COURT OF CHANCERY.

HC Deb 05 June 1823 vol 9 cc739-94

On the order of the day for resuming the adjourned debate upon Mr. J. Williams's motion, "That a Select Committee be appointed to inquire into the Arrear of Business in the Court of Chancery, and the Appellate Jurisdiction of the House of Lords, and the causes there of,"

Mr. Denman

rose. He could not, he said, in any degree regret the course which he had adopted last night, in supporting the adjournment of the question till this day, in order that the subject might be fully gone into before the House came to a decision upon it. He was satisfied that if they decided before further and better information was given, than had been afforded last night by the speech of the hon. and learned gentleman opposite, it would afford a just cause of general discontent in the country. To him it appeared, that the perspicuous statements of his hon. and learned friend who made the motion, were by no means satisfactorily answered by the speech of the attorney-general; but even assuming that that hon. and learned gentleman had given a satisfactory explanation of the case, there were still unanswered the additional and important facts contained in the speech of the hon. member for Durham (Mr. M. A. Taylor), who had given so much of his attention to this important subject—who had so often moved for committees of inquiry into it—and who had detailed to the House the tricks and stratagems by which his object had been defeated. The additional facts stated by his hon. friend, he repeated, called for an answer from hon. gentlemen opposite, and particularly as they erroneously seemed to think that the statements made on his (Mr. Denman's) side of the House, implicated the personal as well as judicial character of the lord chancellor. In either sense in which they took those statements, though only meant in one, it was incumbent on them that that noble and learned lord's character should be fully vindicated. He could not well account for the wish of hon. gentlemen opposite to put an end to further discussion upon this subject. If they intended to consent to the committee of inquiry, where all the matters alleged could be fairly gone into, then, indeed, their conduct in wishing not to protract the discussion would be consistent and proper. But, if they, wished to stop all inquiry, to refuse any means by which the evils complained of might be ascertained to exist or not, could anything, he would ask, be more strange, than their suffering such statements as had been made to go forth to the country without one word of contradiction or comment? When he stated, that the speech of his hon. and learned friend had received no sufficient answer in that of the attorney-general, he did not mean to deny the great acutenesss and subtilty of that answer; but it was acute and subtle only in being an answer to a charge which was never made—in being a defence of a character which had not been attacked. The hon. and learned gentleman went upon the assumption, that a personal attack had been made upon the first law-office of the country—the most powerful subject in the state. In that view the hon. and learned gentleman's speech was ingenious and correct; but it seemed strange that he should make such an assumption. In the speech of his hon. and learned friend, the mover, there was not a word said, or an imputation made, of personal corruption in the high officer alluded to. No such idea, he was satisfied, had entered his hon. and learned friend's mind. No such conduct had been even remotely imputed to the noble and learned lord; and, if there was any one thing which more particularly than another characterised his hon. and learned friend's speech, it was the temper and moderation with which it was urged to the House; for on no occasion, he believed, was such a detail of grievances laid before them with less implication of personal character than on the present.

His hon. and learned friend's statements Were powerful and affecting, and calculated to impress every man in the country to whom they might have been correctly reported, with the existence of crying evils and the necessity of their immediate remedy. The House of Commons was, in his opinion, in some degree pledged to institute an inquiry, by the steps which they took upon a former occasion. On that occasion, a new officer had been created in consequence of the great mass of business to be done, and the arrears which had accumulated. If it was now notorious that those arrears had increased, notwithstanding the former attempt to remedy, then was the House bound to inquire into the cause of this unfortunate state of things, which had existed for many years. It was of the utmost importance to know whether the fault of the delays complained of rested in the conduct of the individuals acting in the court, or arose out of the system adopted by the court itself. If the former, then it might be necessary to bring some other measure before the House; but if the latter was the cause of the evil, then it would be necessary to probe the system to the bottom, with the view to its remedy. Let honourable members recollect the immense mass of property which now stood in the name of the Accountant-General of the court of Chancery—a sum not less than thirty-three millions! Perhaps there was not one man who then, heard him, who was not, in some one way or another, connected with proceedings in that court, as guardians, or trustees, or otherways, in. which they might represent the interest of others, and possibly many more directly connected with it, as parties to some suit which hung up in the Court sonic nine or ten years after the right of a party was admitted, but of which the final judgment might be delayed, and the individual prevented, by the system of the court, from possessing his right, until be was not in a condition to enjoy it. Let honourable members recollect what was the situation of a great part of the country with respect to that court. Scarcely a family of property was there, of which some member was not interested in proceedings in that court, and in habits of daily intercourse with it; and who, when taking leave of this world for ever, had not to bequeath to that family his Chancery suit, with all its doubts and uncertainties. Let the House recollect, that it was the cases of this numerous class, the welfare of them and their descendants, which were now brought before them for full and complete consideration.—His hon. and learned friend was last night taunted with having brought all his cases from the office of one solicitor. He could not understand the cheers of hon. gentlemen opposite when that fact was stated. Surely it was not meant to be insinuated, that one office was worse off than another with respect to its Chancery, proceedings, or that any distinction was made in the distribution of justice in that court between the clients of one solicitor and another! That would be a reflection upon the court which he supposed no person would make. If, then, six or seven cases were cited, of delays almost miraculous in the administration of justice—if instances of the putting off the adjudication of the rights of the individuals, till they were no longer in a condition to enjoy them—if, he repeated, these were found to have occurred in the office of one solicitor, he saw no reason why they should not be admitted as specimens of the natur of the proceedings in the court of Chancery, or why it should be inferred, that there were none such in other offices. One thing was certain—it would be impossible in that House to go through all the cases which had occurred, and which might be cited; and if they were cited, many of them (he spoke it with all respect) could not be understood by hon. gentlemen, who could not be supposed to have given much attention to such subjects. In what had been cited, however, he thought there was quite enough to astonish any man, with the fact that such proceedings could take place in a country like England—that such evils should be suffered to exist, without an effort to ascertain their cause, and to provide a remedy. It had, amongst other things, been objected to his hon. and learned friend, that he had given no previous notice of the particular cases he intended to cite. Who ever heard of such an objection before? Surely, when his hon. and learned friend gave notice of a motion on the subject of the practice of the court of Chancery, it must he presumed that he would cite some cases. But, suppose he had given notice of the particular cases he intended to mention, in common courtesy lie ought to expect some notice in return of the kind of answer which was intended to be made to them. There would then be a reply: next a rejoinder; and thus so much time would be taken up in previous pleading on both sides, that no time would be left to bring the question before the House. The hon. and learned attorney-general had mentioned the case of Ware and Horwood, as one of which some notice ought to have been given. But surely if it was in the court so late as 1821, an allusion to it now could not be said to have taken any one by surprise. Ashe had mentioned this case, and as perhaps there were some hon. members who were not in the House when it was first stated, he would, for their information, repeat it. It appeared, from the affidavit of one of the parties, that it had been in the court nine years—that it had stood at the head of his lordship's paper two years and a half ago, but that it had so often been postponed for other causes which had no right to be there, and judgment so long delayed, as to have produced fatal consequences on one party: immediately concerned, which he would notice hereafter In con- sequence of these frequent puttings off, the attorney or solicitor, of one of the parties, that inferior officer of that high court, ventured to write private letter on the subject to the lord chancellor, the highest judge, the most powerful subject in the land. There was certainly a great impropriety in this act. There was a great impropriety in answering it privately—an impropriety only short of the meanness, which no judge should ever descend to, of alluding on the bench to an anonymous letter. A private answer was open to the suspicion of corruption; not that there could be corruption in this case; not that the slightest idea of that kind entered his mind. But the only answer should be, to call the party into open court to be heard. But this was not an anonymous letter. It was signed by the party writing it, and was to this effect: "My lord; my clients have great reason to complain of the great injury suffered by them in consequence of these causes not keeping their station at the head of your lordship's paper."—And why had they not kept their places? They had a right to be at the head of the paper, and no person should have removed them. And when the House heard of such a case, it would of itself be a sufficient ground of inquiry, as to how far the conduct of the officers of the court should be allowed to interfere with, and retard the business of suitors. The writer of the letter went on to say—"It is now nearly seven years since they have been waiting for your lordship's judgment; and upwards of two years and a half ago, they had arrived at the top of the paper; at which place I heartily entreat they may, until you can decide upon them, remain. There is a fund in court of 10,000l. and upwards, locked up until your lordship decides in these causes. It is painful to me to state to your lordship, that I have learnt from authority which I have no reason to doubt, that the infant, for whose benefit these suits were instituted twenty years ago, died of a broken heart, on account of being kept out of his property"—yes, this unfortunate infant, like the infant in the play, who, in violation of the unities, was an infant in the first act, and a greybeard before the fifth—this unfortunate person, who was an infant at the commencement of the suit, grew up to maturity, and perished before its close—"and I have to contend against the bitter feelings of his relations." In consequence of this letter, the lord Chancellor sent for the writer to his private apartments, and there without consulting the solicitor on the other side, took minutes of his decree. This most certainly was wrong as a precedent; though he by no means imputed any corrupt motive, the thought did not enter his mind. The decision in the case might have been most just and equitable; but it should have been given two years and a half before—before the individual for whose benefit it was intended had perished in despair of obtaining it. Really, after so frightful a history of the consequences of delay as this—and after seeing the ghostlike forms of the suitors that were daily moving about the court of Chancery, miserable, heart-wearied, heartbroken, their hopes blasted and their fortunes squandered—the admirable description of the poet Spencer, would not appear an exaggeration:— Full little knowest thou that hast not tried, What hell it is in suing long to bide; To lose good days that might he better spent, To waste long nights in pensive discontent; To speed to-day, to be put back to-morrow; To feed on hope, to pine with fear and sorrow; To have thy prince's grace, yet want her peers; To have thy asking, yet wait many years; To fret thy soul with crosses and with cares; To eat thy heart through comfortless despairs; To fawn, to crouch, to wait, to ride, to ronne, To spend, to give, to want, to be undonne. To relieve, however, his hon. and learned friends opposite, from the pain they seemed to feel at the supposed monopoly of delay in a single office, be should state a case from another office, which had been that day put into his hand by accident, as it was not known that he should take part in a debate in which he was; indeed little qualified professionally to speak; though it was one in which any man, in which every man Was interested, and able to give an opinion. The case was that of Collis and Nott. This was a question whether a surety paying off a bond, and not taking an assignment, could claim as a specialty or a simple contract creditor. The master decided for the specialty, and in 1817, the case was argued by the late sir Samuel Romiily; and in last Hilary term, when the chancellor was pressed for a decision, he had entirely forgotten it [hear!]. The case was then re-argued again, at considerable expense, to the parties, and it was still undecided. The original bill in the case was filed in 1792 [Hear, heart!] Was this, he would ask, a slate of things which ought to be allowed to continue? The House, by what it had done in 1813, admitted the principle of interference, where it was found that the public business was in arrear. Here was the case now before them. Here were cases accumulating from year to year, and those of many many years' standing still undecided. He did not understand what was meant by the quibbling (for he liked to call things by: their right names) kind of argument, that there was now no arrear of business in the; court of Chancery—that the suits pending were many of them revisions of old cases. "Why, surely, it was immaterial to the suitors whether the business there was new or old, if their particular cases were delayed by them [Hear!]. It was idle, then, to talk of no arrears, while the contrary fact stared them in the face in so many instances. It was said that there was a great increase of business of late years, in consequence of the increase of population and wealth. If this were so, it would be an argument for going into a committee, to inquire how that increased business might be best-despatched, without unnecessary delay to the suitors. But he did not believe there was that increase of business beyond-former years. There was found no such arrears of business in the other course. In the court in which he practised, it was found that the distresses of the times were not very favourable to an increase of business. There were, it was true some old papers hung up, and some old cases still pending; but, in the court of Chancery, there were some so old and musty, as to resemble the Rowleian manuscripts, or any other papers studiously coloured to imitate age, with twenty, thirty, or forty refreshers from time to time, while the counsel never thought of looking at their briefs, as they were quite sure they would not come on to be heard.

