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

THE SUN, LONDON, TUESDAY EVENING, FEBRUARY 15, 1853.

way, but he desired to see how the change worked be2ore
he consented to proceed further, and so he took the liberty
of recommending their lordships. With these observations
he should conclude. He had been taken somewhat by
surprise by some of his noble and learned friend's observa-
tions, but when the measures he proposed had been printed
he should be prepared to give them full and candid consid-
eration. (Hear, hear.)
Lord CAMPBELL had listened with great satisfaction
to the able and lucid statement of his noble and learned
friend upon the woolsack ; and he must say that he highly
approved of the course he had taken, both as to what he
had abstained from entering upon, and what he proposed.
Yet he thought his noble and learned friend would have
acted a little more judiciously if he had not alluded to
what was called the " fusion of law and equity"—to the
desire that there should be universal jurisdiction over all
causes, enjoyed by all courts, and by every judge in
every court. Such a course could only lead to confu-
sion. If this were a small state, where one court could
administer justice to all the subjects or citizens in the
state, it might be proper that that court should have
universal jurisdiction; but in any state where two courts
were required, the subdivision of labour ought to prevail.
In ancient times, when this country was under the Norman
system, we had the aula regis, which had jurisdiction over
every subject. But the court found the disadvantage of
it, and they subdivided themselves into the Court of
Chancery, the Court of Queen's Bench, the Court of Ex-
chequer, and the Court of Common Pleas. Yet now it was
proposed that we should return to the system which pre-
vailed in the barbarous times of William Rufus. He hoped
this would never be the case. At the-same time, he felt
most strongly the importance of the principle laid down by
his noble and learned friend upon the woolsack, that one
court ought finally to decide every cause brought before it.
For this purpose, and for this purpose only, there ought to
be what was called a fusion of law and equity. Each tri-
bunal ought to be invested with powers to decide finally
every controversy which came before it ; for to drive suit-
ore first to a court of equity and then to a court of law,
could only tend to delay and to ruinous expense. (Hear.)
The common law judges, he thought, having the great
benefit of the most learned works which his noble and
learned friend opposite (Lord St. Leonards) had given
to the world, and his valuable decisions before them,
could perfectly well decide the question which he had sug-
gested, whether there should be a specific performance of an
agreement to purchase land. He did not see why an action
should not be brought in a superior court of common law or
equity, to compel specific performance, and if that were not
complete, why the complainant should not have damages
for breach of contract. At present a party went into the
equity courts, and it might be he could not have specific
performance because there was some difficulty ; after in-
finite delay, an action was brought in the Court of Queen's
Bench, and he there tried to recover damages. But one
investigation ought to have settled the whole question,
and then one great step towards justice would have been
done. If the vendor was not entitled he would be liable to
damages ; if he pretended he had a title, and thereby caused
loss to the purchaser, he would be undoubtedly liable to
damages for breach of contract ; and one event ought to
settle the matter. With regard to injunctions, why should
not the courts of common law have the same powers as the
equity courts ? Why not with respect to copyright ? Why
not as to nuisances? In all such cases he thought the
equitable jurisdiction, as it was called, of the courts of
common law would be useful. Formerly these courts of
law and equity were entirely distinct, because the Court of
Chancery assumed the power not only of dispensing law,
but of making law. It was the legislature of the country.
The Lord Chancellor decided of his own motion what was
equitable against the common law. But those times were
past, and now the courts of equity were governed by fixed
rules just as were the courts of common law. Here then
was another reason why the courts of common law should
have the same powers as the courts of equity in all the
cases which were brought before them. His noble and
learned friend would look with great caution upon any pro-
posal for dealing with that topic. Undoubtedly there were
many cases brought before the common law courts for
which juries were not fitted to decide—such as complicated
matters of account; and he trusted before long such cases
would be referred at once to some legal functionary who
would go over the papers and decide economically. But in
actions for libel, or defamation by words, or for personal
wrongs, and for commercial questions involving facts as
well as law, trial by jury was the best tribunal that had
ever been invented, and he hoped it would continue. For
his own part, speaking from his experience as a judge, he
thought juries were much more likely to arrive at a just
conclusion upon conflicting evidence than all the 15 judges ;
and he should lament the day when they were deprived of
such assistance. (Hear.) The jury assisted the judge;
and a judge without the assistance of a jury would in a very
unsatisfactory manner dispose of mixed questions of mat-
ters of fact and law. (Hear, hear.) As to the law of
divorce, he need not remind their lordships that a commis-
sion had been appointed some time ago, of which he had
had the honour to be placed at the head. The oommis-
sioners had been labouring most assiduously at grappling
with the subject, and they soon came to a conclusion that
the present mode of legislation in such cases was one very
much to be regretted. On this subject they had come to
an unanimous conclusion, and they should soon have the
honour of presenting their report. Their labours had to a
certain extent been interrupted by the Administration of
the noble earl opposite (the Earl of Derby) because he had
taken from the commission one of its most efficient mem-
bers—he meant the late Home Secretary (Mr. Walpole),
who was a most admirable lawyer. (Hear.) That right
hon, gentleman had been of great assistance in the early
part of the labours of the commission. The course of events
having restored him to the commission, he had attended
its meetings, and the commissioners had greatly benefited
by his assistance. (Hear, hear.) As to registration, he
regretted that it met with the opposition of the noble and
learned lord opposite, of whose abilities as a lawyer he
had a most sincere admiration, and whose opinion was
entitled to the greatest weight. His noble friend
had correctly stated that when he (Lord Campbell
was Solicitor-General, Earl Grey had informed him that,
in the then state of the public mind on the subject,
it would not be expedient to bring forward any mea-
sure for the registration of deeds. Public opinion had
now, however, changed on the subject, and he believed
that the noble and learned lord opposite was the solitary
opponent in that house of such a measure. When the sub-
ject was brought forward by the real property commission-
ers in 1830, it met with very general opposition, and a large
majority of the select committee appointed to consider the
question were decidedly opposed to it ; but, after having
sat for about six weeks, an almost perfect unanimity pre-
vailed with reference to the desirableness of such a mea-
sure. He believed, also, that with the solitary exception
of country solicitors, the whole country was favourable to
the plan of registration. The noble earl had referred to
the opinions of the landed interest on the subject. That
interest, he presumed, was well represented in their lord-
ship's house, and a majority of those who constituted the
select committee on "burdens on land" were even Protec-
tionists. (A laugh.) That committee, however, which was
called upon to enter into the whole question of the burdens
on land, reported that it found the most intolerable burden
to be that of the expense of the transfer of real property,
and the committee wisely thought that one mode of remov-
ing this burden would be by a system of registration.
