The Sun.
London, England, 1828-03-01 00:00:00

Magistrate, 'Ain being caM upon I. g.t.,ew !own for re-
fusing a license, answerer!, somewhat in the laiijil•.ge-;p1
Falstaff—" Mat! reasons w ere upon compulsion. If reasons
as plenty as blackberrio., I would not give vcu a ova SeTt
therefore amounted to to
upon compulsion." His reason,
reason at all. The Genie Laws Were arether objeetior,alile
part of the jurisdiction e• _Nlagiitrates—hot those Lists be
hoped he should soon see : although, even in -his
event, he feared the judgmett of Magistrates might he
biassed, for when a felon came to receive eel:deuce, and it
was whispered he was a poacher, it :night be much
I (1..15t".1 "‘e .ment, %Maid- 're
utdo.st extent which the law Ii the umdc- of
nominating Magistrates be lied no. objection, but his
objection was, that local circumetances moat influence
them and their feelings, with reference to every 4offence
c.onitnitted in their immediate neighbourhood. The
Learned Gintlemen (Mr. Brougham) had pointed out some
of the difficulties under which those laboured who called
upon Magistrates to answer. Among those eifficuities it
wee to be remembered, that the plaintiff who demanded
recompence from a Magistrate, for an injury sostained,
ad to give his notice a month previous to the issue of a
Writ—had to try his cause in the same county in which
his opponent resided ; and even thou the justice had the
power of tendering amends. He vished to see the Magi-
strates possess a little knowledge of the law of this ceuntry,
and that such kuowledge should not be confined to their
clerks, even if those cltrks had any pretensions to it.
With respect to the suoject of rl!esne process, he fully con-
curred in all his Hon. and Learned Friend had said. His
opinion was, that in all actions for debt—whenever the,
debt had been fairly contracted—no remedy should lie
against the person whatever ; but that in proportion as the
remedy against the person /should be taken away, that
against the property of the debtor should be extended, ee
that the honest tradesman should receive the utmost pos-
able degree of sproteetioo.—(Hear, hear.) His Hon.
and. Learned Friend below him (Mr. Iliougham) broil
applied sonic observations upon the question of inte-
ree-ed witnesses, and efe:n the admissions of the evi-
dence of parties ; and his Honoured:le Frie.ed had con-
tended against tio - .reption of such eviden Now, he
could eee no ‘.lly, under certain iegulations,
parties should not be allowed to come into a Court of law,
and tell their own story, as well as that they should be per-
mitted to state it on interrogatories, or otherwise in writ-
ing, in a Court of Equity. The principal objection of his
Hon. Friend to that was, that it could not be rendered
uniform, relying, no doubt, upon the well-known lines in
liudibras—

" Does not in Chancery every man swear
What makes best for him in his answer ?"

—(A laugh,)—With respect to that subject, many of the
points of practice in our Courts were extremely absurd and
objectionable. How often have we not seen a release
handed up to a witness absolutely in the box, in order to
qualify him to give evidence? The release either meaning
nothing, because it might be returned, or not necessary,
because the property released was so trifling, that it could
not be supposed capable of influencing the testimony of a
man upon his oath. On the subject of Quakers' affirma-
tions he should not trouble the House with one word, be-
cause it was not one of much importance ; but he was
about to conic to one which had engaged much of his at-
tention—one on which he had had some intention of pro-
posing a measure himself; namely,-the subject of perjury.
If he recollected rightly, his Hon. and Learned Friend said
he was inclined to' take away that rule which requires the
evidence of two witnesses in order to convict for perjury.
Mr. BROUGHAM.—I beg my Mon. Friend's pardon;
I said quite the reverse ; I referred to the rules in our Law
Courts, and among others to a general rule of evidence,
which declares that an accomplice is not entitled to credit,
unless his testimony be corroborated by the evidence of a
credible witness ; so in the case of a prosecution for per-
jury, I admitted that a second witness would be necessary,
or something under the hand of the party accused, which
would make the ground of the accusation clear, and be-
yond all doubt.
Mm'. G. LAMB resumed.—Ve was sorry he had mis-
understood his Hon. Friend. He considered the present
practice as one of the greatest blots upon our jurispru-
dence, and begged leave to obtrude upon the House a few
observations that forcibly struck him respecting it. Every
man in the habit of attending our criminal. Courts of Jus-
tice must have seen that iu almost every case an attempt
was made by the accused to escape conviction, by establish-
ing an alibi, which in most instances failed, in a very few
succeeded; every abandoned character was in fact,provided
with a host of witnesses to testify in the truth of direct and
unimpeachable evidence. The only reason why two wit-
nesses were deemed necessary to convict for perjury was
in older to establish a preponderance—for there being
the original oath of the perjured party, the oath of
a single witness only made the balance equal;
hence, be supposed, the evidence of an additional wit-
ness was necessary in order to turn the balance. What
can be more absurd than this ? Why not assimilate it to
the practice in eases where an individual swears to his
having been robbed, and where, alter a score of witnesses
are produced in the defence, the prisoner is convicted by
the Jury upon the single testimony of the prosecutor.