There was one other case which he had heard of in the course of the day, which he would state to the house, which pointed out some of the effects of this system of delay. It was that of an application of certain parties to be admitted as creditors to a bankrupt's estate. The lord chancellor, as he was often in the habit of doing, took the opinions of two of the learned judges on the point of law. In the interim, the money was paid into the hands of a banker. The learned judges gave their opinion promptly, that in law the parties were entitled to be admitted as creditors. No judgment was, however, given by the lord chancellor, and the matter remained over until the banker who held the dividends failed. His lordship then allowed the parties to become creditors to the effects of the second bankruptcy; but, still doubting upon the point of law raised in the first instance, he consulted two other learned judges, and they also gave it as their opinion that the parties had the right. In the mean time the dividend in the second bankruptcy was paid into the bands of another banker, to await the decision in Chancery. That decision was delayed notwithstanding the opinions of four of the judges which had been taken on the law of the case. At length, the second banker and holder of the dividend became himself a bankrupt, and thus were the original parties to the suit deprived of this shadow of a shade, and cut off from all reasonable chance of ever recovering any portion of their money! [Hear, hear]. Was not this an injury to those parties, which an early decision might have prevented?

It had been last night objected to his hon. and learned friend, that he had made an attack, not only on the lord chancellor, but also on other judges in Westminster hall. His hon. and learned friend had never made or contemplated such an attack. He had talked of inconveniencies arising from delays in other courts, which could be clearly established, but for the unwillingness of individuals connected with those courts to interfere in pointing out the evils which they felt to press there. This was a very natural feeling with many. He did not say that they ought to dread any thing from the judges; but it was impossible entirely to divest themselves of an unwillingness to be know as interfering. He, however, in the absence of that particular information which would be so desirable in some cases, was not sure that the best ground for the committee would not be the notoriety of the case. This was the opinion of every gentleman connected with the Chancery bar with whom he had communicated on the subject. He did not Know what others would say from their own knowledge; but this he would say, from the information of many gentlemen of the Chancery court, that the evil was admitted by them in its full extent. They said, "We are aware of the evil, but you gentlemen of the House of Commons do not know how to go about getting the proper information on it. You will be foiled here and foiled there. You will be told of the great quantity of business done—the immense number of petitions heard—but most of these are done with the dash of the pen." Certain it was, that the weight of business dispatched in that court could not be decided by the number of petitions heard. Many of them were matters of course. Of this description, he understood, were most of the lunatic petitions. That all such petitions were not made matters of course, the parties concerned in the Portsmouth case had found to their cost. And here he could not avoid saying a few words on this case, as applying to the question before the House. In that case he would assert, that eight years might have been saved—eight years of painful litigation to all the parties, and of great suffering to lord Portsmouth himself. There were facts stated, when the case first came before the court in 1814, upon which, in his belief, any other judge in the land would have given a decision leading immediately to the issue of the writ de lunatico inquirendo. True, some of those facts came rather awkwardly before the court, and there was some contradiction in the testimony; but still he would contend there was sufficient to have warranted such a decision as had since been come to. The very marriage itself, under the circumstances, would have justified such a decision, which would have prevented the infamous treatment to which the noble lord had been subjected by those who had wickedly entrapped him on that occasion, would have guarded against the risk of leaving, had the unfortunate nobleman died in the interim, a little lord Portsmouth behind, as little connected with his blood, as with that of any member then in the House. Was it not most grating to one's feelings that, in a country like this, such wickedness should have been allowed to be perpetrated, when all might have been prevented by sending the case, as it ought to have been, to a jury in the year 1814? He looked upon this as unfortunate, not only as it might have affected the continuance of the marriage, but as it might have prevented the crimes which followed it, and the recent disclosures, so much calculated to pollute the morals of the country. When the unfortunate nobleman was brought from Edinburgh last summer, did not the lamentable tale he then told fully justify the sending his case to a jury? And yet he was left till the May following without that protection which the law ought to have thrown around him. When, in the month of November last, the case was brought before the Chancellor, there were six and twenty hours consumed in speaking, on it; but he would venture to assert, that his learned friend (Mr. Wetherell) had not been addressing the court more than twenty minutes before he had made out a ease fully sufficient to warrant the issuing a writ de lunatico inquirend. The case of the adultery was not necessary to have been gone into; but even if that were material to the case, still he would repeat, that in 1814 there was evidence sufficient to warrant a decision, which would have spared the unfortunate nobleman eight years of grievous suffering [Hoar, hear].

He would now return to the charge which had been made against his hon. and learned friend, of having attacked the character of the other courts of equity. How was it possible to look at the delays which occurred, without alluding to those courts? His hon. and learned friend had alluded to the delay of business in the court of Exchequer; but he had not done so with a view of throwing blame upon any particular quarter. He had stated the fact with the view of having some remedy provided. He had stated, that the chief baron of the Exchequer having been prevented by illness from attending, for a time, to the business of the court, that duty had devolved upon the judge next in seniority, Mr. Baron Graham—who, his learned friend said, from his great age, was not qualified to undertake such heavy and such constant labour. His hon. and learned friend had not said one word against the character, the goodness, or the great merits of the venerable judge; he had, as all who knew that amiable individual must, fully admitted his many excellent qualities. For his own part, he would be the last to brook any attack upon one whom he so much revered. Independently of the marks of personal kindness he had received at the hands of that learned judge, he respected and admired him for his talents and his virtues. He was now at an advanced age of a life a great part of which had been spent in the strict, diligent, and conscientious discharge of the important duties of his high station. His was now an age, of which he might say in the words of the poet— An age that melts with unperceived decay, And glides in modest innocence away; Whose peaceful day benevolence endears, Whose night Congratulating conscience cheers; The gen'ral fav'rite as the gen'ral friend, Such age there is, and who shall wish its end? No attack had been made upon the learned judge. His learned friend had merely stated the facts—that from his advanced age he was not qualified to endure the heavy labour of a constant application to the additional duties which had been imposed on him; and though suitors might have reason to complain that additional means were not provided for the dispatch of their cases, there was no a person, he believed, who had more reason to complain than Judge Graham himself.

In regretting the great delay which had taken place in the business. Of Chancery, he would not dwell upon the vulgar topic of the doubting mind of the noble and learned lord at the head of that court. He would maintain—and he thought it was an aggravation of the system—that the noble and learned lord had no such doubting mind. He had had some opportunities of observing the noble and learned lord; and, as far as he could judge, he had found the noble and learned lord acting from first impressions, giving his opinions prompt and decisively. In another court, he had heard him pronounce, without any hesitation or apparent doubt, upon the most grave and, important points, upon points of which it might well be said—"Nunc dubitet qui nunquam dubitavit, et qui semper dubitavit iterum dubitet." The house might remember, that they had, on more than one occasion, been occupied for several hours in anxious discussion as to the right of his Majesty to expunge the late Queen's name from the liturgy. There were very many, and amongst others the learned member for Oxford, who thought that such a power was not vested in the Crown, and the House did not give an opinion upon it until after long and serious consideration. Not so the lord chancellor. He decided at once, and without hesitation, that his Majesty had the right; and so convinced did the noble and learned lord seem to be of the justice of that decision, that he did not even condeseend to state the reasons by which he arrived at it. During the proceedings before the House of Lords in the case of the late Queen, he had witnessed several other instances of the noble and learned lord's promptitude of decision. On the arguments which had been urged to show that her Majesty was entitled to all the privileges of a queen Consort, even in a trial for high treason—the noble and learned lord had no manner of doubt—he decided without hesitation. Even when it was asked to grant to her Majesty a specification of the particular times and places of the several charges against her, the noble and learned lord had no doubt whatsoever that they ought not to be granted—that her Majesty ought not to have that notice of the particular charges—ought not to be put into that situation, with respect to the means of meeting them, which the learned attorney-general had last night contended, ought to have been given to the noble and learned lord himself, with respect to the cases cited by his hon. and learned friend in the course, of the present debate. No. All those privileges were refused by the noble and learned lord without doubt or hesitations, and the noble and learned lord left the illustrious lady to whom he had once stood differently affected, to be thrown upon the wide sea of accusation, and tossed about in every way in that storm of calumny, with no means of rebutting the atrocious charges with which it was attempted to run her down before trial. He would give one or two other instances of the noble and learned lord's promptitude and. want of hesitation in his decisions. It was now acknowledged, that there was no other protection afforded to literary works, but the injunction of the lord chancellor to restrain others than the author from publishing them without authority. Actions were too tardy. It was by prevention alone that this species of property could be guarded. Mr Lawrence, a gentleman of science, skill, and of a most enlightened and philosophical mind, had delivered lectures on the physiology of man, at some institution, which were pirated by some bookseller. Mr. Lawrence applied for protection. The chancellor immediately said, "I doubt—I am by no means sure that if you go before a jury they may not find, in some corner of this book, something they may call a libel;" and he therefore refused his protection to this interesting species, of property. Again, in the case of lord Byren's "Cain," a similar application was made to restrain a person alleged to have piratically published the work.—Here another doubt was promptly expressed, not whether the work was as pious as "Paradise Lost," but whether a jury would not find objectionable matter in it—matter having a dangerous tendency, and on that ground the injunction was refused. Here, then, were cases of two works, important to the parties, lost to a doubt of the lord chancellor's; and here were the individuals who pirated them allowed to pocket the profits of their admitted offence, instead of the cases being sent to a jury, who could have decided at once upon the character of the works and the right of the parties. As far as he knew, no lord chancellor had ever before refused an injunction under similar circumstances. There was one case of a contrary character, which he would mention. Soon after the "Beggar's Opera" first made its appearance, another opera was brought out by the same author, under the title of "Polly." An application was made to the then lord chancellor for an injunction to restrain a piracy of this opera. It was resisted, on the ground that the first work was libellous and improper, and ought not to be protected; but the learned lord who then presided in the court, held that the party pirating the work ought not to be protected in such a case, and he granted the injunction—He would contend, that when the public saw these fact—when they saw such doubts and hesitation in some instances, such promptness and want of hesitation in others—he said that when these things were seen, doubts and suspicions would arise in people's minds—he would not say justly—but doubts and suspicions would arise as to the causes. These phenomena certainly did drive, a roan to look about for motives, and people were naturally led to suspect that, in the Portsmouth cause for instance, the fact of the petitioner having, as a member of that House, commonly voted against the ministers, and of the unfortunate nobleman, who was the object of the petition, having constantly lent his proxy in the House of Lords to the friends of the ministry, might have unconsciously exercised an influence on his mind. And in the case of literary property, when the productions of a certain noble author came to be discussed, it would not be considered unnatural that the lord chancellor should have been some what influenced, whose whole life had certainly not been devoted to discovering modes of preserving the liberty of the press.—It appeared to him that the prima facie case made out by his hon. and learned friend could not be got over. He could not help observing, that it was a strange argument from the other side, that the House should take its suggestions from the House of Lords, and not decide for itself. It was true it had done so in 1813; and what had been the result?—that a measure was acceded to which experience had proved not to answer the purpose for which it was intended. He did not deny that the chancellor had been in some degree relieved by it; but this was chiefly owing to the extraordinary diligence and despatch of the present vice-chancellor, to whom the public were much indebted, but whose court, if he too had been gifted with the extraordinary quality of doubting, would have been a nuisance, and have brought down ruin upon the unfortunate suitors. Most of the hon. members who heard him were, in one way or another, connected with some proceedings in the court of Chancery. But, if they were not, their constituents were; and he hoped that they would think with him, that a case for inquiry had been made out, which it was impossible to resist. For himself, if on no other ground, he should vote for the motion, because it was absolutely necessary that the subject should be investigated, for the sake of the character and reputation of the lord chancellor.

Mr. W. Courtenay

said, he felt additional difficulty in addressing the House upon this question, because he, in fact, had been included as a party in the charge. The office he had the honour to fill brought him within the sweeping accusation at least of the hon. member for Durham, who had objected to the whole system, and to every branch of the court of Chancery. It had been said by his hon. and learned friend who last spoke, that the present motion by no means implied a personal attack on the lord chancellor. But, whatever might have been thought of it before, certainly the speech which the House had just heard had converted it into a direct and personal accusation. It was worthy of notice, that the complaint was not confined to excessive dilatoriness; but the lord chancellor was charged both with a want of judgment and a want of knowledge. His hon. and learned friend seemed to dissent from this statement. But if it was riot with this view, for what purpose had he alluded to the case of lord Portsmouth, and to the decision regarding literary property? It had been also asserted, that nothing like a personal imputation was intended. If so, why was the instance adduced of what was called a surreptitious decree? If that were true, it was more fit to be the subject of an impeachment than of inquiry before a committee. It was plain that the object of the committee would not be, to investigate the real grievance, but indirectly and mainly to make an attack upon the learned lord at the head of the legal profession.

