coast there are difficulties of a similar char- | Africa, and therefore it was obvious that acter; there being only one or two points it was furnished to them by British merwhere they could land, and it could only chants at Cape Town, who sent it with a be done by small vessels, that are not fitted knowledge that it would be used for the for the voyage from Europe, and which purpose of slaughtering their own fellow almost invariably take their cargoes from countrymen. The noble Earl (Earl Grey) Cape Town. He believed that the Com- was quite correct in saying that the colomodore, hearing that it was probable the nists on the frontier must have arms and attempt would be made to land certain gunpowder to protect themselves with from quantities of powder at the mouth of the the Kafirs and from wild beasts; but the Orange River, had ordered certain vessels frontier colonists were the last persons in to be sent to watch that part of the coast. the world who would part with their arms But it was the opinion of those who were and ammunition to the Kafirs, who were best acquainted with the colony, that it their enemies. The powder and muskets was not through these attempts to land obtained by the enemy did not proceed that the real danger arose, because it was from the settlers on the frontier, but from impossible to smuggle there, but that the the merchants at Cape Town itself. It real difficulty was to prevent the powder was the capitalist at Cape Town who supwhich was necessary in the colony from plied the enemy with the means of destrucfinding its way from those persons who, tion, by pursuing the trade which was seeing the immense profit to be obtained, described by the noble Earl as being so would sell it to the Kafirs; and if their very profitable. No effectual step had Lordships would look at the ordinance been taken till the late ordinance to check lately passed at the Cape, they would per- this atrocious traffic. The very contrary ceive that it was entirely directed to that was the case. The fact was, the Governend. It was not the evil of smuggling, ment had been struggling for years to reproperly so called-meaning by that the concile two things which were totally inlanding on the coast by stealth from ves- compatible, namely, an enormous extent sels not duly entered at the Custom-house of frontier, with a greatly reduced army; -that was the true source of mischief; but and this impracticable attempt was the the real danger arose from powder being root of all the difficulty. We had unwisely taken from the legal and authorised stores, abandoned the system established, he beand then sold to the Kafirs. The new lieved by Sir Richard Bourke, of limiting ordinance increased the severity of the re- our commercial intercourse with the Kaffirs gulations to check that offence; and he within certain times and places fixed and hoped it would do it successfully. This limited by law. The moment we allowed was undoubtedly a very painful subject, individual traders to pass the frontier with and naturally excited much interest among their commodities, it became impossible to their Lordships. With regard to the re- prevent the sale of arms and powder to the turn which the noble Earl had moved for, Kafirs. He wished to call their Lordships' of course there would be no objection in attention for a few moments to the evigranting it. He would only suggest that dence contained in the papers which had its designation should be slightly changed, been laid upon their table. At page 344, to prevent the delay that would otherwise Major Sir James Anderson, speaking on ensue, and that instead of asking for the the 3rd of July, 1851, said, he thought a quantity of powder imported into the Cape change might be effected in the habits of since 1847-for that return could not be the Kafirs-first, by establishing military made without communication with the Cape posts, and then by inducing them to -he should call for a return of the powder attend fairs, where they might exchange exported from this country to that colony, their cattle for British goods. At queswhich would afford precisely the same in- tion 2,722, he gave his opinion that formation, and in a more speedy manner. although there might be men of good It would afford the same information, be- character who supplied the goods to the cause powder was practically only intro- Kafirs, yet they were obliged to employ duced to the Cape, from the United King-persons of very inferior character to sell dom and the British possessions.

LORD MONTEAGLE thought that little of the gunpowder used by the Kafirs was imported either from or through the Portuguese or any other foreign possessions in

them, sometimes British deserters; and at question 2,725 he added that, by preventing the traders from going into the country, and by making the inhabitants resort to the fairs, the introduction of arms and

ammunition might be considerably check- of Customs at Cape Town believed that ed, but not altogether suppressed. He nearly all the powder obtained by the (Lord Monteagle) would next refer to the Kafirs paid duty, and went through the testimony given by General Sir George Custom House at Cape Town. The noble Napier on the 23rd of June, 1851, who, Earl also expressed his belief that it would in answer to question 1,617, stated that be impossible to prevent the landing of the traders introduce gunpowder and arms, gunpowder in time of peace; and remarked brandy, and everything that is bad among that from certain quantities of saltpetre the Kafirs-that they smuggle very much and sulphur that had been sent to the -that things were better under the sys- frontier settlers, he inferred that the manutem established by Lord Charles Somer-facture of gunpowder was being introduced set (or rather by Sir Richard Bourke), into the colony.

