HOUSE OF LORDS,

Monday, February 9, 1852.

or promised to use, any influence, to procure a place or pension for, any voter who had voted at his election, and that he

MINUTES.] PUBLIC BILL.-1 Common Law was wholly ignorant of any gift or promise

Procedure Amendment.

BRIBERY OATIIS.

made on his behalf by any person to such voter, and that he wholly disbelieved that any such thing had been done on his behalf by any persons for him, or pretending to act for him, whether with or without his authority; and, furthermore, to bind him by a solemn promise not to pay, or cause to be paid, any thing, or to fulfil any one promise, or to do anything whatsoever to carry into execution the promise or engagement of his agents, or of any other persons authorised or unauthorised in his behalf. The same declaration would of course also be exacted from the unsuccessful candidate at the election for the seat, in case he succeeded in ousting the sitting Member. That was a declaration which he thought that no man would dare to make if he were not thoroughly and perfectly conscious, in his own mind, that he had not, either by himself or by another in his behalf, done anything, or was cognisant of anything, like bribery being done in the course of his election. If his declaration was in any particular false, he would be, as he must know, in the hands of worthless persons, and his character was gone for ever.

LORD BROUGHAM, seeing his noble Friend the President of the Council, whose recent indisposition he, in common with all their Lordships, greatly lamented, once more in his place, would take the liberty of recommending the subject of bribery at elections to his consideration, and that of the Government. It was a subject which he had brought before Parliament at various times, and many attempts had been made by himself, as well as by others, to extirpate this grievous evil. All these Motions had failed in effect, and one which he had introduced some Sessions ago, and which had been sent to the other House of Parliament, where it was dropped, had been justly complained of, because it did not go far enough. There was no provision to compel the parties themselves to be examined. But this defect he had completely cured by the Evidence Bill of last Session; for now both the sitting Member and the unsuccessful candidate for a scat were liable to be examined on oath, subject, no doubt, to their refusal to answer any question which might criminate themselves, but also to the consequences criminatory of themselves which might result from their silence, and which would be fatal before an Election Committee. Unquestionably, however, something more than the Evidence Bill was wanted to render the law for the prevention of bribery perfect, sanguine as his hopes were of the effects of that Bill. He therefore trusted that Her Majesty's Ministers would take the subject under their consideration, as the in-ject had occupied the attention of Her stances which had occurred of late confirmed rather than weakened the belief in the existence of great bribery and corruption at elections. He had a very confident opinion that a Bill might now easily be formed, which, with the Evidence Act, would put a stop to these corrupt practices. The true course to be taken in order to extirpate bribery would be to exact from every Member of Parliament, on taking his seat, a solemn declaration either on oath or honour-he should prefer the latter-that he had not, by himself or his agents, directly or indirectly, given or promised money, or any other valuable thing, to, or had used,

The MARQUESS of LANSDOWNE could assure his noble and learned Friend, that he should be glad if any effectual remedy could be provided against those corrupt practices at elections. The noble and learned Lord and other distinguished persons had given their attention to this subject at various times; but he feared it must, unfortunately, be admitted that no effectual remedy could be provided against them. It might be satisfactory, however, to his noble and learned Friend to know that the sub

Majesty's Government, and a notice either had been given already, or would be given that very night, in the other House of Parliament, of their intention to bring in a measure on the subject; and he was sure the subject was taken up with a strong determination to bring it to an effectual issue.

LORD BROUGHAM was exceedingly happy to hear the statement of his noble Friend, that notice had been given, or was about to be given, on this subject, not having been aware that such an intention existed. Much would depend upon the form of the Bill; and he hoped and trusted

COMMON LAW PROCEDURE AMEND-
MENT BILL.

Order of the Day for the Second Reading read.

there was sufficient virtue in the other defendant had answered to the writ and House of Parliament, to prevent them from made his appearance in the court, the any longer avoiding this necessary and plaintiff or his advocate stated his case, or efficacious measure for extirpating bri- (as, in technical terms, it was called) bery. "counted" or "declared" the nature of his cause of complaint. The defendant or his counsel then made objections in point of form, or presented an answer to the plaintiff in substance. The objections made in point of form were then and at once answered by the plaintiff, and immediately decided upon by the Court. If the objection were allowed, there was an application instanter on the part of the plaintiff to amend, which was generally granted. And, on the other hand, if the objection failed, judgment was given at once against the defendant, or he had judgment of respondeat ouster, by which he was called to answer over in some better manner on the merits on some day then fixed. The objections of form having been overruled, the Court then went to the merits of the