The chief ground on which the present motion rested was, that the evil was now as great as it had been in the year 1813. But this was by no means the fact, if hon. gentlemen attended to the fair and not the quibbling distinction between a mere list of causes and an actual arrear of business. At the present moment, there were before the lord chancellor and the vice-chancellor about 360 causes; but this number would appear small, when it was recollected that only since Jan. 1st. 1822, no less than 3,527 bills had been filed. To make out an arrear, it was not sufficient to state what number of causes were in the paper. When a cause was ripe for hearing, one of the parties set it down. Suppose, on the 1st of January 1821, there were a number of causes set down, which had originated three years before, he would call it an arrear; but if there were 300 set down for the first time on the commencement of term, it could not be considered an arrear. The position was simply this—if a number of causes had been long set down, that number was the amount of the arrear. The business disposed of had been stated correctly last night. The causes now set down were 360, all of which, with the exception of very few, were set down since Michaelmas term last. This was not more than were usually set down in one term. Causes could not be heard in the same term in which they were set down. A number would therefore be always found in the paper for hearing; but they would not constitute an arrear until they had remained there for a long time. There was another class of cases called exceptions and further directions, which often embraced matter of great importance. The number at present was 125. Two months were now left for disposing of them, and no doubt many would be disposed of be- fore that time. He had looked that day for the purpose of seeing what was the quantity of business left undone at the commencement of the last long vacation; for that was the way to state fairly what the arrear was. Out of all the exceptions and further directions there were not 60 which remained undisposed of, and that number alone was to be called the arrear. Except with regard to appeals, he would state distinctly, that there was nothing which could be called an arrear, and that no suitor ran the risk of being placed in the midst of one. He knew that this opinion did not accord with the notions on the other side, but he called upon gentlemen opposite to point out the difficulty in bringing a cause to a hearing in Chancery.

The endeavour to show that there was an arrear in the Rolls' court had been somewhat unfair. Sir William Grant had left nearly 423 causes undetermined; and since his resignation, 817 new causes had been set down. The number now left was only 61, and no less than 1,179 had been disposed of. All this, too, was exclusive of petitions and exceptions, which of course occupied a good deal of time. An imputation had been cast upon his hon. and learned friend, the present Master of the Rolls, charging him with pertinaciously retaining his office, when he was permanently incapacitated from discharging its duties. All who knew the high character of his learned friend would feel, that it was perfectly unnecessary to repel such an imputation. Now, he would ask, whether it was not a more honourable course in his learned friend to pause before he retired upon a pension of 3,300l. than to resign his office, in consequence of an infirmity which might only be of a temporary nature?—It had been urged, that no answer had been given to the additional statements brought forward by the hon. member for Durham. But he would state why they had not been replied to. It was because they were assertions unsupported by any kind of proof or probability. The hon. and learned mover had gone out of his way to make an attack upon the lord chancellor; and therefore his hon. and learned friend, the attorney-general, had been perfectly warranted in complaining, that no previous notice had been given of the cases on which such an attack was to be founded. The hon. and learned mover had said, that in the case of Ware v. Horwood, the, lord chancellor: had been guilty of the impropriety of having several inter- views with one of the solicitors without seeing the solicitor on the other side, and of making a decree upon consultation with that solicitor. The lord chancellor had been charged with making a surreptitious decree—

Mr. Williams

disclaimed having cast such an imputation upon the lord chancellor. He had used no such expression, nor had he given any opinion on the trans action to which the hon. and learned gentleman alluded.

Mr. Courtenay

said, the hon. and learned gentleman had made the statement upon information received from the adverse solicitor, who complained of the decree having been surreptitiously obtained [hear! from Mr. Williams]. It was true, that the hon. and learned gentleman had given no opinion of his own. He had dexterously left it to the House to exercise its own judgment; but no man could pretend to say, that the impression sought to be made on the House was not, that the chancellor had made a surreptitious decree. He was sure that his hon. and learned friend who spoke last, from the manly tone in which he always addressed the House, would not shrink from saying that such was the nature of the charge. The evidence was much too loose on which, to ground so serious a charge. It was said, that the interviews took place before the decree and with a view to making the decree. The fact was, that the cause was decided in the ordinary and regular, way; the chancellor had pronounced judgment; and there was a material difference between seeing a solicitor after judgment given, and before. The only object of the lord chancellor in seeing the solicitor for one party, was, that he might be supplied with minute matters, absolutely necessary to the drawing up of the decree with nicety and precision. Such had been the constant course with ail chancellors; but the solicitor on the opposite side objecting to it, lord Eldon had taken an opportunity of noticing that objection in open court, and of stating at the same time, that, he not only considered the practice right and proper, but that he should always feel it his bounden duty to obtain information in that manner, with a view to making the minutes of the decree as precise and accurate as possible. This was the history of these interviews; and it was with the utmost astonishment that lord Eldon after wards found, that the solicitor had made a heavy charge for attendances upon him. The bill of costs was subsequently taxed, and the charge disallowed.—With respect to the case of Brown v. De Tastet, he had had occasion to know, that a more complicated suit never came under the consideration of a court of justice; and upon the question of delay generally it might be observed, that such cases as Brown v. De Tastet involved a number of points which might become the subject of twenty different suits, and that in the course of such suits the interests of various parties might be involved, who came in esse different times. He would ask any, gentleman, whether such a case was likely to be soon determined? The expenses in the master's office bad certainly amounted to 500l.; but he was sure, that if the papers had been put into the hands of an accountant, the expenses would have been equally great. He therefore contended, that as that was a case which fully warranted delay, no argument could be fairly derived from it.—Another case to which his hon. and learned friend had alluded was that of Whitchurch v. Holunthy, in which application was made to restrain the lord of a manor from cutting down timber. It was said that there had been very great delay in that case: but it was not added, that that delay had originated with the party who had set the cause down for hearing Without having done certain things which he ought to have previously-done, and who had consequently taken a mistaken View of the facts of his own case. His hon. and learned friend had stated, that the attendances in that cause amounted to 1,000l. but on that point his hon. and learned' friend must be mistaken; as he had learnt upon inquiry, that the whole bill did not amount to more than 500l. He admitted, that the complication of the proceedings rendered a number of attendances necessary in that case as well as in many others, but he thought that no method could be devised for the diminution of them by means of the proposed committee; The evil, such as it was, arose out of the system which had long been pursued in the court of Chancery, and could not be removed without the risk 'of producing much greater mischief and inconvenience than any that was at present experienced.—His hon. and learned friend had also stated, that the confusion and disorder of the proceedings in the Court of Chancery were so constant and so universal, that it almost appeared to be the regular course of business there. He did not know what his hon. And learned friend meant by this observation; unless he alluded to the discretion Which the lord chancellor sometimes used in taking certain cases out of the regular Order in which they were entered upon his paper meaning, then he (Mr. C.) must contend that in a court of equity, it would not be Consistent with the interests of the suitors to deprive the judge of such a discretionary power.

He agreed with his hon. and learned friend in thinking; that the subject of appeals deserved a separate consideration. He allowed that all the advantages which had been anticipated from the erection of the vice-chancellor's court had not accrued to the public; but to considering whether the number of appeals from it had increased the quantity of business in the court of Chancery, it became necessary to consider what was the number of appeals from it at the present moment. He could inform of the House on the best authority, that there were not more than 104 appeals from both the inferior courts, of Chancery through wards of a thousand bills had been filed in them during the last year He not think that any body would be found hardy enough to impute that number Of appeals either to the indolence or remissness of the lord chancellor for whatever other imputations might be: cast upon that noble and learned personage, it was impossible to say that he did not give as much time, attention, and; anxious deliberation to the business of his court, as had ever been given to it; by any judge who had ever presided there a or elsewhere. If it were true that he was peculiarly diffident of his own judgment, it ought not to be forgotten that in forming it he brought to the task more knowledge, more acuteness, and more talent than had ever fallen to the lot of any person who had ever sat on a judicial bench. Of late years, from the vast increase of the population and the commerce of the nation, there had been in his court a vast increase of business, arising out of injunctions to restrain the working of mines, out of motions originating in the intricacy of mercantile transactions, and also out of the unsettled state of theatrical concerns. Besides it was only fair that those suitors who complained of the delay the court of Chancery should recollect themselves occupied no small portion of its time with long statements of their own cases, and should not therefore impute all the delay to the noble and learned lord who presided in it. For his own part he must say, that he considered the whole case of his hon. And learned friend to be directed against the number of appeals, as there was nothing that deserved the name of arrears to be found in any other part of the business of the court of Chancery. It had been said, that the lord chancellor was accustomed to take much time to make up his own mind. From the charge he believed that the noble and learned lord was not at all inclined to shrink. The noble and learned lord felt, as he believed that a vast majority of the public likewise felt, that there might be a great advantage in a supreme judge taking time for consideration before he laid down principles of law which were not merely to apply to a particular case, but to all cases on which the property and the livelihood of the subjects of England might depend. He knew that it was the unanimous opinion of all the leading men at the bar, that the decisions of Lord Chancellor Eldon would form a system of equity, which, as it went down to posterity, would rove an invaluable guide and direction to all future judges and lawyers. If the object of his hon. and learned friend was to make the noble and learned lord give his decisions with more rapidity than he had hitherto done, he did not see how it could be effected by means of the proposed committee; and he thought he had already shown, that the other objects which his hon. and learned friend professed to have in view, would be equally unattainable by the plan which he had suggested.—With regard to the appellant jurisdiction of the House of Lords, he would observe, that it was quite a distinct subject, and merited a separate consideration. Indeed, a committee of the body to whom the appeal was made, was now sitting to examine how far the mode of appeal could be improved. Would it, then, be wise for the House of Commons, at so late a period of the session as the month of June, to institute a committee, to consider the manner in which it was fitting that Scotch appeals should in future be heard? He was of opinion that the appointment of such a committee, at the present moment, would be productive of no good whatever to the suitors, and he must, there- fore, again repeat his decided objections to going into it.

He had now examined the various points to which his hon. and learned friend had called the attention to the House. He had perhaps omitted some of them; but if he had, he believed that they were immaterial to the main question; and, after that examination, conducted with all the care and diligence which he could command, he was decidedly of opinion, that the case made out by his hon. and learned friend would not at all justify inquiry. To that opinion he had come without any regard to who was or who might be lord chancellor. It would be an idle waste of time if he were to enter upon a panegyric of the noble and learned lord who at present filled that high office. All he would say should be this—that if in ordinary cases the House would require a strong body of facts to be submitted to it, before it would enter into a consideration of the manner in which a lord chancellor presided over the arrangements of his courts it ought to require a ten times stronger body of facts than usual in the present case, when the inquiry related to the conduct office lord chancellor who had filled the office for more than twenty years. Though it had been admitted upon all hands, that the noble and learned lord was a personage of unimpeachable integrity it had still been asserted, that particular cases had happened in which he had departed from his usual habits, and had not entertained even a shadow of a doubt. He was sorry that such a remark had been made; because, if they now went into the proposed committee, they must go into it to try the conduct of the present lord chancellor. The hon. and learned member for Nottingham, he well knew, had said that he made no accusation against that noble and learned personage; but, the effect of his speech certainly had been to make such an accusation. As a proof that the noble and learned lord had not acted without a precedent, he would take the liberty of reading to the House the opinion which a Chancellor of France, in the; time of the regency, entertained, as to the necessity of judicial delay: "When you he says" have seen what I have been, read what I have read, and heard what I have heard, you will be convinced, that, although you, may have thought you knew much, you have still much a learn; you will admit the necessity of delay and how a small error may be productive of infinite mischief— He had now stated his opinion upon this important question. In doing so, he had performed a painful duty; but, filling the situation which he did he felt it necessary to perform it. He trusted in his conscience that they would not agree to the proposed inquiry, which, even if there were arguments they could have shown it to be necessary in an ordinary case, had been decidedly shown to be improper in the present by the course of argument which the hon. and learned member for Nottingham had that evening pursued.

