HC Deb 30 May 1821 vol 5 cc1025-39
Mr. M. A. Taylor

*began by stating, that no real friend to the judicial establishments of the country could look with indifference to the arrear of business so continually to be found on the appeal paper of the House of Lords; that, as far as it respected the suitors, it was altogether ruinous and oppressive, and in reference to the tribunal itself it was highly derogatory to the character it should sustain, and greatly diminished its value and importance. Nor could the state of the Court of Chancery be less a matter of disappointment and regret. In the prosecution of any just, or in the resistance of any unfounded claim, what years of agonizing suspense were passed between the first commencement of a suit and its final termination! Many had not survived to witness the decision of their causes: and the recovery of a scarcely questionable right had often been followed by the destruction of one-third of the property in dispute. He would put it to the conscience of every impartial man, whether he had overcharged the picture, or had given it too dark a colouring. In *From the original edition, printed for T. Egerton, Whitehall. truth, the system had outgrown itself, which, in the beginning of the last century might have been fully adequate to meet the exigencies which the intervention of equity was originally 'intended to relieve, was now unable to sustain the pressure and disentangle itself from the difficulties which an increased circulation of the capital of the country, a consequent change of property, and other concurrent circumstances, had brought within the scope of its jurisdiction. He observed too, that the House of Peers had in its capacity as a judicial body undergone a considerable change, not from any dereliction of those honourable feelings, or from a want of that liberal education, which made our ancestors look up to them as the depositories of law in its last resort, but from a total inability on their part to unravel the intricacies of those questions which were brought so continually under their discussion, to the understanding of which neither their habits, their studies, or their inclination could be supposed to lead them. The name indeed of the tribunal still existed with all those harassing delays which marked the character of its proceedings, but its original cast was either obliterated or changed. It was therefore of moment to enquire, whether without endangering the substance you might pot more effectually secure the duties it was called upon to perform, and give that virtual relief to the subject, which, upon every sound principle of the constitution, he had an undoubted right to demand. If the mode of administering the justice of the country was defective; if the interruptions that accompanied its progress placed at an almost immeasurable distance the decisions that were sought for; and if in the mean time the parties were overwhelmed with indefinite and intolerable expense, he contended that it was worse than folly to persevere in such a course. It would have been well for the people, if the House of Lords, in the enquiry that took place before a select committee of their own, had placed the whole subject manfully before them, and had entered into every inveterate feature of the evil, unawed by any difficulties they might encounter in their way, and undisturbed by any imaginary fears which prejudice might create or a mistaken policy impart. But in that investigation, the origin of the mischief was kept wholly out of sight; and though an attempt was made in this House of Parliament to give it publicity and effect, the voice of the minister crushed it almost in the outset. The committee appointed in 1811 by the casting vote of the Speaker was reluctantly permitted to disclose the arrear which had been gradually creeping on for years in those two courts; but the cause of that arrear was too sacred to be approached, and the revival of the committee in the ensuing session of parliament was only a signal for its premature dissolution; the majority of its members, who were in a great degree connected with the government of the day, refused to enter into that part of the reference which d irected them to enquire what it was that retarded the decision of suits in the Court of Chancery; and as their determination was afterwards confirmed by a vote of the House, on the ground of delicacy towards the presiding judge, all further investigation was at an end.*

