« AnteriorContinuar »
dize, an offence by which our commercial character has suffered exceedingly.
Of the amendments having greater pretensions there are two of importance, but having grave defects, which materially detract from their merits. The Lunacy Act, wisely giving in cases of importance the aid of a Judge having more authority than the Commissioner, arose from the Windham Case ; and though the Commons rejected an absurd provision excluding medical evidence, the restriction of the inquiry to two years remains, and is highly exceptionable. The Joint Stock Company Consolidation Act, though a great improvement, has two defects of a serious kind. There is no specification of what constitutes membership of a company, a want likely to encourage endless litigation; and the command to publish yearly balancesheets is confined to banks and insurance companies, instead of extending, as it clearly should, to all.
But the Act of by far the greatest pretension, for facilitating the transfer of real estate, is by many experienced persons expected to prove a failure. Certainly, such a bill should have been subjected to the fullest discussion, both of professional men, through whose instrumentality it must be worked, and of the community at large, for whose dealings it is intended. There could have been no harm whatever in a year's delay, for letting the plan be considered during the long vacation, and no use in hurrying such a measure through Parliament at the end of the session. The great Incorporated Law Society urged strong objections to it, alleging that it was permissive, and no one with a good title would take advantage of it, and holding that it would be inoperative except in creating offices with large salaries. I am very far from concurring in all the objections made, and still less in the sarcasm which has been ventilated, that the bill was hurried through in order to provide a set-off to the Bankruptcy Act, which has proved a total failure. This failure is fully admitted, and by all; but I consider the attempt to improve our conveyancing as conscientiously made, and heartily wish it may succeed, though I have stated
now, as I did at the Social Science Congress, the objections to its hasty enactment, and my preference for the plan repeatedly presented in the shape of bills, extending to estate of every kind the procedure with customary property, by which, as Mr. Fawcett has explained from his large experience in customary courts, the cost of conveyance of the largest estate does not exceed a few shillings, and the dispute of a title is almost unknown.
But all the defects in late measures, and the great occasion for legislation upon other matters, as well as for arrangements in our judicial procedure requiring no new law, though imperatively required, lead to the absolute necessity of a department for performing the duties of Minister of Justice. Such a department would have prevented the omissions and bad provisions in the recent Acts, and would secure the proposal of measures required, beside the inestimable benefit of presiding over the preparation of all bills, with the consent of the Government and of individual members. We are indebted to Mr. Napier, the able and excellent ex-Chancellor of Ireland, for his persevering efforts on this subject in different sessions as long as he continued in Parliament. In 1853 and 1855 he met with little support; but in 1856 he obtained the consent of the Commons to a modified resolution. The year after his triumph was complete. He carried, all but unanimously, an address for the establishment of a separate and responsible department of Public Justice, supported strongly by Lord Palmerston and Lord John Russell, who recommended the Queen to return an immediate answer that the “subject should receive that attentive consideration which its importance demands." I therefore naturally, before the end of the session, called for information as to what had been done in the five years since the “attentive consideration” had been promised; and a private communication from a leading member of the Government apprises me that nothing whatever has been concluded. It may, however, be hoped that this important step, so strongly recommended by the Commons and by the two chief Ministers, will at length
be taken; and there is assuredly no lack of duties for the department. Nevertheless, even if the establishment of it should be delayed, some of these duties are so urgent that they must be discharged without such help.
One of the most pressing requires no legislative interposition. Experience, but especially of late, has shown clearly that the circuits of the judges must be newly cast. Some, as the Norfolk, and perhaps the Midland, are too small. Compared with the Northern, or even the Oxford and the Western, the disproportion is enormous. The division of the Northern is absolutely necessary, and may be effected without increasing the number of the judges, by uniting Yorkshire with the Midland. Lancashire and the four northern counties would be quite a sufficient circuit. A single judge would be sufficient for the Norfolk, unless part of the Home Circuit were thrown into it.
There are great objections to altering the ancient division of the kingdom into counties; but the Recorder of Birmingham, our learned, able and excellent friend, Mr. Hill, when he set forth the hardship of prisoners being sent from a great distance, suggested that they might be committed for trial at the nearest assize town, this optional power being given to the committing magistrate. This would require an Act.
