have any mode of interfering to defend | conclusion he had drawn was by no means himself. He would say no more at pre- satisfactory. The hon. and learned Gensent; for, as the matter stood, the discus- tleman had relied on the fact that he (Mr. sion of it was much to be deprecated, as the House ought to keep its mind perfectly open and unbiased till the result of the inquiry should be reported. The only suggestion he (Mr. Walpole) should offer with reference to the appointmont of the Committee was, that the nomination of Members to serve thereon should be left to the choice of the Committee of Selection. LORD JOHN RUSSELL said, he was glad to find the right hon. Gentleman agreed in the appointment of this Committee, and that he did not submit the case on the argument of the right hon. and learned Gentleman (Mr. S. Wortley), who opposed the appointment of the Committee. It appeared to him (Lord John Russell) that the right hon. Gentleman opposite (Mr. Walpole) had taken a more constitutional view of this matter than the right hon. and learned Gentleman who preceded him. If any specific case of bribery could be alleged against a person holding the high office of Privy Councillor, and it was only to be inquired into by an Election Committee, he thought the Grenville Act would be a great evil, as barring the House from the performance of one of the greatest fuuctions it could perform, and which ought not to be set aside. With respect to the appointment of the Committee, any suggestion of the right hon. Gentleman (Mr. Walpole) ought to be attended to. It was only due to the right hon. Secretary at War, that if there was to be inquiry it should immediately begin, and be conducted to its close as soon as possible. MR. HORSFALL said, he quite agreed with the hon. and learned Gentleman (Sir A. Cockburn) that the sitting Member could not be injured by any clear statement of fact in that House, and he did not complain of any statement of fact, but he thought he had a right to complain of some statements which the hon. and learned Gentleman had made, and which were not facts. He acquitted the hon. and learned Gentleman of intentional misrepresentation; but when the hon. and learned Gentleman relied on one statement which related to him (Mr. Horsfall) as an important link, connecting the sitting Member for Derby with the transaction, and on another statement as making the impossibility of a conspiracy conclusive, he thought it only right he should endeavour to point out that the hon. and learned Gentleman's chain had a broken link in it, and that the Horsfall) was staying with his excellent and worthy friend Mr. Henry Cox, as showing that he (the sitting Member) was a party to the transaction alluded to in the petition, because Mr. Henry Cox was one of the firm of Cox, Brothers, and Co. He begged to set the hon. and learned Gentleman right on that statement. Mr. Henry Cox was not a partner in the firm at all. The hon. and learned Gentleman adduced it as most conclusive against the possibility of conspiracy, that Mr. Forshaw, his (Mr. Horsfall's) solicitor, attended before the magistrates upon the examination of Morgan. Mr. Forshaw attended, not to defend Morgan, but simply at his (Mr. Horsfall's) request, to see that nothing was said or done which was prejudicial to him (Mr. Horsfall). Having said thus much, he did not mean to enter into the circumstances of a case which would so speedily come before a Committee; but this he must say, that highly as he valued a seat in that House, and still more highly as he valued that honour in connexion with the borough of Derby, he should consider it dearly bought if he could participate directly or indirectly in such proceedings as those which had been alluded to. SIR CHARLES WOOD said, that as there seemed to be no objection to the appointment of a Committee, he would merely offer a suggestion as to the mode in which that Committee should be constituted. It had been said that this duty ought to devolve on the Committee of Selection; but he thought that it would be more properly discharged by those who were appointed under the Speaker's warrant at the General Committee of Elections. The Committee of Selection was quite a different body. MR. WALPOLE said, he begged to explain that he meant to have said the General Committee of Elections. SIR CHARLES WOOD said, he was glad to find that the right hon. Gentleman was of that opinion, as there was the greatest necessity for the selection of impartial persons to form the Committee, and the best course would therefore be that they should be named by the General Committee of Elections. Probably it would be advisable, also, that the course should be taken in this case which was adopted at the Carlow Election Committee, namely, that two Members, the one representing the petitioners, and the other representing the right hon. Gentleman (Mr. Beresford), should entitled to attend and put questions, unless serve on that Committee, but without vot-it was intended that counsel should be heard ing, in order that the accusations on the before the Committee. This was an acone side, and the defence on the other, cusation met by a counter-accusation of a might be fairly and properly brought be- most outrageous and scandalous conspiracy. fore the Committee. He should suggest, It was, therefore, necessary that the matter therefore, that the Committee should con- should be investigated with the greatest sist of five Members, that it should be ap-degree of vigour. pointed by the General Committee of Elections, and that two Members of the House should sit on it as assessors, but without the power of voting. MR. STUART WORTLEY said, he would not take a division on the question, but he hoped that this peculiar case would not be drawn into a precedent. SIR JOHN YARDE BULLER said, that his right hon. Friend (Mr. Beresford), who had withdrawn from the House, had The ATTORNEY GENERAL said, he had not the slightest objection to the appearance of counsel before the Committee, but he felt a very great objection to Members of the House appearing in that capacity. LORD JOHN RUSSELL said, he should be glad to know