The LORD CHANCELLOR moved the Second Reading of this Bill, which was one of those referred to in the Royal Speech, and was framed upon one of the reports of the Commission appointed to inquire into the Process and Practice of the Superior Courts of Common Law. Considering the circumstances under which the Bill had been presented to their Lordships, independently of the nature of the Bill itself, he did not feel it necessary to urge any reasons for the Bill beyond those which would present themselves to their Lordships' views, or were offered by the Committee in their Report. Their Lord-case. Those objections were numerous, ships were aware that the law was dis- and any noble Lord might read in Reeves' tinguishable into two branches: the one, History of the English Law, vol. ii. page that part of the law by which rights were 344, not less than seven or eight such obadjudicated, and the other, that which jections urged and answered in succession, regulated the course of proceeding, by in the same case, on the same day, and all which the questions of right were present- overruled, and the defendant at last ed to the Courts for adjudication. The obliged to answer on the merits. Their present Bill related to the latter depart- Lordships could see very easily what ment of law. It was intended to supply different results would have followed had the defects and remedy the abuses by written proceedings been the practice. As which the several steps in the course of a check upon these objections, however, it litigation for the decision of rights had was provided that if a party craved time hitherto been accompanied. The Bill fol- to answer to the substance of the "count" lowed the whole course of a suit from its or declaration," he thereby waived all commencement to its final determination in right to take formal objections; and when a Court of Error, remedying the deficien- the day arrived on which he was allowed cies and removing the defects which oc- to "impeach," he was compelled, when he curred at every step or stage of the pro-answered or "pleaded," to meet objections ceeding. The present system of procedure had originated in a very remote period, when the course of justice was administered under very different circumstances; and though times had changed, yet, at the present day, the forms of procedure were still the same, the ancient system had remained, and the consequences were that in many instances results had followed which did not belong to it at the time the system was originally established, and which had never been contemplated by the framers of these proceedings. Originally the proceedings in our Courts of Law were not by written pleadings, as now, but were put in by counsel ore tenus. Formerly, after the

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taken in like manner on the part of plaintiff's counsel, and was obliged to amend or answer instanter; and a similar course was pursued when the plaintiff replied to the answer or plea," until the parties having thus pleaded and replied to each other, the proceedings were reduced into writing, and the "issue" in which they resulted was set down for trial. Since those ancient times, the quantity of business had so increased that it would be impossible for those proceedings to be carried on in succession ore tenus; therefore the complaint or "declaration" of the plaintiff had to be reduced into writing, and the defendant had necessarily some time to consider it; and if he answered it in sub

stance, or only by a formal objection, some | plaintiffs; and, on the other hand, in certime was also necessary for the plaintiff to tain actions, if there were too many dereply, or to meet the formal objection; so fendants sued, the plaintiff failed as against that when the written proceedings are set all, although he had an unquestionable down for hearing, it sometimes happens in claim against some. These anomalies had our own time that "hearing" takes place been brought about by the alteration of six or twelve months afterwards. Of circumstances in the course of time. Now, course this made a great difference as to it appeared that in 1846 146,000 writs formal objections, which originally had the were issued; of which only 2 per cent effect of securing precision and regularity, ever came to trial, only 5 per cent went without any delay, expense, or injustice to so far as "declaration; so that not more the opposite party; whereas now the most than 7 per cent arrived beyond the writ. frivolous objections could be taken, and the This showed that nearly all the writs cause, to a considerable degree, delayed issued were settled before the time arrived and obstructed, or often indeed ultimately for "appearance;" and that all the rest decided upon a point irrelevant to the of them had been commenced for undismerits of the matter in issue. Similar puted debts or claims. There were proobservations applied to the ulterior pro-visions in the Bill for reducing the cost ceedings. And their Lordships would per- of proceedings in cases of this class; and ceive how differently formal objections their Lordships would see, that, considerwere considered in ancient times to what ing the very small proportion which went they were in the present day. Formerly to trial, it was desirable to render the all causes were tried at Westminster Hall. expenses in the prior stages of proceeding Then came first the statutes of "assizes," as small as possible. The present Bill, which allowed them to be tried in the as he had already observed, travelled county once, and afterwards twice, a year; through every stage of the suit. It first and then the statutes of nisi prius, (reign provided that when a writ was issued it of Edward I.), on which all causes were should have an endorsement stating pretried twice a year; but still the same form cisely what is claimed for debt, and how was continued as if the cause had been much for costs. This would give the detried in Westminster Hall. When, there- fendant an opportunity of knowing whether fore, the " "" issue was "made up," a writ there was anything in the amount of the went down from the Court to the sheriff of debt claimed to which he objected. If the the county, directing him to summon a defendant did not " appear" to the writ jury to attend the court at a certain pe- within eight days, judgment would be riod, at which it was supposed or feigned "signed" upon the writ without the exthat the cause would be tried; but as it pense of a "declaration," or of “interlowas known it could not be tried at that cutory judgment," or "final judgment,' time, the jury, of course, did not appear; according to the nature of the action. He and then there was another writ to the thought that their Lordships would agree sheriff, called a distringas, stating that with him in thinking that the "declaration" the jury had (contrary to the fact) made a gave little or no material information to default, and directing him to "distrain "the defendant in ordinary actions. It did them by a certain penalty, and to have their bodies at Westminster at a certain other day, "unless before" (nisi prius) the justices of the king should come into the county and the place where assizes were held to try the causes; and all this because the ancient process, no longer applicable, is notwithstanding retained. Sup-"declaration," with "plea" and interposing, however, the parties got to issue, and the cause came down to be tried, as according to the present course of proceeding-if there were too many parties joined as plaintiffs, or too few, the plaintiff was nonsuited, that is, defeated and lost his cause for the time, notwithstanding that the debt was undoubtedly due, for the cause of action had accrued to some of the The Lord Chancellor

