rose to move the second reading of the Vice Chancellor's Bill, in doing which he entered at large into the causes which rendered the creation of such an office advisable, and stated the reasons which had induced his Majesty's ministers to propose the Bill, He first took a view of the necessity which existed for adopting some measure of the kind; this necessity he contended was indisputable, and therefore the House had no option but to balance between it on the one hand, and the imperfections in any remedy they might think fit to apply on the other. Of its necessity it was not too much to say, that if some mode were not devised to render that judicial portion of our constitution equal to its labours, the whole of the judicial code of the country must be affected, and great injury done to the subject from the impossibility of obtaining timely redress in any suit. As a proof of this, he needed only to state, that there was at present in the House of Lords an arrear of 280 Appeals, which at an average of the rate in which such causes had been decided, could not be determined in less than eleven years. This in itself was a crying grievance to suitors, but the evil did not rest here. It was not confined to the mere suitors in those cases (great as the hardship was to be lamented as affecting them alone), but by the delay in ruling disputed points of law, the number of Appeals themselves were greatly augmented; for in the determination of these causes might be involved some principles, which, till a decision was obtained, kept the subject in ignorance of the law of the land, and multiplied litigation. Thus the mischief was not peculiar, but extended, and the cause of its own increase. The House must also feel that this delay offered a strong temptation to the ill-disposed, and encouraged persons to present Appeals for the mere purpose of postponing the effects of judgments; as it was obvious, that by moving into the House of Lords they could put off the decision for a term of years. An adversary, by the mere fact of interposing himself between a decree and the beneficial effect of it upon the successful suitor, might deprive him of that advantage and of the justice awarded to him for eleven years. Without therefore enlarging further upon this subject, he would take it for granted that the House must feel that it was the bounden duty of the legislature to find out some 460 remedy for evils of this magnitude. A more important question had not been submitted to their consideration for a length of time, and, much as they had been occupied by weighty affairs, he could not help regretting, that it had not been brought forward at an earlier period. It had been imagined by some that the nature of the proposed measure was merely to relieve the Court of Chancery from the pressure of business; but this was a mistake, as would be seen by reference to the Resolutions of the Peers. The first of these Resolutions was directed to the almost total stagnation of business in that House, and proved that the remedy was not addressed to the Court of Chancery originally, but to this total stagnation of all business in the supreme court of appeal: and the Court of Chancery only came into the second Resolution, to shew that the state of business there was such that, by bringing a remedy from that court, they would occasion as great an evil as they removed. It was, he conceived, the duty of the Commons branch of the legislature, on viewing the proposition before them, to see in the first instance if any remedy could be applied by the Lords themselves by a different mode of executing their judicial functions, without creating any new office. Upon this subject they had the opinion of the Lords in grave decision, and without sacrificing any part of their independence, it would be right to look at the weighty recommendations with which this Bill came to them from the other House. It was founded on a most elaborate investigation, and had the entire concurrence of not only all the high legal authorities who sat in that House, but also of the leading political characters of every description. All parties agreed in the principle and in the detail of the measure, and it therefore came to them sanctioned by all the weight and consideration due to the other House of Parliament. It had been suggested that the Lords might by some new distribution of their duties get over the arrear of causes now before them, and prevent the recurrence of similar arrears in future. To accomplish this it was thought they might sit after the session for the general political business of the country was closed, and continue for a time to discharge their judicial functions. Surely, if there existed an objection to any other mode of remedy for the evil as an innovation, it was evident that in resorting to this 461 in order to prevent the innovation of creating a new officer, they would be guilty of a still greater innovation upon the constitution. To suppose that the Lords would remain in town, after the other affairs of parliament were dispatched, for this purpose, was a visionary hope, and one upon which no wise statesman would act. Besides, there was a decided constitutional objection against it which was, that it could not be done without trenching upon the prerogative of the crown, in the important privilege of proroguing parliament. It must put the crown into the delicate and awkward situation of either permitting parliament to sit after the national business for which it had been assembled was finished, or of doing injustice to the claimants who were at their bar. As to the House of Lords appointing a committee or delegation of its members, such a measure would also be repugnant, to the constitution; and he apprehended that a further sitting of the whole House was not to be expected from its diligence. Indeed they had no right to expect from the House of Lords, that they would depart from their usual habits of sitting; and the evil would not be remedied by it even were their lordships to consent, instead of five months to sit for twice that term, unless gentlemen were prepared to encounter the other evil, namely, that the Lord Chancellor should not be the presiding officer in the House of Peers. Without this, the remedy thus projected would be only to exchange one evil for another, and transfer the arrears from the House of Lords to the Court of Chancery, by occupying the time of the Lord Chancellor in the former, which, during the recess, he now devoted to the latter.—With respect to the project for withdrawing the Lord Chancellor from presiding in the appellant jurisdiction, it was not necessary to go into detail. As far as he had watched the discussions upon this subject, no question had been made as to the separation of the office of Speaker from that of Chancellor, which had been formerly so long litigated and favourably considered by some high authorities, in the noble lord's opinion erroneously, as tending to cast a shade upon the dignity of the presidency of the House of Peers. The first statesmen who had turned their attention to this point, had unanimously agreed in opinion, that such an alteration would derogate from the dignity of the House. It was also evident that no other individual 462 could be found to discharge this laborious duty. No doubt there were several eminent peers capable of performing this, but it was too much to think of building a permanent measure upon the existence or conveniency of peers, not of necessity bound so to devote themselves to the public service. It had been objected to the present measure, that it would tend to alter the habits of the Chancellor, and by confining him to his appellant jurisdiction, deprive him of his Chancery knowledge; but it might be answered, that the confinement of the officer to the jurisdiction in the House of Peers, would equally deprive him of such a knowledge of the equity and practice of Chancery as would enable him to come to competent decisions upon those cases which came before that House as a court of appeal: so that the evil complained of could not be cured without a violation of the principles of the constitution, or the creation of a correspondent evil. If this were true (and the noble lord knew of no flaw in its reasoning,) the question was from what quarter could aid be drawn; and, in his opinion, it was only from that now proposed that aid could be drawn safely and with advantage. The question then was, (there being a necessity to provide some aid in the Court of Chancery) whether it could be drawn from the other courts of law, or whether they must erect a new officer? In the Court of Chancery itself there was a great if not a growing arrear—a great calamity for which there appeared to be no remedy, unless by creating a correspondent evil elsewhere, for if the Lord Chancellor had not called in aid the assistance of the Master of the Rolls, it was only because that could not be done without creating a corresponding evil in the Rolls Court. None of the other courts were in a situation to afford help, but were all so pressed with business that the judges, with all the diligence they used, could not cope with the excess, and discharge their duties fully. The Court of Chancery, too, could only filly draw aid from a court, the decisions of which rested on similar principles of equity, and were analagous to its own, for though there were upon the benches of the Courts of King's-bench and (he believed) Common Pleas, individuals who had, at a former period of their lives, been eminent in Chancery practice, yet there was no Court in Westminster-hall, except the Court of Exchequer, which acted upon principles of equity; and so far from that 463 court being able lo afford them the aid they required, there had been serious proposals for requiring an additional effective judge there, where the arrear of business was even more pressing than in the Court of Chancery; and the difficulties under which suitors laboured rather called for a legislative remedy of their own, than offered a resource. If the Court of Exchequer could not supply the want, no other court in Westminster-hall could. It was thought impossible therefore, that the remedy could be expected from any of the courts in Westminster-hall. It was very generally supposed, that the measure now proposed would be the means of causing innovations in the mode of conducting business in the Court of Chancery. Nothing could be more inconsistent with the principles on which the Bill was founded, than such a supposition. Such had been the growth of legal business since the two unions which had been so happily effected between England with Scotland and Ireland, and the consequent increase of the industry and wealth of the whole kingdom. If judges had struggled under this press of business so long, it was only a proof of their diligence and zeal, as well as of their integrity. The measure proposed would be the smallest departure from ancient practice, and so little of an innovation, that in lieu of giving the Chancellor the privilege of calling in the assistance of the nine puisne judges, together with two masters in Chancery, as he now