The Express.
London, England, 1853-02-15 00:00:00

IMPERIAL PARLIAMENT

HOUSE OF LORDS.—MONDAY, Fes. 14.
The Loau Cuexescum t.. 4 his goat at 4 cielftk.
_ _ CANADIAN CLERGY RESERVES.

The Bishop of EXETER moved for certain returns re-
lative to the Canadian e'ergy reserves —Ordered.
EDUCATION IN IRELAND.
The Earl of CLANCARTY complained that the report of
the commissioners on national education in Ireland, for
Ilia, had not come into th. 4 lordships' hands up to the
present time, although it hid been presented in December
last, and toire the endorsement of its being comrounieated
to both houses of parliament. It should have been in the
hands of the members of both houses before the meeting of
the lea islature.
The Earl ABERDEEN was under.lood to say that
the pretei t g iveroment were not responsible for it—lie was
sorry that the nnb.e earl should have had cause to complaio
--end lie hoped in future such reports would be delivered
earlier.
LEGAL REFORM.
The LORD CIIANCELLOIt—My lords, I rise pursuant
to the notice I gave on the first day of our re assembling,
that I would this evening state to your lordship., and
through your lordship, to the country, the intentions of Die
government on the subject of legal reform. My lords.
when ire I became acquainted with the piofesaioti of the
law—now more than 3.1 years ago—that subject was one
which certainly, without the walls of parliameny sod to a
great eaten: within, was entirely unattended to—it did not
at all arra,t public ett.-ntion. There was, inderil, Me.
Jeremy Bentham, who, in his muting epigrammatic, and
very often well-reasoned mays, strove to awaken public
attention to this important subject; and in the other tonne
at parliament there was that individual whose name, when
connected with this subject, can never be mentioned but with
respect—Sir Samuel Hominy ; and after him there was my
noble and learned friend who subsequently occupied the
woolsack, and who is not now present, Lord Brougham—
they both, from time to time, brought this important sub-
ject under consideration. I need nut say how different •
state of things eai.t. at the present day : the subiect, so far
from beteg one that does not arrest public attention, may
fairly be represented. putting exciting subjects aside, as one
which mon: than any other engrosses the consideration of
the reasoning part of the community. All persons desire
to have our law. put on sui h a footing that their rights will
be clearly and will delimit, and the mode of enforcing
them as simple, cheap, and expeditious as the ingenuity of
those who direct thi it attention to the subject can devise.
Turning hack my attentioa again to the time when I first be-
came acquainted with the law, I think I may may that that
distinguished lawyer—and no one could be more so—Lord
Padua—and the seine may he said of those who preceded
him on the woolsack—scarcely seem to have considered that
the maturing and introducing measure. of legal reform con-
'Witted any distinct and essential branch of the duties de-
volving on them. I don't mean to say that they would
have raid, if they bad the question, that they been asked
hail no such (heti', but they conducted themselves ea if
they bail not Very few measures originated with them,
and they rather thought it their duty to watch against hasty
and ill•considered measures on the part of others than that
measures of law reform should be introduced by the ser-
vants of the crown. Tint state of things, my lords, has
been materially altered in modern times; and to one
filling tho office which I have now the honour to occupy,
the country looks, if not for the introduction of
measures of reform, at least for the general supervision of
the whole legal system—(hear, hear)—to introduce measures
where it may be neoesnary ; and, on the other hand, to resist
thaws which may appear to the government ill considered,
and to exercise • general control over the legal condition of
the country, la order to keep it in the most satisfactory
state which the nature of things will permit. With these
feelings, immediately after I had the honour of receiving
the great seal from her Majesty, I thought it my duty, with-
out hesitation and delay, to direct my siltation to the great
legal courts of this country, in order to see whether they
were in a satisfactory state, and to consider whether there
were any measures which I could usefully introduce; oe
whether it was well that I should pause be taking say step
on each a subject. I felt that diseendsillellenfititilletWO7
opposite of that whisk saluted es tine post thins who
held the great sal bolt a amtury ego—there might be a
danger lest, from the peat sad wsk Asserved feeling
throughout the awalsy that the law empires reform, those
litho have the wpse,lties of suck mast may, in order to
mom at least to be long what the yobbo requires from
them, bring foretold Ineenneon der the Male sake of intro-
ducing them, without bong windy eolith= that, in the
sad, they would be beneficial. There might be a little
danger lest tho holder of the great seal might fall into the
coarse sometimes pursued by an inferior medical putt.
