill was ably drawn, and sought to accom- ing such a provision in the Bill. plish most legitimate objects; he hoped, therefore, the Committee, would give their countenance not only to those clauses to which his noble and learned Friend had no objection, but to those also to which his observations had more particularly been directed.
Clause 30, page 12, line 14:-Amendment proposed, to leave out the words at the end of the Clause, "and for the purpose of performing Divine service on Sundays, when, in the opinion of the committee of visitors, the number of juvenile offenders of any persuasion other than that of the Established Church is sufficient for that purpose."
Question proposed, "That the words proposed to be left out stand part of the Clause."
MR. J. BALL said, having been a Member of the Committee which sat on this Bill, he was able to state that the clause in question received the unanimous concurrence of all the Members of the Committee. This was called a private Bill because it was confined to the county of Middlesex ; but it was, in truth, the first attempt to make in this country some serious effort for the reformation of juvenile offenders, and he trusted it would be the precursor of
a general measure applicable to the whole | appeared to him that the House should conkingdom. It was notorious that a large cede this boon, if boon it could be called. proportion of the juvenile criminals of the metropolis, being children of the poor Irish, who abounded in all the suburbs, were Roman Catholics, and he contended that they would have been justified, in accordance with precedent, in claiming from the Select Committee the appointment of a paid Roman Catholic chaplain. Instead of that, however, they had contented themselves by merely claiming security for the religious education of those of their own persuasion, to be imparted at their own charge. He trusted that, in this respect, the House would confirm the unanimous decision of the Committee, assented to by every Member upon it, and by the promoters of the Bill.
MR. NEWDEGATE said, he could not agree with his right hon. Friend. Middlesex was not Ireland. On the contrary, it contained a more orderly, a more enlightened, and a more civilised population than did Ireland. ["Oh, oh" from Irish Members.] As a ratepayer and magistrate of Middlesex, he (Mr. Newdegate) participated in the feelings of these gentlemen; and he should then express a hope that such a precedent as the present should not be established at their expense. By this clause it was intended to give the priest the privilege of access to the inmates of this establishment at the wish of the next of kin to the inmates, at any time, not even Sundays excepted. There was also a provision authorising the celebration of mass, a thing totaily unknown in a public institution of this country since the time of the Reformation. That would be quite contrary to the spirit of the laws of the Reformation. If it were right that such should be done, let it be done by some
try would have time to consider. But he hoped the House would not suffer itself to be trapped into an admission of this principle, contrary as it was to the laws and principles of the Reformation, by a few lines tacked on to the end of a clause of a private Bill.
SIR GEORGE GREY said, that, as a Member of the Select Committee, he entirely approved the insertion of the words the omission of which had been moved by the hon. Member for Cirencester (Mr. Mullings). The hon. Member's objection had not rested, as he had understood it, upon religious grounds, but upon the inconveni-public Statute, which the House and counence which would result from allowing the ministers of any religious persuasion to hold divine service within the walls of these schools. The simple answer to that objection was, that the right to celebrate divine service was to be exercised, subject to the regulations to be made for the purpose by the committee of visitors, and only at reasonable hours. There were ample precedents for the course now proposed in the Prison Acts of Ireland. No question of endowment was raised by this clause. It simply gave permission to the ministers of different denominations where the children were in sufficient numbers to celebrate divine service according to the rites of their own Church, and he thought it would be extremely unreasonable to refuse that permission.
MR. DRUMMOND said, that there did not appear to be anything either very new or very fatal in the principle of this particular provision of the Bill. The wording of the clause was certainly somewhat funny, as it provided for the performance of divine worship provided there was sufficient number of juvenile offenders, so that in fact the religious worship was made to depend upon the having a good supply of juvenile offenders. The hon. Member for North Warwickshire (Mr. Newdegate) apSIR JOHN PAKINGTON said, he also, peared to be very much alarmed at the as a Member of the Committee, express-word "mass; "if the words "celebration ed his concurrence in that portion of the clause which his hon. Friend had proposed to omit. The insertion of these words was only carrying one step further the MR. SPOONER said, he was sorry to spirit of the District Paupers' Schools hear his hon. Friend (Mr. Drummond) Act, under which religious teachers of dif- speak so lightly of the word " mass. ferent persuasions were permitted to enter He should recollect that the Sovereign the schools to teach children of their own of these realms was bound by Her Cobelief. Every one admitted it to be essen-ronation Oath to maintain the Articles of tial that divine worship should be celebrated in the presence of the inmates of a prison; and upon these broad grounds it VOL. CXXXIII. [THIRD SERIES.]
of the Holy Eucharist were inserted instead, probably the fears of the hon. Member would cease.
the religion of the Established Church of this country. Now, what did these Articles say in reference to the mass? Why,