§ Mr. M. A. Taylormoved the order of the day for resuming the adjourned Debate upon the motion, "That a Committee be appointed to inquire into the causes that retard the Decision of Suits in the High Court of Chancery."
Sir Samuel Romillyobserved, that having on a former occasion stated to the House the reasons that induced him to think that the motion of his hon. and learned friend should be agreed to, he had then to inform the House, that nothing had since occurred to make him alter the opinion he before expressed. The Report, which was then expected from the Committee of the House of Lords, had since been communicated to that House, and appeared to him to contain nothing to prevent the House from going into the Committee moved for by his hon. friend. The measure proposed, of appointing another judge to assist the Lord Chancellor in his Court, he consi- 438 dered of such importance, that he thought it impossible it could be carried into effect at so late a period of the session, when so thin an attendance was to be expected in both Houses of Parliament. An alteration in the constitution of the court, which would be productive of the most serious consequences, required the most assiduous attention of both Houses. He had many personal reasons for wishing to abstain from giving any opinion on this question; but considerations of public duty obliged him to deliver his sentiments upon it. The first novelty of the measure was, that it would establish a judge in the Court of Chancery, who should not have to try original causes, but merely to decide upon appeals. That was an experiment, which no man who knew any thing of a Court of Equity, would think ought to be lightly hazarded. The whole system of Equity in this country was founded on the decisions of successive chancellors from lord Nottingham down to the present time; and it was necessary that those who had to administer the equity laws of this country should be in the constant habit of deciding original causes in the court of chancery. If the duties of the lord chancellor were too great for him to perform, it would be better to separate from his office the duties of the Speaker of the House of Lords, or the decision of Bankrupt cases, though he saw considerable objection to either, than to take from him the decision of original causes, and that jurisdiction which constituted the very essence of his office. He knew it might be said, that to separate bankrupt cases from the jurisdiction of the lord chancellor, would diminish his emoluments too much. He did not think it would; bat even if it should, that ought not to stand in the way for a moment of an arrangement necessary for the public interest. He was utterly astonished at the meagre information supplied in the Report from the Lords' Committee. It stated only what business had been done in the ten latter years of lord Hardwicke, and in the ten last years; but it gave no information whatever as to the business which had not been gone through, nor as to the causes of the delays. It appeared by the report, that from the year 1745 to 1755 the number of original causes decided was 1633; in the last 10 years the number was 570. It did not appear, however, that the business of the court of Chancery had increased of late: but it would be an unjust inference to make from the statement in the report, 439 that the business had actually diminished. The only way in which he could, account for the business not having increased, was, that many points, which were doubtful in lord Hardwicke's time, had since been settled. The increase of motions was double, but that was no proof that the business was doubled. He hoped if he was wrong in any of the causes which he had stated, that his learned friend opposite would set him right. He regretted much that there were none of those learned gentlemen present who, from their practice in the Court, would have been adequate to decide on this subject; perhaps, however, it might not be convenient to them to attend. He considered, however, that his public duty was so imperative that it ought to supersede all private convenience. From all the consideration which he could give to the subject, he thought that a temporary remedy was best adapted to the occasion; and he believed in his conscience that if a Commission to assist the Chancellor was appointed, all the arrears in the Court would be disposed of in the course of a year. He voted for the Committee.
The Chancellor of the Exchequersaid, that they had now before them an account from the Lords, of the causes which had led to the suspension of justice in their House and in the Court of Chancery. In order to obviate the inconvenience in consequence of this, they had entered into a regulation to devote, after this session, a longer attendance to the hearing of causes. There now appeared to be 338 Appeal Causes in arrear. Their lordships had proposed, then, to give up three days in the week, from ten in the morning, till a great number of those arrears were discharged, and two days a week afterwards till they had disposed of them entirely. Many causes had concurred to a delay this session, which were not among the natural or average causes of delay, and therefore could not be considered as likely soon to occur again. He had only to instance the great time which was necessarily occupied in the consideration of the Banbury and Berkeley peerage causes. It had naturally occurred to their lordships, that if they were to sit for the consideration of Writs of Error at ten in the morning, that, of course, a deficiency must occur in the Court of Chancery. They then, in order to remedy this, suggested the creation of an additional judge in the Equity Court, which situation the new judge was to hold during his good behayiour, and not during 440 pleasure. His hon. and learned friend seemed to doubt that Chancery business had encreased during late years. He owned he was very much surprised at this doubt, after hearing the statement that motions in that court had so multiplied. It had, however, been mentioned, either by his hon. and learned friend or by the hon. and learned gent, who moved for the Committee, as one of his great reasons for doing so, that the business of Chancery was so much encreased, that if a cause was now set down in the list, many year? might elapse before a final judgment could be pronounced on it. From all he had heard, indeed, he was inclined to believe, that a very great increase of business had taken place in that court. He knew very well that many of the motions which lately occurred were motions of course; but he knew also from the statement submitted by the House of Lords, that there were many of a different description. For the ten years before the last there were 57,000 motions and 2,700 petitions; during the last ten years there were bat 37,000 motions and 1,663 petitions. With respect to the measure which might be proposed by the Lords, he thought it much better to wait until their Bill came down, and then would be the proper time to discuss it. After what had been said, however, he must in fairness declare, that it was possible he should be for passing the Bill this session; but still of course, if delay was necessary to the adoption of a wise and proper remedy, no ill-advised expedition should thwart-so desirable an object. As they had the chief cause of the arrears in the Court of Chancery already before them, he should vote against the appointment of a Committee.
