Page images
PDF
EPUB

410

Law of Evidence and Procedure BillLord Cranworth's Speech on the 2nd Reading.

husband or wife should be compellable to call upon a person to answer, as a witness, disclose what was communicated in do- questions which, if a direct charge were made mestic confidence. The communications against him, he could not be called upon to between husband and wife, his Lordship

answer. Suppose my pocket was picked in a

crowd, and that I had a strong suspicion of a observed, would be placed by the Bill, on

man near me ;--if I charged that man with the the same footing as communications made

offence, the law said, “You have no right to by a client to his solicitor, which the latter interrogate him upon the subject. Now, tbis was not required to disclose. His Lordship bill did not propose that power should be also adverted to what has been felt by every given to interrogate a person so accused, but person practically acquainted with the ope- it said, “If you can call such person as a wit

tion of the Act last referred to as an ano. ness in any other proceeding, then interrogate maly, if not an injustice, that, as the law

him as you please. We should thus, in fact, now stands, the wife of a plaintiff acting as

get rid of that principle of law which prevented

us from doing directly what this bill would a shopwoman, or an agent, is prevented

enable us to do indirectly. In order to guard from giving evidence of necessity within against this result, my noble and learned friend her knowledge, and not at all within the has introduced a proviso whicb would enact, knowledge of the husband; but the effect that though the witness was to be bound to of marital influence and the social conse- answer questions, his statements should never quences arising from its abuse, when a wife be given in evidence against him. That would, is liable to be examined for or against her

however, be a mere illusory protection. Take

the case, I have put of my pocket being picked. husband, appear to have been lost sight of

n of Suppose I had seen the man near me in the in the discussion. This part of Lord

crowd, and that was all I knew. Well, I Brougham's Bill would seem, therefore, to might bring that man up as a witness on some have met not only the acquiescence but the occasion or other, and say to him, I suspect approval of the Lord Chancellor.

| you picked my pocket of my watch. Did you On the next proposition, to compel wit- do so ?

do so?' The witness might now reply, 'I de

The witness mi nesses to answer questions tending to cri. cline to answer the question ;' but if this bill minate them, the Lord Chancellor is re- |

were passed he would be told, 'You are bound ported to have thus expressed himself :

| to answer, and you shall answer.' •Well,' be

might say, 'I confess I did.' 'What did you “I entirely concur in the feeling which has

do with it?' I locked it up in my lodgings, prompted my noble and learned friend to en

and there it is now,' Now, although this deavour to devise some method of getting out

statement could not be given in evidence of the difficulty, arising from that provision of ag

of against the witness, a policeman might be sent the Law of Evidence, exempting a party under

under to his lodgings, and there the watch might be examination from the obligation of answering

har I found. The man had been near me in the questions that may tend to criminate him; for, co

crowd ; the watch would be found at his lodg. in common, I am sure, with all who have been

(ings; and the person would thus have been in the habit of attending Courts of Justice, or

compelled to convict himself. Although I feel, of taking part in the proceedings in such

with my noble and learned friend, that this is Courts, I have continually been shocked by

a matter which ought to be looked into, and the certainty that injustice was done, and truth although I regret the discreditable scenes was excluded, because a witness said. "I can. which are sometimes witnessed in Courts of not answer that question, for it will tend to cri- |

ond in ari. Justice, I regard with very considerable ap. minate me. I feel bound to say, however,

prehension any system which would create a that until we are prepared to alter the law a

sort of rival dexterity among different Judges great deal more, and to say that it should be

as to examining a prisoner and entrapping him part of our system to interrogate prisoners

into some admission that would implicate him. upon charges, I do not think the clause pro

This is a mode of proceeding which every one posed by my noble and learned friend can by

who has attended foreign Courts of Justice possibility become the law of the land. I t must frequently have observed, but I think it

is a system more unpleasant to witness than pocket has a right to say, “You are not to ask

the occasional escape from Justice of persons me any questions; I will answer nothing;

accused under our laws. To that part of the prove the charge if you can ;' will it not be a

| bill of my noble and learned friend, then, I In strange anomaly if we evade that law by call- | cannot give my concurrence.” in og the accused person as a witness in some Upon the third of the leading propo

other proceeding? I am perfectly ready to sitions contained in Lord Brougham's Bill, o concur with my noble and learned friend in la tre any reasonable inquiry as to whether the law

the Chancellor was not equally decided. - ght to be altered, -whether the rule of law, 1.From

a From what fell from his lordship, we colNemo tenetux seipsum prodere,' is or is not lect that the Common Law Commissioners veørrect principle; but I think it will be im- have prepared a report upon the subject, in possible to consent to a clause enabling us to which the question has been fully discussed, Law of Evidence and Proce lure Bill.Attorneys' Certificate Duty.