It was not imputed to him, as the original mover of the question, that his view of the subject was too highly charged, or that the general or immediate Consequences that flowed from it, were less afflicting than he had represented them. It was, therefore, necessary that some different ground of objection should be started as an inducement to the House to withhold their assent to his proposition, which went to the direct examination of persons in the daily habits of professional practice, who might, by their evidence, enable them to explore the real source of the delay. He had then difficulties to contend with of no ordinary cast. The known hostility of the first law officer of the Crown to the adoption of any measure which might lead to an alteration of the system, either in his own immediate court, or in that of the appellant jurisdiction, could not but influence the government to throw every impediment in the way of those who were anxious to correct *In consequence of the refusal alluded to, a motion was made in the House 6th May, 1812, "that it be a special instruction to the committee appointed to enquire into the causes that retarded the decisions of suits in the high court of chancery, to examine persons practising at the bar, as well as solicitors in the said court, touching the causes of the delay." This motion was negatived; the numbers being, for the motion 20, against it, 84. See First Series, vol. 23, p. 57 the abuses which they steadily maintained to have existed for so long a space of time. He was aware that these difficulties were in no respect diminished, but he should not on that account recede from the part he had taken, or suffer so momentous a question to slip from under him without a struggle. He knew that he stood upon a rock, from which no power could dislodge him, and which no effort of ministers could undermine. In order to put gentlemen in possession of the grievance as far as respected the House of Lords, he adverted to the state of their cause paper, as reported by the select committee of the Commons in June 1811. The appeals and writs of error then waiting to be heard, amounted in the whole to 338. Many of these had been presented several sessions back, and upon a fair average of the rate at which their lordships had of late proceeded in disposing of the business before them, it was admitted that this list could not be got rid of under a less period than that of nine years—by the subsequent creation of a vice-chancellor, which gave to the lord chancellor the means and opportunity of sitting three days a-week in the House of Lords, this arrear has been gradually reduced; indeed it was most essential that some immediate steps should have been resorted to. Whether the plan brought forward on that occasion, was a measure of sound policy or not, he would not at the present moment stop to consider; but he felt himself called upon to inform the House that there was still a formidable account behind, an account which could not, upon any principle, be justified, and which therefore ought not to be permitted to continue. On an inspection of the proper document, it would appear that 172 causes still remained upon their lordships' paper, 135 of which had been regularly appointed for hearing, and 37 of that number were not as yet set down for the purpose. Owing to the length and importance of some particular cases which had been argued before their lordships, little progress had been made in those appeals which were presented in 1818; and as the session was near its close, a much further reduction could not be rationally expected. Here he could not refrain from pressing upon the consideration of gentlemen, the mischief which further discovered itself by the conduct which their lordships occasionally had recourse to, viz. that of giving preference to a particular description of causes. Upon whatever ground the justification of this practice might be attempted, it fell with peculiar hardship upon those whose appeals were known to have been for years upon the paper, and whose relative interests were, to the parties themselves, equally valuable and important. He begged leave to draw the attention of the House to a report of their own committee in 1812, as to the state of the court of Chancery of England. At the end of the sittings after Hilary Term in the same year, there were in the chancellor's paper, 109 original causes, and 39 appeals from the decisions of Sir William Grant, then master of the Rolls. The introduction of the office of vice-chancellor took place not many months after. To suppose that nothing had been gained by an establishment of that description, in aid of the ordinary operations of the court, would be as ridiculous as it must turn out to be untrue. It was most certain, that causes had been disposed of to a very extensive amount, and that the interlocutory proceedings had been materially dispatched, and by these means a particular class of suitors had been greatly benefitted, and the chancellor relieved. But the question was, whether upon the aggregate, giving every just credit to the person who holds the situation of vice-chancellor, the expectations of those who supported the measure or the views of the noble lord himself, lord Eldon, who was so strong an advocate for the plan, have been answered. Whether, in point of fact, a great part of the arduous duty before attached to the great seal does not revert back to the chancellor, in the shape of appeal, with this difference only, that it comes before him in a more objectionable form, inasmuch as it creates additional delay, and enhances the bitter reckoning of the costs. It was in no way derogatory, he said, to the abilities of the former vice-chancellor, Sir Thomas Plumer, or to the knowledge of the present vice-chancellor, Sir J. Leach, that their judgments were in numerous instances the subjects of appeal. It was natural that a plaintiff, who had set down his cause for the express purpose of its being heard before the chancellor, should be discontented with a decree, pronounced against him by a judge whose opinion he never sought. The same disposition to appeal in both parties will manifest itself in all the interlocutory proceedings that are occasionally before that court. It was with the impression on his mind, that the time of the lord chancellor would be thus exhausted by appeals, that he (Mr. T.) had endeavoured, on different occasions, to persuade the House to remove from the great seal all jurisdiction in matters of bankruptcy, as this did not in earlier times constitute a part of the labours imposed upon the chancellor, and the work now pressed so heavily upon him as generally to occupy some portion of his day. Of this, a reference to the evidence in the Appendix to the Reports of 1811, and 1812, would sufficiently convince the House.*

