§ Mr. John Williams,in rising to present certain petitions complaining of Delays, and other grievances to suitors in the court of Chancery, said, that though it was competent to him to submit a distinct motion on the subject to which those petitions referred, yet, from the length of time that had elapsed since he had before introduced the question, and from the circumstance that no one good had resulted from the measures adopted respecting it, there might exist some difference of opinion as to any other course than that he was now pursuing, he abandoned for the present the idea of another motion. If, however, he should hereafter think it worth his while to introduce the subject as a distinct motion, it would not be until every man out of that House (which was already the case), and every man in the House, was firmly convinced that the time when the commission appointed to inquire into the proceedings in the court of Chancery should have made its report, was long since elapsed. The commission, like the court to which it was appointed, was at least very deliberate in its proceedings; owing, probably, to the great degree of patience which some men were known to exercise with respect to the sufferings of others. When he first ventured to express his suspicions that no good would result from the appointment of that commission, he had, perhaps, in 960 his view that observation of Mr. Burke —that serious reformers would never choose the authors and abettors of the system to be reformed as instruments for its correction. But, to say the truth, he had had from the first, no expectation from the labours of, that commission. He thought the appointment of it was nothing but a parliamentary manœvre of the right hon. gentleman opposite (Mr. Peel). He was not blaming him for it. He would admit that if he sat at the same side, had the same object, and possessed the countenance of the right hon. gentleman, he should follow the same course. [hear, and a laugh.] When he made this admission, he would only express his surprise that the right hon. gentleman could have mentioned the commission with a serious countenance, [a laugh]. The right hon. gentleman did laugh; and he believed that not even the gravest of his majesty's ministers, from the noble and learned lord to the right hon. gentleman, could peruse the list of commissioners, and reflect on the object for which they were appointed and refrain from laughter.
However, he was not sorry that the commission had been so tardy in their proceedings. The period which they had suffered to elapse, had given the system time to work, as the phrase was. It had brought things to maturity, which more strikingly showed the necessity of the reform for which he had contended. It now appeared that the number of causes and appeals which remained for hearing were upwards of four hundred. The judgments to be given in causes, appeals, petitions, and other "matters and things," as they expressed it in that court, amounted to 1,200, including the causes to be heard. Now, looking at the mode in which business had proceeded in Chancery since the year 1813, and taking the average of causes heard in each year in that time, as the measure by which to judge of the future progress of the court, the last cause now on the list would come on for a hearing (he would not say when for judgment) in forty years from the present date [hear, hear]. The maturity to which the evils had now arrived, would soon call for a more serious inquiry than that of the commission to which he alluded—an inquiry embracing the proceedings of the court from the issuing of the subpœna, to the putting in of the final answer. But, from the present commission he ex- 961 pected nothing. If thirty years should be considered a little too long for the duration of a chancery suit, or 10,000l. a sum a little too large to be expended on it, perhaps they would receive from the commission some such copious relief, as a reduction of the time to twenty-nine years and nine months, and of the expense to 9,999l. That was the quantum of relief to be expected from a commission thus constituted, and thus tediously, if not laboriously, employed [hear, hear!].
