a

a

Sir J. Scarlett said, he was ready | most anxious not to be understood as deto ask pardon of his learned friend for the siring to oppose any obstacle to any sort use of that unlucky word " also," and, if he or practicable reform, even upon the law of would not further interrupt him, would in- evidence. Indeed he felt it due to himself form him, that he was alluding not to him, to state, that there was no man more ready but to the hon. member for Dungarvon ; to lend a favourable attention to any sugwho, besides other observations on the gestion for the amendment and substantial rules of evidence, though not relating to improvement of the institutions which he hear-say, had mentioned the rejection of held in reverence; and he trusted he the testimony of a party in his own cause. should not be accused by his hon. and Now, he was conscious that he might learned friend of a desire to rob him of any be thought an incompetent judge of the portion of the glory which belonged to merits of a system of which he was in the him, as the proposer of these inquiries, when daily practice. It was too true, that men he stated that, if he had continued in were apt to be prepossessed by their own office, he was prepared to have submitted habits and practice, and he perhaps ought a bill to the consideration of the House to entertain a doubt of the value of his own for the purpose of accomplishing some of opinion upon the rule in question. But he the objects, which his hon. and learned could state as a fact, that, during the course

friend had now in view, So long ago as of a long personal experience, he never the year 1812, he had, in communication above twice or thrice in his life found it with that most learned and excellent expedient to read the answer of an opponent judge, the late Mr. justice Le Blanc, diupon oath obtained by a bill of discovery. In gested and prepared the heads of a bill, fact, men hardly ever thought themselves which it had been his intention to submit in the wrong in their own causes; the to parliament. But experience had taught necessary result of which was, that they him, soon after his admission into that told their own story, even upon oath, so House, that no measure of such magni. much in their own favour, that it was im- tude could advantageously be proposed by possible for their antagonists to use it. A one who did not possess the authority and court of Equity would not permit the an influence of government; more especially swer of a party to be read as evidence in if he were deeply engaged in pursuits which his own behalf. And he was sorry, but made his attendance in parliament uncerbound to state, that in a very recent in- tain. He bad, therefore, vainly reserved ştance, when a court of Equity had directed it for an opportunity which was gone by a party to be examined in a court of law, almost as soon as it had occurred. in support of his own case, the most gross If he did not trespass too inuch upon perjury had taken place. Upon this point, the House, he would throw out for the conhe repeated, that the constitution of the tri- sideration of his hon. and learned friends bunal renders it proper to exclude such opposite, one of the suggestions which he testimony. A judge might, perhaps, make had intended to make. He alluded to the due allowance for the passions and feelings process between creditor and debtor. It which excite a party in his own cause ; was easy to perceive that the law which but if such evidence were adduced before regulated the interest of these parties could a jury it would throw upon the advocate, never be made agreeable to both. The in every case, the necessity of offering to creditor looked for expedition in the prothem in each address, an essay upon human cess; certainty in the law, despatch in the nature, and metaphysical dissertations upon decision, facility in the execution: the the influence of motives upon the conduct debtor, on the other hand, naturally sought and feelings of men, which would be thrown for investigation, caution, discussion, deaway before such a tribunal. Disserta- lay. It was impossible to satisfy the exitions of this nature, as his hon. and learned gency of both.” That in consulting the friend, the member for Winchelsea, well eagerness of the creditor for an expeditious knew were too frequent in the lengthy | termination, it was necessary to afford to pleadings of the Scots' courts, which were the honest defendant some time for reaaddressed to most intelligent judges, but sonable preparation, deliberate discussion, which, however proper in those courts, and security from oppression. The diffiwould serve only to confound and perplex culty was, how to prevent the fraudulent a jury.

or needy debtor from availing himself of In making these observations, he was all those delays and precautions which