But it was here necessary, he said, to revert to the present state of the court, as far as he was able to collect it. In doing this, he was under some difficulty from the refusal of the Register to afford any information without an order from the House; and looking to the advanced period of the session, he did not deem it prudent to wait till the returns moved for by his hon. friend (Mr. Calcraft), were laid upon, the table; however, he thought he could not be far wrong as to the state of the Court. With the exception of a few reserved for the Chancellor, all the original causes commencing with the year 1812, have been taken by the vice-chancellor. But to satisfy gentlemen, how much the time of lord Eldon must be occupied by appeals alone, so as absolutely to prevent his giving the necessary dispatch to the other business of the court, he need only give one instance: A cause, which related to the title of some charity estates, was set down in Easter term, 1812; and it remains still unheard. Being within the last twelve, it has been in the paper for two years; and from that time the counsel, solicitor, and clerks in court are entitled to their fees for attendance, which, in addition to the charge for term-fees, may be calculated for both *In Mr. Taylor's attempt to remove from the jurisdiction of the great seal all matters in bankruptcy, he was supported by the opinions of the late sir Samuel Romilly; a man whose abilities as a statesman and whose transcendent powers as a lawyer could only be surpassed by the dignified independence of his mind and the spotless tenor of his life. His name can never die. *** parties at no less a sum than 120l. a year. The appeals from the Rolls and the vice-chancellor's court amounted at present to 116. That gentlemen might have a just estimate of the hardship thus accruing to the suitors, he would ask permission to direct their attention to a paper he held in his hand, which was a copy of the chancellor's appeal paper, for the 19th of May. The first on the list was an appeal from a decree of sir William Grant's, made in August, 1812. But as this cause had been once taken out of the paper by the parties themselves, he should not draw any inference from it. He would only take notice of the last cause in the list, because he knew that the individuals concerned in it were most anxious to obtain the judgment. That was an appeal from the late master of the Rolls, in February, 1814, and in passing his eye over those that preceded it, he might with safety hazard his belief, that most, if not all of them, were of as long a standing. There were, he feared, appeals from the vice-chancellor's court remaining nearly from the time of the first establishment of the court. He was himself aware of one, which was lodged so early as November, 1814, and it now stood 36 off. And he knew of another in nearly a similar situation. He could bring forward many more, he assured the House, but the parties were so alarmed at the apprehension of any disclosure that might be supposed to emanate from themselves, that he would wait till the returns he had before alluded to, were regularly delivered in, and then he could speak with greater certainty as to what actually was the general state of business in every department of the court.