But, he did not despair: If such evils had arisen under the direction of consummate wisdom, it was time for folly to see what it could do in the reform of them. The time would come, when the country would not be satisfied with going merely to the rind and surface of this jurisdiction—a jurisdiction depending on no legal enactments, nor resting, like the common law, on any immemorial usages. He said "resting on no immemorial usages," for hon. gentlemen must be aware, that sir William Blackstone had said, that though there had been many accurate writers who treated on courts and their several jurisdictions before the period when the time of immemorial usage commenced, not one of them had taken any notice, or said a single syllable about the equitable jurisdiction of the court of Chancery —of that court, which had now swollen to such a magnitude that it actually reeled and staggered under its own weight, and was unable to bear the remedies which ought to be applied to it. Some persons might be inclined to ask, if this jurisdiction were founded neither in legislative enactment nor in immemorial usage, how was it founded? The answer was direct and easy,— it was founded in the conscience of the keepers of the great seal, of which, as they had generally been priests or lawyers, he would merely say, that it was a sandy foundation, if ever there was one, for a great paramount jurisdiction. As his own opinion might have but little weight with the audience he was addressing, he would venture to state to the House what an eminent lawyer of former times had said upon this subject. Selden, whose learning was as unbounded as his attachment to the genuine principles of the constitution—Selden, in speaking of the origin of the court of Chancery, and its way of conducting business, made use of the following expressions: —"Equity is a roguish thing; for law we have a measure—know what to trust to; equity is according 962 to the conscience of him that is chancellor, and as that is larger, or narrower, so is equity. It is all one as if they should make the standard for the measure we call a foot, a chancellor's foot; what an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot: it is the same thing in the chancellor's conscience." Now, if this was a fair description of the foundation on which the jurisdiction of the court of Chancery rested—if it depended on the consciences of he knew not what lawyer, or what priest—could it be rested on a more unsound, a more impolitic, or a more unprofitable foundation for the people of England? That circumstance by itself would form a sufficient reason for inquiry into the jurisdiction of the court of Chancery, even if there were not other reasons which rendered that inquiry unavoidable; and he was certain, that the length of time during which the present commission had been engaged in examining into it, would greatly accelerate, mature, and consummate, that good work.
He had now spoken of the jurisdiction. He would further state, that it would become worthy of consideration to the people of England, whether, in place of such a system as now existed, it was not high time in this "thinking country," as Mr. Cobbett had ironically called it, to substitute another— whether it was not high time to give over resting on such a foundation as he had described, and to try and attempt a system on the authoritative foundation of the legislature of the country, ascertaining, describing, defining, limiting, and laying down, certain rules for the guidance of suitors, so that they may in future have to trust to legislative enactments, and not the conscience of any chancellor [hear]. He trusted that no long time would elapse before this subject was fully considered, either in parliament or elsewhere. He thought, indeed, that it was impossible that the country would long allow the question to remain unexamined, how far it was in theory just, and in practice expedient, that there should be two systems of judicature, co-existent at the same time, in one and the same country —a phenomenon in jurisprudence, which he had the authority of Blackstone for saying, "was not at present known, nor did it seem ever to have been known, in any other country at any time." He apprehended that it would be convenient for the peo- 963 ple of England to learn, whether it was fit and proper, that by law a remedy should be pointed out to the suitor for a — grievance—that he should be at liberty to pursue that remedy up to a certain point—that, after he had advanced so far, he should be withdrawn from the tribunal from which he had claimed redress, to another tribunal, proceeding upon separate rules, and acting upon a contrary law—that he should be forced out of the court which would have submitted his case for trial to a jury of his country, to be placed in a court of equity, where the most unsatisfactory mode of trial was pursued, by admitting written interrogatories, and none else, to be administered to a witness in one place, by an examinant in another, and by leaving the effect of those interrogatories, indefinite and uncertain as they were, to be afterwards judged of by a single individual—that he should be torn from a tribunal of which the rules had often saved the constitution, to be dragged into another, which acted on rules intelligible to few persons and beneficial to none; and that when he had arrived, as he supposed, at the end of his trouble, when he had made the court acquainted with all the facts of his case, the court of Chancery should then be allowed to interfere—and till then it was not allowed to interfere—to render unavailable all the measures he had taken; and that, too, without grounding its proceedings on a single affidavit, though the result of them was to rob the suitor of the righteous fruit of his judgment—namely, his execution [hear].