were provided for the security of the honest drawn, it would be necessary to give some and the protection of the innocent. He very improved means of getting at the prohad found that, generally speaking, the perty of defendants, who otherwise might debtor was enabled by taking advantage live, where they were fraudulently disposed, of every means of delay which the prac- upon means placed entirely beyond the tice of the courts afforded, to put off the reach of their creditors; upon funds, for day of final judgment for almost six months, instance, supplied from the produce of and then, by the aid of a writ of error to money vested in foreign stocks, or upon add a few months more. But this time the rents of estates abroad. The hon. was gained at a great expense to both par- and learned gentleman concluded by deties, often exceeding what was required, to claring, that at so advanced an hour, he pay the original demand. For example, should refrain from longer occupying the the whole proceeding, from the commence attention of the House. He sliould alment of the suit to judgment upon the ways be ready to promote every reform writ of error, he had ascertained would which was consistent with the safety of the cost the defendant above eighty pounds, general system of the English law; and it which he either raised by small contribu- was impossible for him too warmly to bear tions amongst his friends from time to testimony to the talent and exertion with time, or eked out of his own earnings in which his hon. and learned friend had order to put off the evil day of paying a just brought the subject forward. debt, which amounted at first, perhaps, to Dr. Phillimore said, he wished to offer no more than thirty or forty pounds. a few words upon the constitution of a court The remedy he had thought of suggest in which himself had practised for many ing was this—that the delay which was years ; namely, the court of Delegates. now gained by a process most expensive The House would be aware that this court, to both parties, through indirect means, which was the last tribunal of appeal from should be obtained cheaply and directly, the maritime and ecclesiastical courts, had provided it were made the price of a con- been a source of complaint for more than dition advantageous to the plaintiff. What a century; repeated applications having he should propose was this:-Suppose a been made within that time to the Crown man to be served with a process, and to to change the constitution of it. As the have no other immediate object than to practice stood, the court was composed of gain time, he might be allowed to go at three common-law judges, whom it was once before a commissioner, and obtain a difficult to get together, and who, when delay of three months, upon giving com- assembled, were not familiar, from their petent bail, who at the expiration of that professional habits and experience, with time should see the debt paid, orrender him; the civil law : and to assist these learned or even a delay of six months, upon condi- persons, three counsel from the court were tion, that if he did not then pay the debt, added, who were necessarily always of those the bail should be liable to pay itthemselves. not immediately in the highest estimation, The debtor would thus be able to husband as those who were so were generally conhis resources, in order to make provision, cerned on one side or the other in the against the day of payment, whilst the cre- cause. The delay which the difficulty of ditor, without being exposed to any fur- assembling the common-law judges led to, ther expense or loss, would improve his rendered the court almost valueless for the chance of recovering his demand within the despatch of business. But the most glar, usual time.-Another object which he had ing part of the grievance was the incompein view was, to limit the power of arrest to tency of the constitution of that tribunal: debts exceeding one hundred pounds. He the decisions of the first civil judges were did not mean to give an opinion at present reviewed by judges not practising the civil upon the general subject of the law of ar- law at all, and by assistant counsel, whose rest--whether the practice ought or ought standing and reputation were by no means not to be abandoned. He believed that necessarily such as to qualify them for so when the commercial body came to be ex- delicate å duty. The hon. and learned amined before the commission, the prepon- member concluded by suggesting an im, derating opinion would be found to be that provement in the constitution of the court ; it ought not to be given up. But he would | the chief feature of which was, that one do no more at present th observe, that, if civil judge should, in all cases, sit with the the power of personal arrest were with. I court of Delegates, for the purpose of as

8

a

of

sisting it; that when the appeal was from 'cause the court was always determined, an ecclesiastical court, a judge of the on the slightest variance, to nonsuit. One court of Admiralty should be in attend of these evils made the other partly necesance; and an ecclesiastical judge, in the sary; and he was aware that, if he were to same way, upon every admiralty appeal. reduce the number of counts in a pleading, · Mr. Carter shortly observed upon that without doing away the

power of nonsuitpart of the inquiry, which was to apply to ing for slight variations, that he should the power intrusted to magistrates. In his cause a great many evils ; he would, thereopinion, the power of transportation for fore, get rid of both. The connection life was a very dangerous one to be ex- between these two things illustrated the ercised at quarter-sessions by persons whose necessity of examining the whole law habits of receiving evidence, when not di- at once. If they were to get rid of rected or controlled by any presiding bar- the multitude of pleas without getting rid rister, were frequently highly lax and ir- of the causes for nonsuit, it would introregular.

