HC Deb 07 June 1825 vol 13 cc1068-97
Sir F. Burdett

moved, pursuant to notice, "That an humble address be presented to his majesty, that he will be graciously pleased to give directions that there be laid before this House, the evidence already taken by the commissioners for inquiring into the practice of the court of Chancery."

Mr. Secretary Peel

said, he would briefly state the reasons which induced him to oppose the proposition. He resisted it solely upon public grounds, and without the intervention of any personal feeling. He hoped that the time would come when the whole of the evidence taken by the commissioners might be laid upon the table; for a report of opinion merely, with out accompanying testimony, would certainly not be satisfactory. If the inquiry could be concluded in the present month,it might be presented, but not printed until next session. He believed it was without precedent for the House to call upon the Crown to present evidence merely, unaccompanied by any explanation or report of opinion; and unless some strong ground were laid, he should consider it an unnecessary interference with the course of proceeding marked out by the Crown, and not yet completed. He contended that no public object could be gained by complying with the motion. If the evidence that had been taken could be laid upon the table, no public measure could be founded upon it this year. The commission had sat 70 days, and had examined 45 witnesses; so that some time must elapse in copying out that evidence in a state to be presented to the House. When presented, it must be printed; and when printed, it could not be weighed and digested in a moment; so that the adoption, or even the proposition, of any measure founded upon it was out of the question. He considered the inquiry as a most important one, and he utterly disclaimed any opposition founded on the mere purpose of preventing investigation. Indeed, it was his hope, that before long some efficacious remedy would be proposed for these delays; which, without attributing the slightest personal blame to any individual, he could not but confess, as an honest man, was highly necessary [hear, hear!]. It was his belief, that the report of the commissioners would be produced very early, and that it would prove to be ample in every particular of a case which centered within itself such immense importance. He had had very lately a communication with the noble and learned individual, who might, perhaps, be supposed to feel most interested in the question; and he could assure the House, that he found, on the part of the lord chan- cellor, no objection to any inquiry, and he had every reason to expect, from all that had been said, that a very full report, together with the evidence, would be presented before parliament could meet again. He hoped he had succeeded in satisfying the hon. member for Westminster, that it would, in the present instance, be better to wait to see what proceedings the commissioners had themselves instituted, and how much was already done; for even supposing the present motion was carried, it would be two or three weeks before the evidence could be printed; so that there would be no time left in the present session, to undertake anything in; besides which, in his opinion, any such proceeding would be a virtual supersession of the commission already appointed; not that he had any objection to the House, or the public at large, seeing what had been done by the commissioners, but considering the importance of their exertions, and that in the 70 sittings that they had had, every one who chose to give evidence was allowed to do so, tell how it would, he could not help thinking that, though there had been more delay than had been expected, the very best effects would be produced from their inquiries. On these grounds, and under the persuasion that the carrying the present motion would rather prejudice than forward the operations, he should give it his decided, but reluctant, opposition.

Sir F. Burdett

observed, that so long a time had elapsed since the commencement of these inquiries, that it became highly important that something should be done. The object that he had in view was, that another year should not be wasted without any thing being done. He did not mean to impute any blame to the commissioners; for he felt that their time was so much occupied with extraneous matter, that it was impossible for them to devote themselves sufficiently to the inquiry. But, when he said that, he must add, that he had not expected any thing at their hands; more especially when he found the lord chancellor at their head; who, he must say, without intending to impute any sinister motives to that learned lord, appeared to him to be the unfittest person in the world to place at the head of a commission to inquire into evils which for so many years he had seen growing under his eye, and which, therefore, he would be the less likely to consider as evils at all. But, he had, moreover, understood, that the powers of those commissioners were extremely limited, by no means going to the root of that evil. They went to the investigation of the practices of subordinates in this court; but not of the construction and nature of the court itself. Now, since the committee had been so long employed in collecting information, it was matter of extreme propriety that the House should be made acquainted with their proceedings. The evils to be inquired into were so extensive, so universal, that there was hardly a family which, at some time or other, had not been prejudiced by their baneful operation. The right hon. gentleman had expressed his anxiety to see some efficient remedy proposed for ills of such a magnitude, in a manner that did him the highest credit. But, he must say, that he thought it was not so essentially necessary for the House to be in possession of the opinion of any set of commissioners, as to find out, upon the evidence offered to them, some speedy relief for evils, which from day to day were going on, increasing in number and amount, and becoming more and more oppressive on the subject. They all knew very well, that the business of the court of Chancery was also from day to day enlarging. Was not this an additional evil? What was the nature of its proceedings? They were governed not by the common law of the land. It was altogether a sort of stolen jurisdiction, affecting to proceed on principles of the civil law, but really acting on a system that was repugnant to the principles of common law, and he might almost say, of common sense. Now, it was perfectly obvious, that one great remedy for the evils consequent upon the present constitution of this court, would be to provide for its proceeding upon principles of the common law. If, instead of that immense documentary evidence, and the production of that worst of all testimony, affidavits, in the way of evidence—if, instead of the lord chancellor's directing voluminous written statements to be made out, and the circuitous proceedings by numerous interrogatories, when, perhaps, that man might be sitting under the very nose of his lordship, who could explain the whole of the transactions in question before him—if this practice were done away with, and the rule of the common law and of common sense were resorted to, of taking the best, and not the worst testimony that could be obtained—of preferring oral testimony where it could be gotten, to more circuitous and uncertain evidence—then, indeed, something like permanent good would be effected. By the existing modes of dilatory proceeding, under which a person was not considered hound to attend the court until after he had been summoned three times, and by all those means which enabled a party on paying up his fees punctually, to go over so many seals—a dishonest man had it in his power to impose the necessity of following him through a course of almost heart-breaking litigation. Why, if, a whole year had been employed in collecting information only about the fees of Chancery, enough had been done to enable parliament to proceed, there was another part of the subject so perfectly obvious, that he could see no necessity for having a report upon it. If the other avocations of the lord chancellor did not give him time to attend to the business of the court of Chancery—a fact which was roundly stated—why, then, let us in God's name, have judges enough to do the business properly; let us not be placed under the necessity of pursuing justice by such dilatory and expensive methods. With respect to bankruptcy cases, some new provision ought certainly to be adopted. There was not he believed, a more fertile source of abuse, between parties, than the manner in which commissions of bankruptcy were sued out and prosecuted. In this department, there were no less than seventy judges, who might or might not attend, a their pleasure; and hence a most ruinous delay was frequently produced. The manner in which bankruptcy cases were now treated was the cause of great fraud and dishonesty. But then there was considerable influence attached to the system. Those seventy places were in the gift of the lord chancellor, and were generally bestowed upon young barristers to begin with; for no one would say that those who filled them were selected on account of their peculiar fitness for the situation. If there were only seven, or only two courts, attended by persons who would give themselves up wholly to the business, that business would be better done, and justice would be more speedily administered, than it was at present by this multitude of assistants. Twelve months ago a commission had been appointed to inquire into the practice of the court of Chancery. No report had yet been made; and the right hon. gentleman now declared, that it would be detrimental to the public, and, in fact, be an act of injustice, to produce the evidence taken before that commission. He could not, however, perceive that any mischief was likely to be produced by placing that evidence fairly before the public. The inquiry was connected with the general administration of justice in this country. In the courts of equity, the expense of procuring justice was much greater than in any other court; it therefore was proper, that the House and the public should get possession of every circumstance which could guide them to a remedy for so serious an evil. The first thing which ought to be placed in their hands was not the report of the commission, which appeared to him to be of no importance, but the evidence taken before the commissioners. That evidence ought to be produced immediately. So far from delay being advisable, much mischief would be inflicted on the public by withholding the information which he now moved for. He hoped, therefore, that the right hon. gentleman would change his opinion; and, if there were not some great inconvenience consequent on the production these papers, he relied on the good sense of the House in supporting this motion for making the evidence public.