what opinions the right hon. Gentleman the Secretary of State for the Home Department held on this point. MR. WALPOLE said, he had no objection at all to the hearing of counsel by the Committee on the contrary, he should rather prefer it, and he agreed with his hon. and learned Friend the Attorney General in thinking it very undesirable that Members of the House should act. as representatives of the parties before Committees. The ATTORNEY GENERAL said, he quite agreed with the right hon. Gentleman who had just sat down that it was desirable that the Committee should be ap-left it to him (Sir J. Buller) to act for him pointed by the General Committee of Elec- in his absence, and, speaking for himself, tions, and also that the number of the he would say that he would rather hear Members composing the Committee should counsel than a nominee Member. be five. But he differed very much with him in the suggestion which he had made, following the precedent of the Carlow Election Committee, in 1836, that one Member should be chosen by his hon. and learned Friend (Sir A. Cockburn) on the one hand, and one by the right hon. Secretary at War on the other, for the purpose of acting as assessors to the Committee. He was quite sure that if Members were so selected, they would be precisely what the old nominees were, and that they would be advocates, and not assessors. [Sir C. WooD: They are not to have votes.] That was precisely the ground of his objection. He wished they had votes, and then they would feel something of the responsibility of Judges. He must say that he did not think it at all a desirable thing that Members should act as advocates in a case where a very grave and serious charge had been brought against a right hon. Member of that House. SIR ALEXANDER COCKBURN said, he must say, with every possible respect for his hon. and learned Friend the Attorney General, that if this inquiry was to be left to five Gentlemen, uninformed as they must be on the whole matter until they met in Committee, it would be better that the inquiry should not be commenced at all. His hon. and learned Friend said, that the representative Members would be advocates of the parties; why, they were intended to be advocates. Unless his hon. and learned Friend meant to say that the administration of justice was impeded by advocates, and that cross-examination had no efficacy, he did not see why this valuable instrument for the discovery of truth should be shut He thought that these two Members should have no voice in the deliberations of the Committee, but that they should be out. Motion agreed to. Instruction to the Gentlemen named on the General Committee of Elections, to select a Committee of five Members, to whom the said Petition be referred, and who shall have power to send for persons, papers, and records, and that the parties have leave to appear by themselves, their Counsel, or Agents. COURTS OF COMMON LAW (IRELAND) Order for Second Reading read. MR. J. D. FITZGERALD begged to express his readiness to assist his hon. and learned Friend the Solicitor General for Ireland in making this Bill as beneficial as possible; but when he (Mr. Fitzgerald) informed the House that the Bill consisted of 276 sections, of which 144 were taken from the Common Law Procedure Act of last Session, and which not only consoli- where nine-tenths of the policies effected dated but made many very serious amend- in Ireland were entered into by English ments and additions to the law of Ireland, Assurance Companies. There was one and that he had only received a copy of serious omission in the Bill. The law in it that morning, he thought his hon. and Ireland upon the subject of security by learned Friend would not consider him judgment was in a most unsatisfactory unreasonable in requiring a little more state. It had been altered year after year time before he was fully prepared to assent till no lawyer could venture to give an to the whole of its provisions. He would opinion upon any question relating to the read the preamble, which would give the law of judgment in that country. There House a tolerably clear idea of the very were six conflicting Acts in Ireland upon extensive nature of the alterations it was the subject, and yet, although his hon. proposed to make by this Bill. It recited and learned Friend in his Bill had dealt somewhat largely with security by judg "Whereas it is expedient to simplify and amendment, he had stopped short of treating the the course of Procedure as to the Process, Prac tice, Pleadings, and Evidence in the Superior Courts of Common Law in Ireland, so as to make the same less dilatory and expensive, and to prevent substantial justice from being defeated by reason of the variety of forms of action, and the technicalities and prolixity of Pleadings, and the unnecessary length of Records, and to consolidate the provisions of several Statutes and Rules of Court relating to such proceedings, and also to enable the said Superior Courts of Common Law to give effect to certain legal rights and just defences without the expense and delay of a resort to a Court of Equity." A Commission of Inquiry into the procedure of the common law in Ireland was appointed during the Viceroyalty of Earl de Grey, and the Commission made a Report in which various improvements were suggested. These suggestions were carried into effect by two Acts of Parliament; and in 1850 another Act passed, called "The Practice and Process Act," under which, and a code of rules framed under it by the Judges, the common law in Ireland was now administered; it did, therefore, appear to him strange that, so soon as the year 1852, another Act should be introduced which would make considerable alterations in the Act of 1850. The Bill now before the House made some new provisions in the law of Ireland, particularly with reference to commercial transactions. Now, it was well known that the commercial transactions of this country and of Ireland were much mixed up together, and he thought it unwise to legislate upon such subjects for one country and not for the other. Among other things, "it made choses of action" assignable, which