Mr. Abercromby

said, that not with standing the length to which the discussion had been already protracted, he hoped he should be pardoned if he offered a few observations particularly as, in what he had to say, he was sure he should give utterance not merely to his individual opinion, but to that of the country at large. In the first place, then, he was willing to admit, that the noble and learned lord was an individual gifted with the most extra ordinary acuteness of intellect—that, he possessed a most profound knowledge of law—that he enjoyed a most astonishing momory—and that he was endowed with a surprisingly correct and discriminating judgment. He believed, however, that the warmest friends and admirers of the noble and learned lord's character could not refrain from admitting, that he had one unfortunate infirmity of mind, which intercepted many of the benefits which would otherwise be derived from his great qualities; namely, a want of confidence in his own judgment, which must ever be felt by his friends to be a subject of regret, as it was felt by the public to be a matter of complaint, and, he had almost added, of injury. Though he admitted that no man could be more conscientiously inclined than the noble and learned lord was, to give a correct judgment, still he was surprised that it had never come athwart his mind, that the in jury derived from a long protracted, might almost be as great to the suitor as that derived from an unjust, judgment—It appeared to him, that his hon. and learned friend, the member for Lincoln, had not been fairly treated in the course of this discussion. His hon. and learned friend had reason to complain of the manner in which he had been misrepresented by the side of the. House. It was not his hon. and learned friend who had complained that a decree had been surceptitiously obtained from the lord chancellor in the case of Ware and wood but the solicitor to one of the parties. Nothing could be so unfair as to assert that such a complaint had been made by his hon. and learned friend, especially after he had read, not the affidavit of the solicitor who actually did make such complaint, but that of the parties who asserted that there was nothing to justify such an imputation against the noble and learned lord. If his hon. and learned friend had attended to the line of argument pursued by his learned friend near him, he would have seen that he had conveyed no such imputation. Had his learned friend been aware that there were grounds for such a charge, all those who heard the manly manner in which he had brought forward his motion, would be convinced that he would have stated it openly and fearlessly to the House. He would now direct his observations to the more immediate subject of discussion. He considered that a new era had arrived in the history of the court of Chancery. The experiment of creating a vice-chancellor had not only not succeeded, but had increased, the evil and a committee was now sitting in the other. House of Parliament, for the purpose of effecting a complete alteration in the mode of proceeding in appeals. It had been said by the other side, that his hon. and learned friend, the member for Lincoln had Proposed his motion at too late a period of the session to effect any useful and salutary object by it. But, if there were any force in this argument, in what a situation would the House be placed when at a still later period of the session, a bill should be brought down to it from another place to change the entire constitution of the court Chancery—a bill, on which they would be called on to pronounce an opinion; when they would be in possession of no information, and when they would have still less time to inquire than they had at present? He thought that the possibility of such a bill being sent down to them was a sufficient reason to institute the proposed inquiry: and the first point into which the committee ought to inquire was this—what was the state of business and what were the arrears in the court of Chancery, in the vice-chancellor's court, and also in the Rolls. The next point to which they ought to extend their considerations would be, whether, with a suffi- cient vice-chancellor and master of the Rolls, the business of the court of Chancery could be sufficiently performed by a single judge. A great deal had been said regarding the increase of business in this latter court, and much stress had been laid upon the quantity of time that was occupied by the consideration of lunatic petitions. Now, though he would not deny that some lunatic petitions required much useful and anxious consideration from the lord chancellor, still he would contend that many of them—he would not state how many—might be disposed of, and indeed were disposed of, almost without a moment's reflection. Now, the best way to ascertain what time those petitions occupied would be to refer the question to a committee, to whose inquiry he would leave the differences between himself and the hon. and learned gentleman. One of the complaints with himself and with the public—and it was a most grievous complaint—was, that no original cause was heard by the lord chancellor, Except such as grew out of cases in which his lordship was trustee, or guardian, or patron. It was a just ground of complaint, that no original cause was now heard before the lord chancellor, and that his opinion could not be obtained without the preparatory step of going before an inferior court. With respect to the vice-chancellor, he was generally blamed for using too much rather than too little despatch in coming to his decisions; but still that did not lessen the grievance of which the suitor had reason to complain. He was willing to rest the fate of the present motion on the following facts. He had just stated that no original cause was now instituted before the lord Chancellor, and that almost every thing that came before him was in the shape of an appeal. Now, if any professional man would show him the day on which an appeal was first set down for hearing—and would then show him when it was put down for hearing in his lordship's paper and hung up in Lincoln's-inn-hall—and would then show him how often it was put down in that paper and did not obtain a hearing—and would then show him how many attendances were rendered necessary—and would then show him when the appeal was heard—and then when judgment was pronounced—if any professional man, he said, would show him all this and would then pledge his credit with the profession that no inconvenience nor hardship arose from the system, sur- prised as he (Mr. A.) might be, would be content to abandon this inquiry as totally unnecessary and uncalled for. The hon. and learned member said that if the proposed committee were granted, he should advise them, in considering the delays of the court, to take sir W. Grant as the standard for despatch and accuracy of decision, and to compare the number of the judgments of that eminent equity judge, who had retired covered with the admiration and gratitude of his country, with that of any other judge; and, with that comparison as a test to leave it to the House and to the public to decide, whether there was not in that delay a public grievance for which, in some way or other, a remedy ought to be devised. After declaring that the committee ought also further to inquire whether, if lord Eldon were restored to the court of Chancery, and the appellant jurisdiction entirely taken from him, there would be business enough for three equity judges; and stating his own opinion that there would not, the hon. and learned gentleman proceeded to point out what he considered another important reason for granting a committee upon this subject; namely, that it could inquire into the causes out of which every delay originated which every body so loudly deplored. The two great objects which the committee ought ever to keep in view were, the despatch of business, and the saving of expense to the suitors. He wished to know whether much time and much money were not usually expended before the cause could be brought to issue? and to that point the committee ought particularly to direct their inquiries. He was well aware that many eminent the bar had declared that much time and much money might be saved to them by some change in the present mode of proceeding; and upon that account, as well as upon the grounds which he had previously stated, he maintained that the motion of his hon. and learned friend ought to be adopted.

Mr. Wetherell

began by complimenting his hon. and learned friend, the member for Lincoln, upon the liveliness with which he had treated a somewhat heavy and Uninteresting subject. He gave his hon. and learned friend credit for a knowledge of equity business, scarcely to be expected from a gentleman not himself a practitioner in the court of Chancery. He differed entirely in opinion from his hon. and learned friend, and trusted he should be able to refute every fact that he had brought forward; but he was still bound to declare that his hon. and learned friend's speech on the last evening—sound and entertaining as his addresses in general werer—had been such as to raise him very considerably in the estimation of the House. The speech of his hon. and learned friend, if he rightly understood it, had divided itself into two parts; the first applying to the general system upon which courts of equity in this country were constructed; and the second reviewing the conduct of the lord chancellor in the high office which he had filled for more than twenty years. His hon. and learned friend then wished for a committee which committee was to overthrow the existing dynasty of the courts of equity in England. Had his hon. and learned friend a new dynasty ready to set up in that existing dynasty's place? No. The hon. and learned gentleman had no plan to propose. He had offered the House its choice of six plans; but he had not even hinted which of the six he would prefer. Which of the six plans submitted, did the hon. and learned gentleman mean to rely upon? Which was the plan he meant to propose in that committee, which it was to be hoped the House would not enter into?

The learned member for Oxford then proceeded to defend the institution of the vice-chancellor's court—a measure for which he had voted, and for which, under the same circumstances, he would vote again. It had been said, that this court did nothing but multiply appeals, and thereby produce increased expense to the parties; and it had been further said, that there existed now the same delay and arrear of business in the chancellor's court which had existed prior to the vice-chancellor's creation. But these statements were mere assertions, unsupported by documents or papers. He would assert, that there was no arrear whatever of business at the present moment, either before the vice-chancellor or before the master of the Rolls; not a cause which was more than the terms behind its regular time of being heard. There was a list of causes, about 104, before the lord chancellor; and, from the nature of legal proceedings, was unavoidable that there should be always a number of causes standing for decision; but, to say that there had been a list of 104 causes before the chancellor three years ago, and that there were the same number of causes before the court at the present moment—this was not to prove delay or anything like delay; unless it could be shown that the causes now standing were the same causes which had been standing three years since. The fact was, that the cause-list would never be exhausted; as fast as old cases were disposed of, new ones were added. The appeals from the vice-chancellor's court were charged to be excessive. It was said, that the vice-chancellor could do nothing but send business up to the lord chancellor. He disliked troubling the House with figures; but he would give them something in the way of a result. The appeals from the vice-chancellor were in the ratio of 7½ per cent upon the causes decided; and they had been 7 per cent from the court of Rolls, in the masterships of lord Kenyon, lord Alvanley and sir T. Sewell. Another topic of objection, was, that the time of the lord-chancellor was now occupied in hearing appeals, to the exclusion of original causes. No doubt it would be better (if the thing were possible) to have the decision of the chancellor upon both original causes and appeals; but, if one class of causes only could be taken by his lordship, it was better that that class should be the appeals.—The hon. and learned member for Lincoln had further produced several, cases which he charged to be instances of mismanagement and delay. The hon. and learned member had certainly disclaimed every thing like personal, imputation upon the lord-chancellor. He had said, that he spoke de re and not de persona; but, if he condemned the thing which existed, did he not, of necessity, condemn the author of that thing? The hon. and learned gentleman said, that he derived all his information—that was, his facts—from one office. Now, he (Mr. Wetherell) had been concerned in more than one of the cases which, the hon. and learned member had cited. He knew the officina from which the statements of the hon. and learned gentleman had been supplied; and he would say, that there were some of those cases cited, which, if they were meant to be connected with the personal conduct of the lord-chancellor, were foul and slanderous falsehoods. In the case of Ware and Horwood, it was alleged, that the lord chancellor had, directly or indirectly, given out a collusive and surreptitious decree. He denied that charge, let it be brought forward in what manner it might. He would say to the man, who- ever he was, that originated such a calumny, mentiris impudentissime! He had been counsel in that case, which was one of great difficulty; so great, indeed, that the late lord Ellenborough had differed from lord Mansfield upon it. That a bill, of reviver had added to the expenses of the cause, had not been the fault of the lord chancellor. Could the lord chancellor prevent suitors from undergoing the mortality of death? He was never concerned in a case of more importance. The chancellor had in this case as in others of great moment, given to the parties the minutes of his decree some time before the final judgment was pronounced; and it would be going too far to say that the decree was surreptitious, because the solicitors of one party might not choose to attend. The party against whom that decree was given had put into his hands a petition, which was so incorrect and scandalous with regard to the conduct of the lord chancellor, that he would have nothing to do with it; though, if it had fairly stated an objection to the minutes or decree, he would have advocated it. It was well known that that noble and learned person, was in the habit of depriving himself of his own vacations, by transacting in his own chamber business for which he had no time in court, and was moreover, in the habit of dictating to his own secretary on cases which he had carried home with him from the court of Chancery; thus depriving himself of those intervals of relaxation of which others availed themselves. He would say, that the accusations brought forward by his hon. and learned friend against the lord chancellor, as a judge, were more unfounded and unsupported than any that had ever before been uttered. If his hon. and learned friend felt himself capable of repelling that charge, an opportunity would be afforded him; but he would boldly maintain, that in the case of Ware and Horwood his hon. and learned friend had made statements that could not be substantiated.—In the case of Brown and de Tastet, which the hon. and learned gentleman had cited, he (Mr. Wetherell) had also been of counsel; and the officina from which the hon. and learned gentleman received his information, had most completely deceived him upon the facts of that case. The hon. and learned gentleman had stated, that there were two appeals in the cause—one from the vice-chancellor, and the other from the master of the Rolls; and the appeal from the master of the Rolls had not been heard by the chancellor until twelve years after its institution. Now, the truth was, that the appeal from the vice-chancellor, as to the exceptions, had been heard three years after it was made; and upon that occasion the lord chancellor had himself raised the appeal from the decision at the Rolls, by saying, that he could not well rehear the exceptions without rehearing also the original decree; so that the appeal turned out to be of three years standing, instead of twelve.