There was no rule of law against convicting a man upon
the single testimony of an accomplice. Unless his memory
failed him very much, an instance of that nature occurred
within the last tett years, which was confirmed by one of
the superior Courts. He lend considered the question with
the greatest possible attention, and taxed his ingenuity to
discover on what other grounds than these the practice
could be defended or sustained. Some lawyers had laid
down, that, as in cases of high treason, two witnesses
were necessary, because, said they, " every man is bound
by his allegiance—the evidence of one man against the ac-
cused leaves the matter equal—that of a second is, there-
ore, necessary to convict him."—(A laugh.)—To apply
that principle to cases of perjury reminded hint of an action
for assault being brought in the shape of an action for
breach of contract ; for (as had been said in the case of trea-
son) every man being under an obligation to keep the peace,
an attempt against any other man's life was clearly a breach of
contract, and left him liable to be sued indcbetatus assump-
sit. —(Cheers. )—So, in the case of treason, they would Leta-
Nish a preponderance by the production of a second witness;
and between that and a case of perjury he could see no diffe-
rence in the facts ; moreover, it would be favourable to the
accused, for if a single witness should be contradicted it
must terminate undoubtedly in the acquittal of the prisoner.
Suppose that a Bill founded on his Hon. Friend's proposi-
tion were enacted for preventing perjury—would it have
any effect in preventing the giving of evidence ? When an
honest man came into a Court to give evidence, did he ever
think of asking himself whether that evidence, which he
was about to give, was liable to be contradicted by one, or
two, or a greater number of nvitnesses? Not so the rogue who
came forward to bear perjured testimony, his only care being
so to frame his evidence as to leave himself liable to be con-
tradicted by one witness only, and so escape the consequences
of his perjury. The only result of the practice would be to
facilitate perjury, and to perplex our Courts ofJustice--a mea-
cure as absurd as the old Wager of Battle. The Hon. Gent. pro-
ceeded, I was very glad to hear myLearned Friend, the Solicitor
General, among other changes, recommend the reformation
of the Welch Judgeships. I have a great respect for the
persons who fill those appointments ; but, borrowing a
Metaphor from another profession, we may call them the
" Yellow Admirals" of the Bar—(Laughter)—and I hope
soon to see them rated accordingly.—(Hear, hear.)---I
hope that whatever Judges are substituted for them, they
will be placed upon a footing with the Judges of England,
and, above all, I hope that they will he excluded from seats
in this House.—(Hear, hear. )—I t seems to me an anomaly
that a Judge should have a seat in the House of Commons,
while at the same time I admit that it is of great import-
ance that there should be one common law legal
authority, liable to be questioned and to be called upon
to give his opinion in the other branch of the Legislature.
I trust I shall never again see the Chief Justice of the
King's Bench shut out fronts the House of Lords. It
is due to the dignity of his station and to the ims
portance of his functions, and to that practicable
responsibility which ought always to be kept up.. Sancho
Panea said on one occasion, that if it rained mitres
not one of them would fit his head ; of late we may al-
lmost say that it has rained coronets, for they have been
given away with lavish profusion, and I hope that at all
times one will he found to fit the bead of the Chief Justice
of the Court of King's Bench.—(Cheers,) I have now,
I believe, but one more remark to make, and that relates
to the increase of our ponderous Statute Book. lam
sorry to see that the old, plain, and intelligible common
law has been thrust nettle, to make way for Acts of Par-
liament. - Some of the Bills of the itight Hon. Gentleman
opposite (Mr. Peel) have certainly tended to lessen the
evil of which I complain; but there is such a beautiful
certainty in the practice of the common law, that I trust
nothing will ever find its way into the Statute Book that
can be kept out of it. My Hon. Friend behind one seems
to disagree with me upon this point, and-perhaps, if he
will not take my opinion, he will not refuse that of no
less a man than Lord Bacon, who, in his " Proposal for
amending the Laws of England," has these expressions
"in all sciences they are the soundest who keep close to
particulars ; and. sure I am there are snore doubts that
rise upon our Statutes, which are a text lame, than upon
the common law, which is no text law."—(Hear, hear.)
The ATTORNEY-GENERAL agreed with some of
the suggestions which had been made by his Hon. and
Learned Friend (Mr. Brougham) ; and he had no objec-
tion to a commiesion limited in the manner which had

~~.

.le
Ibeen pointed ent by his Horn ag sad Learned' Colleue.-
agreed that there did exist overwhelming'telantitt. ed
husinese in the Court of Krog's Brush, While* Lyre_Judges were compelled- to einp!oy tt cir timeenTrtaneh
unworchy of their ;tree..
tales. t presen kokti Judges
tPiflinth!twCeo'ersTeinrvCitatonstk:reeeelt-rd;sliref't-lee felTdeld
was occupied wit4ace'
whose absern_e: imihtristineeir. teisinesle stete
of • thinen lertee •
and perhaps eheonly way of
e erthe appointment ot a
.ttscie Judge.
!• Such a state of . things had arisen from the great increase
of business. In the time of Lord Mansfield there used to
be almost 200 •causee upon the paper--in that of Lord
Ellenborough there were about 400--et. present there were
generally from 600 to 800. It was a solecism and con-
tradiction in the law, that three Judges shout(' be called
upon to do that which in reality the four Judges eoiy
could discharge. As he concurred in almost every thing
that had fallen froin his Hon. and Learned\ Friend with
respect to the e;ourt of Eichequere he would not trouble
the House with any remarks upon that part of the subject.
With respect to the Court of Common Pleas, he thought it
would•be advisable to .throw it open in many respects; but
it did appear to him that it woule be unjust to deprive the
Learned Sergeante of the privileges they enjoyed, and there-
fore he could not agree to that proposition. It was true
that the Crown conferred the distinction of Sergeant, bet
it was not given in the acme way that its other favours were
to the profession, of which he was an humble member, and
although he had been so fortunate as to receive distinction
from the Crown, he could not therefore consent to deprive
his brethren of that source of distinction. To party pur-
pia' it was unknown, and it teas beneficial to the rnerito-
rious.—(Hear, hear.)-ITe was certainly astonished at much
which had fallen from his Hon. and Learned FA iand with
respect to the Privy Council. The great. increase. of our
Colonies, and the naturally increasing complexity of litiga-
tion arising front that circumstance, had brought with it
much more business than the Privy Council, had formerly to
entertain. That was the simnle fact; but lie never could
admit that the emote eetionoi. that Court was iveffiejent
while the Master of the Rolls, Lord Stowell, and hii Right
Hon. Friend the Dean of Areiree, were among the Judges.
