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House. His object was to lay before the In rising to address the House upon one country the evils produced by the present of the most important subjects that can system. The hon. member then proceeded possibly be submitted to the legislature, I to read, from the returns upon the table of feel at the same time deeply impressed the House, the number of persons then with the conviction, that it is also one of confined in the different prisons, and con- the most difficult, and certainly the largest, tended, that it was clear from those returns, that could engage its attention. I that arrests effected any thing but the aware that I stand engaged to bring beproposed end; namely, the payment of fore you the whole state of the Common debts. It was absurd to suppose that Law of this country; the Common Law I confining a man within the walls of a call it (in contradistinction to Equity), prison was the way to make him payhis debts. with the view of pointing out those defects On the contrary, it prevented all possibility which may have existed in its original of his doing so, because it precluded all construction, or which time may have possibility of his exercising the calling by engendered, as well as of considering the which he had been accustomed to gain a remedies appropriate to correct them. livelihood. A glaring instance of the folly Nothing, I do assure you, at all strengthens of this proceeding was the case of Mr. and bears me up under the pressure of this Haydon, the artist, who was prevented by vast and overwhelming burthen, but a conimprisonment from exercising his profes- viction of the paramount importance, nay, sion, for whom a subscription was entered the absolute necessity, of no longer delayinto, and who, at a public meeting, had ing the inquiry, or postponing the needful showed how short-sighted were the persons amendments; and the intimate persuasion who had placed him in such a situation. I feel, that I shall be able so to deal with He thought the subject, in every point of the subject (such is my veneration for all view, so important, that should it not be that is good in our judicial system, and included in the motion which his learned my habitual respect for those in whose friend, the member for Winchelsea, was hands the administration of it is placed), to bring forward to-morrow, he would as neither to offend the prejudices of one move for a select committee to inquire into class, nor vex the personal feelings of anit. He would now move,

“ That there be other. But I feel a confidence, also, which laid before the House, a Return of the is unspeakable, resting on another ground. number of Prisoners committed to the I come not here to raise cavils before men, King's Bench, Fleet, Whitecross-street, ignorant of the details and niceties of Marshalsea, and Horsemonger-lane Prisons, the profession I belong to, and who, in in 1827; distinguishing those in custody that unavoidable ignorance, would be unfit under Mesne Process, or under Judgments judges of their merits; I am determined to Recovered, or for Costs of Suits; stating avail myself in no respect of their situation, how many for sums above 1001., between or of the absence of the learned body of 501. and 1001., between 501. and 201., and the profession, for the sake of a futile and

under 201. (excluding Crown pitiful triumph over what is most valuable Debtors); stating also the number in cus- in our jurisprudence. I am comforted and tody in each of those Prisons on 1st confirmed in my resolution, from the acJanuary, 1828.” Also, “ A Return of the cidental circumstances that have joined number of Warrants granted to arrest for me, in some sort, to the administration Debt by the Sheriffs of London and Mid- of the law, in which I have had so condlesex, and by the Sheriff of Surrey, and siderable an experience, I have seen so much the number of Bailable Processes executed of its practical details, that it is, in my by them in the year 1827."-Ordered. view, no speculative matter whether for blame or praise. I pledge myself

, through HOUSE OF COMMONS. the whole course of my statement, as long Thursday, February 7.

as the House may honour me with its atState of the Courts of Common tention, in no one instance to make any Law.) Mr. Brougham rose, and ad- observation, to bring forward any grievdressed the House as follows : *

ance, or mark any defect, of which I am

not myself competent to speak from per• Inserted, by Mr. Brougham's per- sonal knowledge. I do not merely say, mission, from the original edition, printed from observation as a bystander; I limit for H. Colburn,

myself still further, and confine myself to

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causes in which I have been counsel for to it. If (which I do not believe) he inone party or the other. By these con- tended to limit his efforts to what he has siderations, emboldened on the one hand, already accomplished ; if he were disposed and, on the other impressed with a becom- to say, “Thus far have I gone, and no ing sense of the arduous duty I have under- further can I go with you,” the gratitude taken in this weighty matter, I will, with- of his country would still be due to him out further preface, go on, in the first in an eminent degree, for having abashed place, to state the points which I intend the worst enemies of improvement, by his to avoid.