Having now, he thought, sufficiently replied to the cases brought forward by the hon. member for Lincoln, he should proceed to notice some points in the debate which seemed to him to have run a little out of the record. The Exchequer argument seemed to have been brought forward as a kind of episode to the matter of the court of Chancery. He could not quite understand why, because Mr. Baron Garrow was ill, or because Mr. Baron Graham was old, the court of Chancery should be fac-similated to the court of Exchequer, The hon. and learned member too for Nottingham, had, he thought, taken up a point with which the discussion had nothing to do. The question before the House was not, whether the lord chancellor had given a right or a wrong opinion in the case of the earl of Portsmouth; the question was, whether there were delays, and needles ones, in the court of Chancery?—He defended the doctrine laid down by the lord chancellor with respect to literary property, which had been one of the grounds of attack. He, for one, entirely concurred with the noble and learned lord, as to the propriety of that doctrine. But, it was not correct to attribute it to him. The doctrine was not new. It had been a long-established doctrine, that no literary property could be maintained in a work, the nature of which militated against public morals. That doctrine was laid down by Chief Justice Eyre, and was maintained by all lawyers of eminence whose opinions prevailed in that court. He had the misfortune to be counsel in that cause, and was obliged to concur with the opinion of the court, that the work in question, in which the existence of the soul was held to depend on the materiality of the body, and this principle, put forth in the lecture-room, poisonously mixing itself with the instruction of the rising members of that faculty, could never be entitled to the protection of the law. Never was there a more sound, legal, and righteous judgment than that given by the lord chancellor in the case to which allusion had been made.—The next charge against the noble and learned lord was, for not issuing a commission of lunacy in the case of lord Portsmouth on the first application. The question for the House was not, whether lord Eldon was a good or a bad lawyer, but whether or not the business of his court was conducted with the proper degree of despatch. Now, what had his lordship's view of the Portsmouth cause to do with the question? But, so far was the noble and learned lord's conduct from wanting defence, he would fearlessly aver, that the circumstances submitted in support of the two applications were so entirely different, that the principle on which the commission was granted at last, must have led the court to refuse it in the first instance. He should be most happy to meet any of the great common-law lawyers who were sitting opposite to him upon that specific subject.

One of the complaints against the jurisdiction of the court of Chancery was, that it afforded facility to appeals. He would ask the common-law lawyers if there were not just grounds in point of fact, to complain of the other courts? Did they not all allow of two appeals? If a case were taken into the Common Pleas, it might be afterwards taken into the Exchequer Chamber, or into the House of Lords. So also, if a case were removed out of the Common Pleas into the King's-bench, an appeal lay after that to the House of Lords. What was the calamity, then, which they deplored on behalf of suitors in Chancery? There was an appeal from the master of the Rolls to the lord chancellor, and from Chancery to the House of Lords. There was an appeal from the vice-chancellor of the same order. Were they prepared to overturn the two appeals in courts of common-law as well as in Chancery? If so, let the juridical principle be generally proposed, that the arguments might be fairly met. The right of appeal was less in equity than in common-law. As to the conduct of the venerable person who presided in equity, it was remarkable that, during the whole time that the present lord chancellor had held the seals, now nearly two and twenty years, none of his judgments had been reversed, if they excepted, one case. He knew that it might be said, the appeal was from Cæsar to Cæsar from the chancellor in Chancery to the chancellor on the woolsack—but it must be remembered, that his lordship was constantly assisted by lord Redesdale, who, since his resignation of the Irish seals, had devoted his whole attention to appeal cases: besides which, the candour, patience, and generosity of the supreme judge would always have induced him to acknowledge it, had his opinion altered. This circumstance was in itself a remarkable pledge of the talent and integrity of his judicial labours.—But then there was a complaint of dilatoriness. The question was, how long a judge ought to take in making up his mind after hearing the whole of the case? That must depend in a great measure on the intellectual capacity of the judge. Now, they might have judges who would be more expeditions; but, for his part, he preferred dull truth to brilliant error—slow accuracy, to expeditious ignorance or misinformation. He would have one cause well decided, rather, than ten determined rashly. Honourable gentlemen opposite might prefer judges who would be more speedy. They would even bargain for a few mistakes, although they should take place in causes in which the largest estates were involved—they would not be particular, though 20,000l. a year should occasionally be given to the wrong party. But, said the gentlemen opposite, give us expedition, and that is all we wish. If, however, the chancellor, of England was slow, he was not the only judge in Europe who had been so. If the court of Chancery in England had arrears of business, the Chancery of France had been charged with the same failing. If he were asked to put his finger on a great and eminent lawyer, of that country, he should point to D'Aguesseau, who was the most cautious and dilatory judge, and had caused more delay in his court than any of his predecessors. The words of lord Bacon had been quoted by the hon. and learned member for Lincoln, and that had induced him to look into his lordship's books, where he had found something quite as applicable to the case as the dubitandi patientia. That great man had, in a way peculiar to himself, compared despatch in a judge to what physicians, called pre-digestion, or hasty digestion; which was sure to fill the body full of crudities, and secret seeds of diseases. If honourable members would consult their own internal economy, and conceive for a moment what would be their feelings and state of health in this particular habit, they would easily guess at the state to which the jurisprudence of the country might be brought by expedition in judgments. A man on whose single shoulders rested such weighty responsibility, might well pause before he gave decisions on which depended such extensive interests, such mighty masses of property. The nerves of that man must indeed be strong, who could rescue himself from the anxiety necessarily consequent on such a situation, and who unprepared, could precipitate himself on judgment. A judge, who had formerly been condemned by some person for not running quickly through the criminal calendar, had answered the impertinent railer, by observing, that he so judged in the day as to be able to sleep on going to bed at night. When they considered what a prodigious power was lodged in the hands of this magistrate—a power which placed all the large properties and titles in the country at the disposal of his single arbitrium—a power greater than the Roman praetors exercised—greater than was intrusted to any magistrate in any state in the world—they could not be surprised, much less displeased, at seeing that it was used with the solemn deliberation which became the exercise of it. But this was not all. The supreme judge had not only to dispose of individual cases; he must, to the best of his ability, lay down propositions of law, for the guidance of the court in all similar cases. The erudition, legal science, experience, and accuracy displayed in the thirteen volumes of cases decided by the present chancellor were unparalleled.

His hon. and learned friend had alluded to the number of Scotch appeals to the House of Lords; but that was no reason for going into the committee. If the House of Lords chose to alter its appellant jurisdiction, and send a bill down to that House for the purpose, it might be dealt with according to the wisdom of the House when it came there; but, he repeated, that was no reason for acceding to the motion of his hon. and learned friend. The House had just come reeking wet out of the inquiry into the conduct of the sheriff of Dublin, and several of his hon. and learned friends had stated, that that inquiry had put the members of the House out of humour with themselves, and the public out of humour with them; and he doubted much whether the proposed committee would tend to restore the harmony of which the House had so lately been deprived. It was his opinion, that, in the present state of affairs, the chancellor ought to be assisted by two auxiliaries. He did not look forward telescopically (if he might so express himself), but he thought such an arrangement would be highly beneficial. The hon. and learned member concluded by observing, that though he had differed with the gentlemen opposite, and especially with the hon. and learned member for Winchelsea, as to the uselessness of the Dublin inquiry, he should agree with them if they would now declare that the proposed committee was perfectly needless. He begged pardon of the House for having taken up so much of its time, but he felt extreme anxiety to deliver his sentiments on this question.

Mr. Scarlett,

in rising to support the motion, said, that however pre-digested the speeches of other members might have been, his hon. and learned friend had shown nothing like pre-digestion in the able speech which he had just concluded. He had heard much, in the course of this protracted discussion, of the prudence of judges and of the despatch in the courts of Chancery. It might be said, that counsel had been heard both from the court of Chancery and the courts of Common Law. But, was there no one else worth hearing? Were there no suitors present? Had no gentleman been a minor under the protection of the court? Was there no member present who had been so happy as to obtain a decree in his favour, with costs awarded him? If such there were, he would implore them to get up, and he would entreat the House to hear them. Let not the speeches of counsel be attended to, but Jet them hear what the suffering witnesses had to say; for, if the House intended to do impartial justice, it ought to hear evidence. He was certain, that however he and his hon. and learned friend might appear to differ in that House, they would not differ out of it; and that though they might disagree as to what was necessary, there would be no dispute between them that something was required. He would tell the House on what grounds he meant to support the motion. He had too much respect for the lord chancellor to pronounce a panegyric upon him in parliament; but he might be allowed to say, that the fame of that venerable man was great enough to bear discussion. The motion went to inquire into the causes of the delay in Chancery, and the appellant jurisdiction. It was said on the other side, that there was no delay. That was a question of fact which ought to be tried. It had been assumed, that the motion had for its object a personal attack on the lord chancellor. Now, there was nothing in the eloquent speech of his hon. and learned friend savouring of that tendency. And, while he was upon the subject, he would say, that that speech was a perfect answer to the calumny that there was no talent at the bar. There never was more talent at the bar, in all its ranks, more especially the middle rank. He begged leave to ask his hon. and learned friends opposite why it should be supposed, that, in making his statements, his hon. and learned friend, the member for Lincoln, had intended any personal imputation whatever? It would, if such a supposition once obtained, become a matter of extreme difficulty and delicacy for any member of the profession to introduce a similar motion; for it might be said that individuals were in every instance alluded to. He knew, from personal experience that very day, that an allusion made last night to one of the greatest ornaments of the bench, Mr. Baron Graham, had been misunderstood and. misrepresented, and had, he also knew, given some pain to the excellent mind of that learned individual; but he trusted that he (Mr. S.) had contributed to remove the unpleasant impression. Such was the perplexity attending discussions of this nature in the House. Whereas in a committee, those who were able to speak with most knowledge upon the subject, would feel themselves free to do so, without the fear of giving offence. He could state the opinion of his much lamented friend sir Samuel Romilly on an occasion similar to the present, in which he had observed, that holding as he did a certain station in the court of Chancery, he never would speak in the House on a question concerning its constitution, lest he should be misrepresented; but he should deliver his opinion in a committee without any reserve. The delay complained of was inherent in the constitution of the court itself, and was not created by the particular judge who presided there. He would ask, why should not the House now attempt to remedy a grievance? His hon. and learned friend, the attorney-ge- neral, said, that no fault could be found with the manner in which the business of the court of Chancery was conducted. Why then refuse inquiry? He would again ask, was there no suitor of that court—was there no man who had been a minor—was there no man whose marriage settlement had come before that court, then present, who would assist the House with his evidence? For his single testimony would be worth all that had been asserted by gentlemen of the profession. As to the bill which was to come down respecting the Scotch appeals, he would say, without meaning any thing disrespectful to the lord chancellor, that the House should always be prepared to consider with jealousy the proposals of judges as to alterations in their own courts. Experience proved that they were not the best judges in these questions. Since the appointment of the present solicitor-general, there had been three bills brought in for alterations in the practice of the court of King's-bench late in the session, and at one or two o'clock in the morning; and not one of those bills had had the concurrence of the profession. No bill of that nature should be entertained by the House without previous inquiry before a committee, where the truth could be elicited without offence to any one. No attack was intended on the lord chancellor. There was no need of any array of counsel on one side or the other. Innovation was not the object of the committee. It was asked for, in order to ascertain whether any, and what alterations were necessary. If the noble fabric of jurisprudence erected by our ancestors was, or seemed to be, defective, he should approach the task of amending it with the greatest reverence for the venerable edifice, and he should rather consider the evils as arising from present circumstances than from any other cause. He would suppose a case, which perhaps he might state thus—If a judge, who was acknowledged to be a man of extensive learning, as well as of great talents, should be, by any cause arising from age or sickness, unable to fulfil, as he had formerly done, the duties of his situation, he would not alter the constitution of the court in which that judge presided. He would not make the court fit the man, because the man did not exactly fit the court; but he would provide a remedy for the existing evil, leaving that which experience had sanctified to remain untouched. If there was a general opinion, that some modification was necessary in the court of Chancery, why not inquire? With respect to the delay of the court of Chancery, it was quite proverbial. It was not the complaint of to-day; it was the complaint of the last century. The late Mr. Justice Buller had not hesitated to declare, that he considered the court of Chancery a nuisance. He (Mr. S.) could not say he thought so; for he believed that court to have many excellent properties; but, if any thing in it was grievous, the House ought to inquire into it. For himself, he should always strenuously oppose any alteration, not founded on previous inquiry; convinced that, as it would be made in ignorance, it would end without producing any beneficial effect.

