HC Deb 22 February 1813 vol 24 cc679-90
Lord Castlereagh

moved the order of the day, for taking into farther consideration the report on the Vice-Chancellor's Bill.

Mr. R. Gordon,

on the order of the day being moved for the farther consideration of the Report of this Bill, observed, that the Bill had now received the finishing hand of the noble lord; but he could not see that any improvement, or any material alteration, had been made. He had observed that the noble lord had taken great pains in the construction of the Bill to avoid the words Assistant Judge, though this, in fact, was the very thing intended. One of the Amendments, he observed, was resorting to the suitors' fund for the payment of half of the new salary. Now, were there no other objection to the Bill, he should consider this alone as a very material one. The suitors' fund was private property, and, as such, what right, he asked, had they so to dispose of it? He knew that various sums had been taken from it before, but that was no justification of the practice. They were not to follow a multitude to do evil. By the Chancellor's paying the one half of the salary, the principle had been given up that he ought to pay the whole. He therefore contended for this principle to its full extent. The hon. member then adverted to the last clause of the amended Bill, providing for the Lord Chancellor's taking all the fees. On the subject of fees he had his doubts respecting their propriety, and was glad to understand that it was the intention of an hon. member to move, that the Lord Chancellor should receive no fees, but have a fixed salary. On the whole, it was his opinion that the Bill ought to be recommitted.

Mr. M. A. Taylor

felt it his duty, as chairman of the committee that had been appointed to enquire into the emoluments of the office of Lord Chancellor, to state that these emoluments had been much exaggerated by general and vulgar report. Upon an average, for some years past, they had not been more than 18, 19, or 20,000l. a year, instead of 30 or 40,000l. as had been represented. The fees, on account of bankruptcies, amount to about 5,000l.; the emoluments, as Speaker of the House of Lords, to 7,000l. making in all, with the salary paid from the Exchequer, about 20,000l. a year. The emoluments from bankruptcies alone had, on the contrary, been stated to amount to 17,000l. a year, but such reports were without foundation. It had been the wish of the committee, that a fixed salary should be given to the Lord Chancellor, instead of these casual fees, and in justice to the noble and learned lord now in that high office, he thought it necessary to state, that, on this being communicated to him, he approved of such an arrangement, and acquiesced in the average of the last five years being taken as the standard, amounting to about 16 or 17,000l. a year, He thought it only doing fair justice to the noble lord to state, that on this occasion they found him as liberal as any principle of fairness or equity could require. He was still partial to the project he had formerly suggested, of separating the bankrupt causes from the jurisdiction of the Lord Chancellor. There could be nothing unconstitutional in such a measure, as these had been attached to the office by statute, and not originally connected with the Lord Chancellor's duties. Another judge might be appointed for bankruptcies, who, at the same time, might be of great assistance to the Cockpit. He admitted of the impossibility of the Master of the Rolls being called on to do other duties than those of his own office, and with regard to the Lord Chief Baron of the Exchequer, he had business enough already in his own court.

Sir F. Flood

was glad to find that the country, already so much burdened, was not to be charged with an additional salary. The Chancellor, it seemed, was to pay the one half of the salary, which was a proof that he was satisfied that he could not do all the duties. The Bill, in its first stage, he thought rather a slovenly performance, and unlike the usual productions of the noble lord. He approved of the amendments that had been introduced, and therefore, although he had formerly voted against the Bill, was now ready to give it his assent and support. It was evident there was a great increase of business in the Court of Chancery, and neither the Lord Chancellor nor the Master of the Rolls would be expected to do miracles. An immediate remedy was necessary, and any delay would be doing injustice to the public.

Sir C. Burrell

remarked, that the precedency of the Vice-Chancellor was not proportioned to his salary, as it was proposed that he should rank after the Master of the Rolls, though his salary was superior to that of this last officer.

Mr. Abercromby

suggested that, as it was not intended that the Vice-Chancellor should have a seat in the House of Commons, the safest course to pursue, would be to insert a clause in the Bill to that purpose The statute of Anne, and that of George 2, might be supposed at first sight to suffice. But in this last statute it was specified, that the disability should not be extended to offices held for life or during good behaviour. In the statute by which the commissioners of accounts were appointed they were excluded from sitting in that House by a special clause, and as the intention of the legislature was at present undoubted, he supposed there could be no objection, in order to obviate future doubts, to insert the clause he proposed.

Mr. Rose

said, that there could be no objection to what the hon. and learned member proposed, had not the act of Anne been amply sufficient. The words were, that no one holding any newly created office of emolument, should be held qualified to sit in the House of Commons.