Circumstances like these must, he was sure, become the subject of grave inquiry and mature deliberation, when this commission for noticing the skirts and fringes of the court of Chancery—this commission for entering into its mere rind and surface, and for not proceeding; any further—this commission for considering how much it was possible to shorten the distance between the first subpœna and the final answer should have passed away, and left no trace of its existence behind it. He contended, that the circumstances he had mentioned must ere long form the substantial and paramount parts of some legislative inquiry. He was convinced that the country would not much longer endure that an equitable jurisdiction should, after a suitor had almost reached the termination of an action at law, take that action from a court which knew 964 the facts of it, and was the best judge of any equitable circumstances belonging to it, and place it in another court, which knew nothing of it, and which compelled the suitor to incur an expenditure of tenfold the amount of that which he had previously incurred in the court of law. He likewise apprehended, that, whether the present commission was engaged in such inquiries or not, it would be fitting to inquire how far it was right in this "thinking country," that a man, who had made himself master of a sum of money under circumstances of a palpable fraud, no matter how capable that fraud was of development, or how large the sum was he had obtained, should be able to defend himself successfully against all summary proceedings for the recovery of it. For instance, was it right that a trustee who had misapplied trust money in his hands, should have the doors of equity thrown open to him, so as to find refuge within it from the just claims of those whom he had defrauded? As the law now stood, the person injured could not obtain any redress as against a trustee without seeking for it in the court of Chancery. So, too, with regard to executors. An estate might be left by a testator worth 100,000l., and the debts upon it might not amount to one farthing. The payment of a legacy to the amount of 1,000l. might he deferred for years, if the executor to the will chose to say, "Let me see what the amount of this estate is, before I pay to you the bequest of the testator." In so plain a case, which required and admitted of a speedy remedy, the legatee was entirely without relief, unless he thought proper to seek it in that most odious dungeon, the court of Chancery, from which, when he was once immured in it, he seldom escaped without loss of comfort, fortune, and life [hear]. He did not mean to say that people were killed in that court, but that they were subjected in it to a species of living death, in the anxiety and mental torture to which its proceedings gave rise, and that they often perished by starvation, owing to the manner in which it expended and deprived them of their scanty means [hear].
But, to return to the point from which he had digressed. Was it right, he would ask, that this "thinking people" should, in two such clear cases as he had just mentioned, be referred for relief, as it was insultingly and mockingly called, to the 965 court of Chancery—a relief, too, which consisted of nothing more than a taking care of the suitor and his property for the term of his natural life? These points regarded the tribunal, as those to which he had before referred regarded the jurisdiction, of equity. They demanded inquiry; but it was an inquiry that ought to be conducted—he would speak our plainly—not by lawyers, either ancient or modern—not by persons either moving in the trammels, or enjoying the emoluments, of the law; but, if it was to be successful, by persons possessing greater information, greater intelligence, and more philosophy and reasoning, than generally fell to the lot of members of the profession. In making that observation, he did not wish it to be supposed that he was making any personal allusion to the members of the existing commission. His hon. and learned friend the member for Exeter(Mr. W. Courtenay ) might be certain that he had no intention to attack him particularly; his observation was intended to apply to the profession generally, and to himself amongst others, as a member of it. He claimed not for himself that merit which he denied to others, but willingly took his share of the censure which he passed upon them.
Letting that point, however, pass for the present, he would proceed to another, which he conceived would be found interesting to all who heard him. He apprehended that before the report of the commission, partial or otherwise, was received by the House, the time would be thought to have arrived for considering the system of the transfer of real property in England—a system which, if gentlemen thought of it at all, they must see to be utterly disgraceful to the country, and to be matter of perfect sarcasm, ridicule, and disgust, to those who understood it, and saw how it was managed [hear, hear]. He would explain what he meant by that remark. In all the ordinary contracts of life, relating to personal property, a man knew what he undertook to buy, and what he undertook to give for it. For instance, if a man bought a horse, he saw what he had to receive, and he knew the price he had to pay for it. In ninety-nine cases out of a hundred, men were acquainted with the terms of the bargain they had made. But in case they purchased land, even to the amount of 100,000l., he would undertake to say that not even the right hon. 966 gentleman opposite, nor his hon. and learned friend who sat near him, nor one lawyer in five hundred—for the chosen few who understood this department of the law were not more than half a dozen—would venture to affirm, that they were receiving for their 100,000l. the worth of 100,000l. or of one farthing. In point of fact, they knew no more upon that point, than he did upon the law of China or Hindoostan. The law affecting the transfer of real property was reserved for the consideration and profit of a select few, removed from the general practice of the profession, "whose ways were past finding out," whose movements were no more to be determined by reason than those of the astrologer, who, to use the language of Hudibras,
