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 submitted 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 adherence to the established order of

Lord said, "Why not go into a court of
equity?" but no one knew better than his
noble and learned Friend that there was
no equity in such cases; and the usual
course was, when cases of this kind had
gone on for a little while, that both parties
agreed to refer them to arbitration. Now,
in order to prevent parties to such cases
from incurring expenses to the amount
of hundreds of pounds, by bringing their
cases to trial, paying fees to counsel,
and subpoenaing witnesses, the Bill gave
the power to a Judge-at the instance
of either party-if he thought it a case
that must come eventually to arbitration,
at once to refer it to arbitration before
unnecessary expenses had been incurred.
This was undoubtedly a new system in
England, but it was the common mode
adopted in Scotland of dealing with mat-
ters of account, and he could not but think
it possessed very great merits.
The next
provision of the Bill to which his noble
and learned Friend objected was one which
he (the Lord Chancellor) hoped would be
received with great approbation by a very
large majority of their Lordships, and by
a very great majority of the country at
large. He alluded to the provision con-

things, to sanction the change. It was necessary to consider whether the system of unanimity should be continued or modified. The Commissioners did not recommend that the necessity of unanimity should be dispensed with, but they proposed that the barbarous and absurd practice of locking up juries without food or fire until they agreed to a verdict should be discontinued, and that, if at the end of twelve hours juries had not agreed, and did not ask unanimously for time for further consideration, they should be discharged, and a new trial might be had. That was the form in which the measure stood as it was originally introduced on the recommendation of the Commissioners. The subject received very great consideration, and the Lord Chief Justice suggested this course that juries, if they did not previously agree unanimously upon a verdict, should be kept together for twelve hours, and that if, at the expiration of that time, ten or eleven of them were agreed in opinion—that was, if they agreed in the proportion of five to one-or, a fortiori, if they agreed in the proportion of eleven to one their verdict should be received as the verdict of the jury. This course, he thought, possessed very great advantages 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 Chancellor) was never one of those who from the obligation of taking oaths?" thought, when they had a system that But it appeared to him that that was put- suited the habits and feelings of the peoting the question upon a most absurd foun- ple, that it was advisable, merely from dation. The person to be considered was a desire to make that system more theothe party who required the testimony of retically right, to run the risk of introthe witness. It was entirely unimportant ducing changes which might lead to great to the witness whether his testimony was practical difficulties. His notion of fusion received or not; but it was a serious mis- was to endeavour to arrive at it step by fortune to a tradesman, who was suing a step, so that sooner or later they might debtor, if the only person who could prove get to the same point; and he thought the the debt was a very honest man, who nei- Bill proposed to effect objects which would ther was nor had been a Quaker, a Mora- materially tend to the desired end, and vian, or a Separatist, who might be a be attended with great convenience to all member of the Church of England, a Bap- persons. His noble and learned Friend tist, or connected with some other per- had conjured up a host of difficulties; but suasion, but who entertained conscientious he would beg to call their Lordships' atscruples against taking an oath, and whose tention to what the Bill really did contemevidence, therefore, could not be received. plate. If there was one principle of which Ought the plaintiff-another party-to be all law reformers ought to be enamoured punished because a court of law refused to more than another, it was, in his opinion, take his witness's evidence, except upon that one court should have power, in all oath? That appeared to him most ano- its stages, over one cause, so that wherever malous and absurd; and this Bill sought to a suit was instituted in a particular court put the matter on a more rational footing. that court should be able to carry the case His noble and learned Friend had pointed through all its stages, and to do complete out, that when the Bill was introduced, the justice between the parties. All that the form of declaration recommended by the present Bill proposed was-whereas at the Commissioners was adopted, namely, "I, present time, when a suit was instituted A. B, do solemnly, and in the presence of at common law, there were many things Almighty God, declare." It had been which could not be met otherwise than by suggested, however, that many persons allowing the parties to recover at law, would regard that form as equivalent to an and then filing a bill in equity, because oath, and, therefore, the form was altered, there might be rights which could not be and the words do most solemnly and sin- determined at common law-to bring the cerely declare" were adopted. The form suit so within the jurisdiction of a court of of declaration introduced into the Bill, in common law that it might be enabled to the first instance, was similar to that determine upon the whole case. He could adopted in the first Act for the relief of understand that ardent reformers might Quakers and Moravians; but, in conse- complain that they were proceeding very quence of the objections entertained to the slowly, and not with that zeal, that ardour, form by Quakers, the words "in the pre- and that enthusiasm with which they ought sence of Almighty God" were omitted to proceed, but the last thing he could under the authority of an Act of George anticipate was, that they should say they II. His noble and learned Friend had were taking a step too far in advance. He referred to the equitable clauses of the would not detain their Lordships by auBill. Now, those who had paid atten- swering the instances which had been tion to such matters were aware that given by the noble and learned Lord, but, there had been a sort of demand among anticipating there might be difficulties legal reformers for what they called "fu- started, to a certain degree of a novel chasion;" the doing away with all distinc- racter, they had introduced into the Bill tions between law and equity. Most un- a most useful clause to the effect that, questionably if they were going to esta- wherever the nature of the defence was blish a code for some newly-peopled island such that the court of law could see it that had just appeared in the Pacific Ocean, could not be dealt with for want of proper no man would ever dream of having two machinery, it was competent for the court