From the Privy Council his Hon. and Learned Friend had
went at once to the Justices and Quarter Sessions. His
Hon. and Learned Friend had opened an immense field--
he had thrown open Burn's Justice ; but he should not
follow him, because the subject was not one which could
with propriety be delegated to a Commission. It might
be a fit subject for a Bill, for some precise measures, but it
ought not to be committed to a Commission. As his Hon.
and Learned Friend had alluded to the official conduct of
the late Chancellor, and considered the determination which
that Noble and Learned Lord had come to with respect to
not striking Magistrates out of the Commissions, he would
inform the House what had led that Noble Lord to act as
lie had done.—Shortly after the late Chancellor received
the seals, representations were made to him supported by
affidavits, of the misconduct of a Magistrate. The Magis-
trate so accused not only afterwards established his own in-
nocence, but convicted the parties who had brought the false
charges against hien. And it was upon that that the Noble
Lord came to the resolution never to strike a Magistrate
out of the commission until he had been convicted of an
offence. The law was open to the injured party, and it
was impossible for any Chancellor to adopt a more judicious
or a mere wise and constitutional course than Lord Eldon
had done.—(Hear.)—But besides that there was another
consideration which rendered it advisable the Chancellor
should not strike a Magistrate out of the commission. If
such were the practice party feelings might interfere with
the appointment of the Justices, and surely that was a
thing which ought to be avoided.—(Hear, hear.)—With
respect to the licensing system, he certainly looked upon the
publicans as the vassals of the brewers ; but still that did
not make it a fit subject to refer to a Commission. It was
a point which in his opinion ought to be dealt with by
some distinct proposition from some Member of the House,
and perhaps a country gentleman would be most equal to
the task. His Hon. and Learned Friend declared it to be
his intention not to touch upon the subject of Real Pro-
perty, but he had not adhered to that plan ; he had said
that be would abolish Trusts--entirely abolish them. Such
a thing was impracticable. A more visionary idea had
never entered into the head of any one at all acqtalinted
with the subject. His llon. and Learned Friend had
said too that he would abolish Contingent Remainders. It
was very easy to say such things, but until his Hon. and
Learned Friend became possessed of more ingenuity than
hail hitherto fallen to the lot of man, it would be impos-
sible for him to do so, without occasioning incalculable
mischief. Surely his Hon. and Learned Friend did' not
mean to say, that he wouti compel every man to Make
his will in a particular way—and if he did not do so, how
was it possible to prevent those questions which would
necessarily arise? His Learned Friend wanted a Court of
Arbitration. Such was already in existence. But he
should perhaps be told, that what his Hon. and Learned
Friend wanted was a compulsory Court of Arbitration ;
and if so his reply would be, that it was a measure to
which the people of England would never submit.—
By whom was the Judge of this Utopian Court of
Arbitration to be appointed? By the King? And
if that were the case, was it to be believed that the
people of this country would submit to being de-
prived of one of the greatest blessings the Censti-
tution gave, and quietly be dragged into this Court
of Arbitration, where the Judge should say—" I will
without your consent, strangle and put to death your claims,
without allowing you any appeal whatever." Such a
proceeding could never be endured.—(Hear.)—His Hon.
and Learned Friend had alluded to Fines and Recovery,
and seemed to think that that part of the present law might
very easily lie entirely altered for the bettor. Further in-
vestigation of the subject, however, would convince his
Hon. and Learned Friend that lie was wrong. In the re-
marks he had made, and which he should make, it was not
his object to find fault. He assured his Hon. and 'Learned
Friend that he came to the discussion of the subject with
a real wish to investigate it fairlv, and to adopt all the sug-
gestions which could be deemed beneficial. He then came
to the Common Law. It was curious to remark that only
about 'lO years had elapsed since Lord Mansfield had been
admired and commended by all the ablest lawyers of his
time, fur the introduction of that very system of special
pleading which his Honourable and Learned Friend
was now so anxious to abolish.—(Hear, hear.)—Nis
Honourable and Learned Friend objected to the many
counts because they did not set forth the particulars;
but that deficiency was very easily supplied by tak-
ing out a Judge's bill of particulars, which cost 6s. Bd.
And it would be found that the present system was less ex-
pensive and troublesome than that advocated by his Hon.
and Learned Friend. Upon the rules of evidence he would
say nothing, because he entirely agreed with his Hon. and
Learned Colleague. His Hon. and Learned Friend had
proposed that simple contract debts should fall upon estates
in tail ; and Sir Samuel Romily had proposed a similar
alteration of the law, but it had been thought by more ex-
perienced persons, and he agreed in the opinion, that it
would be injurious. With respect to paying money into
it, his Hon. and Learned Friend had said he would not be
content with throwing the privilege open to the public in
general, merely as to actions commenced for positive and
fixed amounts, but that it should be in the power of any de-
fendant, whether in a cause of libel, slander, or any thing
else, to pay a sum into Court, in compensation, and if, after
that, the plaintiff proceeded to trial and the damages
given were less than the sum paid into Court, then:the plain-
tiff should be subject to the costs. To such a proposition as
that he could never consent. It would inflict the grossest
injustice. How many actions were there for a libel, for
assault, and a variety of other injuries sustained, which
were carried on by the plaintiff as much and more for the
public vindication of his character than they were for the
sake of damages ?—(Hear, hear.) If the proposition of
his lion. and Learned Friend should be adopted, any per-
son might grosSly insult another, although he only com-
mitted a slight assault, and by the payment of five or ten
pounds into Court, deprive the injured party of the power
of publicly vindicating his character and exposing the de-
fendant.—(Hear.) Notwithstanding the objections he had
made to the plans of his Hon. and Learned Friend, he
agreed with him entirely on many most important points,
and to a limited Gmirnission lie had no objection.g Ile had
bestowed no email degree of labour in examining the
speech of his Hon. and Learned Friend, and if he had not
touched upon all the subjects it embraced, he hail pur-
posely avoided doing so, because lie felt that they had
been most ably reviewed by his Honourable and
Learned Colleague.—( Hear, hear.)