might do, it gave him a permanent instead of a temporary assistance. It was a mere change to this extent. The Chancellor had now the privilege of calling in the assistance of the Master of the Rolls; and when he assisted the Chancellor, he was as much under the direction of the Chancellor as the judges under a commission, or the Vice-Chancellor proposed. The object of the Bill was to afford to the Lord Chancellor a permanent, instead of a temporary assistance in the transaction of the business of the Court of Chancery. The affording assistance in the transaction of business, certainly did not imply any innovation in the mode of transacting it; and the very reverse of innovation was the object of the measure then under discussion. The functions of the officer whom it was proposed to appoint, were not different from those who were appointed commissioners, and he repeated it, that when the Master of the Rolls was 464 able notwithstanding the pressure of his business to assist the Lord Chancellor, the assistance which he afforded was not different from that which would be given by the new officer. The objection which was made, by comparing the evil which the Bill would produce with that which it would remedy, instead of really operating against the Bill, was a powerful argument in its favour. For after a fair comparative view of the two evils, the magnitude of that which it remedied, was so strikingly contrasted with the diminutive nature of the evil which it could produce, that there was little room for hesitating to decide in favour of the Bill. He had formerly mentioned that the present measure would not cause any additional expence to the public, though it would be productive of so great benefit to the suitors in Chancery. It had been alleged that it would, but he should be able to satisfy the House that it would be no such expence; and the question for the House was, whether, with these advantages to the suitor, with the removal of the evil complained of, and with no better plan proposed, the House should hesitate to send this plan to a committee to be examined more in detail, and to advise upon any better measure which should present itself. One half of the ex-pence of the office would be charged on the profits of the Lord Chancellor, in the business of the court; the other half was to be taken from what was called the dead cash, or suitors' fund, the annual revenue of which, at that time, was 9,000l. The revenue of that fund had, on various occasions been applied, under the authority of parliament, for analogous purposes, and could not certainly be devoted to any better use than the support of that officer whose appointment was in contemplation. The fund consisted of unclaimed monies in Chancery, which had been suffered to accumulate at interest. The salaries of the Masters in Chancery, and of superannuated masters and other officers, were-paid out of it; and the income of 9,000l. per annum, to which he had alluded, was its present clear revenue unappropriated. Thus, as far as related to economy, there could be no objection to the Bill. It had been said, that there were other means by which the object of the Bill could be more effectually attained, than by the adoption of the measure which it proposed. And one of those means was, to take away the management of the bankruptcy business from the Lord Chancellor. Without 465 taking into consideration the fundamental principles, that this business should not be separated from the Lord Chancellor, and even allowing that it might with propriety-be taken away from him, still it would he necessary to have a Vice-Chancellor. For as to the particular jurisdiction of the bankruptcy business, none required greater attention on account of its difficulty and its intricacy. It was so particularly important in a commercial country, that it would be highly dangerous to trust the decision, on business of such weight, to any authority subordinate to that of the Lord Chancellor. To separate, therefore, this branch of business from the office of Chancellor, would be to remove that function, which, in his opinion, was most essential to it, and would have a tendency to separate the equity of Chancery, from the equity of the country. It had been objected that, in the distribution of the business in the Court of Chancery, the Bill enabled the Lord Chancellor to direct the whole at his pleasure; that he might allow the Vice-Chancellor to decide upon matters of such difficulty, that no authority short of the Lord Chancellor himself, should have been allowed to make a decision; or that he might only intrust to him causes of minor importance, and that such a power would degrade the character of the new magistrate. To this he would answer, that the possible abuse of a practical good ought not to be alledged as an argument against it, and that it ought on the contrary, to be presumed that the discretion thus vested in the first law officer of the country would be soundly exercised. He contended that the argument was untenable, because it went upon the abuse, and not the use of the measure proposed. It was needless to speak at large on the impropriety of supposing, that any man who should be vested in such an office as that of Lord Chancellor, ever could be guilty of such a breach of all the ties of duty and of honour—that he could ever so far abuse the power with which he was entrusted. Much had been said about the multiplicity of appeals which would be caused by the adoption of the measure before the House, and the creation of an intermediate jurisdiction. But it was too much the interest of the suitors to have their causes quickly decided, to be supposed they would venture on the tedious repetition of their suits by making appeals against the decision of any judge, particularly of such an officer as the Vice-Chan- 466 cellor, and it might be added, that the Lord Chancellor would have the power to put at once before himself such causes as were most likely to be made matter of appeal. At any rate, the objection did not apply with greater force here than it did to the courts of the Master of the Rolls, and the puisne judges acting under a commission: and surely the power of distributing business was such an additional instrument of discharging the great functions of the office, as counterbalanced the evils arising from the presumed increase of appeals. It had been urged, that the measure would transform the Lord Chancellor from the first law authority in the kingdom, to a mere state magistrate, and this was said on the suspicion, that he would intrust the decision of matters of importance to the Vice-Chancellor. Never was there an opinion more unfounded, nay (without disrespect he said it), never more absurd, than to suppose a Chancellor would abdicate his judicial character; the honour and responsibility of the situation were sufficient security against such an event. If the principle of arguing on suspicion were carried to any length, there was no reason why lord Ellenborough should not withdraw from the execution of the duties of his situation, and intrust the functions of his office to his assistants. Certainly lord Ellenborough was only bound to the performance of the duties of his office, by the ties similar to those which bound the Lord Chancellor, and he knew of no law which prevented his withdrawing himself entirely from the court; yet would any man alarm his mind with the possibility of such an event? Was it not a suspicion equally chimerical, to suppose that the Lord Chancellor would walk about the streets doing nothing, and leave his business to be transacted by his Vice-Chancellor: nor was it less unlikely that he would absent himself from parliamentary causes. It would be wrong in the House to legislate on such principles. In Ireland business was so arranged that the Master of the Rolls afforded the same assistance to the Lord Chancellor which was here proposed to be given by the Vice-Chancellor, and this arrangement was made, in consequence of a Bill which he had brought into that House. When that Bill creating such regulation was first proposed, objections had been made to it, similar to those now started to the Bill before the House. The object which both the Bills had in view was similar, namely, to 467 provide an auxiliary instrument to the Lord Chancellor, and it was then said, as now, that the Chancellor (lord Clare) would become a mere state-officer. The best answer to this objection was furnished by the conduct of the four distinguished persons who had since that period filled that high situation. Not one of the eminent characters had ever withdrawn one moment of their time from their judicial business for political purposes, or ever used the assistance of the Master of the Rolls except as an auxiliary. Experience proved that the object had been attained in the case of the former Bill, so that it was but rational to conclude that the object should be effectually accomplished by the Bill then under the consideration of the House.—Some persons had said that the whole expences of the office of Vice-Chancellor should be charged upon the emoluments which the Lord Chancellor derived from the business in the Court of Chancery. That noble lord had stated, at the very commencement of the enquiry, that he wished for no profit which was not purchased by beneficial labour; yet when the importance and dignity of the office were considered, and when the magnitude of the labour attendant on the execution of the duties of it were duly estimated, it would be found to be but reasonable that the Lord Chancellor should reap the fruits of his honest labour, and should live with becoming splendor. He should have the means of providing for his family, for it was to be remembered, that there was much risk and uncertainty in the time during which it might be his fortune to continue in office. The pension of 4,000l. to ex-chancellors was by no means sufficient of itself for this purpose, and it should be remembered that there were many distinguished noblemen, who owed the origin of their rank, and the wealth of their families, to the provision which their ancestors had been able to derive from their dignified labour, while they had filled the office of Lord Chancellor. It seemed to be reasonable that this office should be endowed more liberally than any other; and that its income should not be looked upon with jealousy. It ought to be so considered, because it was liable to greater cares and to more political uncertainty than any other judicial situations which were held, during life, at least during good behaviour. Under these circumstances he hoped that the House would not think of making any encroachments 468 upon the revenues derived by the Lord Chancellor from his office. The measure, therefore, being charged with no public expence, calculated as it was to remedy two evils, and coming recommended as it did by the sanction of all the legal characters in the upper House, seemed to be of such a nature that all parties would allow it to go into a committee for further consideration. His lordship concluded by moving the order of the day for the second reading of the Bill.