timer, who, teepee he is eal:ed in, will prelieribo • doe.
of physic, when, in truth, It woo! have been beet to have
left his patient as he found him. Wiab 'noes views, I die
meted my attention to the state in which I found the great
tribunals of this country; and, first to them courts which,
after all, are the most important, the great courts of com-
mon law, is which all the rights of mankind are enforced
sad protected. (Rear, hear.) I wished to consider in
what position these courts stood, and whether I ought to
interfere with them by attempted legislation. I will not
weary your lordship on that subject, by going beet to the
state of those courts in by-gone times. I need only re-
mind your lordships that a great feeling existed a few
years since, that the mode of administering justice In the
common law courts was attended with unneesesary techni-
calities and fictions. With a view to remedy that evil,
Lord Cottenham only a few works before be assigned the
great real, inn= a oommissies. to lapin his the mode of
conducting proceedings in the owns of orommem law. That
commission was directed to several eminent lawyers, amongst
them the present Mr. Baron Martin, who was then at the
bar, the then Attaresy-Oeneral, and of lawyem eggs=
eminence. It ie impossible to do jumbo to the labesse of
those leaned pothook= t they looked through the whole
coarse of promosdiegi in the ordinary sewn of law, begin-
sing at the sammessoment of a raft, wales it from the
fret complaint, and amino it throughout till the final
termination. They ludo their report sa the 30th of Juno,
1851, and my noble Mead who then mungird the wool-
sack received that report door at ths ens of the =oleo ;
and nothing mould be does as any ant its sirounmandations
during that simian at pwilmanat. With that seal, how-
ever, which all who haw him must be await he posmater,
be 'ghosted himself &ashy the hog vacation to
tho hands( of a bill to cony=
rosommindatilsme as these munimissem.
no▪ t
bill was framed—baying been supseistendod by my
soils friend pally is all its de and put iota the
hem in whith he laid it on tour
_ lathe es the
mom& day =the amiss of 1&52. efts silionsonle a
tfiumormsat osesmd I but that Ad sra sibet she bS,
two mimed to a select essemilloo t it thing
that the best moils of dealing with the whist
be to obtain the maistanor of sumo learned psnans,
oat 'members of this hems, Lad Lgadkurst, the Lard
Misr Janie, of the Quasa's lea* gataa parks,
myself, and others west over the sena dram by Santo.
It this sun back to yaw ismithips' boom, mused both
hewn of parliament, and received the royal eat on the
aft of Juno last year, eingulsrly eaough, emmely twelve
maths from the day as whisk** sigama inedotbdr
moot ; and it benne the tof ho sow
mos law warts oaths fiats=:1111&1 tortallibli.irm hosanna
orappoed that the postitioners of the law aad the Wpm
boor prejudices spine such aa issnation—l do not stop
to *airs if that Jo wall headed—hut if it be there is the
must omen testimesy la boom of lie mesones foe having
den vereed with ohs jailps sad seesymmetitismors, I fad ono
wavered =premiss of eatifectios—thay all my that it ban
boss endasstly bofoMel. (Hear, boar.) That being ths
Mato @Mims% it might have tangled me *se it wwithi be
impopm fin me to attempt anything is that &esti= in
the shop Of nth= ; hat, in order that 1 night not let
mry own mil= rest es goaeralidas, sad that I might let
your lordship know the pawn el =inns I Sermed, I
mot =Mg pass who way im the ommaimiss, and =-
Wthous to go through wish me soma man= of de-
el* what was the poesst Moto of the law whom sae
Meet= with that which wood= it. The groottig=
the now act was to got lid of ommeemeosy
makes the prowtediage nahtto sod sussaget other
bras then was this : that in a pat sassy nom taken ia
the peissonlisgs in courts of =Ems law, it was neeserary
M On= • Me of the nut, the aspen of which, in the
shop of the fee, was extremely small ; but the C00111a&
ales= were of opinion that it was quite , and
s wet quantity of rules were, them.,,, ebollied. have
ins retina before : there me a= abilibal Wm.
in 1851 were is Me in the those sown amirma
km, 34,900 in number, the font epos whisk was est above
IL ash, and the when amount of nee am may between
thoso mad tow thesis= pan& But en met of the fie
Imes a very =all pedal of the mom of the pre-
ening : wait. ands= 110 use by his attarlay,
mai tho sithadag a role, sepylog it, and serving it
had to very semilissible =pow; Therefor, I called on
ass ofthethmminism.. srsTs Mr. Wainer, who has donei

blaselfladnite atilt by his
I mid to kiss," Dou't merely maim yeuresil to • fees of
theme" but show me what was the meet of the whole pro-
eseibel WA. the ski system, mid what Is the eest sew."