Mr. Ponsonbydenied that there was in the statement of the Lords one single satisfactory reason for the delay of justice in the Court of Chancery. The right hon. gent. had said, that the number of motions which had of late been made, might account for the delay. What was the reason, however, of the increase of motions? Why simply, because the attorney or client in a cause could not get the opinion of the court directly on the cause itself; they were glad to come at it by a sidewind, in the way of a motion. Those motions, then, were the effect of the delay, and not the cause. The way proposed, however, to get rid of all these inconveniences, was by the appointment of a third judge; and the right hon. gent. would 441 have the House wait for the Bill from the Lords before they came to a determination. But how were they to determine unless they enquired? or, how was it to be expected that a Bill was to get a fair consideration which would most probably not come down until there were not fifty members in town to consider it? He was aware, that much extra business came before the court this last year, in consequence of the numerous bankruptcies; but he hoped the right hon. gent. did not mean so to govern the country as that he should calculate upon a similar recurrence of failures in future. As to the creation of a third judge, in his opinion it would rather go to encrease the delay than remedy it; because the Chancellor being the supreme judge in the court, every suitor had a light at last to claim his final opinion, which would be thus removed a step by the intervention of an intermediate jurisdiction, between him and the Master of the Rolls. In his opinion, however, the expedition of justice in the Court of Chancery depended, in a great degree, on the Chancellor himself. If the Chancellor was a man of knowledge and talents, and of a proper constitution of mind to decide on the causes, then the delay would not take place. Whether this was the case with the present Chancellor, or not, he would leave to others to determine. The delay in the Court of Chancery necessarily brought on the increase of appeals in the House of Lords; for where suitors imagined they could get any thing by delay, they naturally had recourse to it in any way in which they could. He was quite clear that this was a temporary evil, and ought therefore only to have a temporary remedy. At all events, the one which had been proposed could have no other effect than to aggravate and increase the existing inconvenience.
§ Mr. Wilsonsaid, that his experience in the Court of Chancery, for twenty two years, had led him to conclude; that the business of that court had greatly increased; and hence, in part, originated the delay complained of. With the Report of the Lords before the House, the proposed enquiry appeared to him ill-timed and improper, and the House ought to suspend their opinion till the measure proposed by their lordships came before them in the shape of a Bill. He paid some high compliments to the talents of the present Lord Chancellor, who was equally distinguished for his enlarged 442 comprehension of the principles of equity and for his practical knowledge of the business of his court.
§ Mr. Adamentered into an examination of the Report which had been received from the other House of Parliament. The measure of creating another Master of the Rolls would not diminish the business of the Chancellor: it would only increase the number of appeals, for the suitors would be anxious to repair to the last resort, while it would impose a new expence on the public, and give the crown additional patronage. The Court of Chancery, as now constituted, was competent to the dispatch of all its business. What was to hinder the Master of the Roils, for instance, from sitting at the same time with the Chancellor? At present he only sat in the evening. The Report of the Lords, though it stated the number of appeals from Scotland, was extremely defective in not stating how many were received every year, and how many were decided. He knew this fact, that at the time of the union with Ireland, he was employed as counsel in the very last case of appeal that then stood on the roll; and now they were multiplied to the number of 260.