[graphic]

411 and that there is an inclination to give the noble and learned friend's proposal should suitors in the Superior Courts the power of be adopted. I do not mean to say that my electing to have their cases tried by a Judge noble friend may not make out a case estaor a jury. The Lord Chancellor's observa.

blishing the proposition which he has been tions on this part of the Bill are thus re

urging. I shall only say I think it is a ques

tion deserving most serious attention, and I ported :

shall look with the greatest ansiety to the facts

and reasonings contained in the report on this " Another point referred to by my noble friend, was the expediency of allowing parties

every important subject.” who have actions pending in the Courts of In reference to the three changes of magCommon Law to have them tried by a Judge, nitude and importance proposed by Lord and not by a jury. I stated on a former oc- Brougham, therefore, the Lord Chancellor casion, that I thought that was a question which deserved most serious attention, but I

assents to the first, repealing the exceptive did not think it was very happily or appropri

provision as to husbands and wives, conately introduced into this Bill, the more so as

tinued by the first sect. of the Act 14 & 15 the subject had been one of those inquired Vict. c. 95; he opposes the provisions which into by the Common Law Commissioners, who would compel a witness to answer questions are about to make a second report. The tending to criminate himself ; and he rematter has, I believe, been most anxiously in- serves his final judgment upon the propovestigated by that Commission, which has pre-sition, to dispense with juries with the conpared an elaborate report, stating the pros and cont of the litigant parties

sent of the litigant parties. cons, and I understand leaning to the views of my noble and learned friend. (Hear, hear''

!! Upon all these questions considerable from Lord Brougham.) It seems to me that difference of opinion exists, and is likely to that report will be the proper foundation for a prevail. It must be admitted, however, discussion on the subject. I might put a great that Lord Cranworth has not shrunk from number of cases in which a Judge could de- stating his views on all these difficult quescide questions quite as well, or perhaps better, tions, frankly and explicitly, a circumstance than a jury; but, on the other hand, I do not which, it is hoped, may not be lost sight know that there might not be very great diffi- of ha culty if we begin to remodel the mode of trial)

i of by those who are so ready to assume of fact in those Courts. We must not regard

d the office of censors upon persons in authis as a mere question as to how the par- thority. ticular issue might best be tried, but we must look upon it as a whole. The question is, | ATTORNEYS' CERTIFICATE DUTY. supposing 1,000 or 2,000 cases to be tried in the course of a year, whether we should obtain better decisions generally by only putting juries ANSWER TO THE OBJECTION THAT THE to try a few selected cases, instead of familiar CERTIFICATE TAX EXCLUDES DISREising them with the mode of dealing with such PUTABLE PRACTITIONERS. questions by letting them try the whole? I It has been obiected to the repeal of the cannot but feel considerable apprehension that,,

peculiar taxes imposed on attorneys and if we merely had juries in a few difficult cases, we should not find that the minds of the jury. Sol

solicitors, that they operate as a protection men were so well adapted for such investiga-| to the public by preventing the introductions as they would be if they were continu- tion or the continuance in the Profession ally employed during the whole of an assize, of ill educated, needy, and disreputable trying sometimes easy and sometimes difficult persons. cases. With regard to great mercantile ques- | The duty of 1201. on commencing a tions and contracts, the parties, I believe, like clerkship for five years, and a premium of generally to have a jury, and the Judge would, 2001. or 3002. to the solicitor, together with in many such cases, he very much at sea without the assistance of a jury. (Lord the expenses attendant on a service of five Brougham.- 'In London.') Yes, in London, I years, it may be admitted, have a tendency Liverpool, Bristol, York, and other places, to secure, in the first instance, some respecwhere questions of that kind arise, I think tability of station, and in fact these expenthey could hardly be withdrawn from the con- ses, with the admission stamp of 251., and sideration of juries. The real expense, I con- the fees of examination and admission in ceive, arises not with respect to trying the all the Courts, really operate as a property cases, but in the tax upon the juries who are summoned to spend a week or a fortnight in /?

qualification on entering the Profession. an assize town or elsewhere ; and the expense. It is not proposed to disturb these paywould be the same whether they were sitting | ments. in the waiting-box or walking about the town, Again, the necessity of passing the exalthough it is true that arrangements might amination (instituted in 1836) ensures a be made to save a portion of their time if my respectable amount of general as well as