§ Mr. Bankes
rose and observed, that the noble lord had endeavoured to render his measure agreeable to one portion at least of the House; and to none more than himself, by stating that it would be attended by no public expence. Highly, however, as he prized this part of the scheme, he could not approve of it unless it had other distinct merits. In all matters of innovation, two things were to be considered; first, whether the evil were of an alarming size; secondly, whether the remedy was likely to be efficient, and answer its purpose. In the present case, he allowed, that a deplorable evil existed; the grievance was of such a nature, that though justice was supposed, proverbially, to exalt her head, and flourish in this country, yet the delays of her administration had been such as to come little short of a denial. Yet he should do wrong to rest satisfied with a remedy that was not at once comprehensive and constitutional. If the Bill intended merely to provide a temporary remedy for a temporary pressure of business, it might, perhaps, with some modifications, be more generally agreeable; but when it was proposed to introduce a permanent innovation into the administration of justice, the House should pause, unless it were demonstrated, that the remedy provided was the best possible remedy. It might be said, that a pressing grievance required a speedy remedy; but in his mind, the time would be well spent, and the delay wisely protracted, which should be dedicated to the consideration of a measure more calculated to answer its purposes, and less liable to objections on constitutional grounds. His opinions were sufficiently known on the subject of economy; but whenever economy alone was opposed to measures of a more substantial nature, it ought undoubtedly to give way. His objection to the present Bill was, that the remedy proposed would be found totally insufficient for the purpose for which it was intended, and it was 469 a most deplorable state for a country like this to be in, that the delays in the Court of Chancery and House of Lords were such as to amount almost to a denial of justice. It had been stated, that the project came recommended by all the gravity and knowledge of the upper House. That branch of the legislature had thought proper to discuss the principle of a measure which he had sent up to them, and he should now hold himself at liberty to examine the wisdom of the principles on which the present Bill was founded. He should first examine its preamble. Although the House of Peers there stated that Writs of Error, and Appeals to parliament, had greatly increased in their House; and although they stated that the delay was heavy on the suitor, and was a stigma on the justice of the country, there was not one word as to how they were to be enabled to attend more frequently to that branch of their duty; but as a remedy, they said, they would relieve another person in another court. But, provided the House were to adopt this measure, had they any power to procure the attendance of noble lords? It did not appear that they would have any reasonable expectation of a better attendance in that House than in times past. The noble lord who presided had no power to compel the attendance of the Lords. He had not found the other peers as yet willing to co-operate with him: Would attendance be more palatable, because more frequent? In that House (the Commons) they were obliged to compel the attendance of the members; but he believed the House of Lords did not exercise any such power; that the summons sent on some occasions, was a mere matter of form which their lordships might either obey, or not, as they pleased. But the House of Peers might also enforce the attendance of their members, and the arrear of causes required a much more diligent attendance. At present there was no regular mode of enforcing their attendance: they attended in consequence of a summons if they pleased, and neglected to attend if they pleased. The House of Lords was scandalously dilatory. It was in the recollection of many persons now in that House (who were managers of the impeachment of Mr. Hastings), how small a portion of time was allotted by the House of Peers to that trial, although the eyes of the country were upon them. The delay was to the debasement of the justice of the 470 country, and it was now impossible to carry on an impeachment on any complicated question. The author of this Bill had so far forgotten the privileges of that House, as in a publication of his, to make a charge of delay upon it, and to state, that the conduct of the House of Commons was reprehensible, and all the loss of time on the Bill was to be attributed to them. This was an indignity upon that House, which would not have been borne in better times. But they had not lost any time in proceeding with the Bill. The consequence of the proposed alteration would be, that the business of the Court of Chancery would be done by a person inferior in learning and abilities to the present Lord Chancellor, and that the business of Appeals would stand still as at present, la a short space of time it would make the Lord Chancellor a less effective officer than he now was. It might be depended on as certain, that men in general were not very ready to do what others would do for them. The Lord Chancellor would therefore, in a short space of time, be in a different situation from that in which he had been for many years. In seeking a person to fill that situation hereafter, the first lawyer would not be sought out, but the first politician in the country. If the Chancellor were to excel as a politician, and be admirable as a debater, he would naturally think that he might safely leave the decision of causes to persons with more legal skill but less ability as debaters. He would have, no doubt, the assistance of the two ablest lawyers, as his Master of the Rolls and Vice-Chancellor, and on them the admirable debater and party-man would repose for the execution of his legal duties. By such a plan, the Chancellor would not gain any time for hearing Appeals, but would have less. This was a great objection to the Bill.—It was intended that every part of the business which was to be transacted by deputy should be open to appeal. To whom? To the Chancellor himself, a considerable portion of whose time was consumed in the present state of things by Appeals from the Rolls. And it could not be supposed that there would be fewer Appeals from the Vice-Chancellor, who was to be an officer inferior to the Master of the Rolls, and with whose decisions it could not be expected that suitors would be better satisfied than with the Master of the Rolls at present. It was impossible to find a man for the situation of Vice-Chan- 471 cellor of more learning, talents, or weight, than the Master of the Rolls, and it was therefore evident that by the creation of this new officer a multiplication of Appeals would be created, and this was a great evil, from the additional expence and delay which it must occasion.—The consequence of such appointment would be, that those questions which at present were settled before the Chancellor, for the most part finally, would first be heard by the Vice-Chancellor, and then be brought by appeal before that learned lord, and thus the appointment would be attended with great additional expence, and would not relieve the Chancellor. In his opinion, there were other resources, besides those narrow remedies to which it was wished to confine the measure. He did not see the same radical objections to the separation of the office of Speaker of the House of Lords and Lord Chancellor, which the noble mover did. He did not mean to say that this was desirable, but there might be circumstances sufficient to render it necessary as a temporary measure. He knew that Mr. Pitt had at one time an intention to introduce such a measure, although he had not thought fit to proceed. Why he afterwards departed from his intention of carrying it into execution, he really did not know; but his authority was as good perhaps as that of the noble lord. The House of Lords were not in the same situation as the other House, with regard to the appointment of a Speaker. There was no necessity for their having a particular person in the chair, as was the case with the Commons. They frequently appointed a temporary Speaker under peculiar circumstances. Lord Mansfield frequently presided in the House of Lords, and when the great seal was in commission, a Speaker was always appointed temporarily. To him it appeared, that the Lord Chancellor might receive more assistance in Chancery from that eminent person the Master of the Rolls than he did at present. He might be allowed to decide causes there in the absence of the Lord Chancellor in the House of Lords, and sit in the Court of Chancery while the chief officer of that Court was engaged in hearing appeals. Were there not, too, matters of course which occupied a great portion of the valuable time of the Lord Chancellor, that might be discharged adequately by existing officers of the Court? There were no doubt cases in bankruptcies of a very complicated and difficult nature; but it 472 was not precisely the fact, as was stated, that bankruptcy causes in general required all the talents of the learned lord. If a new officer were appointed, he should be appointed to some great branch of what belonged to the Chancellor, by which the Chancellor would be really relieved. There were many persons practising in the courts of law and equity fully adequate to the determination of such matters, and fully equal to grapple with and discharge those duties. He could not understand what the noble lord meant, by saying there was an intention of adding a fifth judge to the Court of Exchequer. It might add to the wisdom, but could not add to the number of decisions of the Court.—In appointing a person to a situation which was to be not superior to that of Lord Chief Justice of the Court of King's Bench, but superior to the office of Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, he would not begin by degrading him. But the present Bill did not make him a deputy, but a drudge. He was obliged to sit when he was ordered to do so, and was not permitted to do any thing of his own will. They were alarmed, lest he should break the trammels with which they have surrounded him. This unfortunate man could make no order, no decree, without the leave of the Chancellor,—could not revise, or over-rule any thing done by the Chancellor, without special authority,—and was to obey such orders as the Chancellor had already made, or should hereafter make. He was to receive little emolument from his master, the Chancellor, who appeared to have given little, and to have retained much—Here the hon. gentleman proceeded to quote certain passages of the Bill, by which the Vice-Chancellor was discharged from officiating, unless specially authorized by the Lord Chancellor, and by which he was to proceed at such times and in such manner and form us the learned lord should think fit. He was also to be paid like a drudge who did all the work and got very little pay from his master. He thought that the person who filled the office of Lord Chancellor ought to be liberally, nobly, and honourably paid, not only to enable him to support his exalted situation in splendour, but to secure such a provision for his children, as would enable them to appear as the children of a peer. He did not say that the Lord Chancellor was at present too 473 liberally paid. But the portion which was allotted to the Vice-Chancellor from the emoluments of the Lord Chancellor was altogether so small and niggardly, that it would be better to take nothing from him at all, and that a suitable provision should be made from some other source. Before he concluded, he wished to suggest whether the taking away intermediate appeals from the Master of the Rolls might not be a measure that would be attended with beneficial consequences? There was one argument, too, against the offices of Chancellor and Speaker of the House of Lords being vested in the same person, which was deserving of notice, n all appeals to the House of Lords from the Lord Chancellor, the Lord Chancellor was of all persons the last who ought to sit in that House as the presiding and most efficient judge. The hon. gentleman concluded with moving as an Amendment. That the Bill be taken into consideration that day six months.