—Deals in destiny's dark counsels, And sage opinions of the moon sells;whose principles were no more intelligible than those contained in the dicta of the magi, or in any thing else that was purposely hidden from the understanding of mankind. He repeated, that the people of England, that ninety-nine lawyers out of a hundred, were utterly ignorant of the principles on which real property was transferred. Why did he mention that fact? Because it was one of those out of which the court of Chancery was fed—because it was the doubts thrown upon the titles of lands that filled its insatiate maw with so many dainty morsels —because it led to the filing of those special bills for specific purposes (to use the slang of the court of Chancery)which occasioned such delightful pickings for the Chancery lawyers. That species of business greatly contributed to swell out the humours of that dangerous excrescence which had grown out of this equitable jurisdiction, by an action, which might be healthy or might be the reverse, but which would remain to be as much considered after the reception of the report of the committee as it did at the present moment.There was likewise another matter for inquiry, which he thought the House, when he stated it, would consider to bn right marvellous, but of which he would merely say—
'Tis true 'tis pity, and pity' tis 'tis true.If any gentlemen had any regard for the credit of the law; what would he think of it, when he heard that if a man died worth only 20l. in land, which he disposed of by will, and a doubt arose 967 as to his competency to make such a will, it was a matter of right to the heir to demand a trial of the testator's competency before a jury of the country; Whereas, if he died worth 100,000l. personal property, and the question arose of his competency to make a will, it was impossible, by any exertion of legal skill, to get that question framed into an issue to be tried by the country? [Cries of "no, no," from the ministerial benches.] If he was wrong in that opinion, no doubt his learned friend, the Solicitor-general, who, he expected, would enter at length into the defence of the court in which he practised, would hereafter set him right, and point out the mode by which that issue was to be obtained. But if he had any knowledge in the trade of the law (and he did not pretend to much), the fact decidedly was as he had stated it [hear, hear, from the ministerial benches]. He did not exactly know what that cheer meant. Perhaps it meant to say, that the commission was already over head and ears in the consideration of the point he had suggested. He should be glad to hear that it was so; but he was afraid that that point, as well as some others which he bad mentioned, were points of important and essential inquiry, going a little beyond the forms of procedure to which he believed the labours of the commission were to be more particularly directed.There was, moreover, another subject, and it was the last which he should mention, which was as worthy of investigation as any of those to which he had before referred; and that was, how far it might be expedient altogether to remove the jurisdiction of bankruptcy, from the Chancery, with which it had no immediate connexion. When that investigation was entered upon, it would be expedient to enter at the same time upon a revision of all the proceedings in bankruptcy, and certainly of all the matters which were decided before an appeal was made to the chancellor. On this point he would beg leave to quote the opinion of a learned gentleman, who was not accustomed to speak with levity of what he (Mr. Williams) called the antiquated errors of the law, who, in a pamphlet which he had recently published, had affirmed, with regard to the mode of proceeding in matters of bankruptcy, that, if all the mischievous imaginations in the world had been set at work to devise 968 mischief, it would have been next to impossible for them to have constituted a court more calculated for the end proposed, than the bankrupt courts as they existed at present. He submitted that this statement was true to the letter; and his reason for calling the attention of the House to it now was, that when he had first mentioned the subject to the House, it was attempted to drive him from it by unremitting assertions that, in the court of Chancery, and every department connected with it, all was right; that there was no delay in its proceedings, no complaints against its forms, no extraordinary expenses created by its jurisdiction; in short, that there was nothing in it, either done or said, which was not consistent with the welfare of the people of England. Now, that he had an admission from the other side, that every thing was not as it ought to be in the court of Chancery, he would venture, but with all due humility to the members of the commission now sitting, to suggest, if it were not now too late, and they did not think their inquiry to be limited to the mere form of the proceedings in the court of Chancery—he would venture, he said, to suggest to them the propriety of making certain necessary and fundamental changes in that court. They might be made with perfect safety; because, if what he had heard of the court was correct, he defied any man, by any alteration, to make it worse [hear, hear].