But the House must not be led to imagine that the appeals from the vice-chancellor's court were limited to those which he had mentioned as entered in the registrar's book, and which were placed there to await a convenient season for their being introduced into the regular paper appropriated to that purpose. Almost every second day there was some important question brought before the chancellor in the shape of motion or appeal from this newly-erected tribunal, and which arose out of the interlocutory proceedings of that court—there was no end of the work thus thrown upon the Great Seal, and no exertion of human industry was capable of performing it.—The fault he conceived was in the system, and he would take the liberty of offering his reason for that opinion. The delivery of the great Seal to the distinguished individual on whom it was conferred, made him at once a politician and a judge. He was, in fact, one of the chief ministers of the Crown, liable to all the interruptions and anxieties inseparable from such a situation.—His time was not at his own command—he was summoned at a moment's notice, from the bench to the cabinet, or called to assist at a council in the immediate presence of his sovereign. His note-book was closed on a sudden, and the discussion of a claim, on the issue of which thousands might depend, was hastily interrupted and reserved for another sitting. He defied even the discriminating faculties of lord Eldon to follow the arguments of the advocate as he ought to do, under such circumstances as these, and great as were the powers of his mind, they must, in some degree, yield to the disadvantages he had to contend with. It was to the union of these two characters, which ought ever to be kept separate and distinct, that the evil of protracted suits might, in a great measure, be ascribed. The attention of a man, who had so extensive and so complicated a range of judicial functions to perform, should be confined exclusively to his own court; he should never be permitted to travel out of it. Were gentlemen aware of the vast interests that hang solely upon the opinion of this individual? To give them some insight into the magnitude and importance of these interests, he would assert that one-fourth of the property of the country was within the grasp of the court of chancery. He requested gentlemen to turn to a paper which he had moved for some years ago, containing an account of money then standing in the name of the accountant-general, and he did not suppose it was likely that there was now any diminution of its amount. It was curious to observe the progressive increase of this fund. The paper disclosed the effects of the suitors as placed in the Bank of England, beginning with the year 1756, and ending with the year 1818. Without going through the detail, it would be found that in 17.56, the aggregate only amounted to2,864,975l. 16s. 1d.; in 1818 it had reached the enormous height of 33,534,520l. 0s. 10d.* *Return from the Accountant-general's office to the House of Commons, April, 1819. He had no doubt that half of this money belonged to infants and lunatics, deposited there most properly for safe custody; but he was well satisfied that the other half had been, or still was, the subject of dispute; and here he ought to remark, that there must be many, very many, small sums, making in the whole a large total, the property of persons who had a strict right to the enjoyment of it, but the expense of extracting which, must nearly equal the sum itself, and render it not worth their while to apply for it. Gentlemen would bear in mind that this species of loss fell entirely upon those who could ill afford to lose what, in reality, was their own. To the vast sums in the hands of the accountant-general, must be added that mass of real estate under the superintendence of the respective masters of the court; the concerns of which were controlled and audited by them, subject to the revision of the chancellor himself, upon any litigated or doubtful points. But the business of the court did not rest here. Innumerable were the questions brought forward for decision, where no money was deposited, and probably no reference made. These were cases arising out of the construction of wills—the peculiar nature of trusts—the doctrine and designation of uses—injunctions to stay waste—the specific performance of agreements, and a variety of other points with which there was no occasion to trouble the House at that moment. He would ask what other court in Westminster-hall embraced so wide a field of action; nay, he would venture to say, that put the business of the three courts of common law together, it would not amount to that which issues out of subjects connected with the jurisdiction of the chancellor; and yet these judges are separated from all political intercourse with the Crown or its servants, and are studiously kept apart from interfering in the executive government of the country. They are independent of every thing relating to it. When he used the word independence, he wished not to limit the term to independence of mind, or to the circumstances of private fortune; he meant to imply in it, the absence of all other engagements and of all other concerns, except those which fell under their own immediate care and cognizance. The administration of what is called equity, as far as it related to the persons who are to dispense it, should stand upon the same footing, and as far as possible be governed by the same principles.