Mr. Hurst

said, that his family had long been engaged in a suit which they had at length recovered; but out of every 10l. the expense of obtaining it through the court of Chancery had been 8l. 17s. 6d. A court that could countenance such an expense as that, was a burthen on the country; and he wished health and happiness to every man that was desirous of promoting an investigation into the system.

Mr. W. Smith

complained of the practice of the court of Chancery from his own experience. His father had called him to him on his death-bed, and told him, that he was happy to inform him that, in the course. of that week, a very long law-suit that he had had, had come to a termination by the death of his opponent. This suit, be it observed, had lasted two and-thirty-years [hear!].

Mr. Secretary Peel

said, he would willingly lay before the House a copy of the commission, by which the hon. baronet would at once sees the extent of its powers, and the variety of matters which it had to inquire into. He hoped, there- fore, that the hon. baronet would consent to withdraw his motion. Ere long, he trusted a report would be made which would give all the information required. Should it not be made, if the hon. baronet renewed his motion early in the next session, he would not oppose it. He had no desire to perpetuate abuses of any kind. A clearer proof of this he could not adduce, than the fact of his having that evening introduced a bill for putting a stop to a very great abuse—that of procuring frivolous writs of error.

Mr. Denman

observed, that the circumstance to which the right hon. gentleman had last alluded was, in fact, favourable to the present motion. The bill of which he had spoken was not founded on the report of any commission, but was brought in on account of the notoriousness of the evil which it was meant to correct. Now, those who supported the present motion, knew that the evils of the existing system in Chancery were notorious, and they wished, independent of that notoriety, to have formal evidence of the fact before them, without waiting for a report. The right hon. gentleman was willing to favour the House with the terms in which the commission was appointed. The commissioners were to inquire into the practice and the process of the court of Chancery. Of these terms he complained, because they were not sufficiently explicit. It might be true, that no such proceeding as that now submitted by his hon. friend, had ever before been resorted to in that House: but, the question was, whether the circumstances did not fully justify it? Was there ever a case, when the practice of the court of Chancery was touched, which did not induce gentlemen to start up and charge that court with delay and ruinous malversation? An hon. member had stated, that he had been charged nearly 8l. 17s. 6d. for the recovery of 10l; and when last this subject was before the House, two or three gentlemen had told him, that they could adduce many cases in which severe oppression was the consequence of the existing system. They related to him cases of annuitants as to whose right to recover certain sums of money no doubt existed, but who were unable to procure that to which they were entitled, until several of them joined to defray the expenses of an amicable suit. Many of those persons might die before a decree could be obtained; but, at all events, such delay must be created, as Was a disgrace to the justice of this enlightened country. In the city, if an individual had a claim upon a small quantity of stock, placed in the Bank, although there might be no doubt as to the right which the individual claiming had to it, still the answer regularly was, "We cannot pay it, until you have instituted a suit in equity." In many of these cases the attornies said, "Don't move in such a suit, for the costs will carry away all the money." These were matters of notoriety; and certain he was, that they would never be rectified, unless members applied their minds to the subject, and took the matter into their own hands. In the year 1823, the hon. member for Lincoln (Mr. J. Williams) turned his attention 'to this subject. The friends of the lord chancellor opposed his motion, and the question was lost. In the following year the motion was renewed, and it was then defeated by the right hon. Secretary of State, who proposed that a commission should be appointed to carry into effect the object which his learned friend had in view. Commissioners were appointed; but, up to this period, they had made no report; and, in his opinion, they were not likely to make one for some time. It appeared that they had sat for 70 days, and had examined 45 persons. They must, in such a period, and from so great a number of persons, have elicited much information which it was desirable the House should be possessed of. But they were told that some difficulty existed with respect to getting it through the press in time. He, however, believed, that the evidence might be printed in three or four days. It had already been lithographed, and any person might have it. In fact, it. was public, and he should be very sorry if it were otherwise. But this sort of publicity was not like placing it formally before that House. He would just quote a short extract from the evidence given before that commission by a barrister, which would show of what immense importance that evidence was. The barrister was asked "Whether he had ever seen the misery and sufferings of those who had been obliged to embark in Chancery suits, and whose hopes had been delayed and disappointed?" He answered " No; I see no such things. The solicitor passes between me and the client. I can only speak of the probability of misery being created by those delays. But this I know, that, after long litigation, the order of the court has been often drawn up to divide the remnant of the property, not for the benefit of the litigating parties, but in part payment of the Solicitor's bill." Surely the House could not; be aware of such monstrous cases, without feeling the necessity of speedily applying some effectual remedy. A distinction was attempted to be drawn on this occasion, founded on the circumstance of this inquiry being conducted by commissioners. Now, he could not see what distinction could fairly be drawn between commissioners appointed by the Crown, and a committee nominated by that House. Yet, in the latter instance, the evidence given had been considered a fit subject for legislation, without waiting for any report. Thus it was with respect to the committee on the state of Ireland. Such, he believed, was also the case with reference to the committee on the Combination laws. If evidence had been given before the commission, with respect to subpœnas, or any other process of the court of Chancery, he thought it was quite competent for the House to legislate on that branch of the subject, without waiting for any report. When the report came, it would of course be subject to the revision of that House, and to the scrutiny of public opinion; but, in the mean time, he thought it would be just as well it, pending the production of that report, the House were let a little into the proceedings of the court of Chancery by the publication of the evidence now called for. There was, he knew, a great degree of tenderness manifested towards the individual who presided in the court of Chancery. This proved nothing more than the extent of his influence. No man wished less than he did to give that noble and learned lord offence: but, he could not help alluding to him when he heard gentlemen argue this question on the ground,that no personal fault could be found with the individual who was at the head of the court of Chancery. He did not mean to say that there was any personal fault; but there might be personal fault; and that was a matter which he thought ought to be well considered. One fact alone would show the manner in which the business of the court of Chancery was conducted. In the beginning of last Michaelmas term, forty-five causes were set down in the paper to be heard in the term and on the last day of the term they still remained on the paper. Not one of those causes was touched; and he begged the House to recollect .that every one of the parties connected with each cause had to pay 1l. for being set down, exclusive of incidental expenses. If there were ten parties plaintiffs, and twenty parties defendants, each of them had to pay twenty shillings for the privilege of not being heard. A great deal of praise had been bestowed on the lord chancellor, because he disposed of much business by way of motion. He would say, so much the worse; because great interests ought not to be so disposed of. If the case were afterwards to be formally adjudicated, the hearing of it by motion tended only to instil prejudices into the mind of the judge; and if it were disposed of at once, it passed by without that solemn consideration which all cases of moment ought to receive. He threw out these observations without meaning any thing disrespectful to the individual; at the same time, God knew, he wished to pay him no unnecessary compliments. On the contrary, he would speak his mind boldly and fearlessly. He wished to show that the system was not altogether to blame, and if so, that those who were at the head of the court ought not to escape all censure on account of some supposed defect in its organization. The lord chancellor had been for twenty-five years a constant; witness of all the evils arising from the system, and it was a little surprising that he had made no attempt whatever to remedy those defects of which the public complained. On the contrary, he opposed with all his power every effort which had been made to remove those evils. He supported this motion on the very grounds laid down by the right hon. gentleman. He said, that if the proposition were made neat session, he would give it his sanction: but, a motion of this kind, made next year, would be just as unprecedented as the present. Why, then, should be refuse his sanction now? A great degree of distrust had been created throughout the country, in consequence of the way in which the commission had been formed; and he feared that the right hon. gentleman's interview that very day with the lord chancellor would have the effect of rendering that distrust still stronger.