412

Attorneys' Certificate Duty.- Registration of Assurances' Bill. legal education. Moreover, the examiners REGISTRATION OF ASSURANCES' inquire into professional conduct and cha

BILL. racter, as well as legal ability. These are the safeguards to the public,

PETITION FROM NEWCASTLE-UPON-TYNE

AND GATESHEAD. not one of which existed at the time the certificate tax was first imposed. What might The following are the Statements in this Petibe tolerated then as a war tax is now wholly tion to the House of Lords from Barristers, without justification. If these do not ope

Attorneys, and Solicitors. rate, it is quite clear that the annual duty SHEWETH,--That your petitioners are incan have no such effect.

formed that a Bill has been introduced into The sum required to be paid annually by

your Lordships' House, intituled " An Act for

the Registration of Assurances in England,” persons whose practice is of small extent, unde

cent, under which, if it pass into a law, all assurexposes them to the temptation of increas- ances affecting any lands in England must be ing the amount of their charges, in order registered by the deposit of the original docueither to reimburse the outlay or enable ments, or duplicates or copies thereof, in one them to make it. Thus the tax, in many General Register Office in London or Westcases, indirectly falls upon the suitor, ope-minster. rates as a tax upon the administration of That in your petitioners' judgment, if such justice, encourages irregular practice, and

ond la register office be established, it will be soon

| found to be the monster grievance of the tends by the misconduct of individual mem

country. bers to degrade the Profession in public

Profession in public That your petitioners presume to submit to esteem and diminish the respect for the your Lordships some of the grounds on which law.

they have formed that judgment. The Incorporated Law Society as the In every case of a conveyance, will, settleRegistrar of Attorneys and Solicitors, have ment, mortgage, charge, or other assurance, received numerous complaints that attor

and even of a mere contract relating to lands neys practising in a limited and inferior

or tenements, be the transaction ever so trilling

in amount, the parties, in addition to the exclass of business, receive emoluments from

I pense, trouble, and delay, incident to the reother attorneys, who are unable to take out gistration thereof, must incur the expense of their certificates, and who practise in the duplicates, or copies of their documents, and name of such certificated attorneys, and if the original documents be deposited in the participate in the profits of the business, Register Office, your petitioners will be unable contrary to the express provisions of the to give them in evidence without incurring the Statutes, and to the injury of the public. expense of bringing them from London under By these means they not only evade

legal process in the custody of the proper

te officer. the payment of the duty but commit acts y but commit acts Those transactions, of daily occurrence in a

The of mal-practice, and of oppression against great commercial country, in which temporary the poor suitors of the Court, and generally pecuniary accommodation is obtained on the escape punishment. For if complaint be instant, and without expense or exposure by made against the attorney in whose name means of a deposit of title deeds, will be most the mal-practice takes place, he denies that seriously interfered with and obstructed, and he authorised the use of his name, and

although by the proposed Act certificates of generally there is no sufficient evidence to

registration are to be granted, which certifi

cates may be deposited by way of equitable contradict him.

mortgage without registering a memorandum If there were no certificate duty, but of such deposit, yet another provision of the merely a small fee for annual registration, Bill, viz., that no subsequent assurance by a each attorney must keep his name on the person having obtained a certificate of regisregister for the sake of publicity in the Law tration, shall be registered until such certifiList : he would transact business in his own cate be cancelled, will render it impracticable name and be amenable to the Court for any

for any one to deal with his property if submisconduct. It appears, therefore, that

ject to an equitable mortgage, until such mort

"gage be discharged. The mortgagor will be this tax induces an illegal mode of practice,

unable to make a settlement of his estate, or by which the annual payment is avoided

avoided even a contract for sale, although for the exand the difficulty increased of detection press purpose of paying off the charge out of and punishment for misconduct, and thus the purchase money, unless such charge be the public is injured in a far greater degree previously satisfied. This result appears so than the revenue can be benefited.

paradoxical and so fraught with embarrassment and mischief to the whole community, that your petitioners cannot conceive it to have been contemplated by the framers of the Bill, but they submit to your Lordships that it will

Registration of Assurances' Bill.Bankruptcy Bill.