EARL GREY defended the alteration he had suggested in the wording of the Motion, as the more convenient and speedy mode of attaining the same end.

Motion, as amended, agreed to.

COUNTY COURTS FURTHER EXTENSION

BILL.

Order of the Day for the Second Reading, read.

when there were fairs held, at which The EARL of ELLENBOROUGH the Kafirs met the traders, and bought thought the Colonial Office ought to be able what they wanted that that system to produce the returns now asked for by seemed to work well; but that now the his noble Friend, according to the original traders take gunpowder and arms into terms of his Motion. It only required a Kafirland, which were supplied by the little attention to system and method in merchants at Cape Town and Graham's taking the statistics of the imports at the Town, who purchased large quantities of Cape. arms in England-that he (Sir George Napier) had tried to stop the gunpowder from going to the Kafirs, but found it impossible to do so. Again, at question 1,619, the same witness added, "Do not let the traders go into Kafirland, except as formerly. Put a stop to itinerant traders." Now, if all this evidence was entitled to any weight, and he thought it was entitled to the very greatest, it pointed out the course which the Government ought to pursue in accomplishing an object that he could not consider so entirely hopeless as the noble Earl the Secretary for the Colonies seemed to suppose. Experience proved that it was perfectly practicable. At the same time, he could not find language strong enough to express his abhorrence of the merchants, whether in England or at Cape Town, who made use of a time of calamity like the present to draw from an infamous commerce the profits that the noble Earl had described. Their conduct recalled to his mind the language of the Dutch merchants, who, when reproached by Louis XIV. for carrying on a somewhat similar traffic, frankly told that monarch that if they could make a good profit from a trade with the infernal regions, they would not hesitate to do so though at the risk of burning their sails.

The EARL of MALMESBURY replied. He referred to the evidence of an officer of engineers to show that powder could be landed on the coast, notwithstanding the opinion to the contrary of the noble Earl the Secretary for the Colonies. He agreed to the suggestion of the noble Earl for altering the terms of his Motion for the

returns.

EARL GREY added, that the collector

LORD BROUGHAM then moved the Second Reading of this Bill, and explained that it was the same as the one which was sent down by their Lordships to the other House of Parliament last Session, and returned from thence the last day of the Session, with one or two slight exceptions. Some alterations were made on the Bill in its progress through the other House, not in its substance and import, but in the mode of carrying its objects into effect; and considering most of these to be improvements, he had retained them. There was, however, one material alteration which the House of Commons had introduced, namely, the clause which had been inserted in the Bill as presented by him, and which their Lordships struck out last year, enabling barristers, whether instructed by attorneys or not, to appear on behalf of parties. Considerable difference of opinion existed in their Lordships' House with respect to that clause, and eventually it was struck out. He had restored the clause in the present Bill; the object of the clause was to repeal a provision in the County Courts Act of 1846, which prohibited the counsel who practised in those courts from taking briefs from the suitors themselves, and required that they should be

{FEB. 13, 1852} Further Extension Bill. 490 instructed by an attorney. He would re- | County Courts, and he was sure their esmind their Lordships that probably, in the tablishment had most materially improved County Courts, the same practice prevailed the administration of justice in this counas in the Superior Courts, namely, that try. He rejoiced to see a Bill again brought counsel were not in the habit of taking in which improved the Acts that had been briefs from the clients themselves, but from previously passed. [Lord BROUGHAM: Imattorneys. He, however, thought that it proved and extended.] But he regretted was desirable that an option should be that an alteration had been made in this given upon the matter, and therefore it Bill after it left their Lordships' House last was that he had reinserted this clause in Session-an alteration not only materially the Bill. With respect to the Superior affecting the profession to which he beCourts, there was no inflexible statute longed, but-what was infinitely more imlaw or common law which prohibited coun- portant still-affecting the due administrasel from taking briefs from the clients tion of justice. He believed we were greatly themselves; but they had always been indebted in this country to the distinction prevented from doing so by usage or which had been drawn from time immecustom, the etiquette of the Bar. In the morial between the functions of attorneys Superior Courts, generally speaking, no and the functions of barristers, and he counsel took a brief in a cause, unless thought that that distinction ought to be he had been instructed by an attorney sacredly preserved. With one exception, —a practice which in most cases he (Lord this distinction had been instituted not by Brougham) approved of. He thought it law but by usage; but when the County expedient that both in the superior and Courts were established, it was felt that inferior courts a line should be drawn an exception should be made with regard between the two branches of the pro- to those courts, and that it should be fession, and that, as a general rule, no made by a positive enactment on the barrister should appear on behalf of par- subject. With respect to the Courts at ties in either the courts at Westmin- Westminster Hall and on circuit, there ster or in County Courts without being in- was a superintendence and a discipline structed by an attorney or solicitor. But abundantly sufficient to keep up all wise he also thought that the same freedom and salutary rules regarding the profesupon that point which existed in the Supe- sion, without any legal enactment; but it rior Courts might be extended to the was felt that in the County Courts such County Courts without any fear of its discipline and superintendence would not being abused. His objection to passing a exist, and must be supplied by the Legislaw which would prevent counsel from lature. It was therefore provided by the taking a brief in a County Court directly 91st section of the County Courts Act, that from a client was, that circumstances might no barrister should appear in any of those arise when the ordinary rule should be de- courts unless instructed by an attorney. parted from. The professional etiquette That he believed was a judicious and saluwas a flexible rule; it went to circum-tary rule, and most earnestly would he stances; it admitted of exceptions in cases advise their Lordships to continue it; beof necessity. The statutes' prohibition was cause if that rule or custom were not maininflexible and allowed no exception, how-tained, the distinction between the two ever urgent the necessity for the barrister's branches of the profession in the County protection. The Bill which had passed their Lordships' House last Session upon this subject, and which had been sent down to the House of Commons, might appear, from the number of Amendments which that House had made, to have undergone considerable alteration. That, however, was not the case, for the other House had adhered to the substantial portions of the Bill, and only embodied its enactments in a different form. The noble Lord concluded by moving that the Bill be read a second time.