Mr. Peel ,

it explanation, said, he had only seen the lord chancellor for the purpose of ascertaining the probability of the commissioners making a report at an early period. His lordship, had not the slightest objection to their making a report as soon as possible; and thought that it would and ought to be made before the next session.

Mr. W. Courtenay

said, that he was quite ready to admit the importance of the subject now before the House; and his object would be, before he sat down, to state the case as it really existed. In doing that, he was aware that it must be dull and disagreeable to several hon. gentlemen; and he had, therefore, to hope for the usual courtesy, while detailing the course of inquiry confided to the commissioners, from whose exertions he anticipated much greater benefits to flow than seemed to be calculated upon by hon. gentlemen at the other side of the House. He wished the House to see the matter fairly and impartially, and not to look at it with prejudiced or jaundiced eyes; and he was sure, that if he could succeed so far, he would be able satisfactorily to state, first, the effects of the inquiry intrusted to the commissioners; secondly, the progress they had already made; and, thirdly, the remedies which they felt themselves called upon to propose. When first these matters were brought before the notice of the House, they heard great complaints of the delays in the House of Lords and the court of Chancery. For himself, be never denied the existence of some abuses in the court of Chancery, although he had resisted the appointment of a committee of that House to inquire into them. But, why had he done so? Because such a mode of inquiry could lead to no useful or beneficial result; and, therefore, he felt it his duty to oppose it. Besides, it had, for a long time, been the fashion, as it were, to look at this question in that confined point of view which lawyers too often adopted, while no one, who fairly and comprehensively viewed the matter, could deny, that the complaints made against the court of Chancery were of such a nature as to show that remedy should rather be applied to particular parts, than to any general alteration of its powers or constitution. Petitioners stated, and they stated very truly, that they were engaged in a suit for many years; that the expenses they incurred were heavy; that they suffered in their pockets and their time; that the forms of proceeding tended to their injury: but it was only of late days that some hon. gentleman broadly stated, not that these abuses should be remedied, but that the whole system adopted in the court of Chancery should be altogether swept away. With reference to the motion made by the learned member for Lincoln, last year, it did not obtain the sanction of that House; not that it was contended, that inquiry was not necessary, but that the proposed method or mode of inquiry could lead to no satisfactory conclusion. But, what followed upon that? Why, that his right hon. friend suggested a plan by which the whole subject of the delays and abuses complained of in the court of Chancery, should be submitted to the investigation of persons, from whose learning and experience, the House and the country might expect the suggestion of appropriate remedies. Did his right hon. friend in doing that, purpose that the inquiry should be placed within narrow bounds? Did he contract or diminish the topics of investigation? Did he wish to preserve abuses, or to retain anomalies? On the contrary, wide, indeed, was the field for inquiry, as the duties of the commissioners would abundantly testify. The commissioners, then, had to inquire whether any, and what, alteration should take place in the practice of the court of Chancery; whether any, and what, change should take place in the mode of conducting all causes and suits in the various courts, and offices of courts, of law and equity. The whole system of proceedings in equity was embraced by the commission, beside the consideration of cases of bankruptcy, to which he begged leave to call the particular attention of the House. This inquiry, let it also be known, was to take place from the first commencement of all suits and proceedings to the end of them: the mode of hearing and deciding cases were also to be inquired into, together with the expense and the time occupied in hearing and deciding the different causes. Such was the field of inquiry laid open to the commissioners; and he was not aware of any words in the English language which could give to any body of commissioners a wider range for investigation. But the commissioners were not to stop here; they were to inquire whether any, and what, part of the business could be usefully withdrawn from the lord chancellor and submitted to some other court; as well as, whether his jurisdiction in bankruptcy cases could not he beneficially transferred. It was said, that the com- missioners were restricted in their inquiry, but he could say, that there was no one branch of the enquiry which they had not touched upon; they invited information; they sought for evidence; nothing referred to them was shut out from investigation [hear, hear]. If that then were so, what ground was there for representing that no confidence could be placed in such a commission? To whom, he asked, was such an inquiry to be committed? To a committee of the House? Certainly not; but to a committee of practical and experienced persons, to persons conversant with the subject on which inquiry was to be instituted. That abuses existed, that anomalies prevailed in the court of Chancery, he never attempted to deny; but he would deny that any other than practical men could suggest adequate remedies for their cure.—He was well aware, that the House did not like to hear long speeches in defence of the court of Chancery; but he hoped he would stand excused, while he read one or two passages from a book, which was said to be of some weight and authority by some hon. and learned gentlemen at the other side of the House. He alluded to the work of Mr. Miller, on the present state of the civil law of England, and he there found this passage:—"It has been already intimated, that the comparatively late period at which courts of equity arose, appears to be one of the chief reasons why the words and phrases used in equitable proceedings are more intelligible than those employed in the courts of common law. To the same circumstance it may be owing, that, until a comparatively recent period, there was no necessity for its written pleadings being so rigidly confined to a precise form as those of the common law were very early required to be. It is true, the multitude of technical rules which the subtlety of practice has now introduced, has destroyed this simplicity; but the main principle of equitable pleading are still entitled to decided commendation." He would not here say whether Mr. Miller was a good authority or not; but, at all events, here was a man of some authority who still stated, that the present system of equity pleading, was not only not bad, but entitled to decided commendation. Now, one of the objects of the commission was, to cut off these technicalities and abuses: and the great object should be, not to overturn the system altogether, but to apply practical remedies to practical abuses [hear]. Mr. Miller went on to say— "While the masters in Chancery, who are appointed by the chancellor, and attached to him as assistants, appear to have been the principal agents in devising new writs, which multiply the forms of action, and impede its progress in the courts of common law, no permission has ever been given to those officers to inter-meddle with any part of the procedure under the chancellor's equitable jurisdiction. The court of Chancery has tenaciously adhered to that form of bill with which it began, and which it applies to all sorts of persons and causes of action. Indeed, it will not be easy to propose any plan of procedure more natural or appropriate than that of the court of Chancery, in essential points, now is. If it were disencumbered of that load of abuses and anomalies which time and carelessness have accumulated, it is well fitted, by means of pleadings, hearings before a judge, references by a judge to one of the masters for his opinion on subordinate matters, and hearings, on further directions, when it returns to the judge again, to settle the tedious and involved legal controversies, to which a refined state of society necessarily gives birth."—He was aware that the perusal of these extracts might seem tedious; but as they had heard so much of the abuses of the court of Chancery, he only read those extracts for the purpose of placing the matter in its real light before the House. It might be said, that such opinions were those of a chancery lawyer, and, therefore, worth little. But surely, they were entitled to some consideration, especially from hon. and learned gentlemen, who had referred, in a former debate, to the code Napoleon as a model of simplicity; and who had also added, that there was no nation in Europe which would tolerate a court of Chancery but England. From America, from the stare of New York, a book was sent forth, written, it was true, by a lawyer; and it was entitled, "The Office and Duties of Masters in Chancery;" by Murray Hoffman, esq. Here, then, was a book coming from our rivals in arms and in commerce; a book whose contents were borrowed from our institutions, as the best and safest which could be found to direct them in the administration of public justice. From that work he would not offer many extracts, but there was one which he must read, if it were only for the purpose of showing some hon. and learned gentlemen, that, however lightly they might be pleased to speak of the opinions of chancery lawyers, yet that all tend to shew in what estimation they are held by the people at the other side of the Atlantic:—"It has happened unfortunately in our state (so far as my own experience extends) that the leaders of the bar have neglected or contemned any study of the rules of practice, and have contributed nothing to its precision or improvement. While every volume of English Reports contains notes of cases taken by the most distinguished lawyers, our own chancellor, in his efforts to settle the course of the court, has been very little aided by those best qualified to assist him. If they have regarded the subject as beneath their attention, the sentiment is unfortunate and erroneous. Such is not the opinion of the able and deep thinking lord Eldon, whose consideration has been as deliberate, and his decision as matured upon points of practice, as upon the important doctrines of the court, and who feels strongly what lord Erskine declares, 'the infinite advantage of connecting practice as much as possible with the substance of justice.' Such was not the opinion of the great lord Bacon, the man most illustrious in English annals for the powers of intellect, whose mind united in the most eminent degree, the comprehensive, and the minute, and the solitary destiny of whose fame it is, that no memorable achievement of art or science can be effected without casting back a portion of its glory upon his own name. He deemed it not unworthy his great understanding to collect, revise, and establish a body of orders, which remain to this day the foundation of much of the existing practice, and which are as remarkable for the precision of their language as the utility of their provisions." He entirely concurred with the doctrines and philosophy of lord Bacon, inasmuch as they work well, and were founded on just principles, and dealt with minute particulars, rather than being based upon general and affected assumptions. In what situation, then, do the commissioners now stand? He feared he was wearying the House; but while he admitted that the practice of the court of Chancery required reformation, he meant that persons best acquainted with the court were those only which could suggest the proper remedies. In the course of the inquiry, every thing was attended to which was likely to be productive of service to the public; every evil complained of in that House was brought under the view of the commission; and he was satisfied, that no better plan could have been adopted, than that of receiving evidence from all the practical men whom they could find. It was said, that the opinion of the commissioners would not be worth giving. Upon that subject he would not now say much, but he trusted the House would hear that opinion before they anticipated it, and anticipate it, also, to be bad and not worth receiving. For himself, he should have thought that the character of the commissioners would have inspired confidence in the House and the country, rather than that they should be supposed to be mere instruments of delusion. After all that had been said, he hoped the commissioners would be able to suggest some remedy for the existing abuses; and he was quite confident, whatever taunts or sarcasms might be thrown out against them, that they would be able to submit such opinions to the House, as would prove they had been zealously employed in fulfilling the trust committed to their care. Until the period came for making their report, he hoped their proceedings would not be meddled with; but when they have made their report, then would be the time for the House to pronounce an opinion. He felt it to be a duty to his brother commissioners, who were all diligently and zealously employed in the duties confided to them, to say thus much in their vindication, as well as to give some idea of what they had done [hear, hear].