countenance and support. But I trust he I shall omit Equity, in every branch, will gain direct the energies of his mind unless where I may be compelled to men- to the great work of reformation, and betion it incidentally, from its interference stow his exertions over a wider space with the course of the Common Law; not Another reason for avoiding this part that I think nothing should be done as to of the subject altogether is to be found in Equity, but because in some sort it has the nature and objects of the Criminal Law. been already taken up by parliament. A I do not think it right to unsettle the commission has sat, and inquired into the minds of those numerous and ignorant subject, and produced a Report, received, classes, on whom its sanctions are printhough not yet acted upon. The noble cipally intended to operate. It might proand learned lord, who presides in the other duce no good effects if they were all at House, has announced his intention of once to learn, that the Criminal Code in preparing a bill, founded on that Report. the mass, as it were, had been sentenced I may also add, that the subject has, to his to undergo a revision--that the whole own great honour, and to the lasting benefit penal code was unsettled and about to be of the country, been for many years in the remodelled. hands of my hon, and learned friend, the I intend also to leave out of my view member for Durham (Mr. M. A. Taylor): the Commercial Law. It lies within a it is still with him, and I trust his care of narrow compass, and it is far purer

and it will not cease. For reasons of a like freer from defects than

any

other part of kind, I pass over the great head of the system. This arises from its late Criminal Law. That inquiry, happily for origin. It has grown up within two the country, since the time when first centuries, or a little more, and been formed sir Samuel Romilly (a name never to be by degrees as the exigency of mercantile pronounced by any without veneration, nor affairs required. It is accepted, too, in ever by me without sorrow) devoted his many of its main branches, by other states, talents and experience to it, has been car- forming a code common to all trading ried forward by my hon. and learned nations, and which cannot easily be friend. the member for Knaresborough changed without their general consent. (sir James Mackintosh) with various suc- Accordingly, the provisions of the French cess, until at length he reaped the fruit of Civil code, unsparing as they were of the his labours, and prevailed upon this House, old Municipal-law, excepted the law merby a narrow majority, to lend its attention chant, generally speaking, from the towards so great a subject. On a smaller changes which they introduced. scale, on one indeed of a very limited Lastly, Sir, the law of Real Property nature, these inquiries have been followed forms no immediate subject of my present up by the right hon. gentleman, who is now consideration : not that I shall not have again Secretary of State for the Home De- much to propose intimately connected partment. It is not so much for any thing with it, and many illustrations to derive he has actually done, that I feel disposed to from it; but I am flattered with the hope, thank him, as for the countenance he has that the Secretary for the Home Departgiven to the subject. He has power, from ment intends himself, on this subject, to his situation, to effect reforms, which bring forward certain measures, by which others hardly dare propose. His connec- the present system will eventually undergo tions in the Church and State, render his salutary alterations; and I cannot help services in this department almost in- here saying, that whatever the Criminal valuable. They have tended to silence Law owes to the persevering and enlightened the clamours that would otherwise have exertions of the latesir Samuel Romilly, and been raised against the reform of the of his successor, the member for Knareslaw, and might possibly have proved fatal borough (sir James Mackintosh), I am VOL. XVIII.

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sure an almost equal debt of gratitude has been incurred on the part of the law of Real Property, to the honest, patient, and luminous discussion which it has received from one of the first conveyancers and lawyers this country could ever boast of. My hon. and learned friend (the Solicitor General) opposite, and those members of the House who are conversant with our profession, will easily understand, that I can only allude to Mr. Humphreys.

simply bringing twelve good men into a box. Such-the administration of justiceis the cause of the establishment of government-such is the use of government: it is this purpose which can alone justify restraints on natural liberty—it is this only which can excuse constant interference with the rights and property of men. I then invite you, Sir, to enter upon an unsparing examination of this mighty subject: I invite the House to proceed with me, first of all into the different Courts-to mark what failures in practice are to be found in the system, as it was originally framed, as well as what errors time has engendered by occasioning a departure from that system; and then to consider, whether we may not, safely, and usefully, apply to these defects remedies of a seasonable and temperate nature, restoring what is decayed, if it be good-lopping off what experience has proved to be pernicious.

i. In the first place, let us proceed to the Courts in Westminster-hall, and observe the course pursued in them. The House is aware that, whatever may have been the original of our three great Common Law courts, they now deal with nearly the same description of suits, and that, though the jurisdiction of each was at first separate, and confined within very narrow limits, their functions are now nearly the same. The jurisdiction of the court of King's-bench, for example, was originally confined to pleas of the Crown, and then extended to actions where violence was

