The Sun.
London, England, 1860-06-23 00:00:00

squitable power which they were competent to administer ;
but with this they were not satisfied. The Common Law
Commissioners, in their second report, asked for all the
jurisdiction which it was proposed to confer by this bill ;
bat the Legislature hitherto had only given them that
which they could fairly exercise. Parliament would now
have to decide whether it would give them a jurisdiction
which it had denied thew before, and whether it would in-
terfere with a jurisdiction which worked so admirably as
that of the courts of equity. In equity there was now no
delay; there were six courts, and but seven judges to decide
the cases which came before them ; and would Parliament
be doing well to take away the jurisdiction of these excel-
lent judges and give it to the common law judges, who
already complained that they had not time to perform their
present duties ? He was strongly induced to take their
lordships' opinion on the principle of the measure; but, as
it was unusrial to do so on a motion for referring the bill to
a select committee, he should on this uecasit'n refrain from
pressing for a division., -
Lord BROU G II A m. concurred with his noble and learned
friend (Lord Lyndhurst) in thinking that, there being a
division of opiniuu between the common law and equity
judges, the proper way was to refer the bill to a select com-
mittee. The design of the bill was to extend still further the
equitable jurisdiction which the common law courts now
possessed. There could not be a greater mistake than to
suppose that a general fusion, as it was called, of law and
equity was possible in this country; and any attempt to
effect such general fusion would only be productive of mis-
chief. But what the noble and learned lord on the woolsack
said was that is many instances a certain equitable juris-
diction had been given to the courts of common law, par-
ticularly of late years. Now, the principle of the present
bill, as he understood it, declared that where there was a
legal right, and where that right was sought to be obtained
in a court of common law, it was better that that court
should he empowered to dealwith the whole subject matter,
and if in the course of the inquiry any equitable objection
should arise on one aide or en the other, the parties should
not be put to the expense, delay, and vexation consequent
on being sent to a court of equity, but that the common law
court should have the pdwer of dealing with the equitable
matter. His noble and learned friend who opposed the bill
stated three objections to the decision to which the common
law judges had come on the subject—namely, that the com-
mon law courts were overworked, that they had not the
proper machinery, and that they were not competent for the
purpose. From his noble and learned friend ho appealed to
those judges themselves, who declared that in point of time
and labour they had no objection to the proposition now
_ _

made, that they had abundance of time and were not over-
worked, but were capable of taking this small fraction of
addition to their labours. He could not help referring those
who entertained objections to the proposed change in the
proceedings of the courts to that report cf the Common Law
Commissioners, in which the history of amendments in
the law was traced with great accuracy, and where it
was shown how matters deemed at one time
wild and dangerous innovations had gradually, by
the improvement of men's knowledge on the sub-
ject, become the law of the land. As a remarkable proof
of this, he mentioned the changes effected in the law of evi-
dence, which had been found to work admirably, and to
contribute greatly to the efficient administration of justice.
Lord CHELMSFORD hoped that the bill would be very
much altered before it was passed into law. There ought,
in fact, to be two bills, and, notwithstanding the authority
of the common law judges, his objection to many parts of
the first portion of the measure was not in the slightest
degree lessened. lie was bound to say, at the same time,
that the opinion of their lordships upon the principle of the
bill ought to have been tested when Ste motion was made
for the second reading. That stage had been allowed to piss
without opposition, and, inasmuch as there had been a
rather sharp encounter between the equity and common law
judges, it was impossible for theirlordships to make up their
minds on the subject without carefully considering the
statements and opinions on both sides. Of course, that
could not be done in the house itself. It would be infi-

nitely better to refer the matter to a select committee, and
when the bill came out of the committee their lordships
would be able to decide whether it should be passed into
law or not.
Lord KINGSDOWN said that the observations of the
Common Law Commissioners had not removed, or even in
the slightest degree affected, the strong objections which he
entertained to the present bill. The bill had two objects
entirely distinct, which should properly form the subject of
two measures, but which, unfortunately, had been united in
one. One portion of the bill gave what he believed was in
principle an entirely new jurisdiction of the courts of com-
mon law. The other was confined to amending the pro-
ceedings which properly belonged to those courts. To the
latter, if brought forward is a bill by itself there could be no
objection, but the case was very different with respect tothe
former. If the bill was referred to a select committee, the
objections entertained by many noble lords to its first por-
tion, consisting of no fewer than 30 clauses, would continue
to exist in precisely the same force. The only difference
would be that those clauses, if the committee should not ap-
prove them, would be expunged ; or, if the committee
should approve them, they would be the subject of a hostile
motion on the third reading of the bill. He could not help
looking with considerable apprehension to the course about
to be taken. If the bill was referred to a select committee,
it must, of necessity, occupy some time in its consideration
there. It must occupy some further time in its discussion
in the house after it came out of the committee; and, sup-
posing their lordships should ultimately give it a third read-
ing, at what period of the session was it likely to go down
to the other house ? What might be its fate there he would
not, of course, presume to say ; but at present, at all events,
the omens were not auspicious. The consequence would be
that we should lose, for this session at least, the whole of
the bill, the portion which was desirable as well as that to
which the strongest objections were entertained.

The LORD CHANCELLOR stated, in reply, that there
had not been a single observation made to show that any
one of the powers sought by the present bill might not be
safely conferred upon the courts of common law. The com-
mon law judges believed that without these additional
powers they could not in a satisfactory manner administer
justice in their courts. He had no objection to add to the
motion the words "and that the opinions of the learned
equity an 1 common law judges be also referred to the select
committee." He proposed that the committee should con-
sist of the same members as those who sat on the consoli-
dation of the criminal law.
The motion as amended, was then agreed to.