Dr. Lushington

expressed his intention of supporting the motion, and said, that in all he had heard from his brother commissioner, he saw no reason to depart from the true and universal principle, that publicity was in all cases calculated to elicit the truth. He wished that the evidence should be published, in order that it might undergo a full discussion in every possible shape, by pamphlets, reviews, and otherwise; because this discussion would, among its other good effects, afford assistance to the commissioners themselves, and the more the subject was examined, the more likely was it that the great object of the inquiry would be obtained. He was anxious also that it should be produced, that it might prove that the commission had been mindful of their duty, and had discharged with faithfulness and impar- tiality. A very short space of time would suffice for its production; and all that remained to be done would not be prejudiced by the production of that which had gone before, because so much had been done, that he verily believed no further evidence remained to be taken, excepting for the purpose of elucidating such parts as exhibited a discrepancy of opinion among the persons examined. He would be the last person to say one word of the persons of whom the commission was composed. But he begged the House to consider, that in order to the due administration of justice, three things were necessary—first, that the system should be a good one; secondly, that the practice should be judicious; and, thirdly, that the judge should discharge his duty with ability, integrity, and despatch. If any one of these items were wanting, it was impossible that justice could be duly administered. With respect to the first point, that, he submitted, was not within the province of the commission to inquire into. The second was conveyed in the instructions to this commission in so comprehensive a manner, that it was impossible to extend them. Whether the chancellor had been a good judge or not, the commission was not directed in precise terms to inquire into; but it was impossible for them to give their opinion whether any part of the jurisdiction of the chancellor ought to be taken away, unless they first came to a conclusion as to the Chancellor, the Master of the Rolls, and the Vice-chancellor, having faithfully and ably discharged their high duties or not; because, until it was ascertained by what means the arrear had been occasioned, the delay complained of could not be attributed to the proper quarter. He was not one of those who would object, if it became incidentally a part of his duty, to speak plainly his opinion as to where the blame ought to rest. If any thing appeared to criminate any of the individuals he had mentioned, he trusted in God that he should not want mental courage enough to discharge his duty faithfully; and in justice to his brother commissioners, he must say that he had seen in none of them the slightest disposition to ;shrink from that duty [hear]. He begged leave to add one or two words, as the circumstances under which he had been selected as a member of that commission. It was sufficiently obvious that he had been selected as an Opposition member; a man whose political opinions were well known; and he was sure that he was sent to the commission, not as a spy, but in order to do his duty. He had nothing to hope or to fear from the strict performance of his duty. He had received no place—no favour. He was not bound by gratitude for the past, nor by hopes for the future; and, therefore, it might be allowed to him that he joined the commission with a view to discharge the trust reposed in him with the utmost impartiality. Let him also be just, and add—that if he found a complete investigation was refused, he was determined to come down to that House and say that justice was not done. But, while making this statement, he felt himself bound in candour to say, that he would not act in the spirit of persecution, although he trusted he would have firmness enough to do his duty. It was said, that this commission could do no good, because the chancellor was at its head; and if the lord chancellor had attended the examination of witnesses, if his eye had always been upon them, when certain matters not very agreeable to his lordship might have been elicited, the inquiry could not have been complete; but, in justice to the lord chancellor or, it must be stated, that his lordship remained away during the whole of the examination; and after it was taken, he expressed his readiness to attend, and offer any explanation which might be in his power [hear, hear]. He now merely dealt in fairness to the lord chancellor; and he would add, that in no one instance had the commission been shackled in their inquiry. He was not disposed to screen the lord chancellor, neither did he wish to pay him. compliments; but if he had concealed these facts, it would be a pusillanimous and unworthy concealment [hear, hear]. It was true, that the commissioners had, as yet, made no report; but the reason was, that they could not do so, without its being imperfect. Delay had taken plate from unavoidable causes. One of them was the illness of the vice-chancellor; but that delay had been more than amply compensated by the very valuable papers which he had offered to the commission— papers which, coming from the able and practical source they did, would prow highly worthy the attention of his majesty's ministers. He thanked the House for the patience with which they had heard him. He hoped the House would accede to the motion.—It would produce great good; for it would produce discussion.

Mr. Lockhart

thought, it would be better to wait till the whole evidence was taken and the report drawn up, before any part of it was published. The House would then have before it the remedy suggested for the abuses, if any.

Mr. Abercromby

said, that if the House was sincere in wishing for a reform :of abuses, they would vote for the motion. It had been stated by several members, that no harm could come from publishing the evidence, while he, and those who voted with him contended, that much good would arise from making it known. By now publishing the evidence, the House would save a whole year. It would also spew the public what the commission had been doing, and enable them, by sifting it, to come to a just conclusion. It was idle to say, that any reform would ever be effected, unless the public pressed it. Inquiry had been postponed as long as possible. It was the public who had forced it on, and it was the public who would effect the reform. The people took a deep interest in it, for many of their most valuable interests were involved in it. Let the public, then, have the evidence; let them sift it; let them see where the evil lay; and let them elicit the truth amidst those discrepancies which were said to exist. He was quite convinced, that upon this subject no man could give a better or sounder opinion than lord Eldon. As far as high attainments in his profession went, that judge was inferior to none. But here he must stop. The loudest complaint which had. been made— others, if they would, might call it clamour, but he called it reasonable and well-founded complaint—was against lord Eldon himself, and the manner in which he administered the justice of his court. The gravamen of the numerous petitions on this subject was the inconvenience which suitors experienced, in consequence of the practice of putting causes day after day in lord Eldon's paper, purporting to contain, the business of each day, and which causes did not come on. They were postponed over and over again, and each postponement was attended with a considerable expense; and even when causes had been decided, the judgment was delayed sometimes for weeks, sometimes for months, sometimes for years. These were-among the heavy complaints made against lord Eldon, and he asked whether the commissioners had examined into them? Whether any thing had been done to ascertain their truth, whether the cause-papers had been produced, which would at once decide the point? Any person who knew any thing of the court of Chancery would agree with him, that this was the greatest inconvenience the public had to complain of, and that this brought upon the whole system a greater degree of discredit than fairly fell to its share. He thought that system, if properly administered, was admirably contrived for the public advantage: for the sake of the system then, he wished the subject to be fully examined. He must say with respect to the manner in which the commission was composed, that it was the first time in an inquiry into the proceedings of a particular court, that the person selected to be at the head of that commission was the person who presided over that court.