duce such confusion, that they might Mr. Brougham commenced his reply as well shut up the courts. To touch only by assuring the House, that the patient a part of the law might cause much misattention with which he had been heard chief; but it would be a great good to by the House on a former evening, when touch and amend the whole. To the he brought the important subject of the objections of his hon. and learned friend, administration of the law under its con- who had left the House, he would make sideration, would induce him to trespass no further reply, than to state, that his but for a short time on its patience at that hon. and learned friend must not consider, late hour. It was the more unnecessary, in- | because he did not answer them, that he deed, for him to do so, as the observations thought them unanswerable. His hon. which had been made that evening did not and learned friend, who had left the House, furnish any very ample matter of remark had alluded to the great range arguin reply from him. He had, in the first ment in his speech the other night, praising place, to discharge a duty imposed on him him, whilst he rallied him, for endeavourby his hon. and learned friend (sir J. Scaring to comprise in one speech, however lett) who had been obliged to leave the long, twenty-nine heads of argument on House ; namely, the explanation of a point the law and the administration of justice. which his hon. and learned friend had certainly he confessed that, at first sight, omitted to notice; and which he was about it did appear that there was some ground to enter upon after his observations on the for the objection; but his answer was, speech of the hon. member for Dungar- that in order to gain the attention of the von, but which he had been prevented from House once for all, he thought this course doing by his (Mr. B.'s) accidental inter- expedient. It was hopeless for him to be ruption. The point to which he alluded, able to obtain the attention of the House, referred to the practice of special pleading, let him solicit it how he might, frequently. which had been attacked by the hon. mem- The subject was barren and dry; and it ber for Dungarvon. Upon this point he was impossible to treat it concisely. Could agreed with his hon. and learned friend; he expect that the House would attend to and he was glad to be confirmed in his the same subject night after night, week opinion by an authority of such high ex- after week, and session after session? The perience and talent, that all that was want- House also was not the only party to be ing to render special pleading perfectly considered. They sat there in the face of competent to its purpose, was to bring the country; and it was well known that back the system to its ancient rigour and there was no subject in which the people simplicity. He would have the pleadings of England took more interest--and God made simple, to prevent misconstruction forbid that this interest should ever dimiand misapprehension ; but in confining nish!--none which came, as was often said, the power to plead, and in diminishing “ more home to their business and bosoms": the number of counts, he would not leave, -none which the people. had more at as at present, the judges with the power heart—than an ample, unsparing, but of nonsuiting the parties, because some judicious,-a temperate, but deliberate and trivial and verbal mistake had been com- advised,—reformation of the law, carried mitted. That would be a great injustice. into execution by those hands, who, by So many counts were now necessary, be previous experience, were best enabled to carry it into effect for the benefit of the viated all objections. It had been said, people, which, from an intimate acquaint- and truly said, that it was easy to complain ance with the subject and long practice, of abuses, but very difficult to point out a were the best qualified to perform the task. remedy for them. No one was more senThe people, he believed, did not desire a sible of the truth of this saying than he sweeping reform-did not wish to see the was. This arose from the imperfection of whole altered-but they did wish to see all human institutions; the errors in which the axe laid to the root of all abuses, but it was much easier to discover than to laid by deliberate, skilful, and dispassionate rectify. It might happen that he had not men, sparing all that was valuable, but been right in some of the remedies he had cutting away what was useless. They did suggested for an abuse, although he was demand, that cheap and speedy justice right as to the abuses themselves, because should be the system of the country. They they were existing things : the remedies did not desire hasty or imperfect justice; suggested for them could not be appreciated for they were of opinion, as he was, that until they had been tried by the test of though cheap justice was a great good, experience. He, however, had not stated great injustice was a great evil, let it be a single evil for which he had not sugever so cheap and speedy. He had had gested --not dogmatically, but for inquiry many opportunities of ascertaining the and investigation--a remedy. In the opinion out of doors, and from all the in- course of the observations which had been quiries he had been able to make, he be- made upon his speech, he did not think lieved that the minds of the people of this that any one part of it had been specifically country were earnestly bent on law-reform. objected to there had been general obOther reforms and retrenchments were jections, indeed-except on the subject of indeed desirable, if there were any means evidence, by his learned friend, the Soliof retrenchment, with thirty or forty mil-citor-general ; and his learned friend, Mr. lions of taxes. But, as men saw no hope of Sugden, who had honoured him by answermuch retrenchment with these thirty or ing a speech which had been made long forty millions of taxes, they said, “ at least before he was a member of parliament [a let us have all the reform we can have in laugh). His hon. and learned friend had other matters." Thus it appeared to him evidently derived his knowledge of his to be his duty, when he brought the sub-|(Mr. Brougham's) arguments, from sources ject before the House, to cover a large to which he was not authorized to allude ; space with the inquiry : the country looked but the uncertainty of such reports, where for it; and if any part had been left un- a little line and a half sometimes compretouched, it would have been said "What hended an argument which had occupied signifies your doing this? why did you a quarter of an hour in the delivery, was not do that? this is not objected to ; do obvious. He did not wish to say any not meddle with this, but that." He had thing disparaging of those gentlemen by thought it therefore better to bring all the whom the speech was abridged; they were topics before the House at once ; and if doubtless very excellent gentlemen; they the House chose to take it up in parts, it merited no unkindness from him ; but it might. Lest it should be supposed that was evident that such reports, where a line he had indulged in a display of professional and a half was given to every quarter of knowledge, he declared to the House that an hour, could not give any thing like a he had no vain or conceited motive what- complete picture of a speech of such ever. God knew, he had bad enough of minute and delicate details, in which the professional displays in his time! But he mistake of a single word, of “fee" for was bound to do what he had done ; " life," for example, might work the utmost namely, to suggest not a single alteration, confusion in the argument. It was danor remedy of an evil, of which he had not gerous to answer a speech, when only notes practical experience, or of which he had of it, like that to which he had alluded, not had actual knowledge, from being had alone been seen; but his learned friend concerned for one party or the other in would learn better hereafter. His learned court.—He stated this to meet the objec- friend had quite mistaken him if he suption that would be made to suggestions posed that he wished to make any change of speculatists, theorists, and men who whatever in the law respecting real prowere not practical lawyers, and by thus perty, or to alter, in any respect, the