413

inevitably follow from the measure if passed in and expense, whilst, as to affording additional its present form. For no person could be in- security of title, which is assumed to be the duced (or indeed advised) to deal with an principal, if not the sole, object of the present owner or mortgagor of property without hay. Bill, your petitioners submit. that the Act will ing his transaction registered, but by the pro- not merely prove abortive, but will, by its composed law this would be impossible, unless the plicated machinery and by controverting seexisting certificate of registration were given veral old and well-known rules of equity, ocup and cancelled.

casion many difficulties and causes of insecuThat the delay and formalities which the rity which do not now exist. Act would render necessary for effecting even That it may be well doubted whether the the simplest transaction connected with real evils which would be remedied by any system property, would in many cases (where the of registration, would not be more than counbusiness, if done at all, depends for its efficacy terbalanced by other evils which it would proupon despatch) altogether frustrate the inten- duce. tion of the parties, to the inconceivable loss That the principle of a Central Registration and inconvenience of very many, and the utter is in every respect objectionable. ruin of not a few of her Majesty's subjects, Your petitioners are aware that the Profeswho are quite satisfied with the facility of sion to which they have the honour to belong transfer and security of title under the existing has been accused of opposing the present Bill state of the law.

and other similar measures from interested Under the proposed new law the safety of motives. Your petitioners do not presume to every transaction will depend on the correct- make any remark here upon such accusations. ness of certain indexes, which from their vo- They, however, humbly submit to your luminous character must be subject to inac- Lordships that being themselves to a considercuracies.

| able extent interested in real property as owners That it will be a grievous hardship on her and otherwise, they may without censure lay Majesty's subjects, living at a distance from before your Lordships their objections to a the metropolis, to be obliged to travel to the measure which threatens most seriously to Register Office themselves for the purpose of affect them in common with the other landsearching the register, or to intrust the search owners of England, and the evils to be appreon which their title depends to strangers; and hended from which their professional avocayour petitioners humbly submit that, in con- tions and experience peculiarly qualify them to sequence of the numerous sub-divisions of, and foresee and point out; and that they may be dealings with, property, in towns particularly, allowed to do this with the more confidence where ground is parcelled out in building sites seeing that the proposed measure would in no and small plots for sale or for distribution by way diminish the emoluments of your petiand amongst the members of freehold land so- tioners, but, on the contrary, would increase cieties, efficient searches could not be made, them. It would in no way alter the form and nor the identity of particular properties traced mode of conveyance, but it would introduce an by persons not possessing local information expensive and complicated machinery from without plans of a very costly nature, and that which conveyancing is now free. such searches and plans would give rise to de- ! Your petitioners therefore humbly pray your lays and expenses which would be extremely Lordships that the “ Bill for the Registration onerous to the parties concerned in transac- of Assurances in England” may not pass into tions of small amount. Indeed, the additional a law. expense which the proposed system of regis. tration must, in various ways, occasion, will be

BANKRUPTCY BILL. very severely felt in all transactions of small | amount, and will utterly neutralise the benefit of the reduction of the stamp duty on convey.

ATTORNEY-ADVOCATES. ances, which was recently granted by the wis- |

To the Editor of the Legal Observer. dom of the Legislature as a measure of relief SIR, - It seems to me desirable, upon many to the landed interest, and which has, in the grounds, that he Profession should not misbelief of your petitioners, enhanced the value apprehend the scope and object of Lord St. of landed property, and will, moreover, tend Leonards' Bill. In introducing the Bill Lord to repress the acquisition of real property by St. Leonards stated, in reference to the emthe humbler classes, which the best interests ployment of Attorney-Advocates, that he did of the country require to be fostered and en- not object to a man's solicitor arguing his case couraged.

for him, but only to an attorney being turned Your petitioners humbly submit that the into a barrister. “ What I desire,” said Lord great desiderata in the laws affecting real pro- St. Leonards (as you have reported his speech. perty are simplicity, facility, and economy of See Leg. Obs., p. 43), “is, to see the Profestransfer,-benefits which your petitioners grate- sion stand upon its proper basis, I wish the fully acknowledge have been in a great degree barrister not to trench upon the province of attained by recent legislation; but, in the the attorney, nor the attorney upon the projudgment of your petitioners, the proposed vince of the advocate.” According to this new law would be a retrograde movement, announcement, nothing could be further from giving rise to complexity, delay, obstruction, Lord St. Leonards' intention than, “as you

414 Bankruptcy Bill.- Opinions of the Press on Repealing the Certificate Duty. suggest in last week's Leg. Obs. (p. 404), “to! We think our Correspondent, in regard compel parties to incur the expense of em- to Attorney-Advocates, is mistaken in his ploying counsel when their solicitors are fully

y, main fact. We understand that the two competent to advocate their clients' interest." As I read the Bill, it is not fairly open to or three solicitors to whom we presume he such an objection. You appear to be under refers, invariably receive their instructions the impression that the 39th sect, of the new from and are retained by the creditor or bankBill operates as a repeal of the 12 & 13 Vict. rupt, or other party for whom they “ appear c. 106, s. 247, and will prevent the employment of solicitors as agents, and deprive them

m and plead.”—Ep. of the privilege now enjoyed of “ appearing and pleading without employing counsel.”