indeed state whether the action was brought for goods sold or delivered, or on a bill of exchange. But if the causes belonged to the class he was referring to those of ordinary debts and claims which the defendant did not dispute-there was no occasion why the cause should proceed to

locutory judgment, because the writ would give the defendant due notice what the claim was, putting him upon his guard if he meant to defend; and if he did not appear in court within eight days to defend,

final judgment" would be " signed;" and the result would be, that the costs would be reduced at least one fourth of what they would at present amount to,

could be rendered so perfect as to be free from objection, yet he believed it would remove much of the odium now resting upon proceedings at law, and would go as far as law could go to secure to a party success in an honest suit-so far, at least, as to protect him from technical objections. He would not travel through all the clauses of the measure (some of which might possibly be considered capable of improvement in the Committee), but, persuaded it was one their Lordships would ultimately pass, he would merely move that the Bill be read a second time.

where the cause travelled in the course abolishing many statements, and simplifydescribed. With regard to formal and ing all. Although it could not be expected technical objections, they were altogether that a Bill thus extensive in its operation abolished. Many of them were connected with matters no longer material. For instance, originally the jury in every case came from the vicinity (visne) of the parties and of the transaction in question, and therefore every material fact alleged in the declaration was required to be accompanied with an averment, not only of time, but of place, in order that the Court might see what the "venue" must be, that is, the place whence the jury must come which should try that matter of fact, if denied, and put in issue. But now that juries came from the county at large, this of course was immaterial; yet it very frequently gave rise to objections. Numerous other objections could be taken in a form called "special demurrers," which would be altogether abolished. Very early statutes had been passed (after the original oral course of pleading was abandoned, and the present system adopted), requiring that formal objections should be stated specifically by way of "special demurrer," as distinguished from those legal objections which went to the merits of the case. These "special demurrers" often remained many months upon the paper, awaiting a hearing; the present Bill abolished altogether all grounds of "special demurrer," that is to say, such objections as were only formal. Besides these, however, there were occasionally slips made in the pleading, which really were material-omissions of some important allegation, perhaps essential to the maintenance of the action or of the defence. The opposite party could at present pass that by and proceed to the trial; and when the other side has succeeded, move an "arrest of judgment," upon a declaration, or for judgment non obstante veredicto (notwithstanding verdict), and thus deprive the party who succeeded at the trial of all the benefit of his success; or even might delay still longer, and sue out a writ of error after judgment had been given upon the verdict, and reverse all the proceedings in a superior tribunal., The Bill required that all these objections should be taken at an earlier stage, if at all, and would allow of no writ of error to reverse a judgment, except where the objection had been taken in the Court below. Thus their Lordships would see that the Bill travelled through the whole course of a suit-from the "writ of summons" to the "writ of error," dispensing altogether with numbers of forms,