LORD CAMPBELL said, he always had been and still was a warm friend to the

Courts would be entirely obliterated; litigation would be stirred up and multiplied to an indefinite extent among the lower orders, by having every stage from the beginning to the end of the suit conducted by a spurious barrister; the profession would be degraded, and, what was still worse, the most serious evils would be entailed upon the public. Such a class degraded the order to which they belonged; and the serious objection he entertained to the 24th clause of the noble and learned Lord's Bill was, that it would have a tendency to increase the evil. He knew that there was an idea abroad in fa

vour of what was called "free trade in objects-one half of the Bill related to law." Now, although there were many the extension of jurisdiction of the County things to which the principle of free trade Courts over those subjects in which they was well adapted, he could not think that had jurisdiction at present, and which he the law was one of them. It was his opin- would call common law jurisdiction; the ion that it was highly desirable that this other half of the Bill conferred upon them prohibition against counsel practising in powers for assisting the Court of Chancery the County Courts without being in- in carrying into execution such decrees structed by attorneys or solicitors, should and orders as it might issue, and to a cercontinue. It was said, indeed, that it tain extent to enable them to discharge the was at present competent for a barrister functions of the Masters in Chancery. to decline practice which was not accom- On the importance of both these objects panied by instructions from an attorney; he entirely concurred with his noble and but if it were for the general good that learned Friend last year, and he concurred such a usage should prevail, surely there with him still; but he owned he entercould be no objection to its being enforced tained considerable doubt as to the policy by legal enactment. The barrister, too, of now proceeding with that part of the ought to be guarded against a practice Bill which related to the Court of Chanwhich now prevailed, namely, that of at- cery, when they knew-or, at least, had torneys acting in court, not on their ac- been informed upon authority which they count, but in the capacity of advocates, could not doubt the accuracy of—that and instructed by other attorneys. He there was soon to be brought into the was ready to second any measure which other House, and he hoped before the end should put an end to such a practice. If a of the Session would be brought before suitor were contented with one law agent, their Lordships, a Bill which would grapple he might choose an attorney to act for with this and all the other difficulties of him; but if he thought proper to have two the Court of Chancery. In those circumlaw agents, an advocate as well as an at- stances he doubted the propriety of runtorney, that advocate ought to be a bar-ning the risk which would be occasioned rister, both for the sake of the suitor himself, and also for the sake of the Bar. The question was one with which the interests of justice were very intimately connected, and he could not help regretting that his noble and learned Friend had not allowed himself to be guided by the strong opinion expressed in their Lordships' House last Session, that a clause of this kind was necessary. He (Lord Campbell) trusted that it would be introduced in Committee, and in that hope he would give his entire and cordial support to the Bill.

by the passing of this Bill, of increasing the difficulties which existed in carrying into execution the recommendations of the Commissioners with respect to the very matter which formed the subject of one half of this Bill. He thought it would be more expedient to strike the part relating to the Court of Chancery out of the present Bill, and introduce it as a separate measure, which they could either pass or not, according as they might be satisfied or otherwise with the larger measure with reference to the Court of Chancery.