There was another wide and well protected nursery for delay, to which he must particularly advert. He meant the different tribunals before which the suitors may be carried: these tribunals were still parts of the same establishment, and the power of revision was with the superior judge. From the master of the rolls, and from the vice-chancellor, there was an appeal to the chancellor. Appeals were not confined to causes of extraordinary moment; they might be made, and, in point of fact, were made in various interlocutory matters; and the consequence was, as might be well imagined, additional expense and additional inconvenience. But he would not fatigue the House by recurring to that part of his argument, as he trusted that he had before fully satisfied them of the strength and application of it, and it was for gentlemen to decide whether some legislative steps should not be resorted to, in order to free the suitors from the desolating ruin, to which their property, their peace, and their happiness were thus exposed. Surely we were not to shape our ideas of tyranny and misrule, so as to narrow them to the infliction of bodily pain, the fetters of the gaoler, or the unwholesome damp of a dungeon; did the torture of the mind weigh nothing in the scale of wretchedness, when almost existence itself waited upon the slow, the nearly insensible progress of a court, and upon decisions protracted, from term to term, and from year to year? He would, however, dwell no longer on this point; but leave it, as he might safely do, to the unbiassed judgment of mankind. He was sure they would agree with him, that few entered the court of chancery without alarm, and that none escaped from it without suffering. In endeavouring to lay a ground for remodelling the method of administering the justice of this court, he solicited the calm attention of gentlemen to the more enviable situation of the suitors, when the great seal had been at different times in commission. This had happened in two instances within his own recollection. At the period of the first, the commission of 1783, when lord Loughborough presided, he practised at the bar himself, and had an opportunity of witnessing the dispatch with which the business was conducted, and the satisfaction that everywhere followed it. Many of the cases were decided as soon as the arguments of counsel were finished; and even in causes of the greatest intricacy, the judgment was scarcely ever protracted beyond the period of three or four days. As to the second instance, he could not speak from his own personal knowledge, but he would repeat what he had heard from an intimate friend of his, Mr. Justice Wilson, whose name was included in the commission of 1792. His late majesty had commanded lord chief baron Eyre, the principal commissioner at that time, and his two coadjutors, to appear before him at Buckingham-house, on a particular day, at 2 o'clock, to restore the Seal, that it might be given into the hands of lord Loughborough. When introduced into the presence, the king inquired of them the state in which they had left the business of the court; the answer was, that if the hour at which his majesty had commanded their attendance, had been 4 o'clock instead of two, the last cause on that day's paper would have been decided, the counsel for the plaintiff being in the act of replying, when they were obliged to leave the court, by the express direction of his majesty. It was here worthy of remark-as a strong confirmation of what he had advanced, that when lord Loughborough had been some months in possession of the great seal, and to his judicial labours were superadded his political and parliamentary duties, he was unable to keep down the arrear, though he confessedly displayed the same professional talents, and the same activity and zeal, as before when first commissioner. He called the particular attention of the House to this, as a proof that until a change was effected in the mode of administering justice in this court, no stretch of intellect, combined with the greatest legal acquirements, could overcome the pressure of such arduous, mixed, and incompatible duties. He assured the House, that no man was more tremblingly alive than himself, to the difficulty of proposing any plan for a different arrangement of the judicial functions of the court of chancery: however, he would risk his opinions, not from a vain conceit that they were such as the House would approve, but in the hope that they might awaken the attention of others more competent to pursue this great question, and redeem the character of the legislature, by substituting what was practicable and just, in the room of that which, he would not scruple to de- nominate cruel and oppressive. He suggested the propriety of consolidating the three tribunals now subsisting in this court into one; by dispensing with the office of the master of the rolls, and repealing the bill allowing the appointment of a vice-chancellor. He would then erect another court, consisting of four judges, the chancellor for the time being, constituting a part in the commission, and being considered as the head of the court, though he was not to be called upon to interfere in its general business, unless in cases where the judges were divided in their opinions. The bills that were filed, would of course be addressed to him, as they are always addressed to the chancellor of the exchequer on the equity side of that court. As the chancellor would under this arrangement be relieved from all appeals in his own court, he would leave to him, in the way he now possesses it, the whole jurisdiction in matters of bankruptcy. The patronage of the departments of the court would remain untouched, and the prize so much relied upon, as the great excitement to brilliant exertion continue as splendid as before. There were minor subjects of detail which he should not weary the House by discussing; these related to what he thought most desirable in every point of view, such as fixing proportionate salaries for the chancellor himself, as well as for the judges, instead of fees and emoluments, in every shape objectionable. This regulation ought equally to extend to the masters and other officers of the court. He humbly contended that the plan, the outline of which he had been induced to lay before the House, would be efficacious as to dispatch; that it would, in a great degree, remove the wish and anxiety for appealing, and thus most essentially contribute to diminish the expenses of the suitors; it would take away altogether the intermediate appeal to the chancellor, leaving such appeal to the House of Lords only. The chancellor would have full leisure to discharge his arduous duties as Speaker of the House of Lords, and the appellant from the court of chancery of England, as those from other courts, would have a real and substantial appeal in lieu of that, which, without the gratuitous and honourable attendance of lord Redesdale, was now become a mockery and a farce. He knew it might be argued, that the bill, empowering the chief baron of the exchequer to sit alone in equity, made against the idea of a plurality of judges; but he was prepared to show that the case was not parallel, and that the courts bore no resemblance to each other on this particular point. He felt conscious of his own inability, and he should not therefore have intruded any notions of his own, if it had not been his object to call forth the sentiments of others, on the nature and magnitude of the evil he had placed before the House, an evil which no man could venture to extenuate or disguise. He would say to both sides of the House, and particularly to that which took the lead in the administration of the country, ——Si quid novisti rectius istis, Candidus imperti; si non, his utere mecum. He implored of gentlemen not to dismiss from their most serious consideration, a question of such vital interest as this was to the community at large, because, on the first view of the plan, they might regard it as visionary and novel. He was far from being so confident in himself as not to suspect that there were faults in the arrangement he had submitted to their view, and he should not therefore press them that evening for a decision; but he thought it due to the people who had suffered so long the severe inflictions of delay, that the House should, in an open and manly manner, declare that they would, in the next session of parliament, attempt the redress of wrongs so evident as to their existence, and so appalling in their nature; without this avowal on their part, he did not see how gentlemen could lay their hands on their hearts and say, with any truth, that they had acted in the spirit of that famous statute of their ancestors, which, in the face of the world; spoke these memorable words—"Nulli negabimus aut differemus, Rectum aut Justitiam." He would now beg leave to move, "That this House will, early in the next session of parliament, take into its most serious consideration the present state of the High Court of Chancery of England, as well as that of the Appellant Jurisdiction of the House of Lords, with a view to the adoption of such measures as will tend in future to facilitate the general business of those courts."