(Hear.) The noble and learned lord was quite correct in
saying that registration would not in the first instance
lessen the expense of the transfer of landed property.
At present, however, every one knew that the greatest
expense connected with the transfer of land arose from the
necessity of ascertaining whether the vendor really
possessed the interest in the estate which he professed to
sell. After a plan of registration had been in operation
for a few years there would be an end to this uncertainty
and consequent expense. Registration of deeds was not
to be considered as a final measure ; It was, in fact, only
the beginning of a new and improved system. He trusted
that his noble and learned friend would employ his great
learning, -experience, and talent while he had leisure—he
could not tell how long that opportunity might be afforded
him—(a laugh)—among other matters, to shortening the
length of deeds, simplifying terms and forms of insurance,
improving the forms of lease and re-lease, and many other
things which he might mention, and amalgamate them ail
in one short and simple mode, by which land could be
transferred from one person to another without great ex-
pense, and by doing all this he would confer additional
lustre on his name. (Cheers.) With respect to the work-
ing of a system of registration. he might say that it had
been found to work well in Scotland ; it was employed in
all our colonies ; and there certainly appeared no reason for
supposing that it would not be found to work equally as
well in England. With reference to the proposed digest of
the statute law, the noble and learned lord on the woolsack
had certainly an arduous task before him. No possible ob-
jection could be made to such a work; until, however, the
whole was completed, no part should be allowed to come into
operation ; and when it was entirely completed, and laid
before the house, it would undoubtedly be a noble achieve-
ment. (Hear, hear.) There were great difficulties in the
way of carrying out the digest ; he might allude for in-
stance to the law of treason, from the 25th Edward 111.
down to the late Treason Felony Act. Again, any attempt
to digest the laws relating to the election and confirmation
of bishops would probably set the whole country in a blaze.
(Laughter.) He concluded by wishing his noble and learned
friend ample success in the noble career which he had
marked out for himself. (Cheers.)
The bill was then read a first time.
SIR CHARLES WOOD AND THE FRENCH
EMPIRE.
The Marquis of CLANRICARDE, in accordance with
the notice given by him on a previous occasion, rose to ask
whether her Majesty's Government had any objection to
lay upon the table copies of the communications between
the British and French Governments respecting the estab-
lishment of the French empire. The noble marquis stated
that, had he been aware, when ho gave notice of his inten-
tion to put the question, that a notice of a question on the
same subject had been given in the House of Commons, he
should have postponed his notice, in the hope that the ex-
planations which might be made in the other house would
have been sufficient. Having taken that course, however, he
felt it incumbent on him to ask for some explanation of the
views of her Majesty's Government regarding the extraordi-
nary proceedings to which he then alluded—the speech lately
made by his right hon. friend the President of the Board of
Control. The question in his mind was, not whether an indi-
vidual Minister might have committed an indiscretion, or
uttered hastily words or phrases without due reflection,
but whether the Government of this country and the Go-
vernment of France continued to hold the same cordial
amity and friendship which they had recently.believed ex-
isted between them, and which friendship and cordiality
he believed, in the present circumstances of the world,
were the surest guarantee of continued peace. (Cheers.)
He did not wish to attribute more importance to the speech
of any individual Minister than was necessary, but it was
utterly impossible to say that a speech of a Cabinet Minis-
ter was at any time without importance ; and, unfortun-
ately, the speech to which he had alluded had been circu-
lated throughout the whole of the kingdom, and had also
been circulated, he regretted to say, abroad, and within
his own knowledge he knew that great attention had been
attracted to the speech in Paris. He thought that, impor-
tance having been given by the public to those expres-
sions, it was most desirable that the house should have
an explanation from ifie Government of the terms
upon which they wished to continue with the Go-
vernment of France. However unwilling they might
bo to attach undue importance to the words of an in-
dividual, he could not for ono subscribe to the doc-
trine which he had heard and seen advanced, that a
Cabinet Minister, a confidential servant of the Crown, was