observed, that the Bill professed to be the best remedy that could be devised for an evil felt to exist, the stagnation of the legal business in the House of Lords. And what was this remedy?—to completely new model the Court of Chancery, a court, the transactions in which were so deeply interesting to the public. With respect to the delays which had taken place in the Court of Chancery itself, and the consequent arrear of causes, they were ascribed by different people to different causes: while some attributed them to the indecision of the noble and learned lord now at the head of that court, or to the interruption which he experienced from his political and other avocations—avocations unprecedented in former times, and even in the earlier part of his own time,—others traced them solely and exclusively to the general increase of business in the Court of Chancery itself. He would abstain from comparing the number of decrees made by the present with the number made by former chancellors; but he would compare the remedies proposed for the existing evil. Undoubtedly, the conception of the Bill before the House was not very profound or ingenious. If any mechanic, who had more orders than he could execute, were to complain to his neighbour that he had more business than he could attend to, the answer would certainly be," get a journeyman:" and what more did the present Bill propose: but 474 that which might be very suitable to an ordinary case was quite inapplicable to the delicate and important functions under consideration. The question was, from what part of his duties the Lord Chancellor might be relieved with the least risk to the public service? Why had the Chancellor been always considered as the highest individual in the profession?—because the law of the Chancery Court was lex non scripta: it was a law created by the presiding power in the court. It was, therefore, that individuals, the most distinguished for their profound legal acquirements, had always been selected to fill that high office. A long and continuous chain of these illustrious men, by supporting and confirming their mutual decisions, had succeeded in erecting a system by which they had established the property of the country, and secured to it a code of equity pure and unrivalled. If parliament were to break through this prescriptive wisdom; if they were to dismiss from the Court of Chancery the mace and the great seal; to overturn every thing that had been achieved, and substitute some inferior authority, who could foretell the dangers that might ensue: And, let the amount of these dangers be what it might, was it evident that the object of the Bill would be effected r The supporters of the Bill were placed in this dilemma:—if there was to be no appeal from the new officer about to be created to the Lord Chancellor, then would arise the evils of submitting such a jurisdiction to an inferior legal authority. If there was to be an appeal, on what rational ground could the House suppose that any one would be satisfied with a decision of less weight than that of the Chancellor, and therefore how would his business be lessened? In the one case, therefore, the Bill would prove mischievous, in the other nugatory. It would afford no relief, or it would be productive of two delays instead of one; the oracle would be got at at last. In his opinion the bankruptcy, which had little to do with the Chancery business, might easily be separated from the duties of the Lord Chancellor, and be entrusted to some other tribunal. Any common law judge was adequate to discharge this part of the duty. From the time of Henry 8, to that of James 1, it had been under the superintendance of privy counsellors. At the present day it occupied a fourth, some said even a third of the time of the Chancellor: and if it were not for this, they 475 would have no occasion to be now discussing the merits of the Bill in question. The hours so taken up might be most advantageously employed in what a noble and learned lord (Redesdale) had justly termed the "proper" business of the Court of Chancery as a court of equity. If any difficulty existed with respect to persons competent to this office, he thought it might easily be removed. He agreed that the judges of the courts in Westminster Hall were already sufficiently occupied; but there were the Welsh judges, of any one of whom it might be fairly said, that he was helping the other to do nothing. There were eight of them—four of whom, he thought, might well be spared to conduct the bankruptcy business, while the other four were amply sufficient to discharge, without inconveniency, all the judicial functions in that country. It might be urged that the Lord Chancellor derived a large portion of his emoluments from the bankrupt cases. It was so; but this was a precarious and most undignified source of revenue, and he was persuaded that parliament would compensate that great law officer for any injury that he might sustain, in consequence of a new arrangement, and the country would not think him overpaid for his important services, by a salary of 16 or 18,000l. Such a sum was indeed necessary, in order to enable him to maintain that salutary splendour demanded by his exalted station. The measure lie had proposed, he recommended not as the best possible measure, but as one infinitely preferable to the present. He was convinced that there were various modes by which the existing evil might be fully met. Parliament were not compelled to take the nostrum prescribed to them, or submit to the continuance of the disease. He had no faith whatever in the proposed specific: but if the only alternative was, to adopt the Bill before the House, or to allow the continuance of the present delays, much as he lamented the latter, as deeply injurious to the interests of individuals, and nationally disgraceful, he would not consent to purchase an exemption from them at the price demanded. Let the House contemplate the situation of the officer to be created by the Bill. Instead of being an independent judge, he would be subject to the will, pleasure, humour, and caprice of another: he would have his daily task set him. There was not a sheriff or a coroner in the island, who would not oc- 476 cupy a prouder station than this Chancellor's drudge, with his train-bearer, and all his paraphernalia. He would be a new character in the constitution—a vassal judge! a judge, whose duties would be prescribed to him by another! These were harsh sounds in Great Britain in the 19th century; and besides, what a precedent would thus be afforded! If any arrear of business should, at a future period, accumulate in the Court of King's Bench, on what pretence could parliament refuse to the great legal luminary of that court his judicial satellite?—By acceding to the Bill on the table, the House would give to a subject a power which had been withheld from the sovereign, and would declare, that that which was considered dangerous in the hands of the sovereign, became safe when placed in the hands of one of his servants. Such, he conceived, would be the necessary operation of the Bill, which he felt it his duty to oppose, from the firm conviction, that it would impair the purity of the administration of equity, and pervert the integrity of the dispensation of justice. He hoped and trusted, therefore, that the House would agree to the amendment proposed by the hon. gentleman who had preceded him.
§ Mr. Stephen
observed that the light manner in which the question was taken up, appeared to his mind not at all consistent with the weight and magnitude of the subject. From the consideration of the facts contained in the reports, and which other gentlemen had not perhaps brought into a proper focus for their observation, it appeared to him important to draw the attention of the House to the magnitude of the evil which it was the object of the present Bill to remedy. The delay that necessarily followed from the over pressure of public business was acknowledged to be so great as to amount, in some cases, to a denial of justice. This was a grievance to which no British subject ought to be exposed. Let them look to the state of the case. There were not less than 273 appeals now depending before the high and supreme tribunal of the country, one of which was hanging over, without decision, for not less than 20 years; seven for 11 years; 39 for above seven years; and 77 for above five years. From a calculation made in 1810, the average number of Appeals decided annually was 10, and, on that principle, what with new Appeals, it would take 46 years before the whole could be disposed of. This denial of jus- 477 tice was dreadful; yet it had been known to that House for two years, and no proposal had been made to apply a remedy by those gentlemen who opposed the present measure. If any gentleman then present was at all inclined to commiseration, it must be called forth in such cases, in which might be involved the dearest interests of whole families, and in which, after trying every mode of settlement, it was, after all, at the option of any opponent to embark in a contention, in which at least 20 years might elapse under an incapacity of knowing whether the fortune for which he contended, however justly, was to come to a man or not. In the supreme court of judicature the evil was much greater than in any of the inferior courts. It appeared from the same return to which he alluded, that the Appeals entered amounted to not less than 405, and that an increase of 204 had taken place within 10 years. If the business were allowed to go on in this manner, it would have this effect, that Appeals would never be brought upon fair and reasonable grounds; but that any party, desirous of delay, could adopt no better means for that object, than by having recourse to an Appeal. It was impossible to state a case which called more loudly for a remedy. The evil was allowed to exist; and yet the remedy proposed for it was opposed, and no other offered as a substitute. If gentlemen were so very inimical to the appointment of a Vice-Chancellor, he would ask what substitute had they to propose? They could not propose that judges, who had already more than an adequate task to perform in their respective courts, should be the substitutes for the Chancellor. When he considered the intense application, the great labours, and the eminent talents requisite to fulfil the duties of those who presided over the administration of justice, he would not hesitate to say, that he had cause to lament the parsimony of the country in the appointments and rewards of judicial characters. He was surprised at his hon. friend saying that it was not his duty to propose any such remedy. He stated, indeed, a variety of expedients, but did not select any in particular. He would notice some of his hon. friend's expedients. One was, that a better attendance in the Lords, together with the assistance of some Ex-chancellor, would supply an adequate remedy, but by what means was an Ex-chancellor to be required to sacrifice his 478 time? And even though that could be done, the same inconvenience would follow which was objected to the present Bill. He spoke of the danger of appealing from a more experienced to a less experienced officer. The very same objection applied to the assistance of an Ex-chancellor, who, perhaps, for ten years before, was not in the habit of hearing any such Appeals. With respect to the compulsion of the Lords to attend, it would be rather singular if a Bill were brought into that House for such an object. In the days appointed for the decision of Appeals, it was stated, that the Lord Chancellor could not procure a sufficient number of lords to proceed to business. He doubted whether such attendance could be procured, even in that House, at so early an hour as 10 in the morning. With respect to another remedy alluded to, of separating the duties of the Chancellor, the inconvenience of such a measure, he thought, was very obvious; and the separation of the bankrupt jurisdiction was the very last that should be attempted. Were gentlemen aware, that from the Chancellor's decision in bankruptcy there was no appeal? As to the suspicion of neglect of duty which would follow from the division of the duties of the office, it was without any foundation. The exercise of great talents and great power carried its own recommendation with it. There was no such character as an idle judge. All the other courts were in