AMA MINK liagrita the awe of a party peemeding to
mew a Md. aid there I se defame ; which the do-
MOM Ow as empasitioa and gives se erisesee, bat
aye 'De yeas but sad de year want.' Of each pressed
ieye thew weep la LINe is resod sumben, 1,000." New
I gat Ifs. Wallas he ateseleia what die sat of seals a peo-
assibit geoid be maw the pretest eleteta and what it
maid udder the eidsystem Unidist the weenie system it
Is wise limpesible W Mate eceurately what it would be, be.
awe the es te we eleardiag to the anureet cud for ; hut
lb. Weld be 41. I dem mid kisa to take
Me Wl= ill he meld lay his kends epos, is
Ma mem the di meta, sod he Stead the average
met fur theseder some warm would be 151. Therefore the
great atveatage et that set is *Meet ; and it I Mr. Wat-
son • epeeist, that If he promested the mem inquiry es to
dietringeace—s .qt cumbrous mid clumsy nsessure—
the mode of eliforeiag a party into the coon who would sot
attend—the saving would have bees as gnat. The pees-
mazy advantage a therefore apparent; but that is not all.
rader the old law, if a party were abroad there were
rest diffintltim ia proceeding. You proceeded by out-
law!), and there was no mode of serving a
writ upon I penon out of the country. That
however, authorised this to be done and I
the ez.! ha! been in operation—from November
test—up te about a finalhibt ago, lIC writs bad bee*
issued
againstr parties &Nosa, Mom whom their creditors
night be able t e recover the amounts due to them. There
is another mode in which it may be well seen that this
measure works satisfactorily. It any be supposed that
upon the introduction of every sew law, questious must
arise upon the practice; and when I tell your lordships that
the number of suits litigated and not lgigated it between

slaty and eighty thousand in the course of the year, Jew
lordships grid suppose that there 'must be many ques-
tions arising out of the pedal's?, however well
matured it may be. It -ts eseeefslting, however;
that there have been only twelve motions in the three MMs
on the sufject of the proceedings ander the act of paella-
spent to which lam referring ; and of that number ten
were not upon proceedings under the new act, but upon
the dovetailing of those proceedings into what had gone
bitter.. (He..r' hear.) Nothing can afford a more satisfac-
tory proof of the admirable way in which the tours* of
Practice under that set has been carried into effect. Bat
there is one more satisfactory mode of seeing whether the
measure is satisfactory or not, against which there can be
no answer, and it is this—l desire to know what is the
comparative amount of litigation in the superior courts in
the last quarter and the corresponding quarter of tut year,
and it appears that the number of writs issued from the
25th Oct., 1851, to the 25th Jan., 11152, was about 19,000;
whilst from the 25th Oct. 1b52, to the 25th Jan., 1053,
the number issued has been upwards of 23,000,
being as increase of twenty per cent. If there
was nothing more to deter use from legislation on
this subject, this. facts are quits enough to warrant me in
saying that I will nut attempt to introduce any further re.
form. But the commissioners arc still proceeding to make

further suggestions and important changes. 1 wu informed
that they would have anotner report ready to be submitted
I t the crown by this time, and I may now 'evict it almost
daily lam told. Your lordships 1111,0 heard a great deal
of the advantages which would arise from a fusion of law
end equity—that is, making no distinction between the one
and the other. (" Hear, hear," from Lord Campbell.)
When the proper time arrives I am prepared to repress my
opinion on that subject; but whether that is to be effected
in its integrity, or out, every one must feel that when a suit
is commenced in a court, that court should be able to give
all the relief that the nature of the case admits of —(hear,
hear); and that parties should not be handed over frinn
court to court. (Hear, hear.) And with a view
to introduce en amendment of teat sort a recommends.