Mr. FERGUSSON said, if he understood the Hon. and
Learned Gentleman opposite correctly, they did not object
to the suggestions made by the Hon. and Learned Mem-
ber for Winclielsea, but they thought that sonic of them
only should lie referred to a Commission, while the rest
should become the objects of separate Bills. For his part
he thought that the Commission ought to investigate the
whole abuses of the law from the commencement to the
finish of a suit.--(Hear.)—There was onerpFint upon
which lie was sorry to hear so little said by the Hon. and
Learned Gentleman opposite. The subject to which he
alluded was that of Arrest, and he wished to know whe-
ther that was to be delegated to the Commission or not?
(Hear.)—lt was a branch of the law which required
great consideration, and upon which there were a variety of
different opinions in different commercial countries. He
agreed that questions upon principles of law might be dis-
cussed with inpst advantage in that haute; but he thought

that all subjects upon which evidence would he required
should be referred to a Commission ; and that of Arrest vp-
peared. to be of the latter description. He concurred en-
tirely with what had fallen from his Hop. ,and Learned
Fiien (M:. Brougham), :.with respect to the present sys-
-7:4 te.eis: pleading, but he did not See how a Commis-
,* could &et with the subject. There was no ground
-.if his Hen. and Le: rued Friend with
animnistratiem of justic.:. in the East Indies,
It ~cas a hretake to suPpese 'that writers were appointed
Judges inliatefy after their a:rival in India. No per-
waa mach. Ljudge until after ten years' • experience,
when be nbeab,pl(_•onsiderabie !tnowled7,, both of the laws
and langnage et tac zo.ilitry, and it ,adders happzned that
a, person was appoiuteo ;circuit Judge until he had been
30 years in the country. Tlis, Judges in that part of the
empire were generidi) men o!'great ability and experi-
eare. It wai a mistake therefor\twsuppase that the
natives had no efficient meens of o • ing justice. He
did not conceive with his Hon. and I.2e:MAAcd Friend; in
thinking that juries could be introduced witli'aity beneficial
efrect in India. .It must be recollected that thert).-ivas not,
properly speakinr, what could be called a public therll-_

•
Mr..-Sicretasy PEEL—Sir, f conceive it will be of'
some advantage to the regulation of the debate, at a
period when the diecuseion has diverged into the consi-
deration of so many and various topics, and so much more
suited to other time and Lases of deliberation, that I should
now further state to the House the course of proceeding
which it is the intention 4, Government to advise the
Crown to adopt, in relation to the motion of the Hon. and
Learned Gentleman. As far as I understood the speech
of the Honourable and Learned Member, the object of his
motion appeared to be rather to reeornmend an inquiry
into certain branches of the law, than to propose any spe-
cific alterations. The motion of the Hon. and Learned
Gentleman was this—" Thatan humble Address be pre-
sented to his Majesty, praying that he will be pleased to
direct a Commission to he issued to inquire into the defects
occasioned 'by time, and otherwise, in the Laws of. the
Realm of England, and in the Courts of Common Law,
sod into the remedies which may be expedient for the
same." sow, Sir, I think it will be more consistent with
the object of this motion if we could mark in a precise
and definite manner the particular points to which
the proposed inquiry should be directed. The Hon. and
Learned Gentleman has declared his intention to exempt
front the range of his inquiries several matters relative to
the administration of the law; for instance, he excludes
the Court of Equity. The Commercial Code is another
branch which the Hon. and Gentleman has excepted ; and
the Criminal Law is a third branch, which, as a subject
interesting to the feelings of the general public, and con-
nected with matters capable of exciting false impressions,
the Hon. and Learned Gentleman has wisely saved front
such an imperfect examination of it as must follow from
making it but one object of such an excessive latitude
of inquiry. In reference to this point the Honour-
able and Learned Gentleman has been pleased to give,
as another reason for excepting the Criminal Law
from the objects of his Commission, a hope that I
would not abandon the course of inquiries which I had
been instituting into the state of the Criminal Law when I
retired from office. On this I can only say, that it is not
my intention to abandon my inquiries into the Criminal
Law; and that since my re-appointment into office, a re-
port has been prepared on the state of the Criminal Law,
relative to crimes against the person. When I shall have
completed my inquiries into this subject, it is my desi4n
to turn my attention to other branches of the Criminal
Law. But the House will remember that the laws relative
to Juries have been consolidated into one Statute ; all the
laws against malicious injuries have also been consolidated ;
and the laws on crimes committed against personal pro-
perty have been consolidated into one. Two branches only
remain untouched; namely, the laws on forgery and the
laws on crimes against the person. As to the complaint
made by the Hon. Member on the second bench, I have to
observe that one of the results of my labours on the subject
will be the removal of, that evil, particularly in the circum-
stance of re-printing those parts only of the Statutes which
shall remain in operation, so that the size of the Statutes,
instead of being increased, will be materially diminished,
Another important branch in which I agree with the Hon.