The Marquis of Londonderry

said, that although parliament sometimes pledged itself as to the course it would take in a subsequent session, it should never do so without great caution; and he thought they should hesitate to do so in the present case, because the resolution countenanced the opinion that there was something wrong in the Court of Chancery, and that a practical remedy had been proposed. He was not at that time capable of forming an opinion as to the sweeping remedy which had been proposed. As far as the appeal business of the House of Lords was concerned, he understood that the establishment of the vice-chancellor's court had been eminently successful. As to the original business of the court, he understood that it was never less in arrear than at present. He suggested that it would be advisable to withdraw the motion, especially as much information on the subject, which had been moved for by the hon. member for Wareham, was not yet on the table. If the hon. gentleman persisted in his motion, he should move the previous question.

The Attorney-General

wished to say a few words in reply to the reflections which his hon. friend had cast upon the learned lord who presided in the Court of Chancery. His hon. friend had said, that there were the same arrears in cases of bankruptcy and original causes, at present, as there had been before the creation of the Vice-chancellor's court. Now this was by no means the fact, as there were no original causes and no cases of bankruptcy, at this moment, in arrear. There had been an increase of appeals to the lord chancellor, but that was to be attributed to the desire which every man felt to have his case decided by the great talents and learning of that learned lord. No decisions had been, or would hereafter, be more respected than those of the learned judge who now presided in the Court of Chancery,

Mr. Lockhart

said, that the delay, if such it might be called, arose out of the mechanism of the court. It was a most severe hardship upon every small legatee, in case of dispute, to be obliged to file a bill in chancery, which perhaps cost him more than his legacy; or to abandon his claim altogether. Justice was thus denied, and dishonesty promoted. The mere statement of such a grievance ought to induce the House to pledge itself to inquire.

Mr. Serjeant Onslow

contended, that it might be dangerous, at this late period of the session, for the House to pledge itself to inquire. The course of argument adopted by the last speaker, rather went to show, that the court of chancery, in its present form at least, ought to be abolished altogether, than that any attempt should be made to introduce a reform into it. With regard to the increase of business, it was not to be wondered at that the arrears were considerable, considering the immense increase of property of late years, and the number as well as the variety of questions which that increase had produced. He approved of the previous question moved, as it ought not to be held out to the public, in the interval between the two sessions, that great evils would result, or ever had resulted, from the present practice of the Court of chancery.

Mr. W. Smith

said, that the House was called upon to pledge itself to inquiry, more especially after what had just been said by the learned member, who Wondered that the enormous arrears now complained of had not been still greater, recollecting the vast increase of property. It was admitted on all hands that an abler chancellor could not be found; and as all agreed on his merits, surely a better opportunity could not be chosen than the present for commencing the investigation.

Mr. M. A. Taylor

said, that one-half of the appeals now before the Lords were of four years standing. This being the case, he would appeal to the House, whether the system pursued by the Court of Chancery was not ruinous and vexatious? All that he asked was an assurance, that, at a proper period, the subject should be taken in to consideration.

The previous question being put, "That the question be now put," the House divided: Ayes, 52; Noes 56. Majority against Mr. Taylor's motion, 4.