You have lately seen a scandal in Scotland ; the agitation over great part of the country on the subject of a conviction for murder. Petitions for pardon, numerously signed, are sent up, and a meeting was held at Glasgow, attended by thousands, to pass resolutions in favour of such an application nominally, but really against the learned judge and respectable jury who tried the indictment. The Home Secretary, in whose department the consideration of such a petition is, happens to be a lawyer; but this is a mere and a rare accident. His two predecessors were not; and I do not recollect an instance of a lawyer in practice holding that office. Ought not this and all such cases to be brought before the Department of Justice? But this case, and the scandal of the agitation
VOL. XIT-YO. XXVII.
upon it, in all probability never would have arisen had the attempt I so often made succeeded, to extend my Evidence Act to defendants in criminal cases, on their desiring to be examined, and of course subjected to the sifting of cross-examination. It is plain that the woman convicted would have desired to be examined, and her sifted testimony would either have led to an acquittal or confirmed the verdict; in either case the public mind would have been satisfied. The only objection ever urged to this extension of the Evidence Act is, that any party declining to take the benefit of the law would be supposed to be guilty for that reason. But surely the judge could explain to the jury how consistent such a refusal is with innocence, arising, as it oftentimes would, from the party's want of confidence in his own presence of mind to stand a cross-examination. We must recollect, too, that the existing law allows the examination of defendants compulsorily and without any option in quasi criminal cases, as actions for assault of the worst description, or false imprisonment, or for libel. Lord Denman and Lord Campbell were so much struck with this inconsistency, that they inclined strongly to support my bill, if confined to cases of misdemeanour in which the opposite party was examined for the prosecution.
The want of a Public Prosecutor has been often complained of, and in addition to all the instances of this defect given in my friend Mr. Phillimore's Committee, recent cases have put our inferiority to Scotland in this respect in a very remarkable light. A swindler, for example, having, beside obtaining money on false pretences, committed several forgeries, was not tried for the felony but only for the misdemeanour, which he confessed. His connexions were in good circumstances, and it was urged for him that it was a first offence, and that he was only twenty-three years of age. No Public Prosecutor would have resorted to such plea to excuse his breach of duty. Some years ago I recollect an anchorsmith of good property forging to a large amount, and he found means to pay the recognizances of the party bound over to prosecute, and so escaped. There are other things which we may very wisely borrow from Scotch procedure. Where the jurisprudence of two countries differs in fundamental principle there can be no mutual interchange. Thus the law regulating the title and conveyance of real estates in France, Scotland, and England, is so entirely different, that the one country cannot borrow from the other. But in procedure it is quite otherwise, and cach might greatly profit by the imitation of the others. France, for example, in much that relates to criminal procedure might most advantageously borrow from us, as we might from their criminal appeal system. So Scotland has borrowed our trial by jury in civil cases with great advantage; and we have adopted, from the Scotch, the important principle of local jurisdiction, though as yet very imperfectly. The allowing trustees remuneration is another superiority of their procedure, and ought clearly to be adopted in England in all cases where the constitution of the trust does not expressly preclude it; but with the remuneration should be coupled more stringent obligations, such as the requiring yearly accounts. It is certain that the interests of parties under trust suffer much more constantly from the negligence and even inaction of trustees than from their dishonesty.
I have mentioned the great subject of local judicature, and the vast improvement of our judicial system by the County courts. It is with the most unqualified satisfaction that I observe their success. Last year there were nearly half a million of causes tried by those courts and only seventeen appeals ; but the number of actions brought was nearly 900,000, for £2,220,000, so that half of them were settled without going to trial. It is difficult to over-estimate the benefits of such a system to the community, and especially to the working classes. That the jurisdiction of the courts ought to be considerably enlarged, seems evident. In Scotland the local judge has nearly unlimited jurisdiction ; and one among other benefits derived from hence, is the facilities thus afforded for the choice of judges in the higher tribunals. It is well