arrear, as well as the House of Lords, though the judges were of all men the greatest drudges in business. But besides this, the Lord Chancellor and his assistant might sometimes lay down the rule in different ways, which would introduce the utmost uncertainty and confusion. The decrees of the Chancellor in bankrupt cases, were for very good purposes considered final; and such an innovation as that alluded to must be extremely dangerous. Did they not know that there were failures in trade now, not to the amount of 20 or 30,000l. but sometimes to the amount even of 1,000,000l.? In such cases no appeal was allowed, because the distribution of the property of the bankrupt might be suspended by that means, and an enormous mass of property be kept in abeyance, which must be the source of incalculable mischief to creditors. Such a remedy was the most inadmissible of all, and he would say even the most absurd. In former times it was no uncommon case for the puisne judges to be called in, for the 479 purpose of assisting the Chancellor, and if lord Eldon did not call them in to his assistance, it was because they had sufficient business in their respective courts. He denied that it was any infraction of the constitution to introduce the present measure; and instanced the increase of the number of judges in the court of Common Pleas from three to six after the Charter of king John down to the reign of Henry 8, as a precedent. Neither had the judges of the present time the leisure which they formerly enjoyed. Sir Matthew Hale could find a season of relaxation from his judicial functions in which to pursue his studies and amusements, but no judge upon the bench could now allow himself any such indulgence. He regretted that the law establishments in the country were insufficient for the mass of business, and that the time of the judges was too much occupied in their duties. Here he begged leave to call the attention of the House to a book which he recently had occasion to read, and which, in point of authority, maintained a distinguished and undisputed rank. He alluded to the work written by sir W. Fortescue, in the reign of Henry the 6th—" De Laudibus Legum Angliæ." That author stated, that only three hours, from eight to eleven in the forenoon, were occupied by the courts in the administration of justice, the rest of the time they spent either in the study of the laws or in reading the scriptures. If such a system were to prevail, what would become of the due administration of justice at present? How very different would be the situation of lord Ellenbrough! The truth was, that with the progress of time circumstances had essentially changed, which required an alteration in the constitution of the authorities of the country. In fact, the number of judges remained the same, though the business had increased out of all proportion. Soon after king John's Charter, the number of judges in the King's-bench was increased from three to six; and in after times five judges frequently sat in the Common Pleas. The measure now proposed, was not a greater innovation than those to which he alluded. As matters stood at present, there was reason to apprehend, that causes would be too hastily decided, and haste was generally, or at least often the parent of mistake. This was also, in a great measure, the situation of the common law courts. It was said that the supporters of the Bill had shifted their ground, for that 480 the evil to be removed was said, at one time to exist in the Court of Chancery, at another time in the House of Lords. It was not asserted by any person that there was not a great increase of business in the Court of Chancery. The suitors' money in that court had increased from 1,000,000l. to 35,500,063l. seven million of which had arisen since the year 1800, and ten million since 1780. The commercial business depending in that court did not amount to less than 25,000,000l. This was not even an adequate representation of the fact. He hoped the House was now fully persuaded of the evil of delay, and that they would see the necessity of appointing an assistant to discharge a part of those burthens which had nearly doubled since the time of lord Hardwicke. A remedy was absolutely demanded by the circumstances he had staled, and be trusted gentlemen would feel the necessity of applying it where it was most wanted. For his own part, he entirely approved' of the measure offered, and concluded by observing, that he was persuaded whoever had the proposed jurisdiction vested in him would add dignity to the office.
§ Mr. W. Courtenay
opposed the present Bill, to which he had the most serious objections. He did not deny that the evil existed, and that a remedy should be applied; but he thought it should be more efficacious than that proposed by the Bill, which was much more extensive than the nature of the case required. He would now assume, whether justly or not, that the remedy proposed was two-fold: one for the evil said to exist in the Court of Chancery, and the other for that said to exist in the House of Lords. With respect to the first, it was not easy to state how far those invested with the highest judicial functions could or could not, ought or ought not to conform to the judicial character. The different other expedients which had been suggested, had their apology in the taunting manner in which those who opposed this Bill had been called upon to substitute some other project in its place; and, therefore, he would suggest a remedy that had not hitherto been mentioned. In the House of Lords great part of the appeals, at least four-fifths, were from Scotland, and in cases where the decision must turn upon the facts, and not upon the law. The appeal in those cases was from a jurisdiction which had an opportunity of knowing the facts, to one which had not such an opportunity. Most lawyers, he believed 481 found it difficult to see why an appeal, in matters of fact, was necessary to a higher tribunal. In England the Appeals were only upon questions of law, and many of the most eminent lawyers thought that this regulation might with advantage be extended to Scotland. If this were done, a great proportion of the Scotch Appeals would be cut off, and the pressure would in a great measure be withdrawn, while some temporary expedient might be adopted to get rid of the present arrear. This was not the proper time, nor did he feel himself competent to propose a remedy, he merely alluded to a mode by which great assistance could be rendered to the justice of the country. With regard to the observation of his hon. and learned friend near him (Mr. Stephen) that it might be difficult to procure the attendance of the members of this House at so early an hour as 10 o'clock, he reminded him, that several bodies of the members did actually sit at that hour upon committees, and he saw no good reason why the Lords should not also enforce attendance at an early hour, if necessary for the purposes of justice. But if it was really impossible to procure such an attendance, how did this Bill remedy that evil?—He next called the attention of the House to the state of the arrears in the Exchequer, which was as formidable an evil as the arrears in the Court of Chancery. This being notorious, it would be unworthy of the legislature, when employed in providing a remedy for an evil of this nature, to pass over the state of the arrears in the Exchequer, with out notice. A general comprehensive remedy ought to be applied; this narrow measure was utterly inefficient. It hardly created a judge at all. It was an intire innovation, in point of principle, in the administration of justice; for when a suitor set down his cause for the purpose of having the opinion of the Chancellor in the first instance, it would depend upon the arbitrium of the Chancellor whether the suitor should have it or not. With regard to the separation of bankruptcy causes from the other business of the Court, he was far from agreeing with those who thought that such a separation would yield no material relief. He was convinced it would; for the business in cases of bankruptcy now constituted a very considerable proportion of the whole business of the Court.
§ Mr. Smyth
thought it was incumbent on the House not simply to ascertain that the 482 evil existed, but to inquire into the nature, extent, and origin of it. In doing this, they would find that the evil in its present magnitude arose from the number of Appeals from Scotland. Why, then, not advert to this fact, and look for the remedy in the country from whence it came, in a reform of the Scottish law. It was true that out of the whole number of Appeals, the enormous proportion of 4 5ths were from Scotland. From the first report it appeared that out of 253 Appeals, 200 were from that country. The Bill, in his opinion, was prematurely brought forward. Two acts had been passed which must contribute to lessen the number of Appeals from the Court of Session of Scotland. The operation of these acts could not be yet sufficiently known, and it was on this account that he considered the Bill premature. It was not known, nor could it be yet known, whether the evil proposed to be removed was temporary or permanent. He could not look upon the Bill as tending to less than a dissolution of the first judicial officer of the country. With respect to the Appeals in the Lords, 19 out of 20 were merely vexatious, and many of the Scotch Appeals were merely on account of delay. The attendance of a sufficient number of lords could, in his opinion, be secured by a compulsory order of their own. It was said that the increase of business in the Court of Chancery and the House of Lords, arose from the increase of wealth. For his part, he thought it depended more on the unsettled state of the law, and on the distresses of the nation. He conjured the House not to loosen the only tie which bound the Chancellor to the people. The number of motions did not, in his mind, furnish any reason for the delay in passing from one to another. It was well known that any sudden check to wealth, particularly to commercial wealth, occasioned an increase of litigation. It was asserted, that no mischief could arise from thus withdrawing a part of his duties from the Chancellor. It would at least lessen his intercourse with the public; and that daily and hourly intercourse was, in his opinion, one of the most effectual means for preserving him in the discharge of those duties.
§ Mr. Serjeant Best
thought there was no measure more likely to produce the desired effect than that now before the House. It was said truly from the opposite side, that the number of Appeals 483 amounted nearly to a denial of justice. The hon. gentleman who spoke last, thought that a permanent remedy was not necessary, because there was a probability that the Scotch Appeals would be considerably lessened; but he did not consider the great number that was already depending from that country, and that those from Ireland were to be added, which amounted at present to 52. He saw no likelihood that Appeals would decrease, because litigation always augmented with the augmentation of property. It was said, that this Bill would alter the character of the Chancellor; and that he would become, in consequence of it, nothing more than a state officer. But the House should not forget the weight of legal duties that would still remain upon him—that he would sit for the discharge of business three days in every week during the session of parliament, and every day when parliament was not sitting. With respect to the separation of the business of bankrupts from the Lord Chancellor, it was liable to most grave and insurmountable objections. If his bankruptcy jurisdiction were to be withdrawn, no greater innovation could be introduced; bankruptcy proceeded from the great seal, and to change it would be to introduce a change in the original jurisdiction. Another reason against such an innovation was, that in cases of bankruptcy there ought to be no appeal, from the necessity there existed of distributing as speedily as possible the property of the bankrupt. They could not, therefore, entrust this most important function to an inferior officer, or place the decision of so great a mass of property in any hands less elevated than the first law authority of the state. Upon these grounds, he thought nothing better could be at present proposed than the Bill before the House, and he would therefore give it his support.