Awn has come from the commissioners that in
'all eases where, by applying to a court of equity, you would I
get what is called specific performance of • contract, whilst I
by applying to • court of common law you would get only
damages fur its nun-performance, a mandamus should he
issued by the court of comment law to enforce substantially
that which the party is entitled to. (Hear, hear.) If a
man has contracted to have an estate conveyed to him, he I
ought to have such estate, according to the common sense
view of the matter, conveyed to him. (Hear.) So, again,
where • party proceeds ins defiance of • writ, and where I
damages only can he recovered at common law, the mode
of stopping him at present is by an application to Chancery
for an injunction. By the Patent Law Amendment Act
the courts of common law have that power ; and the cum- I
missionn have beta considering whether that may not he I
safely eatentled to other matters, 10 that a party shall be I
sopped by the nen which has adjudicated from doing 1
what it has been decided he ought not to do. (Hear, hear.) 1
There are many other subjects ; sad there is one with re-
Mena to which, although much may be nisi in its favour, !
• great deal may be urged against it. It is
said that trials by • judge instead of • jury
is the county courts have been eminently successful. 1
' Tito noble anti learned lord proceeded to say that it was a
matter (or inquiry wheth• r the same principle might not '
wisely be extended to the superior courts; and whether
they might not get rid of the machinery of • jury, and leave
the question at issue to be decided, at least where the psi -
ties wished it, by the judge. Unquestionably if injustice
were done by the present system, no considerations collate-
ral to that ought for a moment to be allowed to interfere;
hut in dealing with such a subject as this, they ought not
to lees sight of the fact that, in altering the present arrange-
inent,they might be taking one step towards unfitting those
who were, after all, the parties who had to send represen-
tatives to the ether house of perliament, fur the perform-
ance of their duties, and for the exercise of • variety
of local jurisdictions, such se Boards of Guardians,
which constituted in some sort, a republic in
this country • system of self-government (rem
which it might be very dangerous to depart. He did not
say that he had conclusively made up his mind on the sub-
ject, bat it was a matter that ought to be approached with
great delicacy and caution. His noble and learned friend
opposite (Lord Campbell), after his great experience, could
not have failed to observe that an 4111140 was
when the persons who had been summoned to act as jurors
did not quit the hall • much more intelligent set of men
than they entered it. It ought, therefore, to be no trifling
advantage which should lead them to discontinue • system
which proved to be so beneficial ; for be did not think there
was any school that read such practical lessons of wisdom,
'or that to much tended to strengthen the mind, as having ;
to assist in the administration of justice. (Hear, hear. ,
He had now stated the view he took in considering whether
anything could be done with reference to the common law 1
courts ; and his had come to the nechasion that it would be ;
most unjustifiable in him to attempt any legislation on the ,
subject. He had then nudes similar thquiry with reference to ;
the Courts of Chancery; sad hereon, he need notate that 1
a commission had been issued by hie noble and lensed 1
friend then on the woolsack on the 11th of December, ;
1850. lu the coulee of the next session, two honourable
members of the other house, not connected with the profes-
sion of the law, had been added to the commission,
_ in ;
order that it might not be merely • profession' one. They ,
made their report on the 27th of January in the last year, ;
and • bill was introduced by the Solicitor-General, before the ,
change of the government, into the other house, for the our- ;
nos of carrying into effect • portion of that report. 1
The change of government having taken place, his noble ;
and learned friend (Lord St. Leonard's) ereboelied the rest
of the report in two bills, the Masters' Abolition Bill, and ,
the Improvement of Equity Bill. Now he (the Lord Chan- ,
cellor) could not but tell that the origin of those measures
was attributable to his noble sad Mena friend whom he ,
saw opposite but his Dub!, mad hashed Mend (Lord St.
Imememrs) had proceeded with the umieseleasble seal and
ability which, though he wee pant, be mist allow.him to
say no use else could have showy to embody the remaining
recconmemations of the eseesens in two hills at ono.