With these exceptions, which I have now stated as shortly as I was able, and for which I shall offer no apology, because it was absolutely necessary that I should begin by making the scope of my present purpose understood, I intend to bring all the law as administered in our courts of justice, under the review of the House; and, to this ample task, I at once proceed. But I shall not enlarge, after the manner of some, on the infinite importance and high interest which belong to the question, and the attention which it, of right, claims from us, whether considered as a branch of the government, or as the representatives of the people, or asapart of the people them selves. It would be wholly superfluous, for every one must at once admit, that, if we view the whole establishments of the country, the government by the king, and the estates of the realm,-the entire system of administration, whether civil or military-the vast establishments of land and of naval force by which the state is defended our foreign negotiations, intended to preserve peace with the world-used-actions of trespass, by force; but, our domestic arrangements, necessary to now, all actions are admissible within its make the government respected by the walls, through the medium of a legal fiction, people-or our fiscal regulations, by which which was adopted for the purpose of enthe expense of the whole is to be support- larging its authority, that every person ed-all shrink into nothing, when com- sued is in the custody of the marshal of pared with the pure, and prompt, and cheap the court, and may, therefore, be proceedadministration of justice throughout the ed against for any personal cause of action. empire. I will indeed make no such com- Thus, by degrees, this court has drawn parison; I will not put in contrast things over to itself actions which really belong so inseparably connected; for all the es- to the great forum of ordinary actions betablishments formed by our ancestors, and tween subject and subject, as its name imsupported by their descendants, were in- plies, the court of Common Pleas. The vented and are chiefly maintained, in order court of Common Pleas, however, in its that justice may be duly administered be- exertions for extending its business, was tween man and man. And, in my mind, not so fortunate as its rival; for, though he was guilty of no error-he was charge- it made a vigorous attempt under lord able with no exaggeration he was betray-chief justice North with that view, it never ed by his fancy into no metaphor, who was able to obtain cognizance of the once said, that all we see about us, King, peculiar subject of King's-bench jurisdicLords, and Commons, the whole machinery tion-Crown Pleas. of the State, all the apparatus of the system, and its varied workings, ended in

I hope, Sir, the House will allow me, for the sake of a little divertissement in the

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midst of so dry a matter, to state the separation of provinces was praised, therenature of the contest between the two fore all distinction became obsolete, and courts, as described by Roger North in then the conflict and competition were as his biography of Lord Keeper Guildford ; much commended ; and with far greater a work of amusement, with which I am reason, if it were real; but it is almost sure my learned friend (the Solicitor- purely speculative. In the first place, the general) is as well acquainted as he is with court of Common Pleas shuts its doors to the subtleties of his profession.

many practitioners of the law, requiring It appears from his account, that the that a certain proportion of fees should be courts of King's-bench and of common advanced at a much earlier stage in the Pleas had quarrelled as to their respective cause, than is customary in the other provinces ; for he says, “The court of courts. And who is it that must advance Common Pleas had been outwitted by the this money? Either the attorney himself, King's-bench, till his lordship came upon if it be his own cause, must pay the money the cushion, and that by our artifice in out of his own pocket, or, if he is acting process called ac etiams. His lordship as agent for a country practitioner, he used the same artifice in the process of his must begin by laying out the money long court, where it was as good law as above. before he can draw upon his employer for But Hale exclaimed against it, and called reimbursement; and he is not, in all cases, it altering the process of law; which very sure of being repaid for these advances. In same thing his own court had done and the second place, clients and their attornies continued to do every day."* In another are induced, not to carry causes into the place he tells, “The courts being upon Common Pleas, by the strict monopoly terms of competition, the King's-bench that exists in the advocates of that court. outwitted in the Common Pleas :" and how I have every wish to speak with all respect the latter invented a shift against the of the learned persons who there engross King's-bench, “There,” says he, "the the practice; but as, no doubt solicitors Conimon Pleas thought they had nícked will have their favourites, and as possibly them. But the King's-bench was not so their clients may also have their favourites, sterile of invention as to want the means the practice not being open to all barristers, of being even with that device," and he prevents many suitors from resorting to a shews how-concluding with this remark court where no one can be employed for

--" The late chief justice, sir Orlando them, at least in term time, except he be a Bridgman, and his officers of the Common sergeant; and, great as the learning of that Pleas, gave this way of proceeding to the body is known to be, well founded as their King's bench very ill language, calling it reputation is, for skill and for zeal, as well an arbitrary alteration of the form of legal as for legal knowledge, yet the exclusive process, and utterly against law. But the right which they exercise operates to losers might speak; they got nothing else; keep away business from the court, and and the Triccum in lege, carried it for thus it has happened, both that other the King's-bench; which court, as I said, advocates seldom practise there at Nisi ran away with all the business." +