As soon as the hon. and learned gentleman sat dawn, the cries of "Question, divide, withdraw," prevailed. The gallery was partially cleared. No division, however, took place, and

Mr. Broughum

rose. He began by observing, that he was not surprised at the impatience which had been manifested by the House, when he considered the lateness of the hour, and that it was the second night of a debate on a subject as dry as could well occupy its attention, and in the course of which so much talent, ability, and discretion, had been displayed on both sides; but more especially by his hon. and learned friend, who had introduced the subject to the notice of the House. He must nevertheless, regret, with his hon. and learned friend who had just spoken, that the whole of the debate had been confined to the legal members of the House. He could have wished that, as well as the artists and practitioners in that court—which, in as well as out of the House, had been admitted to be a court of pain and peril, of loss and suffering, of delay and anxiety, of expence, of misery, of penury, and even in some instances the cause of death itself—he could have wished to have called up in witness before the House, some of those who had suffered, not the last, but the scarcely lesser evils—some of the parties to a Chancery suit—some hapless man bending under the weight of penury, the consumption of means, exhaustion of body, and almost of vital energy—some of those who had gone for relief into that court, where it was technically said, relief could alone be obtained. He could have wished that some such one would have started up, and let the House only look upon him. He did not desire to hear him speak—he did not wish they should be pained by hearing his feeble and scarcely audible voice—he only wished that the House could look upon one of these unhappy objects of the care of the lord chancellor. But he knew this wish was in vain: the suitors would not come; and when his hon. and learned friend de-sired a committee for the purpose of inquiring into the subject, they were told, that they should have any thing else but that. They might make speeches, and attack the court of Chancery generally, and in detail, but there was one thing which should not be granted. Let the case be never so strong—let the instances be never so multiplied—let them be never so stringent or applicable—still, a committee to hear evidence, and make a satisfactory investigation into the subject, should not be granted. And who, he must be allowed to ask, were they by whom the door was shut upon this ardently-sought inquiry? Was it by the members of a hostile branch of the same profession—by common-law men who were enemies to the court of Chancery, and whose unfriendly feelings were founded upon their dislike of the peculiar privileges, the separate jurisdiction, and the extended powers of that court? Was it by these persons that the ears of the House were shut against reason, argument, and fact? No such thing. Was it then, by those, if any such there were, who had the misfortune to call the lord high chancellor their enemy, and who were inspired by personal hostility? No such thing. The denial came from the noble and learned lord's own friends—from those whose friendship for him was so delicate and tender, that it prompted them to refuse an inquiry into the conduct of the court over which he presided. They thought they discovered a personal attack upon the judge, in a mere desire to inquire into abuses as old at least as the time of dean Swift, who had described Gulliver's farther as having been ruined by gaining a Chancery suit with costs. He (Mr. B.) entertained the highest respect for that noble and learned lord's judicial character. All that he had seen of him,—which, indeed, had been little more than in the private intercourse between gentlemen of the same profession,—called for his gratitude for great civility which had always been displayed towards him. He knew nothing of the noble, and learned lord which did not entitle; him at his (Mr. B's) hands to great respect, in his character of a judge. He did not say any thing of him as a politician. He wished to draw a broad line of distinction, between the two parts of his character. But he had such a feeling of respect for the noble and learned lord, that he could not help saying, with the most perfect sincerity, that he wished him better, abler, bolder, more discreet, and more skilful advocates, than his cause,—if it was the cause of the noble and learned lord,—had found in that House. If men had been imbued with the most deadly hatred for the lord chancellor—if they had laid their heads together and had racked their wits to find out the means by which the fame and character of lord chancellor Eldon might be damaged, and his reputation as a judge sullied,—they could not have selected a more effectual mode of accomplishing it, than the course which those who called themselves his friends had thought proper to adopt. The hon. and learned member for Exeter (Mr. W. Courtenay), himself a master in Chancery, had told the House last night, that he was most anxious to defend the lord chancellor. And he had shewed the sincerity of his anxiety in a most singular manner, by voting twice against an adjournment, and thus endeavouring to put an end to the inquiry, and deprive himself of that very opportunity which he professed himself so anxious to seek. The attorney-general had made his reply, such as it was, to the indeed unanswerable statement of his hon. and learned friend, the member for Lincoln. He was followed by the hon. member for Durham, who had so laudably applied his mind to this subject, and who had brought forward much valuable, information in his various statements to the House connected with this question. And then came the anxiety of the hon. and learned member for Exeter; and how did it first exhibit itself? for it really was deserving of investigation, and here at least there was no bar to inquiry. The master in Chancery remained mute; or if he did utter a syllable, it was merely the cry of "Question, question!" He had then resisted the motion of adjournment, and tonight he came down prepared at all points, to defend the character of the lord chancellor—by arguing against all investigation! His object was, not inquiry, but a decision; not proof, but the weight of numbers;—the irresistible illumination by which so much light was thrown on certain discussions in that house.

His hon. and learned friend, the member for Lincoln, bad stated very justly, that the practitioners in the court were afraid to bring forward the cases which came immediately within their knowledge, lest it should affect their business in the court. Nothing could be more natural, and certainly nothing less offensive to the lord chancellor himself, than such an opinion; but how had it been tortured into a studied offence of that noble lord by his meritorious defenders. "What!" it was said, "was it to be presumed that the lord chancellor would descend to the exercise of any vindictive decision against those who came forward and furnished evidence?" He, who knew the lord chancellor, would say No. He was quite certain, that if in the course of to-morrow that solicitor from whom his hon. and learned friend received his information, were engaged in any cause in which it be came necessary that he should see the noble lord, his act would be obliterated from the chancellor's memory. But how were the suitors to know this? And, therefore, without a compulsory process, which would bring their evidence fairly be fore a committee of that House, it was idle to expect such information. He was surprised that the attorney-general, who was on most occasions a perfect model of fairness, should have, in the warmth of argument, imputed to his hon. and learn ed friend that which in his cooler moments he would regret—that he should put so unfair a gloss upon a perfectly fair and n natural inference. If he were disposed to charge the lord chancellor with corruption—if he were, disposed to do him as much mischief by his zeal, as his friends had that night succeeded in bringing upon him by their unintentional hostility—he should not hesitate—he owed a duty to his country—he should discharge it fearlessly: and therefore he marvelled much to hear his hon. and learned friends talk about calumnious attacks, when he knew that if his hon. and learned friend, the member for Lincoln, intended to impute corruption or to charge abuses upon the lord chancellor, he would not shrink from the avowal of his intention. He knew, too, that his hon. and learned friend, the member for Oxford, who had dealt very liberally in imputing such in- tentions to others, would not, if he had received his instructions, refrain from saying any thing that he thought would be beneficial to his client, however scandalous or calumnious it might appear; and therefore, if he had hesitated to state the calumny communicated to him by his client in the case of Ware and Horwood, it was not because he thought it scandalous, but from a conviction that it would not prove serviceable to his client's interest. He had no right to institute any previous inquiry; he was bound to rely upon his client's instructions; and if that client misinformed him, upon his own head must the consequences descend. He knew enough of the professional habits of his hon. and learned friend, the member for Oxford, to say that this was his practice. It had been his (Mr. B's) fate, some time since, to be engaged in the same cause with his hon. and learned friend, and he well recollected the consequences which followed his hon. and learned friend's bold and manly discharge of his duty—a duty which he discharged without considering how high the head was, against which his censure might fall. His hon. and learned friend let fly his arrow boldly, and the parties had subsequently settled the matter between themselves; by which adjustment a certain noble person went for three months to prison.—There was no one who thought more highly of the justice and the conscientious scruples of the lord chancellor than he (Mr. B.) did, and he was well aware that the most rigorous attention would be paid by him to-morrow to any solicitor of his court who supported the present motion, or assisted the inquiry if it should be gone into. But, did the suitors know that?—Did the clients know it? No: and what would any one of them say to his solicitor who should give the management of a cause to his learned friend, the mover of this inquiry, if he were a practitioner in that court? It was for that (reason, to avoid all those objections, that he asked them to send him up stairs to inquire—to allow him to call for persons, papers, and records. Let them examine evidence, and let the result be, he would not pretend to say what it would be, but let them come to some decision, and either Acquit or condemn. That was his principal reason for voting for the inquiry. He knew that there was no other mode of getting at the actual truth. He knew also that the documents on the table were im- perfect. He would mention one instance of their inaccuracy. The attorney-general had talked much of the increase of business, whence he inferred the necessity for increasing the machinery of the court. He had said, that nearly double the number of bills had been filed since 1810. It was not very consistent with the subject to talk about nearly doubled—this word "nearly" ought not to be applied to matters relating to courts of justice. The attorney-general had compared 1810 with 1823. In the former year, the number of bills filed, was 1,700, and in the latter 2,400. This was what the attorney-general called "nearly doubled." According to the ancient system of calculation, twice 17 used to make 34. So far from being doubled, it was not one-half more. This was another instance of the necessity of going into a committee.

There was another part of the speech of the hon. and learned attorney-general, which he wished to notice. He meant that part of it which was received with a cheer, such as he hardly remembered to have ever heard in that House, and which he was only prevented from calling a yell, by the respect which he entertained for the present assembly. Sure he was, that the chorus—the Io Triumphe—proclaiming the defeat of his hon. and learned friend still rang in his ears—he meant the yell following the attorney-general's vigorous detection and exposure of his hon. and learned friend, the member for Lincoln, who had asserted that for one bill the charges for attendances, &c. amounted to 1,030l. in that particular cause. Now, it turned out that his hon. and learned friend was wrong, and that he might have with more correctness computed that bill at some hundreds more. This case would be enough, if it were not accompanied (as it was) by many others, which showed the necessity of inquiry, and of endeavouring to avert that calamity, which it was allowed pressed so heavily upon the country. To listen to some honourable members, it might be supposed that his hon. and learned friend, the member for Lincoln, had now for the first time broached a subject which had never before been heard of by mortal. He (Mr. B.) had mixed much as well with those who now practised in the court of Chancery, as with those great and good men who had been removed from them for ever—men who were at the same time the ornaments of the law and of human nature —men who had practised as many years in the court of Chancery as the attorney-general had practised months, and who had been engaged in as many thousands of equity causes (notwithstanding the learned gentleman's extensive success) as the attorney-general had been in tens; and all these great men had pronounced, with one voice, that that court was a great public grievance, and the severest calamity to which the people of England was exposed. If there was an evil to the country, which affected every man who had property, and those who had not, perhaps in their domestic or personal relations—which interested the comfort, the independence, or the personal liberty, of every one of the people of England—it was the court of Chancery. This had been so deeply felt by some who had practised in that court, that they had laid down the practice; notwithstanding the effects of early education, fixed habits, and their rising glory. All these considerations had been put to flight in their candid and ingenuous minds, by having daily exhibited before them the wounded feelings of suitors, whose hardships sprung from the same source whence they were drawing fame and fortune. One of those great men, now no more, the late lamented sir Samuel Romilly, had left behind him his recorded opinions upon this subject; and he owed it as a duty to declare, that those opinions should one day see the light. They had been deposited in his hands as a sacred testimony, and they would amply prove, that the abuses of the court of Chancery had not been over-stated by his hon. and learned friend, the member for Lincoln. Let gentlemen go among those persons who practised exclusively in this court, and without whose assistance no suitor would think his cause safe, and if they hesitated to acknowledge the existence of these abuses—if they admitted a peg upon which any hesitation could be hung—if they did not confess that his hon. and learned friend had understated his case, then he (Mr. B.) would say, "give us no inquiry." But, as he knew that the contrary would be their answer, and as he wished to see those gentlemen examined, he called upon the House not to turn away the people from their bar—not to shut their ears to that case which had been SO ably laid before them by his hon. and learned friend—not to refuse justice to these who were his clients and the House's suitors—not to forsake their duty by refusing an investigation.