66

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 bound to make an opening for him, in respect of its railway, from one field to another, and did not make it, he might bring his action for the recovery of damages accruing from the neglect, and he might probably have afterwards to apply to the court of Queen's Bench to compel them to do so. All that this Act provided was, that it should be done at once. So with regard to injunctions; for, although he might recover and establish a right at law, it was competent for a party to violate that right afterwards; but this Bill gave the court the power not only to grant damages, but injunctions to prevent the recurrence of the evil sought to be remedied. It gave the power, in fact, to the court to act as common sense would dictate-power to do complete justice itself and prevent parties being driven to another court to obtain those supplementary remedies which prevented the future infringement of the very right they had just established. The sections were extremely well worded by the gentleman who acted as secretary to the Commission; and, in fact, the whole Bill was ably drawn, and sought to accomplish 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.

LORD ST. LEONARDS observed that he would not trouble the House to divide upon his intended Motion as to the jury, as he saw plainly what the result would be.

LORD CAMPBELL said, he should abstain from making any observations on what had fallen from the noble and learned Lord, but should reserve to himself the power to do so at any future stage of the Bill.

Amendment negatived.

Amendments made; the Report thereof
to be received on Friday next.
House adjourned to Friday next.
The Lord Chancellor

HOUSE OF COMMONS,

Tuesday, May 23, 1854.

MINUTES.] PUBLIC BILLS.-1o 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,

MR. MULLINGS said, he wished to move the omission of a part of one of the clauses which empowered the committee of visitors, when there was a sufficient number of children of different denominations in a school, to authorise the employment of ministers of different denominations to afford religious instruction to the children, and to perform Divine service in such school. He could not understand what would be done if one school happened to contain children of three or four denominations, whether the various services would be performed simultaneously or one after the other, and, if so, which denomination would have precedence. He wished the House to consider what might be the position of those industrial schools, if it should turn out that a number of juvenile offenders of six or eight different religious persuasions were taught in them at the same time. In such a case they might have the Church of England service, the Roman Catholic mass, and the Jews' feast of trumpets all going on on Sundays at the same time in the one industrial school of Middlesex. He believed there was no precedent for inserting such a provision in the Bill.

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.

SIR JOHN PAKINGTON said, he also, as a Member of the Committee, expressed 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 spirit of the District Paupers' Schools Act, under which religious teachers of different persuasions were permitted to enter the schools to teach children of their own belief. Every one admitted it to be essential 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.]

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 a 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) appeared to be very much alarmed at the word " mass; if the words "celebration of the Holy Eucharist" were inserted instead, probably the fears of the hon. Member would cease.

MR. SPOONER said, he was sorry to hear his hon. Friend (Mr. Drummond) speak so lightly of the word "mass. He should recollect that the Sovereign of these realms was bound by Her Coronation Oath to maintain the Articles of the religion of the Established Church of this country. Now, what did these Articles say in reference to the mass? Why, 2 D