§ Mr. M. A. Taylor
observed, that no notice had been taken in the House of Lords of the arrears of business in the Court of Chancery previous to a motion which he made about two years ago. He did not then propose his plan as a perfect one, but as one which might be improved. The great delay of justice, he affirmed, at that time, was, in fact, a denial of justice. Lord Mansfield formerly sat for lord Thur-low, as temporary Speaker of the House of Lords; and why might not a temporary Speaker be now appointed? In his opinion, it became the House to repel an in- 484 sinuation which had been thrown out against them as the Commons of England, which imputed to them some of the delays which had taken place. He declared it to be his intention to vote for postponing the further consideration of the Bill. This measure, he contended, would be attended with inconveniencies which might have been avoided had the course been pursued, which, on a former occasion, he had recommended. He thought it would be well for the House to pause, and to consider if some more effectual remedy could not be devised. The present measure was so inadequate, that had he not known from what quarter it came, he should have imagined it had originated with some country attorney, who had never seen the Court of Chancery. If any lawyer would take upon himself to say the Bill before the House would remedy the evil complained of, he would vote for it. [An hon. member here called out "I will."] Mr. Taylor, however, declined taking his opinion on the subject, and stated the impression on his mind to be such, that it could not be removed by the decision of all the Courts of Westminster.
, thinking it inexpedient that this Bill should pass into a law, was desirous of stating his objections to it; and should do so very briefly, as the arguments which had been urged in favour of the Bill were so few in number, and so small in measure, as to require very little refutation. It seemed to be maintained, that the members of this House were not fit judges of such a question. If that disqualification were supposed to apply generally, much more forcibly must it apply to those members (of which he was one) who could boast of no means of forming a judgment but plain sense unadorned with legal learning. He must however protest against any such plea in bar of their discussions; and must deny that the lay part of the House were implicitly to adopt the dicta of certain learned personages in matter not of law, but of regulation. He yielded all respect possible to the House of Lords, but could not consent to pass the Bill they had sent down without examination. Some considerations indeed there were which might perhaps tend to diminish in this particular instance the general respect due to the authority of their lordships. It appeared, on the very, face of the Bill, that it arose out of arrears in their lordships jurisdiction. They might be better judges of the extent of the evil; 485 but if the evil lay with them, the Commons ought not to exercise the less jealousy in examination of the remedy proposed.
A learned friend of his had set out with rebuking an excess of levity, and a want of grave consideration on this subject; but he should have been aware, that the sources of ridicule were not merely in things which were in themselves ridiculous, but also in the attempted approximation of things which were in themselves irreconcilable,—in the comparison of lofty pretensions, with paltry means,—in the contrast of magnificent promises and prospects with the total inadequacy of the mode suggested for following up and realizing them. If the Bill was to be considered as the result of all the experience and wisdom of the other House, undoubtedly on that ground and in that character it was to be received with the greatest reverence; but it was found that all this learned labour had only produced an office, which the legal profession must treat with contempt; then in spite of all pre-possessions in its favour, the ridicule against which his hon. and learned friend protested, might blamelessly or rather must infallibly attach to it.
The Bill said, that whereas great arrears had been accumulated, it was necessary to do so and so. The diminution of this accumulation might, to be sure, be accomplished in either of two ways; by clearing the reservoir at once, or by impeding the channel whence it was constantly supplied with so rapid a current. The Bill appeared to follow the latter of these two courses. Its most obvious and certain effect was to occasion all the causes in Chancery to be tried twice over, a process which must necessarily delay the proceedings of that court, and so check the vicious rapidity of the stream of Appeals which flowed from it into the House of Lords. If the tried wisdom, the high legal attainments, and pre-eminent authority of that great magistrate, who had been used to speak from the bench from which he (Mr. Canning) had now risen (Sir W. Grant); did not prevent constant appeals to the Lord Chancellor from his decisions as Master of the Rolls, it was idle to suppose that from the new Vice-Chancellor, new in office, new and unsettled in authority, and (be he who he may) probably far inferior to the present Master of the Rolls in legal knowledge and abilities, there would not be appeals to the 486 Lord Chancellor in a far greater number. It was indeed attempted to be shewn, that this new creation would be similar to the Master of the Rolls: but there was this essential difference between the two magistracies. There was a choice allowed to the suitor to have his cause carried before the Master of the Rolls, or before the Lord Chancellor, and therefore it was the less likely that he should desire it to be reheard: but this Bill gave the Chancellor power to refuse hearing a case, and to send it to the Vice Chancellor, and in every case which was thus delegated from the Lord High Chancellor to his deputy, against the will and choice of the suitor, it was surely most natural to suppose that the suitor would desire a rehearing. Thus therefore the accumulation before the Lords might indeed be prevented from increasing so fast as at present, since every cause heard by the new magistrate would probably be heard again by the Lord Chancellor; and the suitor perhaps, might be sickened by this first appeal, and deterred from prosecuting a second to the House of Lords. But how would this device tend to the accomplishment of the professed object of the Bill, the allowing the Lord Chancellor more time for attendance in the House of Lords? After all, if the accumulation of Appeals in that House be the evil to be cured, why was not some remedy applied distinctly, and at once, to the seat of the evil? It was surely a derogation from the dignity of the House of Lords to suppose that they could not discharge the business before them; that their noble natures could not rise at nine o'clock to adjudge the causes at their bar; that with privileges so far surpassing those of other senates, they could not make an exertion for the discharge of these important duties which were annexed to such high privileges, and which justified and ennobled them in the eyes of their country and the world. (Hear.) Why should such reasonings apply to them more than to the Commons? The Lords admitted a delay amounting to a denial of justice. What degradation or shame could it be to the Lords to adopt with respect to their own proceedings some such coercive regulations as the Commons had adopted to secure their discharge of their own duty in cases of contested elections? The shame seemed to lie in stopping short between the removal of abuse, and the adoption of a remedy. Was it a problem so obscure, knotty, and 487 difficult, to devise the means of securing a sufficient attendance in the other House, whatever skill it might have required to produce such a Bill as this? No! Let the House reject this Bill, and a better measure would be proposed in a very short time.
The learned Serjeant had appealed to their confession in behalf of this unhappy scrap of paper, as if it were the offspring of some infant member, who was employing his untried hand, in his first and crude effort to remedy some acknowledged evil, hoping that a committee would lick his unformed abortion into some sort of decent shape. Another learned gentleman thought they were treading on a sort of hallowed ground, and that we could not presume even to alter and amend the Bill, such as it was sent down to us, without a species of scandalum magnatum against the legislative wisdom of the House of Lords! The Bill, in fact, was all it could be. A committee was useless. It would offend the Lords more to send it back to them so changed, as it must necessarily be, if it was to be made useful to any good purpose whatever, than it would to reject it altogether, abstaining however at the same time with the utmost deference, from presuming to suggest any other method of proceeding in a case which appeared to be claimed as the peculiar province of their lordships; and leaving their lordships to go to work again upon a new plan better calculated for their own credit and the public satisfaction.