Mr. Canning

professed not to have discovered any of those amendments in the Bill that would induce him now to vote for it, having voted against it on the second reading. It appeared to him to have come out of the Committee with all the objections that it had at first presented; but he should reserve himself for an opportunity of farther discussing the principle of the Bill on the third reading. With respect to bankruptcies, he conceived what had been suggested by an hon. and learned gentleman to be an improvement, and if any such amendment was moved on the third reading, he should give it his support. He should not move, however, such an amendment himself, but should it not be moved, he thought the Bill ought to be rejected. As the evil complained of was of a temporary nature, the remedy also, he contended, ought to be temporary, and the Bill, therefore, limited to a certain duration.

Mr. M. A. Taylor

disclaimed having any intention of moving the amendment alluded to, but thought it would be desirable, if there was any disposition on the part of the framers of the Bill to meet it.

Mr. Lockhart,

referring to a clause in the Bill where it was stated that the Vice-Chancellor should determine all causes as the Lord Chancellor or Lord Keeper should direct, thought it of the greatest importance that this part of the Bill should be more defined or better understood. It was necessary to know how this authority was to be given, as much of the landed property of the kingdom, might be held on such decisions as the Vice-Chancellor might give. He wished to know the extent and sort of jurisdiction that the Lord Chancellor or Lord Keeper were to exercise.

The Solicitor General

said, that the mode of determining what causes were to be heard by the Vice-Chancellor would be by orders issued, from time to time, by the Chancellor, Keeper, or the commissioners holding the great seal. As to the indecency which was said to be apprehended from the subordinate condition in which the Vice-Chancellor would be placed with respect to the Chancellor, when it was said he might be interrupted by the Chancellor's bell, what was the case at present when a judge and two Masters in Chancery sat for the Lord Chancellor? They proceeded to hear such causes as might be dispatched within the time during which it was probable they would sit. This would be the case with the Vice-Chancellor. The Chancellor would discover what was the most convenient manner of conducting the business, and signify it to the Vice-Chancellor; and from the harmonious manner in which business was conducted in Chancery, no evil was to be apprehended from this mode of proceeding. He had never pledged himself to propose any amendments in the Committee, but he had said that any objections against the Bill might be remedied there. As something must be done to remedy the existing evil, what had been proposed instead of this Bill? To take a judge, of whose integrity and talents enough could not be said in praise, and load him with all this additional business; and this, though that honourable person had stated to his constituents that the pressure of his ordinary business was such as to compel him to abandon the pleasing duties of representing his native county in that House. A certain number of juridical days were marked out with mathematical accuracy, and were to be imposed on the Master of the Rolls, although that officer had been begged, by the gentlemen of the profession attending his court, to desist from even his ordinary sittings, lest his valuable life might be endangered. The question was not of willingness or unwillingness, but of personal capacity to perform such additional duty. But it was said the duties would not be imposed without additional emolument. Was it a compliment to this judge who had declined the most grateful duties, to say to him, that he must now come forward and play the part of Scrub or Mungo. An hon. and learned gentleman, whom the House would not have forgot to have been the chairman of the committee to enquire into the Chancery delays (even had he not himself informed them of it,) had looked on this scheme as visionary, though he disliked the present Bill. The judges in Westminster-Hall were so burthened with business, that no assistance could be expected from them. As to sending the Chief Baron of the Exchequer to the Cockpit, no court, it was well known, could exist without its head—not even a bench of justices, as any gentleman opposite, who happened to be chairman of one, might know. The courts of Westminster consisted constitutionally of four judges, and it would be a discovery of that night if it was found that they could go on with three.

Mr. Taylor

explained. He had not laid any stress on his having been chairman of the committee, but had merely mentioned it incidentally.

The Solicitor General

explained, that he had only mentioned that the hon. gentleman was chairman of the committee to his