Moved, "That the Bill be now read 2a." LORD LYNDHURST said, no reasonable person could object to the Bill. It was the result of many months of labour on the part of persons very deeply informed upon the subject, and who had done everything in their power to render the Bill as perfect as possible. He did not rise to object to the Bill being read a second time, because every objection he had was to matters of detail, which could be considered in Committee. But there was one circumstance which he wished to present, which had always pressed upon his mind, and to which he had never been able to discover any satisfactory answer. The County Courts had now been established for several years, and their jurisdiction had been extended so far as 501. He understood that upwards of 5,000 causes of between 201. and 50%. had been tried or decided within the last five months, which was at the rate of 12,000 per annum; and he was informed in every quarter that the decisions of these Courts had given entire satisfaction. Now, he could not understand why, if these Courts had jurisdiction in certain cases up to 50l., and their machinery was found adequate to the administration of justice therein, there should not be in the Superior Courts of Law, with reference to the same classes of cases, the same simple machinery adopted (presided over by the fifteen Judges), within a certain limit at least, say to the extent of 2001. or 300l. If the machinery now adopted in the County Courts were good for causes of 50l., he could not see why the same system could not be adopted for causes of greater value of the same class.

LORD BROUGHAM agreed that the Bill should be read a second time, and

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then discuss the details in Committee- exactly aware what the course of procealthough he anticipated objections to it of dure in the County Courts was after the three classes that it did not go far "declaration" or plaint." If his noble enough; that it went too far; and that it and learned Friend was acquainted with it, went in the wrong direction. His own ob- and was prepared to recommend to the jection to it was rather of the former cha- House to adopt it as a course of proceeding racter, that it did not go far enough; for the Superior Courts, his recommendathough he admitted that, so far as it went, tion would go a great way with the public it was in the right direction. These ob- and the profession; but as at present adjections, however, as his noble and learned vised, he (the Lord Chancellor) thought that Friend had observed, should be considered the course of procedure laid down by the in Committee. He concurred with his Bill was essential to the due administranoble and learned Friend as to the excel- tion of justice, and fitted to the nature of lent working of the County Courts system, the litigation which took place in the imand as to the propriety of extending their portant commercial and trading interests jurisdiction. of the country; and he did not believe that the procedure of the County Courts was properly applicable to the suits in the Superior Courts. He should be glad, however, that the public should have the assurance of his noble and learned Friend's judgment as to whether or not he thought that the County Court course of proceeding was fitted to be adopted for adminis tration of all suits; but until he heard from his noble and learned Friend the deliberate declaration of his judgment to that effect, he should not believe that his noble and learned Friend really entertained any such opinion.

LORD LYNDHURST explained that he did not say anything about their jurisdiction; but he had suggested that if their machinery was deemed adequate to causes of a certain description, the same machinery might be applied in the Superior Courts, under the presiding care of the Judges, to cases of a similar character, though of a larger amount.

LORD BROUGHAM admitted that he had misunderstood what fell from his noble and learned Friend. He thought that if the suggestion of his noble and learned Friend were adopted, it would be of benefit both to the suitors and to the Courts of Common Law. This was a time when large and liberal amendments of the law were expected by the country, and ought to be granted. His Lordship then proceeded to read to the House an extract from a letter which he had just received from his noble and learned Friend Lord Denman, on the subject of the Bill of which he and the Lord Chancellor had spoken the other night. His noble Friend

said

"The present crisis could not fail to excite considerations of the highest importance. There is every appearance of an attempt to establish order on the basis of absolute power, and to

teach mankind the lesson that the will of one

man may be safely intrusted with the interests of all. But, if there be any truth in moral reasoning or long experience, it is clear that, without the basis of law, no solid fabric of order can be reared, nor can any security be given for the rights which even the best men and the best designed decrees may intend to confer. It appears to be the peculiar vocation of England to exhibit to the nations of the world a steady Government, and a peaceful, because contented, people, and that content must not be looked for (since it cannot and ought not to exist), where a press is free, and the people moderately enlightened, while a single grievance is wilfully maintained after exposure."

On Question, agreed to. Bill read 2a accordingly.

FOREIGN REFUGEES IN ENGLAND. VISCOUNT STRANGFORD said, he held in his hand some very important documents, which had been laid on the table of their Lordships' House, relating to the proceedings of certain foreign refugees in this country. [Parliamentary Papers, No. [1433] Session 1852.] These documents contained a series of remonstrances from the Ministers of Foreign Powers, protesting against the practices and designs of certain persons who had been driven from their own countries, and were alleged to be abusing the hospitality and protection of this country. The first of these documents was a remonstrance from the French Ambassador, which bore date so far back as the 29th of October last; and the noble Lord the late Foreign Secretary had not left office until the 22nd of December last. He wished, therefore, to know whether, during the long period that had elapsed since the receipt of the protest in question, any answer had been returned to the French Ambassador; next, if such answer had been given, what was its na

The LORD CHANCELLOR was not ture and tendency; and, thirdly, why such

Lord Brougham