Gentleman (Mr. Ferguson) ought to be excepted from the
Commission, is the state of the law in relation to the
Courts in India—and for these reasons that the extension
of the objects of the Commission to such remote and com-
plicated inquiries, must tend to divert the attention of the
Cmnmissioners front other more immediate and useful ob-
jects, to make the existence of such Commissions permanent,
and entail much unnecessary expense on the country. But
even for the objects which I would allow to be legitimate mat-
ters of inquiry, I doubt the prudence of proposing but one
Commission for all ; for instance, I doubt the policy of en-
trusting to one Commission the double and mixed duties of
examining into the practice of the Common Law Courts,
and into the state of the law relative to the transfer of real
property, particularly to a Commission consisting of such
a limited number. On the contrary, I think it better that
there should be two Commissions. And though it has been
said, that in a multitude of Counsellors there is wisdom, I
doubt whether that quality be as abundantly fousrd in a
multitude of Commissioners. I should therefore be in-
clined to think, that five Commissioners may be sufficient
for one object—nor would I have the labours of the Com-
mission confined exclusively to them, as doubtless, it would
be expedient that they should occasionally use the assistance
of professional persons, whose opinions may subse-
quently constitute a part of their report. My opinion also
inclines me to propose that it would be expedient not to
have more than two Commissions—one to inquire into the
practice of the law and the progress of actions in the supe-
rior Law Courts; the other into the state of the laws rela-
tive to the transfer of real property. It would be better
ton, I conceive, not to - preclude the Crown from inquiry
into other branches of the subject, which may be ar-
ranged without the aid of a Special Commission ;
for instance—a point on which almost all parties
agree—l mean an alteration of the periods of the
Law Terms. There is some practical difficulty, I ant
aware, on this subject; but I consider it one, how-
ever, into which the Crown may institute a successful in-
quiry, through its immediate Legal Advisers, without re-
quiring the assistance of a regular Commission. As to the
matters fit to be made specific objects of the attention of the
Commission, this advantage would result from ascertaining
in this stage of the proceeding what they ought to be, name-
ly, that eve need not make them subjects of premature dis-
cussion at present, but leave them to the consideration of
the Commission. My impression is, that it would be de-
sirable that the Address to the Crown should be conceived
in these terms, namely, " That an humble Address be pre-
sented to his Majesty, praying his Majesty to take such
measures as may seem necessary for causing due inquiry to
be made into the course of :actions in the superior Courts
of Law, and into the laws affecting the transfer of real pro-
perty." This course I consider better than the introduc-
tion of separate Bills on each branch, for separate legisla-
tion on such important and intricate matters as conveyors•
sing, and the practice of the Courts, must be fallacious if
unattended with a comprehensive consideration of the entire
subject at once. There is one branch in particular, allu-
ded to in the speech of the Hon, and Learned Member
(Mr. Brougham) which I by no means conceive ought to
come within the objects of the proposed Commission of In-
quiry—l mean the mode of appointing to Magisterial
office—and as little can I agree with his observations on
the general state of the Magistracy. On a former occasion
I stated that I differed from the Hon. and Learned Gen-
tleman's opinion as to the manner of appointing Magis-
trates, nor can I still discover ita what hands the appoint-
ment of Magistrates can be placed, with less chance of im-
partiality in the choice of them than in the hands of the
Lord Chancellor ; for to devolve the nomination of them
on the Judges would, I apprehend, open a door to una-
voidable abuses, besides the constitutional objections to which
the abstract proposition is liable. The present practice pos-
sesses these advantages, that the appointment is made by a re-
sponsible person, the Lord Chancellor, on the knowledge of a
known local officer—the Custos Rotulorum of the county.
Now, Sir, I cannot see from that, what more proper per-
son could have the appointment than the Lord Chancellor,
or what better source of information he could proceed on
than the local knowledge of the Custos Rotulorurn. And
the great advantage of this mode I consider to be, that in
the Chancellor we have a responsible person who appoints,
and that the Chancellor has a responsible source of nomi-
nation. Contrast this with the manner in which the Ma-
gistrates are appointed in Ireland, where there are several
Governors to one county, and each recommending his own
friend or neighbour for appointment. And even in rela-
tion to that country, it has often struck me, and strikes me
still, that it would be a great advantage if one responsible
officer were appointed in each county, something similar to
our Lord Lieutenants in England. As to the Hon. and
Learned Gentleman's observations of the abuses of Magis-
terial authority, when the House remembers that the nom-
her of Magistrates amounts to 4,500, it will appear that
the vesting the exercise of power by such a numerous
body must be liable to some unavoidable abuse—but of
the sentiments of the general body of the Magistrates, I
am enabled to say, from official communications with them
on occasional misconduct of particular Magistrates, that
there is no body of men more jealous of the abuse of au-
thority by one of their number, nor any class of society
more desirous that the full penalty of the law should fall
on the guilty delinquent of their order. As to the charges
urged against Magistrates, with regard to the licensing
system, 41 I cats say is, that when any abuses shall be

proved to exist, the Government ii reedy te reform them. I
If taere be any other official autgarity to which you can i
transfer the controui of the licensing systen, I am willing
it should be handed over to that authority-; but to whom
will you give it? Where is the local bay that can exer- '
cise it better? I kno* none; and I think the superces-
aim of the gentry of the country by arts other body, wculd
be in itself a great evil. The possession of this authority
compels the Magistrates to acquire a more particular know-
ledge of the laws than they otbervrise would obtain, and
by bringing them into frequent contact with the lower
orders of society, dives them an acquaintance with their
cushene their conditions, and their wants. But by what
other local authority, I ask again, would you supersede