by the Common Law they were not; but these would only be assignable in Ireland, and not in England. This he considered very objectionable, and such an alteration ought not to be made unless it were extended to England; for instance. policies of insurance would be thus made assignable in Ireland, and not in England, matter as a whole, so as to remove all difficulty for the future respecting it. Again, his hon. and learned Friend proposed to repeal several Acts, and it was stated in the repealing section that those Acts would be found enumerated in the Schedule; but he looked for the Schedule; it was not to be found in the Bill, so that he could not discover what were the Acts intended to be repealed. In these and in other respects the Bill admitted of considerable amendment, and he should be happy to give his assistance to effect that object; but, in order to be able to do so, he should require, that if the Bill were now read a second time, it should not go into Committee till after the recess, and that he should be permitted, on the third reading, to oppose any part of the Bill that he thought objectionable on principle. But the principal defect he found in the Bill was, that while it professed to be a consolidation and an amendment of the law, it was not in its provisions half so extensive as it ought to be. His hon. and learned Friend had proceeded to deal with one great principle that had recently been made the subject of much agitation, involving the question whether the distinction of Courts of Law and Courts of Equity should be suffered to exist. Now, he (Mr. Fitzgerald) did not at present profess to state what his own opinion was in regard to that question, and probably, too, his hon. and learned Friend might entertain some doubts upon it. But he (Mr. Fitzgerald) found in the Bill that the subject had been directly dealt with, and that the distinction between Law and Equity in one particular or two had been entirely swept away. Why, if the principle were adopted at all, should his hon. and learned Friend stop short and apply it only to a small evil? If this part of the measure be not well and duly considered, the consequence would be that the Bill, when passed into an Act, would meet with the same fate as other it was a step very honourable to the legal Acts passed heretofore had done, and that, ability and liberal views of the hon. and perhaps, in the Session of 1854 his hon. learned Gentleman. But, just in proporand learned Friend would again come for- tion as this Bill did credit to the hon. and ward and propose some further Act to learned Solicitor General for Ireland, so amend the law of the Session of 1852. just in proportion was it a reflection on the As a lawyer, he confessed he did not know measure of legislation of last Session which in what position they stood, the alterations was passed for reforming the law of procehaving been so many within the last few dure in this country. The two measures years. It could not be denied, however, for the reform of the law-that for Engthat Ireland had long preceded England land in the last Session, and that for Irein reform of the law. They had there land this Session-were substantially idenCounty Courts and other popular improve-tical; it was therefore not creditable to the ments half a century before they were House of Commons, nor to the state of the adopted in this country; and the reform science of jurisprudence in this country, of the Superior Courts of Common Law and Equity had been steadily progressing for the last twenty years. He was still anxious to see further improvements introduced there, and therefore should be willing to assist his hon. and learned Friend in extending this measure. His hon. and learned Friend was once a Protectionist in law, and had how become a Free-trader in law. To that he (Mr. Fitzgerald) did not object; neither did he ask him to insert in the preamble that this was "a wise, just, and beneficial measure;" but what he did ask him was, not to object to allow him (Mr. Fitzgerald) an opportunity to assist him in carrying out the Bill by agreeing to postpone the Committee till after the Christmas recess. that on two subjects so completely identical there should emanate from the House measures so very different in their foundation; because, although he had heard it said that Ireland was in some respects ahead of this country, in law reform, still, the law of the two countries being in principle identical, that which was good and true for one country, must be good and true for the other country. But what was the fact? There had been a conference of legal persons of high legal standing to consider the propriety of bringing the law of the three kingdoms into a state of harmony, by doing away with difficulties and anomalies, so as to enable persons to carry on their transactions by one and the same rule and process. But what did the Bill now before the House effect? It actually tended to create further differences in the law; and, indeed, its very improvement over the measure of last Session, in that sense, would create greater difficulties than existed at present. The subject, therefore, was one which demanded considerable inquiry; and, though he did not mean to object to the second reading of the Bill, yet he thought it his duty to suggest a few matters for the consideration of the hon. and learned Gentleman. The main and principal point on which the hon. and learned Gentleman dwelt when he address MR. LOWE said, that having given a great deal of time and trouble on the subject of law reform, he felt bound to say that this Bill did the hon. and learned Gentleman the Solicitor General for Ireland a great deal of credit. In his eloquent and luminous speech he had laid down some excellent and sound principles; and altogether he considered the present measure to be one far in advance of that introduced last Session for the amendment of the law in this country. The hon. and learned Gentleman abolished all those absurd technicalities and monstrous falsehoods which had so long been the oppro-ed the House with so much eloquence and brium of the law, and introduced