Sir M. W. Ridley

said, it was not the court of Chancery alone which required reform. Let the House look also to the court of Exchequer, and the other courts; for they all required to be looked after. He had had a cause twelve years in the court of Exchequer. He had then got a decree in his favour, and gained by it 40l. a year, at an expense of between 7,000l. and 8,000l. He wished as much as any man to see the system altered; but he must object to the mode in which an individual was attacked, night after night. He was persuaded such attacks did no good; for lord Eldon stood very high in the estimation of the people of England.

Mr. James

said, that the court of equity ought to be called a court of robbery, and that there could be no reasonable hope of its being reformed until the House itself should be reformed.

Mr. Brougham

said, that having so lately had an opportunity of delivering his sentiments on this subject, he did not now intend to detain the House. With respect to the lord chancellor he would say, that in the amiability of his habits, and in his courteous manner in all public business, he far surpassed every other judge, from the highest to the lowest, that he had ever seen. This it was that caused him to feel, whenever it was his duty to make any charge against lord Eldon, a considerable pain at being obliged to use harsh expressions against one, who never used harsh expressions to any one. He spoke of him as a judge not as a politician. He had heard the late sir S. Romilly over and over again avow the same repugnance, and for the same reason. As a politician, lord Eldon acted very differently; for, when in the House of Lords there was no man who said more harsh things, or who spoke with less respect of his enemies.—If ever a motion stood on irrefragable grounds, it was the present. To say that the report would be made before the next session, what was it but getting rid of the question, because those concerned in it durst not meet it fairly? The real question which the House was called upon to decide by the present motion was, whether the conduct of the lord chancellor should be made the subject of inquiry next session or the session after; for unless the evidence were read by parliament and the country during the long vacation, next session would bring no remedy for the evil so loudly complained of. His learned friend (Dr. .Lushington) had told the House, that the commission, as far as he was concerned, was impartially constituted. That he most readily admitted: but, when he looked at the other component parts of the commission-when he recollected the infirmities of human nature—when he considered how he himself should feel if he were to be placed in a commission of which he would be the only opposition member—he could not help imagining that his learned friend might be influenced in his opinions by something like a feeling of generosity towards an adversary. When he recollected, too, that the commission was bereaved of the assistance of his learned friend the member for Lincoln, who was carefully excluded only because he had brought the subject under the notice of parliament—when he recollected that the commission was likewise bereaved of the assistance of his friend, the member for Durham ( Mr. M. A. Taylor), who first [a laugh]—he would say, that there was not a man in that House who deserved better of his country than that hon. member, and he should like to see the man who would sneer when he uttered his conscientious opinion in favour of that hon. and learned individual. He saw members whose learning amounted to no more than the capacity of counting ten upon their fingers, who presumed to sneer at what he said—members who never opened their mouths in that House but to cover themselves with ridicule, and whose silence was the most prudent part of their conduct—he saw these men presume to sneer at a panegyric which was echoed by every person who had the honour of knowing the individual to whom it referred. Sir S. Romilly—who, to be sure, was no great lawyer, who was a person of contracted faculties—thought he could not better employ his valuable time than in consulting the hon. member for Durham in private, and supporting him in public, on the subject of the court of Chancery—sir S. Romilly did not think it beneath him to back the hon. member in the committee which was appointed with reference to the court of Chancery. And then began that chapter of the frustration of hope to the House and the country, which was not yet brought to a conclusion. that committee no obstruction was offered to inquiry on points of practice; but, no sooner did sir S. Romilly and the hon. member for Durham proceed to the too delicate part of the question—no sooner did they direct their inquiries to the time which had elapsed from the final hearing of the cause to the giving of judgment—than an adjournment was moved, and members who had never heard of what had been stated on the subject, crowded in to befriend the lord chancellor by their votes.—His hon. and learned friend stated, that the lord chancellor, out of delicacy, had resolved never to attend the commission, during the examination of witnesses; in short, that he was boldly resolved to meet any charge which might be brought against him. At the courage which the lord chancellor displayed, he did not feel much surprised; for nothing could be a better foundation for boldness than a consciousness of absolute security from conviction by his judges; but he thought that his learned friend was mistaken with respect to the fact, that the lord chancellor had never attended the examination of witnesses. He was given to understand, that the examination of the first witness, who was an eminent practitioner of the court, occupied four days. The lord chancellor, according to his own rule, should not have attended at all: he attended two days. The lord chancellor had. not, therefore, exhibited that strict conformity to the rule which he had laid down, which would have been required to give satisfaction, supposing the rule in itself to have been of any value. If the lord chancellor could not trust men whom he had himself sent to inquire into his conduct, his absence from the committee might have been of some importance; but as it happened, looking at the constitution of the commission, it did not matter two straws whether he was absent or not [hear]. Now, how was that commission composed? At the head of it was the noble and learned lord himself. Next on the list came the noble lord's old and tried friend, lord Redesdale, who had mounted the ladder of political preferment with his lordship, but always a step behind—who got into the office of Irish chancellor when his noble friend got into that of English