them ? By stipendiary Magistrates, as they have been
superseded in the Metropolis ? The salary of the stipen-
diary Magistrates amounts to 800/. a-year ; but suppose
it to he reduced according to the rate of the salary of the
Jagea de Pair of France, which is said to be not more
than between two or three huruired pounds—egranting the
exietence of a large number of stipendiary Magistrates at
salaries of five or six hundred pounds, how would , you
have them appointed ? By whom 7' By the Crown
Pon not the Muse see at once how objectienahle it moat
bee.Wese the appointment of such a number of salaried
°
be better,
ilcketsaeeesel the appointment of them should
be left with the first jettiCial oiliest of the Crown, rho is
the
responsible for his public acts, than that those stipendiary 1
Magistrates should be chosen from among the locairetainers
of great men. How, then, would you have them ap-
pointed ? By election ? Against this mode also of electing
Judges, I would except as still more objectionable, and that
from my personal experience of the difficulties attendant on
it. The House is aware that there are some counties from
which an actual expulsion of the Magistrates has taken
place in consequence of local causes, such as in those parts
of Lancashire surrounded by factor:ce, and Staffordshire,
through the potteries. In such placce, the administration
of justice having been rendered difficult by the absence of
a resident gentry, the Government was foyeed to resort to
the appointment of paid Magistrates by means of bills—and
the t-Togreet of these, it seldom heppened that two or
more parties did not arise to claim each the appointment of
their own friends, thus degrading the election of the Ma-
gistrates into a matter of local dissension and dispute.—
Now, I appeal to the House, whether there can be any
thing so objectionable as this mode of appointing a Magis-
trate, who is, in some sort, °Mittel, by the circumstances
attending his election, to consider one class of the people
among whom he is to administer justice, his supporters,
and another his opponents? Were I even (continued
the Right Honourable Gentleman) prepared to ac-
quiesce in'the asserted defects of the present system, I
know not what other system I should be prepared to sub-
stitute in its stead. But I ant bound to say, after a very
close connexion of many years, in my official capacity,
with the class of individuals which has been so much al-
luded to—the magistracy—and speaking of them as a body
that in their hands the administration of justice has been
pure.—(hear.)—lloubtless there do occur occasional in-
stances of mal-administration among them ; but I am
confident they feel it essential to the character of their
own body, not less than the public feels it to be essential
to its own interests, to have these instances exposed and
punished. Meanwhile the publit impression is (and the
impression of the public in these cases is always matter of
the most essential moment) that they do discharge their
duties generally, with fidelity and effect. On the part of
the peasantry, I will venture to say that the conviction is
still stronger—that justice is done to them by their land-
lords and natural protectors, much more impartially and
readily than it would be by any functionary which Parlia-
ment might appoint in the shape of a stipendiary, or any
other Magistrate,with an income of 500/. a year, or any other
salary which might be attached to his office. This, Sir, is
my firm conviction in respect of the Magistracy. At the
same time, it is necessary I should observe of the Licensing
Magistrates, that I am not prepared to vindicate the present
system from any of those charges to which it is justly open,
and whenever its defects shall be properly exhibited, no
person will he snore disposed than myself to apply a
remedy to them. Into all points of a mere technical nature
it must be obviously quite impossible that I should enter
upon the present occasion, after they have been so ably
handled in the speech of the Hon. and Learned Gentle-
man, and the reply to them, therefore, I must leave to my
Learned and Hon. Friends on this side the House. I can-
not help observing, however, that it were much better to
send all such matters before a Committee, upon whose re-
port we should hereafter he able to come to a deliberate
judgment upon them. So far am I, by this remark, from
desiring to disparage the views of Hon. Gentlemen on the
other side, that I freely confess my belief that we are all
animated by one common object, namely, the administer-
ing a remedy to those defects in our laws which have
grown up with the general system of the country. I can-
not imagine what object, indeed, any Government like ours
could propose to itself by objecting to assist in such a Work.
Every Government which desires to found itself in the affec-
tionate support and attachment of its subjects, must he most
desirous to secure for them impartial, speedy, and inex-
pensive justice. The whole of these matters, at. the same
time, require to be treated with great deliberation. There
are abuses or absurdities in the system which the:philosopher
would propose at once to remove, or which he would
wholly disregard, but which the practical man feels that he
must take into his account. Sir, allusion was made on a
former evening to Oliver Cromwell, who manifested sin-
gular discretion in certain amendments of the then existing
law, which he introduced into a Bill. An Honourable ad
Learned Gentleman thought proper to pass on me some
flattering commendations for the course which I pursued on
former occasions, in respect of other alterations of the law.
Will the Hon. and Learned Gentleman (Mr. Brougham)
give me leave to express my hope, that he will not disdain
the eulogy which was passed upon a Member of the House,
by Mr. Burke, who, in alluding to the fact of his repre-
senting the University of Cambridge, adverted to Crom-
well, his predecessor in that honour, and paid him a beau-
tiful compliment, in bearing testimony to the prudence and
restraint with which he had propounded his measures of
improvement, by quoting the lines of Waller, addressed to
Cromwell, on account of a similar met-it :

" Still as you r,se, the state exalted too,
Finds no distemper while its changed by you;
Changed like the world's great scene, when, without noise,
The rising sun night's vulgar light destroys."—(Cheers.)
I assure the Hon. and Learned Gentleman, that it is in a
similar feeling of respect for hiui that I have ventured to
suggest the adoption of a different course from that which
he proposes ; and in doing so, have been animated by the
hope that such a course would be calculated to effect many
of the valuable objects he has in view. I have not pro-
posed those suggestions in the way of hostile amendments,
or with the intention of defeating his wishes.—(Hear.)