a noble and just principle--that of making parties verify their pleadings, so that courts of justice should no longer decide as they now did, on merely technical and mendacious grounds, instead of on what was the real and true state of the case between the parties. The Bill also introduced another very valuable principle-namely, the assignment of debts and of choses in action. In these and in many other respects he considered the measure to be one very much in advance of that of last Session, and that ability on introducing his measure, was the absurdity of retaining those technical forms of action which existed in the courts, and which he so justly described as the remnants of an obsolete feudal system; and the hon. and learned Gentleman said that it was his intention to abolish those technical forms accordingly. But he (Mr. Lowe) regretted to say that that intention was not by this Bill entirely carried out, For, though it was stated in the preamble that it was expedient "to prevent substantial justice from being defeated by rea son of the variety of forms of action, and the technicalities and prolixity of pleadings," yet, when he came to look at the section itself with respect to the forms of action, it ran in these terms: "The technical terms of action heretofore used shall not be necessary"-it did not say, "shall be abolished" but it left them in a middle state, so that they might or might not be retained. Now, he contended that, if technical forms were good, they ought to remain, and if they were bad, they ought to be abolished. But, if hon. Members would go on a little further in the Bill, they would see that not only were these technical forms of action not abolished, but that they really remained as a vital and integral part of the law of procedure. For by the 6th section it was provided, that "The right to recover any debt or damages or personal chattel, in respect of any matter of contract or of tort, or taking or detention, which might have been heretofore the subject of any action of debt, covenant, assumpsit, account, trespass, trespass on the case, trover, replevin, or detinue, shall and may be enforced in an action to be called a personal action;' and all actions of 'ejectment' shall henceforth be commenced and prosecuted in the manner hereinafter provided." And then, by the 7th Clause, it was provided that- make them the foundation of his general form of action, and it was only by reference to them that it could be known what was the jurisdiction of the Common Law Courts at all. He (Mr. Lowe) agreed with the hon. and learned Gentleman that it was absolutely necessary that these forms should be swept away if they were to make any advance in the improvement of Common Law pleading; but, framed as the Bill was at present, those actions were made to constitute the very basis of the Common Law Courts themselves. The hon. and learned Gentleman had established by reasoning that the distinction between Common Law and Equity itself must be swept away. Very well; if that be so, let us adopt the principle; but don't attempt to sweep that distinction away by pretending to abolish those forms which constitute that very distinction, and yet by the same Act retain the forms, and thus uphold the foundation of the two descriptions of courts. If they once got rid of those technical forms, they would get rid of the distinction between Common Law and Equity. Therefore, if any man could make up his mind to go as far as this Bill went, he ought to go a great deal further. This was not merely theory on his part, for the hon. and learned Gentleman the Solicitor General for Ireland would recollect the introduction of the Bill for altering the Common Law in this country. The opinion of the Common Law Commission was, that these forms of action should be abolished, and a Bill was prepared for Now, what did that mean? It meant this, that purpose. But, when it was so prethat if a question arose as to the jurisdic-pared, it was perceived that not merely tion of the Court of Common Law in Ire- would they be getting rid of those techland, or as to what this Act applied to, nical forms of action inter se, but they the only answer the Act itself gave was would be getting rid of the difference be this, that the Courts of Common Law in tween Common Law and Equity altogeIreland had jurisdiction over, and that the ther. On perceiving this, the Committee Act applied to, matters which were now who prepared the Bill considered that they sued for in those particular technical forms would be unnecessarily destroying the of action which were specified in the Bill. landmarks between Common Law and So that the Bill, instead of relieving us Equity; they therefore withdrew the first from those technical forms, continued them, Bill and introduced a second, and thereby and the Irish lawyer would be just as much retained the technical forms of action as obliged to acquaint himself with all those before. Now, that was consistent. Those forms of action of debt, account, assump- Gentlemen were not prepared to throw sit, covenant, detinue, trespass, trespass down the distinction between Common Law on the case, trover, or replevin, not only and Equity; they therefore fell back upon for the purpose of knowing what action the common forms of action. But the he might bring, but in order to ascertain hon. and learned Gentleman had gone furthe jurisdiction of a Court of Common ther than that—he had abolished the forms Law as opposed to a Court of Equity. So of action; but he must not abolish those far, therefore, from the hon. and learned forms in one section, and bring them back Gentleman having abolished those forms again in another. He (Mr. Lowe) called of action, the effect of this measure was to the attention of the hon. and learned Gen "The Court shall have and exercise, in and about any matter brought before it, in any such personal action or action of ejectment, under the provisions of this Act, the same jurisdiction, power, authority, and discretion, to all intents and purposes, as it could have exercised in an action for the same purpose instituted in the manner hereinbefore used.' |