He begged pardon for any seeming levity, if he were guilty of any, in speaking with freedom of this strange project: but there were different moods in which different men viewed the same subjects: some might indulge in harmless merriment; others, (he did not see the learned gentleman, Mr. stephen, present)—(Cry of "under the gallery")—Others, then, (said Mr. C.) might view this mouse which the mountain had brought forth, with feelings quite "melancholy and gentleman like," like Master Stephen, in "Every Man in his Humour!" (Laughing.) For his own part he thought there could not be a graver subject than the due and speedy administration of justice: but on the other hand there could not be a more ludicrous association than that of high magisterial functions, and great official trust with all the circumstances of degradation and disparagement with which the new magistrate, procreated by 488 this Bill, is to be invested. It was pretended, indeed, that the power of the Lord Chancellor to devolve business upon this new deputy was to be no other than that which he now has to call to his assistance any one of the Judges or Masters in Chancery named in the commission empowering them to sit for the Chancellor. Nothing could be more unlike. Compare the language of that commission, with that of this Bill, by which the Chancellor was to ring for his deputy. It would appear that the judges, when called upon, were really to sit for the Chancellor, to sit as the Chancellor; to do his business; to execute his functions, and the result was to be of as great validity, force, efficacy, and virtue, as if from the Chancellor himself. The new gentleman to be created was to have full power, &c, but "in such manner, nevertheless, and under such regulations and restrictions, as the Lord High Chancellor shall, from time to time, order and direct." If this was to be freedom, he wished to know what was servitude? If this was volition, what was coercion? What was such a judge, but a man sitting on the judgment-seat, fettered hand and foot? And was it possible to conceive that any decision of such a magistrate could be received as satisfactory, and acquiesced in as final? (Hear.) Conceive a melancholy client coming into court and directing his solicitor to take care that his cause is set down for hearing, not before that tedious indecisive judge, the Master of the Rolls, (Hear!) but before the Lord High Chancellor himself. Soon afterwards he hears that his cause is according to his direction before his lordship himself.—So much the better. At least the hearing will be final. Some time afterwards he is informed that his cause is decided against him—by whom? By the Lord Chancellor himself? No such thing: but by a judge under the constant direction and superintendance of the Chancellor, subject to his interference and controul, to his revisal, and reversal, or alteration.—What consolation would this be to the suitor—who had chosen the Lord Chancellor for his judge in preference to the Master of the Rolls for the express purpose of avoiding the necessity of an appeal, which would now be his only refuge? Was not this the meaning of the Bill?—He heard some murmurs near him, as if he were misrepresenting its tenour and purport. He certainly did not mean to misrepresent 489 it. The advocates of the Bill had particularly praised it for its clearness. It was indeed overloaded with perspicuity, full of qualifications, and limitations and exceptions and provisoes, patching up one hole and making another to patch up in turn; and involved in inexplicable explanations. But after all was not the result, as he had stated it, that the Lord Chancellor might send causes he did not like to his Vice-Chancellor as he pleased, just as he would order away a corked bottle; was not the Vice-Chancellor to take whatever was sent to him—to abstain from whatever was not thus sent to him? To begin or to leave off, exactly when and where the Lord Chancellor pleased, at the beginning, or the middle, or end of a cause—just as might suit the Chancellor's fancy? Had he, or was he intended to have, any regular, known, fixed, intelligible, substantive province or authority? (Laugh.) Scrub, in the play, Mungo, in the farce, Sancho, in his island, were in a state of settled Jurisdiction compared with this new officer! If the form of his tribunal were copied from any thing at all, it must have been from Sancho in his little island! (Laugh.) It was to be a delegation by fits and snatches,—the offspring of the humours and leisures of the Chancellor, dealt out in bits and scraps of jurisdiction.
It really required more credulity than the authors of the Bill had a right to expect, to imagine that the Bill, even though it should receive the polishing hand of the learned serjeant, could ever answer the purposes for which it was intended. As an unlearned member of parliament, his vote should be against the introduction of a magistracy which it was not fit to create, it was not his fault that the proposition was so objectionable. They had a right to take time to consider this Bill; as the Lords had paused for eleven years before they hit upon this mode of remedying an inconvenience of such great and growing mischief. If indeed it was contended that they were not entitled to object to this plan, without having some other more perfect plan to propose; he would answer, that he had no doubt another plan might easily be devised; but he denied the necessity, or even the propriety of originating it in the House of Commons. The onus was on the Lords; not on them. The evil was with the Lords, who pleaded their own fault, and applied for the remedy. The evils, he believed, were exaggerated, 490 and must vanish at the touch of a reforming hand. Let the Lords adopt an efficient measure, and the mass of evil would soon shrink to a manageable size.
He was unable to follow the reasonings of Chancery lawyers; but was such an officer as a Vice-Chancellor ever recognized before in England? He felt the highest respect for the present Lord Chancellor, but he must consider that he was called upon to legislate, not only for the present times but for posterity. He wished to preserve the office of Lord Chancellor in this country in all the plenitude of its powers and splendour of its authority. He believed in his conscience that it wag most essentially important to the constitution that it should be so preserved. He thought that it was one of the highest prerogatives of the sovereign, that he could take a man from the profession of the bar, and place him at once by an act of power in a situation giving rank and precedence above ducal coronets. This high prerogative, however, like all others, would be exercised with a responsibility to public opinion; and although the crown might make whom it would Lord Chancellor, yet it would never will to make any man a Chancellor, who, in the public eye, was not conceived to be fit for that high station.
He was not imputing any negligence to lord Eldon, when he said, that if this Bill should pass, a time might come when all the business of the Court of Chancery might be thrown upon this new officer and the Master of the Rolls, and that in future times a Lord Chancellor might be chosen chiefly from other considerations, unconnected with his legal knowledge or ability to preside in the Court of Chancery. This Bill might therefore, lead to the destruction of the high office of Lord Chancellor, which he conceived to be, as it now stood, an office of the greatest importance, as well in a constitutional point of view, as with regard to the administration of the important duties of the Court of Chancery. He, therefore, could not support a Bill which appeared to him to do things utterly unwise; to create a magistracy unfit to be created, and to endanger by innovation upon its character and duties a magistracy which it was of the highest importance to maintain unaltered and unimpaired; a Bill not calculated to remedy the evil which it professed to obviate, and risking the introduction of other evils which it might be diffi- 491 cult hereafter to cure: a Bill directed to the removal of an obstruction in the course of justice avowedly of a temporary nature; and effecting (or rather not effecting) that object by a permanent dismemberment of the highest judicial office of the constitution.
§ Sir Samuel Romilly
could not content himself with giving a silent vole upon this question, which if agreed to would effect a complete change in the character of future Lord Chancellors; and that the country would never again see such men as Somers, Camden, or Hardwicke. He could not support the present Bill; for although he must admit, and every body must admit, that the evil which was stated was a most serious one, yet he conceived that the remedy proposed was still more serious, and that it was an evil still greater than that which it purported to reform. The evil which now existed might, however, be considered as a temporary one; whereas, the remedy proposed would, if agreed to, bring upon them one that in his opinion would be permanent. They were now called upon to remedy an evil, which the other House had taken no step for many years to remove. The House of Lords, though the arrears had long been growing upon them, had never taken any active measures for removing the evil. They had not continued their sittings longer in order to diminish the arrear of causes before them, nor had they met earlier in the day, nor ever proceeded to the decision of any appeal in the absence of the Lord Chancellor. This it had been the practice of the House to do in former times, and in some cases it might be better that the cause should be decided on in his absence, as Appeals from his decisions frequently came before them. He thought there could be no difficulty in procuring the attendance of a sufficient number of lords to hear causes, in the absence of the Lord Chancellor, and by this means alone the evil might gradually be removed. He did not think any other remedy was necessary, and at least he thought what he had mentioned ought to be tried, before a measure like that now proposed were adopted. If their lordships had either met earlier in the morning for this purpose, or continued their sittings by shorter adjournments, or had decided causes even when the Chancellor was not present, there would not now have been such an arrear of business before them. The question however was not whether any 492 other remedy could be devised? but whether that proposed ought to be resorted to? He conceived that the present Bill would alter materially the constitutional course of the business of the Court of Chancery, and the office of Lord Chancellor. After a few successions of Vice-Chancellors, there would be no more men found to discharge the high office of Lord Chancellor, in the manner it had hitherto been discharged by so many illustrious men. As to the great increase of business in Chancery, which had been so much spoken of, there was certainly a very great increase in the bankrupt business, but a very small increase in other respects. He denied that the business, strictly so called, of the Court of Chancery had increased since the year 1750. The number of suits was not now greater than in the time of lord Hardwicke, but they were perhaps heard at greater length. There might possibly have been less indulgence, or, as he might say, less invitation to frequent hearings, and re hearings at that time, and which were now equally injurious to the clients of that Court and to the public at large. As to the number of motions in lord Hardwicke's time, he did not know that they were much lower than at present, although, less time might have been taken up in the arguments upon them. Lord Hardwicke had generally, besides his morn" ing sitting, sat two evenings every week for hearing causes, and instead of closing his sittings at 2 o'clock in the afternoon, had frequently closed them at two o'clock in the morning, and therefore it was not extraordinary that in his time there was so small an arrear of business. If he were called upon to suggest a remedy to the evil complained of, he should say, that what appeared to him the most unobjectionable would be to separate the bankrupt business from that of the Chancery. It was said that as many of those bankrupt cases involved points of great difficulty and importance, and the decision was to be final and without appeal, it was absolutely necessary that the Lord Chancellor should determine them himself. He could not allow the justice of this conclusion. If they were cases of difficulty and importance, it certainly required that they should be decided by a man of ability, but he saw no necessity why this man must be the Lord Chancellor. Men could be easily found, of the highest professional eminence, who would be perfectly competent to this part of the duty; and 493 a sufficient compensation could be found out for them, in the emoluments from those bankrupt cases. He could not avoid, however, quoting here, the opinion of their committee,—" that it was highly objectionable that judges should be paid from fees, especially from fees ostensibly belonging to their secretary or some inferior officer." By this it appeared that the fees of bankruptcy, which were paid to an officer for the bankruptcy, were accounted for by that officer to the Lord Chancellor. This, in his opinion, was decidedly wrong—a judge ought never to be paid by fees. He should therefore most earnestly recommend that these fees should be abolished, and the salary of the Lord Chancellor proportionably increased, if it should appear that the other emoluments of his office did not afford him a sufficient remuneration. Next to taking away the bankrupt business,- he thought the separating the office of Speaker of the House of Lords from that of Chancellor, would be a far better mode than that which was proposed in the present Bill. He saw no reason why the Chancellor of the duchy of Lancaster might not be made an efficient situation, and why he might not sit in other courts. He knew that the present possessor of it (Mr. Bathurst) was eminent in the profession of the law while he practised it; and he did not see why the place might not in future be given to professional men, with duties annexed to it. As to the nature of this office, it was to be totally different from that of the Master of the Rolls, or of the judges sitting under a commission. They, when sitting in the place of the Chancellor, heard and determined every cause which came before them, whether important or not; but never was there such an indignity put before upon any judge, as to tell him that he was never to determine any cases of difficulty or importance. As the Vice-Chancellor was to be for life, while the office of Lord Chancellor was removable at pleasure, it might at some future time happen, that a Chancellor might have an unreasonable prejudice against the Vice-Chancellor. It was well known, that lord Thurlow had such a prejudice against his Master of the Rolls (lord Alvaniey, than whom there was hardly ever a better equity judge), that he would never allow him to sit in his place. Such things might happen again, and instead of that mutual agreement and concord subsisting between these great law-officers which would tend 494 to the dispatch of business, a state of things might arise from which only increased, extended, and protracted litigation must ensue. He wished that ministers would really find out the opinion of the profession at large upon this subject, and not confine themselves to the opinions of a few of their parliamentary friends. It was said the public would pay nothing for this new officer, as he would be partly paid out of the interest of the fund of unclaimed money now in Chancery. He could not avoid noticing this fund, out of which part of this salary was proposed to be paid, called the Dead Fund, and amounting to 9,000l. per annum, being the interest of money put into that Court and never claimed: its very existence appeared to him a subject which called for parliamentary enquiry. It was the money of suitors placed in that Court for security; but which the suitors were often obliged to abandon from the great difficulties they found in bringing forward their cause. It was possible it would never be called for; but had they a right to assume that this would be the case? Considering the remedy proposed a greater mischief than the evil complained of, he must oppose the present Bill, which would do the greatest mischief to the Court of Chancery, and entirely alter its constitution, while it created a new and unnecessary officer to be subjected to every species of indignity, or else to be altogether useless.