power limiting himself, he thought he had ob- which a man had over such property. He did not mean to say, " let us sweep away be devised and conveyed. There was then, fine and recovery, and convert the first he believed, no real difference between him tenant in tail to the first tenant”-he did and his learned friend, but as to the nicenot mean that; but he meant that some ties of this part of the law.He would precise and simple form of words should next proceed to say one or two words replace the first tenant in tail in precisely specting some other points that had been the same situation that he was before he adverted to. He would first observe, that had suffered the recovery, or before he he had laid before the House a great numlevied the fine. He meant to allow the ber of facts, and not a little law, and that tenant in fee, with the concurrence of the three weeks had passed since he had made tenant for life, to bar a remainder as at his speech. This was as favourable as present, but he would accomplish that by possible for those who wished to answer it. a more simple method. He was aware of But, after all the pains and care of his the utility of this part of our law, and he learned friend, the Solicitor-general, he would not alter it; for its use was to pre- had not been able, with great candour, and vent young persons falling into improper as much kindness towards him as his duty hands, and interfering with the stability of to the House and regard for his own repufamily settlements. He would give the tation would allow—he had not been able, two tenants this power by a writ of en- after three weeks' consideration, to object feoffinent, or by any valid assurance of to one tittle of that statement, with regard two persons. He would not say that, in to the laws which he (Mr. Brougham) had another country, such as the United States made. With respect to the facts, bis of America, a different modification of learned friend had stated that he had made landed property might not exist; but in one mistake as to the Exchequer ; but his our mixed government, one element of learned friend, it turned out, had mistaken which was a landed aristocracy, he thought the case ; for in the one he alluded to, the we had chosen a happy medium, which it Crown had defended Mead. His learned would be impolitic to touch or alter, secur- friend had defended his view, by saying ing as it did, on the one hand, to the the Crown had the power to pray a tales, parties a full power over their property, because it was supposed the Crown was and securing the stability of the aristocracy, the prosecutor; but, in the case he alluded and still leaving on the other a sufficiency to, the Crown had been the defender of of land coming into the market for all the Mead, and by refusing to pray a tales, had purposes of commerce. The law of Eng- stopped the course of justice. "By this land, he repeated, preserved, on this diffi- power, many persons might escape punishcult point, a happy medium. He would ment who merited it; and he, therefore, let this part of the law remain as the hoped it would be reformed. In the case foundation stone of all : he would only of Mead, after an expense of 10,0001., the endeavour to make its operation perfect, Crown-not, as was supposed, a disinterby allowing all parties to do what the law ested party, but an enemy in the heart of now allowed them to do, as easily as pos- the camp-stepped in, refused to pray a sible. He agreed entirely with his learned tales, and put an end to the prosecution. friend, that the tenant in fee should retain The conduct of Mead he considered as all his power over the property : but he infamous as any man's conduct ever was. could not agree with him, that all the He had been found guilty by one jury, niceties of this part of the law should be and the Exchequer jury, by their verdict, preserved ; for example, on looking into a shewed that they regarded him as guilty very excellent book, “Sugden on Powers," of perjury; and thus, in fact, he was conhe found such niceties there described, that victed by two juries. If Law had not been while it was very difficult for a learned killed, if he had had another 10,0001. to man to tell what powers he was conveying, expend, Mead would have been found and what the words he employed signified guilty a second time ; but when Law was in the eye of the law, it was quite impos- killed, under very suspicious circumstances, sible for the unlearned man to do so. "In- there was an end to the whole proceeding. stead of these niceties he would adopt some — With respect to another case alluded to formulas, such as were supplied to un- by the Solicitor-general, of the petition of learned magistrates, that the commitments right, what he (Mr. Brougham) objected they made out might be correct; and by to was, that the Crown should have the such formulas he would allow property to power of refusing to grant such a petition,