Mr. Whitbread

said, that during his whole parliamentary life he had never witnessed such an instance of rapid growth as they had seen that night. The infant of that day week had become a giant. The hon. and learned Solicitor General, who but a week ago was so diffident that he could scarcely venture to obtrude himself on the House; who professed himself to have no practical knowledge of the Court of Chancery, had, after having pledged his reputation that the expedient before them would be successful, came forward that night, and after speaking with full confidence to a point of practice in the Court of Chancery, proceeded to a speech full of sarcastic allusions. The allusion to the hon. and learned chairman of the committee, they must understand as being devoid of sarcasm, notwithstanding the tone and manner in which they were delivered. He had as much respect as any one for the Master of the Rolls, but notwithstanding all the lamentation which they had heard for the absence of that learned judge, which lamentation, no doubt, would be renewed to the full, in the case of any one appointed to the office of Vice-Chancellor, he (Mr. W.) thought it expedient, that not only the Master of the Rolls, but the Masters in Chancery, and the Welch Judges, should be excluded from the House, although no doubt sir W. Grant had made a great display of talent in that House, and even risen to his high office by that means. [No! from the ministerial side.] This was the first time he had heard the fact disclaimed.—The question should not be considered personally as it respected the Master of the Rolls, but the officer in general. The only imputation he had heard on the Master of the Rolls, was that brought forward by an hon. and learned gentleman (Mr. Stephen), on a former night; who had stated that that judge would not sit at the Cockpit, from a political pique against the administration, and this formed an additional reason that the Master of the Rolls should not have a seat in parliament, where he was exposed to political partialities. The Master of the Rolls would not permanently have this additional business, as much of the pressure arose from the circumstance, that the Chancellor, through an anxious desire to do strict justice, did little or nothing. As other opportunities would offer for delivering his sentiments upon the principle of the Bill, he should only say one word as to the harmony always supposed by the Solicitor General to exist in the Court of Chancery. There were instances, such as in the case of lord Thurlow, and lord Alvanley, where the Chancellor conceived the greatest contempt for the Master of the Rolls, and would never suffer that judge to sit for him. If such a prejudiced Chancellor existed hereafter, a Vice-Chancellor, though endowed with all the learning and all the talents, forensic and parliamentary, of the horn and learned Solicitor General, might be reduced to a sinecurist. He might strut about with his train-bearer and his secretary—great at a levee or any where else—but in the Court of Chancery worse than nothing.

Lord Castlereagh

thought, that nothing in his hon. and learned friend's speech justified the attack which the hon. gentleman had made on him. The characteristic of what his hon. and learned friend had said on a former night, and what he had that night repeated, was, that it had all the weight of argument, and was stated in a perfectly inoffensive manner. His hon. and learned friend could not be accused of arrogance, seeing that he had been challenged as a lawyer to come forward, and had done so accordingly—In answer to an objection which had been been urged with respect to the possible abuse of the authority to be given by this Bill, he would observe that the Lord Chancellor might now, as the law at present existed, come into court, and take any cause out of the hands of the Master of the Rolls, even after it had commenced. This consequence, improbable and unheard of as it was, might be expected to happen if we were to argue from the abuse of the law and not the use of it. The different plans which had been proposed to be substituted for the present Bill were a sort of centre-projects which operated the one as a complete negative upon the other. One hon. gentleman opposite had that night distinctly stated his conviction that the erecting the bankruptcies into a separate department would create much difficulty and confusion. He himself thought that the same interruption and confusion would necessarily follow from overloading the Master of the Rolls with all the arrears in the Court of Chancery, and separating him from a court where he had so long presided with honour to himself and satisfaction to this as well as to foreign countries. He totally disapproved of that complexity of movement and judicial machinery by which it had been proposed to transfer the judges from court to court, and to supply the absence of one from his proper sphere by the successive removal of others out of theirs. He did not believe that the great and excellent character who had been so often referred to would ever stand in the way of any advantage to his country, but he conceived that in case of any such arrangement being adopted, it would be absolutely necessary for him to retire from the high situation which he now filled. It was not historically true, that the Master of the Rolls owed his elevation to the talents which he had displayed in that House; he owed it chiefly and originally to the distinction which he had obtained in the Court of Chancery, and at the bar of the House of Lords. He must enter his protest against any measure which proceeded on the supposition that the evil to be remedied was a temporary evil. Even if a temporary office were in this view created for the purpose, no eminent professional man would accept of it, unless on condition of the continuance of the salary after his services had ceased. Why, then, throw a character of doubt and disrespect upon the office without any advantage to result from it? It would be at all times in the power of parliament to annul the office, if found unnecessary, as they had created it.

Mr. Stephen

should not have risen, but for the notice which had been taken of an allusion made by him on a former night, to the cause of the Master of the Rolls withdrawing himself from the Cockpit. He conceived that no imputation was implied in the statement he had made, which, however, was founded only on common rumour. His attendance there was no part of his official duty, it was perfectly gratuitous, and he was at liberty to continue or discontinue it as he saw proper. The time that he had withdrawn himself from the Cockpit, was, when a certain administration was endeavouring to supplant him in the county which he had long represented. At such a time, it would not be wondered at, if he did not continue to give his voluntary attendance at a place, where it was not his particular duty to attend.

Mr. Whitbread

did not know any thing more of the transaction than what he had learned from the information of the hon. and learned member, who had stated that the Master of the Rolls had been ill-treated by the ministry of 1806. Because he had been opposed in a county election, he had, it seemed, retired from the Cockpit out of political pique and resentment. He did not attach much credit to the rumour, but he thought that, if true, it implied a censure on the conduct of the Master of the Rolls.