was strongly in favour of the measure. If two years discussion and consideration of it were not sufficient, he did not know what would be reckoned a reasonable time for enquiring into its expediency, nor what would satisfy the gentlemen on the other side. The business of the Court, he maintained, had increased so much, that since the year 1750 the number of Appeals had been not only doubled, but trebled. This proved the evil complained of was not a temporary evil, and therefore, being permanent, it was one which called for the permanent remedy now proposed. The hon. and learned gentleman then entered more into detail, and contended, that the Bill offered the most efficacious and constitutional means for redressing the grievances under which the subjects of these realms now laboured, from the necessary delay and arrear of business in the Court of Chancery and House of Lords. He denied that the new officer would be either inefficient or degraded, and on the contrary, argued 495 that many men of competent legal knowledge, high character, and excellent abilities, would be found eligible to, and ready to undertake the discharge of, its important functions. He replied to the arguments for separating the bankruptcy business from the office of Lord Chancellor, which suggestion he condemned as most unwise, since it would be imprudent to give the power of finally adjudicating property of an amount so immense as that contained in these cases, to an inferior officer; and if appeal was allowed, then the separation would afford no relief. He also expressed his opinion, in common with the opinions of every lawyer and statesman who had turned their attention to the subject, to be entirely hostile to the idea of separating the duties of Speaker in the House of Peers from the other duties of the Lord Chancellor. This had been so universally held to be inexpedient by all men whose authority was of weight, that it would be idle in him to repeat their reasons for coming to the conclusion, in the propriety of which he most perfectly coincided. He justified the application of the Dead Fund to the payment of part of the salary of the new officer, and closed his observations by warmly approving of every part of the Bill.
, (Sir W. Garrow) in a speech of great animation, gave his opinion in favour of the Bill, and against the Amendment. He insisted on the necessity of providing justice for the subjects of the realm, now exposed to many inconveniencies, by the delay in the courts of law; and replied to the various arguments which had been addressed against the Bill. He ridiculed the idea of taking a judge from each, or from either of the other courts, for the purpose of constituting or relieving a court of equity. The judges in the courts of common law had already more business to perform than, with their utmost diligence, they could get through, and it was absurd to look for relief to those quarters. What then were they to do? A great evil existed—an evil which amounted almost, in many cases, altogether to a denial of justice to suitors and to the public. Were they to acquiesce in this state of the law, or ought not the House rather to declare that it wanted an instant remedy, which they would hasten to apply by passing a Bill of the description now before them. He did not mean to say but 496 that several amendments upon the measure might be suggested in the Committée; but he contended, that in principle the Bill was most deserving of their unanimous support, which was the whole extent of the vote they were now called on to give. They wanted a prompt decision and an effectual remedy for a very crying evil, and in his opinion, the measure proposed would be found the best practical remedy that could be devised. It had therefore his most cordial support.
maintained, that the evil created by the Bill would be far greater than the evil it was intended to remedy. The measure would go to alter the judicial system of the country in its very basis; which attempt had never been made before, and was not in the power of the crown itself. He trusted the House would resist that attempt, and reject the Bill altogether, by voting for the amendment.
§ The House then divided upon the Amendment, Ayes 122; Noes 201; Majority against the Amendment 79. The original question for the second reading of the Bill was then carried without a division.
|List of the Minority.|
|Abercromby, Hon. J.||Fitzgerald, Ld. H.|
|Althorpe, Visc.||Fitzroy, Ld. J.|
|Astley, Sir J.||Flood, Sir F.|
|Atherley, A.||Foster, F.|
|Aubrey, Sir J.||Frankland, W.|
|Bankes, H. (Teller.)||Fazakerley, J. N.|
|Barham, J. F.||Gascoyne, J.|
|Baring, A.||Gaskell, B.|
|Barnard, Visc.||Gordon, R.|
|Bennet, Hon. H. G.||Gower, Earl|
|Birch, Jos.||Gower, Ld. G. L.|
|Blachford, B. P.||Grant, J. P.|
|Brand, Hon. T.||Grattan, Rt. Hon. H.|
|Burrell, Hon. P. D.||Greenhill, R.|
|Broadhead, T. H.||Grenfell, P.|
|Byng, G.||Gurney, Hudson|
|Canning, Rt. Hon. G.||Halsey, J.|
|Canning, G.||Hamilton, Sir H.|
|Calvert, I.||Harcourt, J.|
|Calvert, C.||Hanbury, W.|
|Carew, R. S.||Heron, Sir R.|
|Coulthurst, Sir N.||Heathcote, Sir G.|
|Courtenay, W.||Howard, Hon. W.|
|Cavendish, Lord G.||Howarth, H.|
|Cocks, Hon. J. S.||Hughes, W. L.|
|Cocks, J.||Hurst, R.|
|Combe, H. C.||Jolliffe, H.|
|Creevey, T.||Kensington, Lord|
|Dundas, Hon. L.||Knox, T.|
|Duncannon, Visc.||Langton, W. G.|
|Elliot, Rt. Hon. W.||Leach, T. J.|
|Ellis, CR.||Lefevre, C. S.|
|Ellison, C.||Lemon, Sir W.|
|Ferguson, R. C.||Lemon, J.|
|Lewis, T. F.||Protheroe, E.|
|Lyttelton, E. J.||Pym, F.|
|Lloyd, J. M.||Ramsden, J. C.|
|Lloyd, Sir E.||Ridley, M. W.|
|Macdonald, J. (Teller).||Robinson, G. A.|
|Madocks, W. A.||Rowley, Sir W.|
|Marsh, C.||Russell, Ld. G. W.|
|Martin, J.||Romilly, Sir S.|
|Martin, H.||Simson, G.|
|Molyneux, H. H.||Smith, S.|
|Methuen, P.||Smith, J.|
|Miller, Sir T.||Smith, A.|
|Milton, Visc.||Smith, W.|
|Monck, Sir C.||Smith, Robert|
|Melgund, Lord||Smyth, J. H.|
|Montgomery, Sir H.||Speirs, A.|
|Mostyn, Sir T.||Taylor, M. A.|
|Neville, Hon. R.||Tierney, Rt. Hon. G.|
|Newport, Sir J.||Tighe, W.|
|North, D.||Vernon, G.|
|Ord, W.||Walpole, Hon. G.|
|Ossulston, Lord||Ward, Hon. J. W.|
|Pole, Rt. Hon. W. W.||Warre, J. A.|
|Parnell, Sir H.||Webster, Sir G.|
|Pelham, Hon. C.||Wellesley, Long W.|
|Pelham, Hon. G.||Western, C. C.|
|Phillips, G.||Whitbread, S.|
|Plumer, W.||Wilkins, W.|
|Ponsonby, Rt. Hn. G.||Wrottesley, H.|