§ Mr. M A. Taylorrose to reply. He observed, that after the unanswerable arguments which his hon. friends had advanced in support of his motion, it would be intruding on the House, were he to occupy much more of their time. The delay in the dispatch of business could not admit of a doubt, and the House of Commons, who were the guardians of public justice, were now called upon to investigate whether those evils were owing to temporary causes, or to some radical defect in the nature and constitution of the tribunal itself? This was all he now asked of them to do. But it had been asserted, that the great increase of business had produced the delay complained of. He denied that there had been any sufficient evidence to prove the actual increase of business. The Report before them did not justify any such issue. It did not follow from any part of that Report, that the business had increased to such a degree as to require an additional judge. The arrear was, no doubt, enormous; but were they sure that the appointment of an additional judge would have the effect of expediting the dispatch of business? He thought, on the contrary, that it would rather contribute to retard it; because the great majority of suitors would 443 not rest finally contented with the hearing given their respective causes by the additional judge, and would bring it to be reheard before the Chancellor himself; so that the obvious effect resulting from that appointment would be, that most cases would be twice heard. If there was no other reason for going into the Committee, he thought it to be a conclusive one, the necessity of ascertaining the causes of the delay which, as yet could have been presumed only, and not discovered after a fair and patient investigation—and if they did not know the cause of the evil, he did not know how they could remedy it If, however, the appointment had been resolved upon, and that the House would be called upon to join in making it, he trusted that it would not be hurried into premature adoption at the close of a session. The appointment now could be only an additional expence to the public, without any additional good. The reason of this was obvious. That House, in all human probability, would not sit many weeks longer; when the parliament was prorogued the Lord Chancellor would of course be relieved from his attendance on his duties in the House of Lords; but the object of appointing an additional judge avowedly was to enable the Chancellor to give more of his attendance to the business before the House of Lords. When therefore that House was no longer sitting, the additional judge would not be wanting, and consequently, his appointment before the next session would be an unnecessary addition to the expences of the public.—The appeals now before the House of Lords were numerous beyond all precedent: there were at present not less than 296 appeals, exclusive of writs and Writs of Error. The Report then proposed that the Lord Chancellor should be enabled to devote as much time as possible to the hearing of those appeals: but what were three days in the week to get through such an arrear of business? at the utmost, he could not dispose of more than two appeals a week, which would be at the rate of about thirty or forty appeals in the course of the year; and would it be pretended for a moment that a remedy that could do nothing more than this, offered any effectual relief to the equity suitor? It was really telling him in so many words to be patient, and that perhaps his cause would come to a hearing in five or six years. In the times of lord Thurlow and lord Rosslyn, he did not believe that there 444 had been a single arrear; it was so in the commission at which lord chief justice Eyre was at the head. As to the Report, he could not help saying, that he thought it one of the flimsiest and most jejune compositions he had ever seen. He defied any man in that House who opposed his present motion, to say, that it was a composition to which, on account of the unskilful and unprofessional manner it had been drawn up, he could wish to set his name. There was not a single reason specified for any one opinion it professed, or observation it had made, neither was there any cause assigned for the evils complained of—upon such a document he could not see how they were bound to take every thing for granted that had been thus vouched for by the Lords. The House of Commons was bound to hear and decide for itself upon the greatest question that that could come before them, namely, to ascertain the cause of the delay of justice—the Chancellor had been petitioned over and over again to hear causes where the parties were rotting in a gaol, but no remedy was in his power; ought not parliament to seek for one? He trusted that the Bill, however, would not come down to them that session. He strongly deprecated so serious a measure as that of changing the nature and constitution of the Court of Chancery, at the end of a session, by a vote of the House of Commons not amounting perhaps to more than fifty members. Why not a Commission? This was a question to which he in vain sought for an answer. A new judge might have nothing to do. He remembered, though it was now some time since he had the honour of practising at the bar—but he remembered, when the Chancellor did every thing and the masters nothing. If hey would relieve the Chancellor from some part of his heavy duties, why not separate from his office that part which had not originally belonged to it But the truth was, he feared, that the profits of the commission were found 10 be too great to be very readily given up. Was the public to pay for this new Master of the Rolls? Why, then, not first ascertain the real emoluments of the Chancellor, and how those emoluments arose out of his labours? if of those labours there were some which he could not discharge, for such n was to be presumed he could not reasonably expect to be paid. Whatever part of the office he could not fill, of that part he ought not to receive 445 the emoluments.—He had now only to call upon the House, which he did most earnestly, to pause before they agreed to pass the Bill coming down to them. This was no question of party politics, and yet, such was the fascination in going with the minister, that the very persons who had most zealously urged him to the prosecution of the present motion were those who were now most averse to it.
§ The House then divided:
| For going into a Committee | 36 |
| Against it | 36 |
§ The numbers being equal, the Speaker gave his casting vote in favour of the proposed inquiry. A Committee was then appointed, and instructed to search the Lords' Journals, touching all proceedings respecting appeals and Writs of Error before that House.
§ Mr. Tayloralso moved, that it be an instruction to the Committee to examine into all the fees and emoluments taken by the Lord Chancellor in his jurisdiction of Chancellor, as well as in bankruptcy proceedings.
The Chancellor of the Exchequerthought that this point would be a subject of enquiry with the Committee now sitting on public offices. The instruction appeared, therefore, unnecessary and exceptionable.
Mr. Ponsonbybelieved, that the business of that Committee was to enquire into the profits of sinecure offices; and the office of Chancellor could never be considered as a sinecure. If another person was employed to relieve the Chancellor, it was but fit to consider whether that person should be paid by him who was relieved, or by the public. The enquiry, therefore, into the fees and emoluments of office was very necessary.
Mr. Bankesbelieved, that the powers of the Committee on sinecure offices did not extend to the office of Chancellor. There were some officers about the Chancellor who held sinecure situations, and received large fees, part of which went to the Chancellor. Into these offices the Committee on Sinecures could examine, but not into the emoluments of the Lord Chancellor.