chancellor. The next commissioner was the vice-chancellor, an officer of the noble lord's own court. Next came a noble lord (Gifford) just raised to the dignity of the peerage, who owed his advancement to the favour of the lord chancellor. He had never seen any man raised to eminence in so extraordinary a manner. He was seen practising at the Exeter sessions; and three weeks after, he was made Solicitor-general. The man who had been raised in this extraordinary manner certainly owed a great deal to the architect of his fortunes, being in no respect the architect of them himself. He had been raised to his present eminence upon the credit of possessing abilities which he had never exhibited—he had got every thing upon tick. He had never spoken to any individual in the profession who did not consider the noble lord's rise the most extraordinary flight upwards of any thing, except a balloon, which had ever been witnessed. After the noble lord had been raised to the highest point, not of royal but of chancellarian favour—after having sat for a short time in the Common Pleas, (and, he believed, he was the youngest judge who had ever sat on that bench), he was, by a sort of legerdemain known only to the lord chancellor, advanced to the office of Master of the Rolls, the most lucrative and easiest of all the law appointments. Then, as if to make assurance doubly sure, and that no latentseed of partiality should lurk in the noble lord's mind which might bias his judgment in favour of his patron, he was made a sort of deputy chancellor to the House of Lords, to do the lord chancellor's journeywork [a laugh]. In order, if possible, to make this person the victim of what sir Robert Walpole called political gratitude, he was pointed out as the individual to whom the lord chancellor meant to leave his office by way of legacy. It was understood that the learned lord meant to make him his heir and legatee, by devising to him the great seal for the term of his natural life —that being the term for which it appeared the office was in future to be held [hear]. The other members of the commission were the Solicitor-general, Master Cox, and several other persons who expected to be masters. These were the persons whom the lord chancellor had selected to inquire into his conduct, and these were the persons with whom he walked through the valley of the shadow — not of death, but—of Chancery, in the hope of a speedy and blessed resurrection. It was proposed to inquire into the conduct of the lord chancellor, and the learned lord said, " let me name my judges," That was granted, and the first judge he named, was himself. The learned lord's conduct reminded him of a ludicrous circumstance which occurred in Westmorland. In a cause of "Thompson against Jackson," a man of the plaintiff's name got into the jury-box, but his name attracting attention, he was asked, very naturally, whether he was any relation of the plaintiff, to which he replied, "I is the plaintiff." Was not this just like the conduct of the lord chancellor? A commission was appointed to try the lord chancellor; lord Eldon presented himself as first commissioner; he was asked whether he was any relation to the lord chancellor, and he answered at once " I is the chancellor." The judge who presided at the trial at Westmorland requested Mr. Thompson to step out of the jury-box; and yet Mr. Thompson was as conscientious a man as the lord chancellor; for he had taken an oath, too, that he would well and truly try the issue joined between the parties and a true verdict give, so help him God! The judge, however, was not willing to let Mr. Thompson do that under the sanction of an oath, which the lord chancellor had undertaken to do without. Let no more be heard about the challenging of juries. The chancellor's golden rule was best; for it would render the decision as speedy and satisfactory to one party, as his practice in his own court was unspeedy and unsatisfactory to all parties. He had been informed that the commission were very careful of touching upon the tender point; namely, the time which the lord chancellor suffered to elapse between the final hearing of a cause and the delivery of judgment on it. For instance, where a question had been proposed to a witness on this point, the witness was desired to withdraw, the room was cleared, and the question was not repeated. This he had heard stated as a fact, It was the account given by the witness himself. The tone which hon. members on the opposite side of the House now adopted, was quite different from that which they had formerly held. He remembered when, if the system of the court of Chancery was attacked, the Tories would have said, "Do not attack the glorious system which has been handed down to us by our ancestors—lay your blame upon men, but leave the system alone." But, now the whole of the blame was laid upon the system of the court of the Chancery and not any upon the chancellor. Really, the court of Chancery had not fair play when its system was blackened, night after night, in order to screen the lord chancellor. Had the question ever been put to any of the witnesses, "Do you think that such or such a person could, with the assistance of a vice-chancellor and a deputy-speaker of the House of Lords, do mint lord Hardwicke, lord Thurlow, or lord Rosslyn did without any such aid?" He had seen some of the questions in lithography, which had been proposed to the witnesses before the commission; one of them was —"Can any man sit more than six hours in the court of Chancery, having his mind during that time constantly on the stretch." The inference which it was intended should be drawn from that question was evident; but the question should have been followed by another, "Does the lord chancellor sit for six hours in his court every day except Sunday, with his mind on the stretch during that time?" He hoped the commissioners would take an early opportunity of putting that question, and also of supplying other deficiencies: for instance, it was absolutely necessary that they should have the cause papers before them, which would show at once what delay took place between the final hearing of, and the giving of judgment on causes in the court of Chancery. Unless the commission took measures for probing the evil to the bottom, they might sit for seven times seventy days, but their labours would be a mockery, to be equalled by nothing but the manner of their constitution. In conclusion, he had heard no substantial objection offered to the motion, which, if agreed to, would go far to correct the evils which were complained of, but which, if frustrated by a ministerial majority, would nevertheless have the opinion of all the people of England in its favour.