Nor would he have it supposed that the present administration of justice in the court of Chancery was a matter which concerned persons of property only. The poorer classes of the community were equally interested in it. He would ask any professional man, common-law as well as equity lawyers—and upon the answer he would be content to rest the issue of this part of the argument—whether, when the case had been sent him of a person kept out of a property of small amount which belonged to him, and when by his skill he had discovered the precise nature of the wrong, if he found that the only remedy was to be obtained in the court of Chancery, he would not think he had reduced the problem ad absurdum. No man who ever put a forensic habit on his back would think of advising a suit in equity to recover 50l. or 80l. or 100l. Could there, then, be a greater libel upon the law of a country, than to say that a man must be kept out of his right, because, if he sought it, the costs of the court of Chancery would be his inevitable ruin? Would the House hear this, and say—"We are not able to deny it, we have not assurance enough to question any part of it, but yet we will not grant an inquiry into it?" After that night's debate, would they say, "You, may deliberate, but it shall be with your eyes bandaged; you may labour night after night, but it shall be in utter darkness; for we will carefully shut up every, aperture by which light may be admitted?"

He felt that at that hour of the night it was not expedient to go into all the details of this subject, but there were some to which he should allude; as he would; not have it said that he had scrupled to state what he thought necessary to the subject. The number of bills had been insisted upon as proof of the increase of business in the court of Chancery; but this was at best a very equivocal proof of that fact. Every wrong-doer, every one in a mala fide possession, might file a bill; and there was every inducement to do so, when the slowness of the court of Chancery produced slowness in geometrical progression; for if there was too much business in die last year, the arrear in the next would be increased. Many of those bills, also, arose from common-law causes, and were not of the staple business of the court of equity;—In the year 1813, one had been added to the number of judges. And this led him to the inquiry how the business of the Rolls court was transacted. In naming it he was compelled not to regard to whom he might give offence. As a member of parliament he was bound to regard the suitors more than the judges, and to take more care of the interests of the former than the feelings of the latter. In 1817, an alteration was made in the Rolls court, by the secession of one of the greatest judges of modern times. He had no right to approach sir W. Grant, even in the character of an eulogist; but he could not refrain from paying him this tribute of praise, and of adding, that his retirement was a subject of unanimous regret to the profession. Sir W. Grant discharged the business of his office without delay or arrear; and there was no complaint of unsafe expedition, or of want of caution. In the Rolls court, and during the war in the prize-appeal court, he had discharged his functions with equal talent, and equally to the satisfaction of the suitors. His brilliant judicial career being closed, sir W. Grant was succeeded by sir Thomas Plumer, a gentleman who had previously been the vice-chancellor, and who, before that, had the reputation of being one of the best advocates. It did not, however, always happen, that the ablest advocates made the best judges; and, in the instance of sir W. Grant's successor, he (Mr. B.) did not insinuate, but he distinctly said, that he had proved so decidedly inferior, that the loss of the late master of the Rolls was regretted more than ever. A very ingenious person, sir John Leach, succeeded as the vice-chancellor. The number of causes disposed of in that court increased suddenly, and amounted, upon an average, from 126 to 453 causes; from 216 to 332 petitions; from 1,395 to 1,846 motions; from 235 to 821 exceptions; and from 194 to 318 pleas and demurrers. The total increase of business in the vice-chancellor's court from the time that sir T. Plumer left that court to the present time was, 1,250; and, with the increase of the business in the court of Chancery made a total of 1,600 pieces of business. But, this increase was as much attributable to the departure of sir William Grant from the Rolls as to sir John Leach coming into the vice-chancery. In fact, the business of the Rolls from that time had very much diminished. It was no merit to say, there were no arrears where there was no business. But it was: said, that as the suitors went voluntarily into the courts of equity, the increase of business in the vice-chancellor's court was a decided proof of its merit. This was not true; for suitors did not go voluntarily into that court, but were sent there by the lord chancellor; and that was the great burthen of the complaint against the system. The attorney-general had said, that that great fountain of learning and of law—the court of Chancery—should be open to all alike. So he (Mr. B.) said too, and, therefore, it was, he complained, that the functions which few others but so wonderful a man as the lord chancellor could perform, should be executed by deputy. He deprecated this system of deputyship altogether; for he predicted the worst effects from it to the pure administration of justice. The situation of chancellor of this country, whilst it continued to be the difficult and arduous situation which it now was, must be filled by extraordinary men. But if this system was to prevail, that might soon cease to be the case. If the duties of this high office were to be put in commission—if one half of the business in Chancery was at one time to be taken away and confided to a deputy keeper of the seals, and a deputy, or journeyman, Speaker of the House of Lords was to be appointed at another, who could say where this was to end, and whether the younger sons of great families might not in time be educated for the chancellorship as they now were for a mitre? So long, however, as the situation of lord chancellor continued to be one of difficulty and of high honour, so long would it continue to be decorously filled, and such men as Nottingham, Hardwicke, and Eldon, would be found,—among whom none was a more learned or a more incorruptible judge than the latter noble and learned lord, although he (Mr. B.) could not help lamenting that defect of his understanding, that proneness to doubt, which he had even heard the learned lord himself deplore, on account of the suitors of his court. Let, then, the doors of the court of Chancery be opened wide, and access be given to all, to this oracle of the law. Let not a turnpike be clapped, upon it, in the shape of the vice-chancellor's court, and a toll be exacted. It was this toll—this turnpike nuisance—that he wished to see abated.

Having said thus much of the jurisdiction of the court of Chancery; he would now come to the Appellant Jurisdiction of the House of Lords. He was afraid he was exhausting the House, but this was really a topic of considerable importance. A great deal had been said, about the small number of appeals from the lord chancellor's court to the House of Lords. But what did that amount to? Having once become acquainted with the lord chancellor's decision, it seldom occurred that suitors consulted him a second time in the House of Lords; because his judgments were known to be given so advisedly that he would not hastily change them. The Irish and Scotch alone then were interested in the question of appeals. Upon the latter class much had been said, but the former appeared to him to have been most unaccountably overlooked. The number of Scotch judgments either remitted, or reversed upon appeal to the House of Lords, was certainly very great; but the number of those from Ireland were much greater. He could assure an hon. and learned member who had preceded him in this debate, and who had taken occasion to eulogise an individual holding a high judicial situation in a sister kingdom, that he (Mr. B.) had no wish to speak harshly of any judge; but it did so happen, in respect of the case which had been so fancifully put by his hon. and learned friend who had spoken so well and with so much liveliness on this subject, that the very despatch which formed the matter of his hon. and learned friend's panegyric was a despatch that was attended with no very advantageous, but with very vexatious consequences to the parties interested. This happened to be the precise case with the present lord chancellor of Ireland [hear, hear]; and in looking at the paper which was on the table, he found that almost all the judgments of that noble judge, in one particular year, which had been appealed from, had been reversed by the lord chancellor of England. It seemed that upon an average of ten years, out of 100 appeals from the judgments of the Irish chancellor, 50 of these judgments had been reversed. God knew, after this, it could: hardly be said that the question before the house had been raised, or any misrepresentation had been suggested, in a spirit of hostility to this learned and noble lord, of whom he was entitled to say, that in pronouncing judgment he was wrong about once in two times. Such had been the result of the appeals he spoke of, which were heard and considered by the English lord chancellor, assisted by lord Redesdale. Why, such being the fact, and such the different views which were taken of the same subject by these learned and noble lords, it was impossible that the House should, not be reminded of the old case, in which it was a question, whether the plaintiff A. was entitled to recover of B., the defendant? One of the bench thought he was so entitled, and stated his reasons for the opinion at great length; but the other judge contented himself with declaring, that, upon the very grounds which his learned brother had laid down, why A. should recover, he himself was thoroughly satisfied that the tight of recovery was in B [A laugh]. So it was precisely with the Irish Appeals. Indeed, so exact a proportion did the reversals of the Irish appeals bear to the affirmations of them, that it was an even chance in every case, whether the noble judge of the sister island was right or not. The hon. and learned gentleman then bore testimony to the great improvement which was visible, of late years, in the selection made by his majesty's ministers of the judges to preside in the courts of Scotland; and to the better conduct of legal proceedings in consequence. He the rather mentioned this topic, because he was convinced that the Scotch judges were generally men of as much probity and honour as could any where be met with; and because all the great men at the Scottish bar happened to be connected with the politics of that side of the House with which he himself usually voted and acted. There was therefore so much the less reason to anticipate such a selection as had been adopted. Nevertheless, he was happy to bear his testimony to the superior degree of liberality and fairness with which they were now chosen by government, as compared with the practice of former years, and in reference to their political principles. Now, the House had been for some time past talking very freely of English courts and English judges; but let it not be supposed that Scotch judges were immaculate, or that they always acted up to that just and wise policy (for it was wise as it was just) which governed their selection. He would gladly hops, indeed, that they were generally actuated by that principle which, to the honour of the English judges, had usually been observed in them, upon coming to the bench,—namely, a total abandonment of all political prejudices and passions. When he first knew the Scotch bench, it was the custom for men of all principles to act differently. They then always seemed to consider as they rose, step by step, that each advance was only the price of some act of political subserviency on their part; and that, as they had been at an earlier period of their lives political barristers, so they were to remain for life political judges.

His hon. and learned friend, the member for Lincoln, had shown that in the court of Exchequer also there were at one time no less than 160 causes in arrear. But the moment that an hon. and learned friend of his (Mr. Martin), in a former parliament, introduced a bill for the chief baron to sit alone in equity, the whole of the arrear was got under, and the consequence was, that there remained in that court very little business to do, and the practitioners would have willingly had a great deal more. And yet equity suitors would not go into it—so great a charm was there in a name, and so great a desire had every one to have the advantage of the lord chancellor's' opinion. An arrangement might be made which would make it imperative in suitors to go into this court. Various other arrangements would suggest themselves; but let it not be understood that the present motion suggested any project whatever. All that was asked now was inquiry. He had heard of various projects, but his hon. and learned friend had wisely, in his mind, abstained from alluding to them. He had heard that it was in contemplation to originate a measure on this subject in the House of Lords, which was afterwards to be sent down here. But who could say that such a measure would ever come? The burthen of that proposition he had heard, was to appoint a vice-speaker, on whom would devolve all the appellant business. He had heard, amongst others, lord Colchester named to this office, and the appointment was recommended by the consideration, that it would be attended with no expense, since that noble lord already enjoyed a pension of 4,000l. a-year as retired Speaker, and for this he might welt hear Scotch appeals.

Mr. Hume.

—The noble lord has a patent place too.

Mr. Brougham

said, he was obliged to his hon. friend for suggesting to him, with his visual accuracy, that the noble lord had a patent place also. Was it not very fitting that the House should be consulted on the matter of this vice-speaker's appointment? The justice of the court of King's-bench, they knew, held a perpetual deputation of this office of vice-speaker. He. (Mr. B.) had pleaded before him in that capacity at the bar of the other House, but, so trammelled was the chief justice by the forms of the House in this respect, and in so unfortunate a situation was he placed in respect of the suitor, that all which he had the power of saying was—that the "contents," or the "not-contents," as the case might be, had it. He called on the House, therefore, for the sake of the people of Ireland and Scotland, to consider whether they would allow a measure to be adopted by the other House, which would prove so greatly detrimental to the rights of suitors, and so baneful to the administration of justice. At present the perfect confidence of the people of Ireland and Scotland always followed the decisions of the lord chancellor. However they might complain of delay, they never complained of an unjust decision. The noble and learned lord decided on the cases which came before him, with a degree of skill and penetration, and in appeal causes from Scotland and Ireland, with a degree of wisdom, which was most extraordinary; considering that to the law of the latter countries, and especially. Scotland, the noble and learned lord was, in some sort, a foreigner. Their law, however, he had reformed; inveterate abuses he had corrected, and the Scotch lawyers, however averse they at first were to the suggested reformations, soon perceived their value, acknowledged their expediency, and ultimately adopted them. But the case would be very different if the House of Lords, should think proper to delegate its appellant jurisdiction to lord Colchester, who, though a very good Speaker of the House of Commons, was no lawyer; and, in his opinion, a very bad politician. The noble lord was a very respectable man; but, from the peculiar nature of his pursuits for the last thirty years, to place him at the head of the administration of the laws of two ancient kingdoms in the last resort, would be an act of monstrous, glaring, and grievous injustice to the people of both those kingdoms.