Mr. SUGDEN said he looked with some degree of alarm
at what he conceived to be a too general desire to innovate
and alter. Laws, as it had been often said, were not so
much made, as introduced by time. He trusted the House
would not agree to a too extensive enquiry. By appoint-
ing an extra Judge in the Court of Exchequer, he thought
all the Judicial business of the country might be got
through with sufficient expedition. [The Hon. and
Learned Gentleman entered into a defence of the Statute of
Uses, the Law of Entail, but want of room prevents us
from going into his speech at greater length.]
Sir J. SCARLETT should prefer the introduction of
Bills to a Commission. This was the course followed by
the Lord Chancellor Cooper, in the last great reform
which took place. He did not, however, mean to object
to the mode now proposed. The subjects for inquiry
proposed by his Honourable and Learned Friend were
most extensive, and it required all his ability to compress
them within even a speech of six hours. The Learned Gent.
coule not admit of the expediency of the proposition of
his Learned Friend, namely, that a plaintiff or defendant
might be examined as witnesses in their own causes. It would
lead to perjury and the worst consequences. He was not,
however, disposed to throw any obstacles ha the way of the
proposition before the House. The subject had occupied his
attention some years since. In 1812 he was assisted in his in •
tention to revise and correct the law by Mr. Justice Le
Blanc, one of the greatest Judges ever known in England.
In case he had remained Attorney-General he should have
brought forward a measure to amend the law in several in-
stances. The defects of the law with respect to debtor
and creditor had long occupied his attention. His object
had been to prevent delay and unnecessary imprisonment.
One of his propositions was, to allow a debtor, when
served with process, to go before Commissioners, and con.
sent that his bail should render him unless he paid the
debt in three months. The Hon. and Learned Gentleman
did not wish to go into details on that occasion• He was
not disposed to oppose the motion of his Learned Friend ;
on the contrary, he was pleased to find the subject had
been so ably introduced.
- -

Mr. BERNAL applied his observations to what he Con-
sidered an anomaly in the laws. The transfer of real
property, and the Stamp Law, operated in the most op-
pressive manner. The Hon. Member expressed a wish
to know whether the inquiry was to be limited or ex-
tensive.

Mr. Secrctaiy PEEL said his intention was to make
the Commission extensive. The Ccmmissioner would
enter into the particular subjects the Hon. and Learned
Member bad named. The transfer of real property and
the law relating to stamps would occupy the attention of

the Committee, but touch would depend on the mo.ttee
in which the Commissioners conducted the inquiry; •
Mr. A. DAWSON objected to the present forms of -
pleading, which confined property in the hands of trosteee.
The famous case of Thellusson's will, bad proved to what
extent the evil of conveyancing might Ile aught thot
Mouse would not go far enough in their instrucious to the
Commission, unless they nide real property conveyancing,
th subject of minute investigation with a vicar of making
it more liable to slienation.

DrePHILLIMORE stated that grievances had arisen
from the practice of the Ecclesiastical Courts in certain
cases. He suggested that one of the Judges of • the Ecele-
siastic'i Courts might be added to the Commissioners, with
advantage to the public.
Mr. CARTER pointed out defects in the conveyaues
and settlement of property, which required amendment.
Mr. BROUGHAM rose, upon being loudly called 'upon :
from different parts of the House. He said he would not
trespass upon the kindness of the Muse after the exemplary
patience they had already shewn to the important, although :
dry, matters of lw.v which he had brought before them:
especially as the debate had afforded hire opportunity for so
few remarks. The duty he had performed required no,
other qualifications in him than a moderate portion of
labotte. Ile had been requested by the late Attorney-Creee-
ral, who had just left the House, to state that which he had
forgotten, in constquetwe of his (Mr. Brougham's) inter-
ruption. His Hon. and Learned Friend had intended to
express an opinion upon the subject of special pleading ; and
he (Mr. Brougham) agreed with his lion. and Learned
Friend in thinking exceedingly well of that science, and
that all ie wanted to make it complete for the purposes of
a plain statement on both sides, of the powers of attack and
defence, was a return to ancient simplicity and rigour, both
of form and language. His object was to enable suitors to
attain their objects without liability of being met by minute
technicalities, end to restore the system of pleading to its
ancient simplicity. He knew that at present it was impas-
sible to prevent a ineltiplieity of counts, because, as the
Lt-
torrry-General observed, while the present practice of allow-
ing ncneuits continued, it was necessary Sc introduce aereot
number of counts into pleadings, and that thus, in order to
counteract one evil, another was obliged to be resorted t 0...-.