Dr. Lushington

explained. He believed he might state it as a fact, that the lord chancellor had been present only on two out of the forty days of the examination. Undoubtedly, the point to which his learned friend principally adverted had not yet been considered in the commission. The reason was, that it was necessary to follow up the investigation in the order of the instructions to the commission, commencing with an inquiry into the practice of the court of Chancery, and then seeing if, on any public ground, the conduct of the lord chancellor could be justly made a subject of separate consideration. The inquiry was not closed; and when that part of the question came to be investigated, he could assure his learned friend, that no cause papers, which might be necessary for its illustration, should be wanting. His learned friend had adverted to a question put to a witness, who was then ordered to withdraw, and to whom, on his return, the question was not repeated. He was not aware of such an occurrence. But, the question of the cause of the delays in judgment had been put over and over again. On that point it was impossible to go further, without changing the investigation from a fair, honest; impartial inquiry, into an inquisitorial proceeding.

Mr. Tindal

claimed, for the commissioners, the edit of an honest, faithful, and careful inquiry into the merits of the case. They had gone on gradually, but surely; and they were still going on. Although it was impossible that they could say they would make their report on any given day, yet it certainly was his own entire belief, that the report would be ready to be presented to his majesty before the commencement of the next session. What was there, then, to induce the House to accede to a proposition so completely at variance with all precedent, as to call for the evidence on which a report was to be founded, before the report itself was in readiness? if the present motion were agreed to, how could the commissioners proceed unbiassed and unfettered? There was another important consideration. If the evidence were now to be proclaimed to the world, such a step would provoke communications from all quarters; some in the shape of answers to the evidence, others in the shape of statements of opinion. If the commissioners were to receive these communications, where would be the end of their labours? If they re- fused to receive them, they would then be called a smuggled commission. The wiser course was, to go on in the ordinary practice under such circumstances. It certainly had occurred in the progress Of the deliberations of the commission to consider, whether or not they should make separate reports from time to time on the facts as they occurred, or whether they should wait until they had investigated the whole subject. The lord chancellor had declared himself in favour of the first proposition; so that if there had been any improper delay it was not attributable to the noble and learned lord. Other members of the commission, however (and he was one of them), were of opinion, that it was better to wait a few months, until they were able to make one connected and satisfactory report.