LORD CRANWORTH did not rise for LORD BROUGHAM said, that the point the purpose of protracting the discussion urged by his noble and learned Friend had on this subject. He only wished to say not escaped him. He was aware that when that he reserved for himself the full the measure to which his noble Friend alpower of expressing in Committee, when luded came before the other House, it might the Bill should reach that stage, the opin- be found to contain some provisions reion which he expressed last year upon the specting the taking of evidence, and the same point, and which, it would be re- transactions of other business belonging membered, was generally to the same to the Masters' Offices, on which he now effect as that which had just been given proposed to give powers to the County by his noble and learned Friend beside him Courts. But still he could not help think(Lord Campbell), though he did not antici-ing, from the best attention which he had pate quite the extent of evil contemplated by his noble and learned Friend. His object in now rising was to make a remark upon the general frame of the Bill. Though, as their Lordships were aware, it was only one Bill, it had, in fact, two distinct

bestowed upon the Report of the Commissioners, that it would be found not to dispense with the necessity of some such provision as should give the County Courts certain of the functions now performed by the Masters in Chancery. It would still

ing that it was usage alone which prevented him from throwing open his chambers, and taking practice without the intervention of attorneys, gave an intimation that he would resort to this course. By these means room was afforded for explanations, and the circular was ultimately withdrawn. Other combinations had also existed at times upon different and perhaps less important questions. What would their Lordships think of combinations among attorneys and solicitors not to give a brief to a barrister in any Court if he should presume to attend the County Courts, that branch of the profession being minded to have a monopoly of those courts? In such a case, if etiquette were the only prohibition, a barrister might protect himself against such a combination. He (Lord Brougham) threw out these remarks by way of illustration of the view which he had submitted to their Lordships, and he commended them to the candid consideration of his noble and learned Friend. Another subject had again been pressed on his attention. A proposal had been made now, as last Session, to vest in the County Courts a general equitable jurisdiction, and a petition had been presented to that House. praying that they might be given an equitable jurisdiction in the case of sums of money not exceeding 500l. He wished to take that opportunity of saying that he had given the suggestion his best and most attentive consideration, and he had arrived at the opinion that it was entirely impossible to fix any such rule. He should, however, continue to direct his attention to the subject, as he was aware of the interest which it excited in many parts of the country. He had presented a Bill to the House last Session which embraced this subject; and, as it appeared to him, without the manifold objections to which the plan of giving the equitable jurisdiction under a certain amount was plainly liable. Last Session the Bill had been much considered, but it had not passed their Lordships' House, although it had never been rejected by them.

be necessary to take evidence in the country, and have other matters there transacted, without bringing parties or their agents up to London. That, however, would be more easily considered at a future stage of the measure; but he entirely concurred with his noble and learned Friend in deprecating any proceeding which might have the effect of retarding or impeding reforms of a more extensive and important nature. With respect to what had fallen from the Lord Chief Justice, he (Lord Brougham) could not think that his noble and learned Friend had fully or sufficiently considered the subject on which he had spoken. He had argued that the difference between the County Courts and the Superior Courts was such as well to justify a particular enactment in the case of the former. Now, it was not merely the influence of the Bench, or of usage, and etiquette connected with that usage, in the Superior Courts, which served to prevent the confounding together of the two branches of the profession, because in the country Courts of Bankruptcy and in all other courts except the County Courts-in the more obscure as well as the higher courts, the barrister was left at perfect liberty, and there was nothing to prevent him from taking practice without the intervention of an attorney or solicitor. The etiquette which prevailed in the Superior Courts was not universally recognised, and there was no confusion, notwithstanding, between the two branches of the legal profession. And was it not right to throw around the barrister a protection by which he might be enabled to defend himself against combinations by solicitors and attorneys? That such combinations had at times existed, there could be no doubt whatever. In one instance, of which he (Lord Brougham) had some recollection, a member of his profession, in consequence of what he believed to be the faithful discharge of his duty in the other House of Parliament, incurred for a season the displeasure of the other branch of the profession, and a circular was issued to that part of the country in which the barrister LORD CAMPBELL, referring to the practised, giving a plain intimation of the instance of combination mentioned by his opinion of the principal attorneys and soli- noble and learned Friend, observed that eitors that he should be visited with the there was little danger of the attempt of displeasure of the profession for what he the solicitors and attorneys prevailing had said in his place in Parliament. That against an individual whose splendid taldispleasure was exercised not only affirma-ents and profound learning were such as tively but negatively, by withholding all to make him generally sought after by professional intercourse from the obnoxious suitors. No one could be more proud of party; but the barrister in question, know- his profession than he (Lord Campbell)