The hon. and learned gentleman concluded by declaring his determination to support the motion of his hon. friend, the member for Lincoln, and by apologizing for the length at which he had detained the house upon this subject. He felt it to be one of the gravest nature, and was convinced that the adoption of the proposed inquiry would lead to the happiest consequences. He called upon the House for no premature decision. All he asked for was inquiry. He wished for the opinions of learned men of all the Bars, and of the respectable solicitors of the different countries. If, in the course of what he had offered to the House, he had felt it his duty, to allude to the noble and learned person at the head of the court of Chancery, it was not from any want of respect towards the noble and learned lord, but from an imperious sense of duty; and such was the high character of the noble lord, that he was sure he would be the very first to forgive whatever had been uttered under such feelings [Cheers, and cries of question].

The Solicitor-General

said, he felt it his duty, after the many personal attacks which his hon. and learned friend who spoke last had made, to say something, even at that late hour, especially with reference to that much-respected character the Master of the Rolls. Considering the affliction under which that upright judge and able lawyer was labouring, and that his hon. and learned friend had denied any intention of alluding to that individual personally, he thought a conclusion might have been obtained, by other means than those employed by his hon. and learned friend. The number of cases decided in ascertain number of years in the Rolls court while sir William Grant presided, might have been compared with the number decided in a similar period by the present Master of the Rolls. The number in the former instance might be found greater than in the latter; but the difference was inconsiderable. At the time the present I Master of the Rolls was appointed, there was an arrear of between 4 and 500 cases in the court, and since that nearly 1,000 other cases had come before it. All those, with the exception of about sixty, were now decided; which left an average of between three and four hundred for each year. He therefore thought that, considering the long and severe affliction with which that learned personage had been visited, the harshness of observation which his hon. and learned friend had made use of, might have been spared.—The attack upon the lord chancellor of Ireland was equally unfounded. The hon. and learned gentleman had said, that, out of a hundred decisions come to by the lord chancellor of Ireland, fifty had been, on appeal, reversed; and from that fact, the hon. and learned gentleman had drawn the preposterous conclusion, that it was an equal chance whether the lord chancellor Ireland decided right or wrong; as it those hundred cases were all that the lord chancellor of Ireland had decided. A similar sort of argument was applied to the appeals from Scotland.—His hon. and learned friend who brought forward the present motion had said, that in what he stated respecting the lord chancellor he meant nothing personal. He would admit that, in terms, his hon. and learned friend had not attacked the lord, chancellor personally; but he appealed to the House whether his hon. and learned friend's whole speech was not, in substance, a personal attack on that noble and learned person? What did his hon. and learned friend mean, when he talked of a surreptitious decree obtained from the lord chancellor? In short, the whole debate had been made by the hon. gentlemen opposite, a personal attack upon the head of the law of the country. His hon. and learned friend, the member for Nottingham, had delivered one of the most bitter speeches that could be conceived, but still in terms perfectly polite. He said that the lord chancellor had a character, for doubting, and that merely in legal questions the public had the benefit of his doubts; but, where political questions were concerned then his doubts were laid aside and he decided at once. The Queen's case had then been introduced; and it was stated, that with respect to the removal of her majesty's name from the Litany, the lord chancellor abandoned his ordinary habits of doubting, and decided without delay [hear, hear!]. Honourable gentlemen on the opposite side cheered this; but, if it was not meant to be personal, why, he asked, did they cheer? It was also said, that the lord chancellor had decided wrongly, eight years ago, in the Portsmouth case; and that recently he had introduced some new doctrines with regard to literary property; but the latter in particular, he would most emphatically deny, and would maintain that those, doctrines had been strictly consistent with the whole train of decisions on anomalous cases. After what had occurred in former sessions, he did not expect the renewed agitation of this question. The hon. member for Durham had repeatedly brought forward; and, from the decisions so offer come to, he had little expectation it would have been revived in the manner it now was. Formerly documents were moved for. On the present occasion there were none and private sources were relied on, upon which scarcely a single comment could be made. He know the source from which they proceeded; and he could confidently assert, that the letter read and relied on, in the case of Ware and Horwood, was unfounded in fact.—The hon. and learned gentleman then defended the erection of the vice-chancellor's court, and detailed the manner in which the time of the lord chancellor was fully occupied throughout the year, with the view of showing, that if the vice-chancellor's court had not been erected, the whole of the business which had been done in it must now have been hanging as arrears upon the court of Chancery.—He then proceeded to observe, that the only ground for inquiry was, the arrears in the court of Chancery. But the fact was, there was he arrear in the vice-chancellor's court—there was no arrear in the equity side of the court of Exchequer, although slurs had been thrown on some of the venerable judges who presided there—there was no arrear in the Master of the Rolls court. And, what was the fact with regard to the court of Chancery itself? The number of motions during the last ten years had been 20,000; the number of petitions nearly 5,000; and the number of causes between and 500; and the only arrear was about one-tenth of these causes, or what might be considered one year's business out of ten. In this enumeration he omitted the appeals, but he should afterwards return to them. He would now ask his hon. and learned friend, the member for Peterborough, if the arrear just stated in the causes before the court of Chancery, exceeded the usual arrears in the court of Common Pleas or King's-bench? [Mr. Scarlett dissented]. At least, till lately the arrears in the courts at Westminster were equal to the present arrears of the court of Chancery. The sole ground, however, for inquiry was those arrears; and in appeals they amounted to 104, the earliest of which was not of an older date than about the middle of the year 1819. Did these facts warrant an inquiry! He was clearly of opinion that they did not, and should therefore oppose the motion.

Mr. Secretary Canning

rose, amidst loud cries of "question." The House, he said, might be assured, that at that late hour, and after the length to which the debate had already gone, it was not his intention to add more than a few minutes to it. Nor should he have risen at all; but, after the pointed allusion which had been made to him in the early parts of the discussion, he did not think that he should discharge his duty, if, considering the situation in which he stood as colleague of the noble and learned lord who presided in the court of Chancery, he were not to state the impression, which, as the only unlearned person who had spoken on the subject, the discussion had produced on his mind. Those who had heard the debate would at least derive one advantage from it; namely, the testimony which it bore to the talents and eloquence of the English bar. Dry and revolting as were the details, he had never listened with greater attention to any debate, and never was he more amply rewarded by the manner in which it had been discussed. [The right hon. gentleman was here interrupted by loud snoring from a member in the side gallery, and the laughter that followed it]. He could assure the House, that he would most willingly exchange situations at that moment with the gentleman who gave such forcible proofs of his insensibility to all worldly cares. He trusted, however, that ere long they would all be in the enjoyment of that happy oblivion. The case which the House was called upon to decide was the arrears in the appellant jurisdiction, and the delays in the court of Chancery. The subject was therefore naturally divided into those two branches. As to the appellant jurisdiction, the learned gentleman who opened the debate in a speech of great force and ability, had alluded to the part which he (Mr. Canning) had taken in 1813. It was perfectly true that he, as an humble individual, had opposed the erection of the vice-chancellor's court. He had thought it not a good way to set the lord chancellor at liberty, to erect a new court with an appeal to him. He had opposed it on the ground, that any new jurisdiction which was not without appeal would not answer to the fullest extent by setting the lord chancellor at liberty. But if few appeals had been made, he must acknowledge, all prophet as he was (for prophetical the hon. and learned gentleman had been pleased to designate the opinions which he had stated), that great good had been done, though he should undoubtedly still consider any experiment of the same sort as liable to equal objections. But, if he opposed the erection of the vice-chancellor's court at that period, it was no reason why he should wish now to see it demolished. It had once been said by an hon. gentleman, whose illustrations were generally apt, that when an evil existed, to undo it again was not always the way to remove it; for if a man fell out of a window and broke his leg, it would not cure the fracture to throw him back again. So it appeared to him with respect to the vice-chancellor's court. The second ground on which he had opposed the erection of that court was, that the evil complained of existed in the jurisdiction of the House of Lords, and that it was, therefore, in that house that the remedy ought to be sought. So that the whole of the argument of the hon and learned gentleman, by which he wished to prove that he (Mr. Canning) was bound in his vote now, by what he had expressed in 1813, fell to the ground, and formed no argumentum ad hominem which could possibly affect him.—With respect to the other branch of the inquiry, the delays in the court of Chancery, he did not stale it as invidious in the hon. and learned mover, and certainly he could not with justice to the other hon. and learned gentleman (Mr. Brougham) impute any thing of the sort to him. He did not believe that there had been any studied unkindness with respect to the noble and learned lord; but this he must say, that, from the whole course and current of the debate, from expressions used (no doubt in the warmth of the moment, and not meant to go to the extent which they did), he was convinced that the House could not go into the inquiry without its being considered, in the eyes of the public and of all mankind, as an accusation against the lord chancellor. Certainly he did not impute to the hon. and learned members for Lincoln and Winchelsea any intention of making such accusation, and he equally acquitted the hon. and learned member for Nottingham of it; though he confessed he found it more difficult otherwise to account for some of his expressions. But though there was no intention of impeaching the judgment, the diligence, the capacity, or the integrity, of that eminent person, yet, as he felt confident that an inquiry would, in the eyes of many persons, be construed into a stain on his character, and thereby tend to neutralize the effect of the high qualities which it was admitted on all hands the noble and learned lord possessed, those considerations would restrain him from giving his vote for the proposed inquiry.—With respect to the appeals in the House of Lords, that House was now employed in devising a remedy, and he therefore did not think that it would be expedient for die House of Commons to interfere. As for the arrears in the court of Chancery, he was assured they were much less than they were universally imagined to be; and as he could not doubt the noble and learned lord's intention to take every means in his power of reducing them, he could not consent to give a vote which would cast any doubt upon those intentions—much less could be give a vote which might appear to call the noble and learned lord's character, judicial or personal, into question.

Sir F. Blake

asked, if the present question was to be decided by the suitors of the court of Chancery during the last thirty years, where the Noes would be found? He would answer, now here. He felt for those suitors. Those who were present might all be in that unhappy predicament before long, and therefore he would most cordially support the motion.

After a short reply from Mr. J. Williams, the House divided: Ayes, 89; Noes, 174. Majority against the motion, 85. The House adjourned at half-past two o'Clock.

List of the Minority.
Allen, J. H.	Fergusson, sir R.
Althorp, visc.	Glenorchy, visc.
Anson, Hon. G.	Grant, J. P.
Barnard, vise.	Grattan,J.
Benett, John	Griffith, J. W.
Bennet, hon. H. G.	Guise, sir B. W.
Benyon, Benj.	Gipps, G.
Blake, sir Francis	Hobhouse, J. C.
Bright, H.	Hume, J.
Brougham, H.	Hurst, R.
Byng, G.	James, W.
Calcraft, J.	Jervoise, G. P.
Calcraft, J. H.	Kennedy, T. F.
Campbell, hon. G. P.	Kemp, T. R.
Campbell, W. F.	Lamb, hon. G.
Carter, J.	Lambton, J. G.
Cavendish, lord G.	Langston, J. H.
Chaloner, R.	Lemon, sir W.
Coffin, sir I.	Leonard, T. B.
Creevey, T.	Leycester, R.
Cradock, col.	Lushington, Dr.
Davies, T.	Leader, W.
Denison, W. J.	Maberly, W. L.
Denman, T.	Mackintosh, sir J.
Ebrington, visc.	Marjoribanks, S.
Ellice, Edw.	Milbank, M.
Evans, W.	Milton, visc.
Earrand, R.	Monck, J. B.

Newman, R. W.	Scott, James
Normanby, visc.	Sebright, sir J. S.
O'Callaghan, J.	Sefton, earl of
Ord, W.	Smith, Robert
Palmer, C. F.	Sykes, D.
Philips, G. sen.	Talbot, R. W.
Philips, G. H. jun.	Taylor, M. A.
Powlet, hon. J. F.	Tierney, G.
Price, R.	Titchfield, marquis of
Pym, F.	Townshend, lord C.
Rice, T. S.	Webb, Edw.
Ricardo, D.	Whitbread, S. C.
Rickford, W.	White, col.
Robarts, G. J.	Williams, sir R.
Robarts, A. W.	Williams, W.
Robinson, sir G.	TELLERS.
Russell, lord J.	Williams, J.
Scarlett, J.	Abercromby, hon. J.