In that he agreed with his Learned Friend (Sir J. S.) who
had left the House, and thought it quite requisite that
there should be a change in that system which rendered
prolixity a matter of necessity. Before he noticed what
had fallen from his Learned Friend (the Solicitor-General),
he should once more apologise for the great range he had
taken when he before addressed the House. It might have,
no doubt, appeared presumptuous, that an individual should
attempt such a trespass upon his own longs, as well as the
temper and patience of the House, as to comprise within
one speech the twenty-nine heads which he thought
needed improvement. But as he knew that the attention:of
the Home could not be drawn to them all separately, and
that it was hopeless they could listen again to one indi-
vidual, lie thought it better to go through the subject once
for all, and, by variety, endeavour to make it attractive,
more partiOularly as he knew it was impossible that he
should be heard week after week, and, perhaps, year after
year, were he to examine every topic distinctly. Thelsub-
ject, however, was one which interested not the House,
but the country also, to which he believed there was no
subject which at present presented such attraction as poli-
tical reform and retrenchment; and amongst reforms, he
thought there was none the people had more at heart, than
a reform of this kind, be meant a judicious, tempe-
rate, and deliberate reform of the laws, effectuated
by experienced persons, and such as were best qua-
lified for the purpose. Ile did not believe that the
people wished for a sweeping reform, which would
altogether change the legal institutions of the country,
but they did desire to lay the axe to all their abuses,
and that justice should be both cheap and speedy, but not
hasty or inconsiderate. That was an opinion in wide!, he
agreed, as although he thought cheap justice needful, he
thought injustice was bad, let it be ever so cheap or ever so
speedy. Having had opportunities, from experience, of
knowing, he came to the conclusion, that the minds of the
people were set on law reforms more than any other. That
there were other reforms and retrenchments in the way of
expenditure which would more attract their attention, he did
not deny, that is, if they extended to thirty or forty mil-
lions;; but as they thought it hopeless to expect reforms to
such an amount, the reform of law was one to which
people looked most. For all these reasons, he had, in mov-
ing for an inquiry, gone into all matters which he thought
might be improved, not with an idea that all his sugges-
tions would be adopted, hut that the House might cull and
select whatever they thought proper, and leave the rest to
the operation of time. He should make one observation
with
thattle
oithecir mentionsc x
circumstance sntaottih nothing, e of,
instanceshavingof
sawidhich in
had
not occurred to him during his professional life,and hoped that
no one would suppose him to have been influenced by any
statement respect
vain egotistical ideas in making that statement.—(Cries 01
hear, hear.)—What he had said, was that it was a great
consolation to him to know that he did not complain of any
abuse the existence of which he had not observed, nor did
he suggest any remedy the want of which he had not cause
to regret in the course of his professional practice. He
did that, because all reformers, especially those of the law,
were constantly twitted that they were not practical men,
wherefore be had limited himself to what he had himself
seen. It was constantly said that it was very easy to com-
plain of a'Leuses, but that the great difficulty was to find
effectual remedies. God knew that that was true ; but that
was a reason why he should mention what he thought
right ; and if he succeeded in attaining one in every ten of
the improvements he suggested it would satisfy him,
although he was convinced of his correctness of every thing
he had stated. The House should also bear in mind two
things ; first, that during the whole of the discussion he
had never been charged with mentioning an evil for which
he had not suggested a remedy, not dogmatically, but for
the purpose of inquiry; and, secondly, that in the remarks
which had been made on the many cures and remedies he
had suggested, there were not more than one or two objec-
tions to what he had proposed, supported by reasoning.
Sweeping objections were certainly made, as to the laws of
evidence, upon which the Solicitor-General differed from
him, and by the Learned Gentleman (Mr. Sugden) who had
done him honour by going out of his way to perform a
feat unusual, that of answering a speech which was made
before he (Mr. Sugden) was a Member of Parliament.—
(Laughter.) He was sure, however, that the Learned
Gentleman would, when be was longer a Member, not
take as matter to reply to, what he might see in those
sources which had beets the Learned Gentleman's authority
for what he (\lr. B.) had said, more particularly when
many things which had taken him a quarter of an
hour to state were in them comprised within the space of
a line and a half—it was impossible that those very re-
spectable persons, no doubt, who ministered to the Learned
Gentleman's knowledge, could give an accurate account of
such subjects, where the omission of a single word would
alter an estate from and for life to one entail,. or in fee,
which must have rendered precision under such circum-
stances exceedingly difficult. The Learned Gentleman
therefore mistook him much if he supposed that he (Mr.
Brougham) wished to sweep away all entails; on the con-
trary, he considered it, in principle, well suited for
the kingdom. What he really had said was—what he
should desire was—that a tenant in tail should he
in the same situation before recovery, or if he had
issue before fine, as if the recovery had been suffered, or
. the fine actually levied. He never would allow a tenant
in tail, in reversion, without the consent of the particular
tenant, to dispose of his interest, by any conveyance, for
the same reason urged by the Solicitor-General, via.—that
such a power would allow him to be caught, at a particu-
lar season of life, and would interfere with family settle-
ments. The Learned Gentleman then went on to describe
the nature of these estates, and declared his object to be
that whatever might be done in the present circuitous mode,
might be effected by feoffinent, or any other valid, but at
the same time simple mode of conveyance. He considered
the law of England as in this respect preserving the pro-
per medium in a mixed Monarchy like ours, in which a
certain fixed property was necessary for the preservation of
the aristocracy, while, at the same time, land enough was
left without being tied up, to meet the demands of com-
mercial acquisition. He also agreed generally, in what
the Solicitor-General said about Powers, although he
disliked the niceties of that branch of the law.—
Ile referred, as an example, to Sugden on Powers, a very
useful book no doubt, but still so nice were the distinctions
there collected, that the learned could hardly tell, and the
unlearned could not tell at all, what might be the effect of
certain words in the conveyance of property. He wanted
therefore, to know why there should not be certain for-
mulas prescribed for the conveyance of estates for life or
in entail, or in fee, as well as for powers, in order that in-
dividuals might know what they were doing, -sand-have
such aids as were now afforded to unlearned Magistrates,
by furnishing them with formulas of orders and convic-
tions, to prevent their decisions from being quashed.
The Learned Gentleman then went to another point,
anti after commenting upon the advantage which the So-
licitor-General had in having three weeks to answer his
statement, observed, that neither he nor Mr. Sugden
had denied a tittle of what he had stated to be law, and
went into the particulars of the case of the witness Mende,
.who had been prosecuted for perjury, in whose case the
Attorney-General land refused a tales. He also referred
to the case of the writ of right, where the fiat had been
refused ; from what had occurred in which he proved the
great disadvantas under which private rll9lO likourt