Prius where the court is open, and that The Exchequer has adopted a similar much fewer suits are carried to the Common course ; for, though it was originally con- Pleas than to the King's-bench. The hned to the trial of revenue cases, it has, causes which thus operate to shut the doors by means of another fiction—the supposi- of that court must be removed before it tion, that every body sued as a debtor to can hope to have its fair share of practice. the Crown, and further, that he cannot The Exchequet, in like manner, has its pay his debt, because the other party will drawbacks, though they operate in another not pay him,-opened its doors to every way. There is one reason why, as at present suitor, and so drawn to itself the right of constituted, it cannot do much business, trying cases, that were never intended to or have the high reputation which it ought be placed within its jurisdiction.

to enjoy ; I mean the mixture of various The first state of the courts being that suits which are cognizable in it. It is, in of distinct jurisdiction, then, of course, this fact, a court of all sorts--of equity and of

law--of revenue law, and of ordinary law * North's Lives of Lord Keeper Guild--of law between subject and subject, as ford, &c. vol. 1, pp. 130, 203.

well as of law between the subject and the + Ibid.

Crown. This makes suitors, seeing the

business done in so many different ways, may not always have the bench so well come to the conclusion that it is not well filled as it is at present. The time may done in any : I do not by any means assert, come when, if a judge were to be made, in that this is a correct opinion, at the present consequence of political influence, who was time; because the judges and the barristers known not to be capable of properly filling employed in that court, do not, I am con- the office, it may be said by those who vinced, yield to any body of professional supported him, “Oh, it does not mattermen in their knowledge of equity and law. send him to the court of ExchequerThere are to be found on its bench, highly there is nothing to do there.” Thus, the distinguished equity, and common lawyers; small portion of business transacted the men of known legal talents, and the great- suspicion originating in the general mixture est experience, both in Chancery practice, of suits, carried on in different ways, that

, in Nisi Prius, and in Criminal law. In the business is not well done,—the monowhat, therefore, I have said, I refer merely poly of attornies, together with several to that species of public opinion, which, other causes, occasions this court to be the whether right or wrong, has been engendered least frequented of any: indeed, it has now by the constitution of the court ; I refer, scarcely any thing to engage its attention. also, to the natural tendency of a juris- The judges do not sit for more than half diction, thus open to such a variety of an hour some mornings, and there are jurisprudence, to degenerate into inaccu- hardly ever on the paper more than six or racy, or want of effective skill in each de- seven causes for trial after term : a dozen partment.

would be considered a large entry; when I But there is another and more obvious well remember lord Ellenborough having five reason why this court does not obtain so hundred and eighty-eight set down for trial much business as the others; I mean the in London only; and the present lord chief limited number of attornies belonging to justice lately had on his paper no less than and allowed to practise in it. If there is eight hundred and fifty untried causes. I cause to complain, as I have been doing, mention this to support my proposition, of the monopoly among the advocates that there is not really a free competition attached to the Common Pleas, there is between the different courts. To say, in much more cause for a similar complaint the circumstances which I have stated, touching the attornies in the Exchequer. that suitors have a free access to all the The practitioners in that court are four courts equally, is a fiction-an assertion attornies and sixteen clerks, and none adapted to what ought to be, perhaps to others are allowed to practise there: if a what is intended, but not founded on the country attorney wishes to take his cause fact. thither, the only mode by which he can Experiments have been tried to lighten do so, is to employ one of the privileged the business of the court of King's-bench; attornies of the court, and divide with him but I do not find that any of them have the profits of the suit. It is needless to answered the purpose for which they were say, that such a system has, of necessity, instituted. The first of these attempts was a tendency at once to shut the doors of made in the year 1821, when it was the court of Exchequer against suitors. arranged, that the chief justice should sit

What, then, is the natural consequence in one court, and a puisne judge in another, of those restrictions which prevent suitors at the same time; but never did any from approaching the courts of Common arrangement fail more completely. The Pleas and Exchequer? Why, it is this court in which the puisne judge sat wherever there is but little business done remained almost idle ; while the other court in any court, those in power are induced was as constantly preferred, and nearly as not to place the strongest judge in that much overloaded as before. Little else situation; then, the small portion of busi- was effected but a great inconvenience ness to be done, renders the judge less fit both to practitioners and suitors, by the for his office, and so, by action and re- passing and repassing from court to court. action, while the little business makes the In fact, it is not in the power of the courts, bench and the bar less able, the inferior even were all monopolies and other restricability of the court still further reduces tions done away, to distribute business that little business. I am here speaking equally, as long as the suitors are left free of past times, but with a view, however, to choose their tribunal. There will to what may occur at a future period. We always be a favourite court; and the cir

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