OPINIONS OF THE PRESS ON REPEALNow, in point of fact, the 39th sect. of the proposed Bill repeals nothing, but it puts a

ING THE CERTIFICATE DUTY. legislative construction upon the words “a solicitor of the Court of Bankruptcy," as contained in the 247th sect. of the Bankrupt Law! In Ireland, as well as in England, with Consolidation Act, 1849, and defines it to be the exception of The Times, the Press has a solicitor of the Court of Bankruptcy acting ably supported this branch of the Profesgenerally in the case or matter, and not a so- sion. Thus, The Freeman's Journal of the licitor retained as an advocate by such first-12th instant contains the following Leading mentioned solicitor.” The real solicitor of Article .the suitor in Bankruptcy is therefore untouched by the proposed provision, nor is the “ Ministers have had their first fall, notwithagent of a country solicitor, I apprehend, af. , standing the plausible resistance of the Chanfected in the slightest degree. The system'cellor of the Exchequer and the negative of which Lord St. Leonards proposes to strike at Mr. Hume. The certificate duty has been is that by which two or three practitioners, condemned by a large majority--52—in a acting in the triplicate character of solicitors, a House of 386, and, for the first time since agents, and advocates, have monopolised the the question of repeal was seriously mooted, the now diminished business of the Court of Profession have been placed on firm ground, Bankruptcy, to the manifest detriment of and the tax doomed to extinction.- Lord Rothose who pursue the Profession according to bert Grosvenor brought forward the question its acknowledged rules, and confine them- in a sensible speech, and urged all the arguselves within its legitimate limits. Practi- ments against the injustice of the imposition, cally, the Court of Bankruptcy is not re- which, indeed, are so numerous and convincing sorted to when it can be avoided, but those as to admit of no direct refutation. Why an who have occasionally been compelled to ac- attorney should be subjected to an annual tax company their clients there feel that matters of 121. for discharging the duties of a very reare managed so much for the advantage of sponsible Profession, cannot be justified on any those who practise exclusively in Bank- ground, except the plain one of state extortion. ruptcy, and with so little regard to the When Mr. Pitt, in his universal survey of the convenience or advantage of the Profession field left open by his predecessors to taxationgenerally, that the maintenance of the ex- and which in the opening of his career covered isting state of things is little to be desired. a far more extensive surface than when he Such is the influence of Accountants and closed it-broached the attorney tax, it was agents in that Court, that a solicitor who said that he maliciously retorted on the whole does not condescend to secure their good Profession the injury or the insult of a single report, and propitiate their favours has little individual, and visited not only the existing chance of keeping the client he takes into but several successive generations with the sins Bankruptcy. If the proposed clause in Lord of one real or supposed offender. When St. Leonards Bill operates to put an end to- some patriot Whig of the day resisted the tax or even to discourage- this anomalous and and complained of its rank injustice, Mr. Pitt discreditable state of things, it is eminently admitted the injustice, but fell back on the deserving of the support of the independent financial necessity. Like the income tax, it members of the Profession, who, I trust, will was only to survive a certain period; but Mr. not be misled by supposing, that their interests Pitt, like other statesmen, found a ready excuse are identified with those of a few individuals to continue the tax, and, singular enough, in whose functions are not those of solicitors, but an assembly which owes so much to the talents who, under colour of acting in that capacity, and exertions of the Profession, no attempt was have materially interfered with the economy of made to remove it until Lord Robert Grosvenor the Profession, and inflicted incalculable in- made the question as much his own as the exjury upon those who confine themselves to tinction of the midnight gas-burners belong to their own walk in the Profession.

Mr. Brotherton.
I am, Sir. your obedient servant, "A barrister is not annually taxed, and why
A PRACTITIONER OF The Court should an attorney? The attorney requires a
OF BANKRUPTCY.

large capital to conduct his business, if he be
in any considerable practice; while the barris.

« EelmineJätka »