Mr. Secretary Canning

said, he was desirous of shortly stating the grounds on which his vote in opposition to the motion was founded. Throughout the whole of the very able and very entertaining speech of the learned member for Winchelsea there prevailed one error. It was of such a nature that, when exposed, the whole fabric of the learned gentleman's argument must fail to the ground. The learned gentleman seemed to think, that the commission was instituted by the House, and that it was considered by the country, as a criminal inquiry. No such thing. He was sure that no man in that House voted for the appointment of the commission with that view; and he was equally sure that it was not considered in that view by the members of the commission themselves. The learned gentleman bad talked of its having been in former times the usage of the House and of the country, cautiously to avoid all inquiry into systems, and to look for errors in men alone; and of its being the usage in the present times to avoid all inquiry respecting men, and to search for errors in systems only. He (Mr. Canning) was quite convinced, that there was no desire in any quarter, to shield any man if guilty of improper conduct. But, what he and the House and the country understood it to be the duty of this commission was, not to pronounce on the guilt or innocence of individuals, but to put the House in possession of the result of their inquiries; in order that the House might determine whether it was tile system itself; or the administration of it, which was faulty. The learned gentleman assumed, that it was taken for granted, that the fault must be in the man, and recommended the most severe and unsparing scrutiny by the commission into the administration of the court. It was plain, from what had been stated by the members of the commission themselves, that the learned gentleman had misconceived this point. If the commissioners thought they were to consider, that the fault must lie in the administration of the system, and not in the system itself, they would not have adopted the course which had been explained by the learned member for Ilchester, with an ability which did him great honour, and with a candour which did him more. While that learned gentleman remained a member of the commission, it was impossible that any one could think the conduct of the commission liable to imputation. If the fault of the administration, and not of the system, had been the object of the labours of the commission, then the speech of the learned member for Winchelsea would have been in its proper place. The dissection of the commission by the learned gentleman would, indeed, have been a powerful one, if he had been justified in setting out with the assumption, that it was a criminal inquiry in which they were engaged. But, if the object with which the commission was instituted, was a fair and impartial investigation, in order that the House might see from the result if there were any grounds of criminality or not, then the commission was not liable to the imputations cast upon it by the learned gentleman. It was, indeed, impossible that the commission could be justly liable to any such imputation, while it contained a single individual under whose eye all the proceedings must pass, and,who had no disposition to screen any one to whom a charge might appear properly to apply. But, it was evident that, whatever might be the constitution of the commission, or with whatever intention it might have been formed, after the speech of the learned gentleman, to agree to the motion would be at once to abolish the mode of inquiry which had been commenced, and to condemn the commissioners for the manner in which they had conducted that inquiry. If that motion were acceded to, it would be impossible, that to the seventy days on which the commission had already sat, a seventy-first could be added from which the public would derive the slightest advantage. And what was to compensate the House for thus suddenly putting an end to an inquiry so far advanced, and throwing a stigma on an assembly of honourable men;—a stigma which no one could say any individual member of the commission deserved singly, and which therefore it was not likely they would deserve in their incorporated shape? In order to avoid a little further delay, it was proposed to nullify all the proceedings that had hitherto taken place, and to stultify the individuals who had concurred in those proceedings! It was proposed to the House to start afresh; and so to start at the conclusion of a session, when there would not be even time for the printing of the evidence. And this, too, when the alternative was a pledge on the part of the commission, to lay the report and evidence before the public by the commencement of the next session. He had no difficulty in adding, that if that pledge was not redeemed, he should not feel himself capable, as an honest man, of resisting the institution of some other course of inquiry into the subject. But he must say, that he trusted implicitly to the assurance of the commissioners, that the report and the evidence would be prepared by the commencement of the next session; that was as soon as, if the evidence were on the table at that moment, any proceeding could be instituted upon it. What he protested against was, rashly destroying the labours of the commission as far as it had gone, and rendering its future labours useless. As to the precise course of the commission and the progress it had made, he was uninformed with respect to the one, and incapable of judging of the other. It was with a view to information that be wished to have the evidence, not in a disjointed state, but classified, and accompanied with the inferences and recommendations of the commission. He did not pledge himself to admit the justice of all the inferences of the commission, or to concur in all its recommendations. But, ignorant and unlearned as he was in all that related to the court of Chancery (which ignorance and want of learning, however, be shared with the great majority of those whom the learned gentleman wished to persuade to take the inquiry out of the hands of the present commission), he looked to the report of the commission as the means of enlightening himself on the subject; persuaded as he was that the com- mission was composed of men incapable of wilfully misleading the House. Above all, when honourable men had undertaken an arduous task, he would not consent, without just cause, to render their labours useless; nor would he be a party to consign them to undeserved infamy [hear, hear!].

The House then divided: For the motion 73; Against it 154; Majority 81.

List of the Minority.
Abercromby, hon. J. Leader, W.
Allan, J. H Lloyd, sir E.
Benett, Lushington, S.
Bentinck, lord W. Maberly, W. L.
Bernal, R. Macdonald, J.
Birch, J. Marjoribanks, S.
Blake, sir F. Martin, J.
Brougham, H Maule, hon. W.
Byng, G. Milbank, Mark
Calcraft, J. Monck, S. B.
Calthorpe, hon. A. Newman, R. W.
Calvert, N. Normanby, viscount
Carter, J. Palmer, C. F.
Cavendish, C. Poyntz, W. S.
Cavendish, H. Price, Rt.
Cavendishion G. Pym, F.
Chaloner, R. Rickford, W.
Coke, T. W. Robarts, A. W.
Creevey, T. Robinson, sir G.
Davies, T. Rowley, sir W.
Denison, W. J. Russell, lord W.
Denman, T. Rumbold, C.
Duncannon, viscount Scott, J.
Dundas, hon. T. Sebright, sir J.
Ellice, E. Sefton, earl of
Fergusson, sir R. Smith, W.
Fitzgerald, rt. hon. M. Taylor, M. A.
Foley, J. H. H. Townshend, lord C.
Gaskell, B. Wall, C. B.
Gordon, R. Western, C. C.
Grant, J. P. Whitbread, S. C.
Griffith, J. W. Whitmore, W.
Guise, sir W. Wilson, sir R.
Hamilton, lord Wood, M.
Hobhouse, J. C. Wrottesley, sir J.
Hume, J.
James, W. Burdett, sir F.
Knight, R. Williams, John