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in which the Commissioners have conducted these inquiries; for, in every part of them, those learned persons seem to me to have proceeded with great zeal as well as discretion.
The Commissioners appear to have proceeded with the greatest possible caution,—with the utmost degree of deliberation. That evils exist in the system of our administration of the law is not attributable to them; and, although much remains to be performed, the portion of the subject which they have investigated is, unquestionably, of paramount importance. They have acted faithfully and meritoriously; and I do not complain of their powers either as being too limited or inadequately exercised. Their inquiries have been conducted in a proper spirit; they have held their course in a becoming and exact mean, between inconsiderate rashness and undue subserviency,—keeping a middle line, and neither setting at nought the long pondered decisions of authority, nor evincing that overstrained respect for existing institutions which too often degenerates into a veneration of existing abuses. The great learning and experience of the Commissioners, and the knowledge which, as practical men well acquainted with the law, they have brought to the consideration of the subject, are of the utmost importance, and every body admits the ability with which they have applied their resources to the subject matter of their investigations. The vast body of evidence of other practical men which they have collected,—their own suggestions and recommendations, which, more especially in the second report, contain matter worthy of the greatest attention,-a report that is full of profound thought, and, if I may be allowed so to speak, of most ingenious invention on the science and the practice of the law-all these merits entitled the Commissioners to receive, and no
doubt they have received, the unqualified approbation, not only of professional men, but of all persons interested in, and who are capable of understanding, the subject. I will venture to say, that within the last century and a half there has not been produced in this country any thing like the quantity of important matter which the Commissioners, partly in the fruit of their own suggestions, and partly in the evidence and facts adduced by others, have laid before the House on this subject.
Having said thus much, it cannot be supposed that I have brought forward the subject which I am about to open in a spirit of hostility or censure towards the Commissioners, with whom, on the contrary, I am prepared to go hand in hand to further the Reform of the Law: my object being simply to take up a part of the question which they have left untouched. If I saw any prospect of the Commissioners directing their labours to this part of the subject within any reasonable time, I should be disposed to leave it entirely untouched; or if I thought the matter intimately and inseparably connected with the residue of the subject
—the matter of their present and unfinished inquiries -I should then think, that for the general convenience, and in order to avoid the necessity of a double discussion, it would be better to postpone my motion. But I find, after the best consideration, that neither is there a prospect, within a reasonable time, of the Commissioners being able to turn their attention to that part of the question which I have in view, nor is it so mixed up with what is already before them, that I ought to decline directing the attention of the House to the subject.
If, Sir, it were asserted by some traveller, that he had visited a country in which a man, to recover a debt of £6 or £7, must begin by expending £60 or £70,where, at the outset, to use a common expression, he had to run the risk of throwing so much good money after bad, and to pay almost as much even if he succeeded, it would at once be said, that whatever other advantages that country enjoyed, at least it was not fortunate in its system of law. But if it were further related, that in addition to spending £60 or £70, a man must endure great difficulties, anxiety, and vexation, infinite bandying to and fro, and moving about from province to province, and from court to court, before he could obtain judgment,—then our envy of the country where such administration of the law and legal institutions existed, would be still further diminished. If to this information, it were added, that in the same country, after having spent £60 or £70, the adversary of the creditor had the power of keeping all his property out of his way, so that after all the suitor's expense, all his delay, and all his anxiety, it must still be doubtful whether he could obtain a single farthing of his debt; if, furthermore, it were stated, that in the same country, although the debtor were solvent and willing to pay what the law required at his hands, the creditor would receive, it is true, liis original claim of £6 or £7, but not the whole £60 or £70 which he had expended in costs to recover it, by about £20,—so that on the balance he would be some £13 or £14 out of poeket by success, over and above the amount of the debt which he recovered, after being exposed to a variety of needless plagues, beside the unavoidable annoyance of these proceedings;—if we were told of such a case, would not the natural inquiry be, “ Whether it was possible that such a country existed ?" Sir, the individual to whom this strange information was given, if he supposed it possible that such a country existed, would at least pronounce it to be one of the most barbarous and un
enlightened in the world. That it must be a poor country, he would think quite obvious—and equally obvious that it must be of no commercial power-of no extent of capital—of no density of population, because those circumstances most necessarily produce from hour to hour transactions involving important and valuable interests. Nevertheless, I need not remind the House,- for every man who hears me must be aware (many are aware to their cost) of the fact that such a country, so unfortunately circumstanced is no other than that in which I now speakEngland. Then arises the question, how is this admitted evil to be remedied? and in order to know how the remedy may be applied, the first point is to ascertain whence proceeds the evil? To give examples of the evil, and its origin, may be the best mode of proceeding.
I am thus entering at once into the middle of my subject, and I am persuaded that such is the most convenient and expedient course, because it enables me at once to see and grapple with the real difficulties of the inquiry, to which, far be it from me for one moment to shut my eyes. That part of the mischief which can be got rid of, I call upon you to remove. I formerly took the opportunity of stating a kind of experiment I made at one of the Lancaster assizes, when my honourable and learned friend,* was present. I requested the prothonotary to furnish me with a list of all the verdicts recorded: they were fifty in number, during that assize, and the average amount of those verdicts I found to be for sums under fourteen pounds—thirteen pounds odd shillings each. I do not mean to represent that there were not three or four actions in which the damages were nominal; some of them actions of ejectment, and other suits to decide rights; but the bulk of the verdicts were on actions of
* Sir James Scarlett.
debt, or in the nature of debt, and the average was less than the sum for which, by law, a creditor may hold his debtor to bail. I am far from saying that such is the general result of actions, either at the assizes or in London ; but still it is not much out of the general course. Taking the average of the five years ending in 1827, the number of actions brought in all the Courts of Westminster was something under 80,000. I believe that the precise amount was 79,000. The number of these actions that were brought to trial amounted to little more than 7000, being one case brought to trial only out of eleven actions commenced. No doubt many of those actions were not proceeded, with on account of the heavy costs, delay, and vexation that must be incurred in doing so. But, passing by that topic for the present, (having stated the fact with a different view,) if we would form some estimate of the kind of sums for the recovery of which the generality of actions are brought, we are enabled by some documents that have been laid upon the table, to approximate to a conclusion on the subject. This I shall endeavour to do without going too minutely into details.
In 1827 there was a return of the number of affidavits of debt in the King's Bench and Common Pleas for two years and a-half. During that period the number of affidavits for sums above £10 was 93,000 odd hundreds, but in round numbers we will call it 93,000. Of them, of course, a great number were the foundations of the 79,000 actions before spoken of; for an affidavit of debt, as everybody knows, is the earliest proceeding in the commencement of an action. Let us see, then, in what proportion the affidavits were for small sums, moderate sums, and large sums :29,800 were for sums between $10 and £20, and no more; 34,200 were for sums between £20 and £50, making together 64,000 out of 93,000 for sums not