There wee net. as "Gehl these have hen, the same con-
'idealism baswed upon than bilis as had been
lea epee the Int; but he wee sot aware that
they contained any materiel errors. With regard
to the weekag of those stemenne, it asst not be
expected that the pad ram resulting hem them
would be wens se oparest at sane me they bed Men in the
sena et mama la; benne In the latter the named-
Me= mush coma mil is their character. They bed
to 'saes eight and ether matters, whisk alight
be commenced, otalemed, end ended within two or three
months; but with rowel toast proceedin in equity the
man wee very thane& Sege time aunt afore the
felines& of the ellerttreald he i but so far
abe se see ea tap mare wean, admirably
well. He had steatite iseaddris the cost of proceed-
ing in the wore of eielllfllle law leader the old system and
under the new ; and In eiedet that he might be enabled
to do the as thin with mama to the Courts
of Chantey, he had regained to have sent him
helf-rdosen lIIMIZIOIIe sad orders se they were
at present issued; sad he (none of the Lain moan to
tell him what the "open mad be now compared with
what it would an been under the old plan. As the best
mode of letting their lordships see what wee actually the
state of the ease he would refer to the very document. He
would take an unopposed cause. It was one in which •
legatee desired to receive his legacy, and in which the ex-
manor was quite ready to psy it him, if he could safely do
it. The party applied to the court, and the executor was
summoned to attend before the Master of the Rolls to show
nese why an order should not be made. Au order was
made, sae in shawl as few words as it took to tell it to
their lordlam It directed en wont to be taken
of the amend which the property was worth, ad-
earthman to be inserted for the creditors to come in,
the propelg to be applied for the payment of the debts of
theaters% and then what was left to be divided amongst
the lepton. Now, under the old system of what was
called • bill and answer, that could not have been done fur
lees than 681. That had been materially reduced by the
alterations in practise made by Lord Cott/ahem • ' end an-
der that system it would have bees 221. The reduction
under the late measures had not been so great as be (Lord
Cisaworth) had 'span, but still the bill had been
brought by thorns assures down to 131 ; and this be be-
lieved wee not a favourable swain for showing the work-
ing of the law. (Hear, hear.) That being the state of
thugs, he thought it would are been unpardonable in
tat, while there was a 1101111Utillkill still making Inquiries
into the subject, if he had attempted to propose any
legielatilie en the "object. He did not hesitate to say
further, that if be had not come to that conclusion, it would
have been impossible for him, after having held the greet
seal only seven weeks, for four of which he had sat every
day in court frees a little after 10 to 6 o'clock, to have pre-
pared any nip/steal asserts for the improvement of the
Conn of Chutney. With regard to the state of business
in the court, a was glad to say that it was, as regarded
arrears, is • meet studactory state. He had therefore
come to the wiecluion, that whatever course he ought to
take, it ought not to be any attempt at legislation on the
' subject of the proceedings in the Courts of Chan-
. eery. He had had innumerable letters and pamphlets
' sent him by various gentlemen, who wished him
1 to propose what they called some comprehensive measure
for the fusion of law and equity, but be could only say that
if there must be each a moan it mint be introduced by
some one who had held the great seal longer, and who bad
given infinitely mon consideration to the subject than he
had bees able to do. In the report of the Chancery Coas-
t saissioners they alluded to a state of things which he emi-
t and he thought was disereditable to the country, he meant
the state of our testamentary jurisdiction. They made in
t then report no direct summation on the subject ; but in the
, observations they did offer, they did not differ from the
I view which had been taken by the of the ecclesiastical
P commission in 1832. That • was proposed by
o Lord Lyndhurst, and consisted of the most learned
persons of the day. It was composed of Archbishop
1 Howley, the Bishop of London, the Archbishop of Dublin,
and three other bishops; Lord Tenterden, Lord Wynford,
l Sit Herbert Joiner Fust, Dr. Lushington, and other distin-
guished gentlemen. The conclusion to which the commie-
, as came as substantially this,—that all wills, whether
t affecting reel or personal property, should be determined
in end general court, and that probate having One* been
grantcd—subjeet, of course, to revision by the Court of
I Appeal whatever that might be---should be final and con-
: elusion The commissioners also proposed. that in all
eases the eximiostion of witnesses should be viva von. I
, Now, he could not but feel that such alterations as would
I be necessary would be doing a very great hardship to many
i innocent and worthy persons. Having the advantage of
I being nearly related or connected with Dr. Lushington,
t than whom no one's experience could be greater, he had
: asked him to communicate any suggestions as to how any
t such change could be carried out, without doing any linne-
t cemery away to a body Of Men who had made that lonia'