Sir Samuel Romilly

wished to understand the Bill, which he was unable to do from the Bill itself, without the assistance of those who framed it. He wished to be informed, whether it was intended to transfer causes set down for the Master of the Rolls to the Vice-Chancellor; if the causes were so transferred, it would create considerable dissatisfaction, and a multiplication of business by constant appeals; if it were not intended so to transfer them, all the causes would be set down before the Master of the Rolls. He wondered how gentlemen who had professed on a former night to be satisfied, not with what the Bill was, but with what it might be, should express their approbation of the Amendments. It was precisely the same that it was. The only alteration was in the omission of the words, "under certain restrictions and regulations," but the Vice-Chancellor was still to proceed to decide only such causes as the Chancellor should from time to time direct. It had been said that the judges could not possibly be spared from their courts to asssist the Chancellor. He would, as a fact, state, that in last Trinity Term, three judges had sat with the Chancellor for four days, on the will of Mr. Wilkinson. This formed at least an exception to the absolute impossibility stated. The objections to the present Bill were radical and essential. It made an alteration in the legal constitution of the country: and it would hereafter be recorded, that in my lord Eldon's time a Bill had passed which made it impossible for any one to rise to the highest honours of the profession in the fair and open path of his duty. It was not just to say that no other remedy had been suggested. Several expedients had been proposed, among others to enable the Lords to hear Appeals in the absence of the Chancellor; of which no notice had been taken. Yet why should not the other House be competent to do this, assisted by one of the noble and learned lords who had held the seals either of England or Ireland? The same course had been more than once adopted in the time of lord Mansfield; and lord Bathurst had sat for lord Thurlow. As to the observation which had been made on the increase of business from the Irish appeals, it was to be remembered, that before 1782, appeals from that country were tried here as at present, and that it was only from 1782 to 1800 that there was a suspension of the ordinary and established course of justice.

Mr. Wetherall

could not conceive how such a power as that alluded to by the hon. and learned gentleman could be understood to exist in the Chancellor. The fair construction of this Bill certainly was, that the Chancellor could not transfer causes set down for the Rolls Court. As to the expedient suggested of detaching the bankrupt business, that branch he conceived to be now so closely and constitutionally connected with the original jurisdiction of the Court, that it could not be separated without great hazard and inconvenience. If a new judge were created for the dispatch of bankruptcy business, it would be creating a jurisdiction without appeal, which appeared to him a greater innovation than the object of the present Bill. It was not quite reasonable to expect such uniform and unfailing rectitude in any judge as totally to supersede the necessity of appeal. The most active and vigilant might sometimes slumber in a long and wearisome course of application: ——Aliquando bonus dormitat Homerus: Verum opere in longo fas est obrepere somnum. Certain plans had been proposed which might expedite the dispatch of business in Chancery: but the House should beware lest in giving increased velocity to the wheels of one court, the whole machinery of another might not be reduced to a state of rest.

Mr. Ponsonby,

in answer to the alleged anomaly in English law of creating a judge without appeal, observed, that in matters of bankruptcy there was at present no appeal. The hon. and learned gentleman who spoke last, seemed terrified at the consequences which would result from the appointment of a judge for the separate causes of bankruptcy. In the hon. and learned gentleman's opinion this would produce a narrowness of view in the person who should be appointed to this separate bench, which would render him unfit for the office. It was the first time he had ever heard that the division of labour made the labourer more inexpert. But would not the advisers of the crown advise the appointment of the fittest person for the office? It had been said, that the separation of the bankruptcy causes would not afford a sufficient relief to the Lord Chancellor. Did not the bankruptcy causes constitute one-fourth of the Chancery business? The Chancellor who should be left with three-fourths of the present business, and should be unable to execute it, was very unfit to hold that situation. An hon. and learned gentleman (Mr. Stephen), had been at once the accuser and exculpator of the Master of the Rolls. He knew not why that hon. and learned gentleman had thought fit to become the accuser of that exalted character, or whether it was by his permission that he had become his defender. Did the hon. and learned gentleman think that it was a fortunate defence for the Master of the Rolls, that he had withdrawn himself from the decision of causes at the Cockpit, because an opponent of his, at a county election, had received some support from ministers? He thought the hon. and learned gentleman ought to consider some time before he appeared again in the character of a defender. He could see no objection to the separation of bankruptcy causes from the great seal. The taking away part of the Chancellor's emoluments was no objection, for the Chancellor ought to be liberally paid, and consequently compensated for any loss. This was no part of the ordinary Chancery business; but superinduced a few years ago, because the legislature did not know what to do with it.

Mr. B. Bathurst

said, if an anomaly were to be allowed to exist, as in the case of bankruptcy causes, it ought not to exist in a subordinate officer, but in a person clothed with the highest dignity.

The question was then put and the Amendment negatived. The Report was then agreed to without a division.