He had now concluded the observations he had to make on the leading points which he conceived to be deserving of inquiry in the court of Chancery, and should proceed to bring forward the particulars of some cases which had been placed in his hand with a view to illustrate them. And here he begged leave to state, that the cases, of which he was going to repeat the detail to the House, were not cases with which he had individually to do. In a former session, when he had brought forward his motion for an inquiry into the delays and abuses of the court of Chancery, he had said, that he felt himself responsible for the correctness of the cases he had mentioned. On the present occasion he said no such thing; but merely laid the petitions on the table, in the discharge of his duty as a member of parliament. Not that he thought them liable to doubt, and controversy—quite the reverse; but that he did not like to pledge himself to that, of 969 which he had no personal knowledge whatever. One of the petitions he had to present was entitled to the most respectful consideration, as it came from a gentleman, who was described to him as a gentleman of high honour and character. The petition to which he alluded was the petition of Samuel Palmer, one of the church wardens of the parish of Newington. That petition stated, that in October 1658, there was granted by the then lord of the manor of Walworth, to the overseers and churchwardens of the parish of Newington, a piece of land, of which the rents, issues, and profits were to be applied to the use of the parish. In the month of August, 1820, the trustees of the charity filed a petition in the court of Chancery, stating that the annual income of the property, which had formerly been small, was now increased to 600l. a-year, and praying that it might be referred to the Master to determine in what manner it should hereafter be applied. That petition was heard on the 4th of November, 1820, before the vice-chancellor. He referred it to the Master. In two years and four months afterwards, the Master made his report; and by that report he took away the jurisdiction over the rents, issues, and profits from the overseers, and gave it to the trustees. Against that report the petitioner presented a petition to the lord chancellor on the 15th of March 1823, and on the 12th of April the trustees presented another petition, praying that that report should stand confirmed. In August 1823, the Master restored the jurisdiction to the overseers. In October a petition was presented by the overseers to the lord chancellor, to have that report confirmed. A contrary petition was presented by the trustees, in November. In August, he ought to say, that a supplemental bill had been filed by the trustees, so that in November, 1823, there were three petitions before the lord chancellor respecting this charity, all waiting for his adjudication. And here he begged leave to state, that between that latter period and the present—for the matter unfortunately was still pending—two questions had arisen before the lord chancellor, which he had no doubt that his learned friend would tell them required some deliberation; and which, for any thing he knew to the contrary, might really deserve it. The first was, how far the present lords of the manor of Walworth; 970 namely, the dean and chapter of Canterbury, had a right, as visitors, to interfere with the charity. This question, he ought to state, was suggested on affidavit by the solicitor for the trustees, on the suggestion of his own mind, and not at their instance or request. The second question was, how far the overseers of the poor for the parish of Newington, who were now appointed under a local act, were overseers as contemplated by the statute of Elizabeth. The great and eminent lawyers of the court of Chancery might say, that the consideration of these points was wise and necessary; but, to the understanding of the petitioner, it appeared quite the reverse. He could not understand why forty attendances when these petitions were in the paper, but when they were not even touched, amounting to 56l. 6s. 8d., without reckoning the fees of counsel to sustain them, were wise and necessary. He could not understand why 16 attendances at times when the matter was not heard, but only, mentioned, amounting to 30l. 13s. 4d. making with the expenses above enumerated 86l. odd, were wise and necessary. He could not quite understand why it was wise and necessary, that five years should pass away, during which the whole or at least part of the charity was suspended. In that time, out of forty individuals who benefitted by this charity nine had died, and none had been elected to fill their place. In that time 1,273l. had accumulated to the funds of the charity; and the petitioner could not see how it was in theory just, or in practice useful, that this accumulation should be withheld from those for whose benefit it was intended. Indeed, the petitioner could not comprehend the wisdom and necessity of many of the charges in this bill of costs, of which, with their permission, he would read a few items to the House. Here the learned gentleman read the following extracts from the bill of costs, which excited great laughter in the House,—
971
Dec. 6. 1824. Attending court, £ s.d. three petitions in the paper for judgment, when the lord chancellor went partially into the matter, and requested to be furnished with the repealed local Act, which he said he would read, and give his judgment to-morrow. 2 0 0 7. Attending court all day, three petitions in the paper, when his lordship said," he had to leave
early, but would not fail giving his judgment to-morrow morning" 2 0 0 8. Attending court all day, three petitions in the paper for judgment, when the lord Chancellor adverted to the question of jurisdiction, which he desired to be again spoken to, and requested that the dean and chapter of Canterbury, they being the lords of the manor of Walworth, should attend him, and appointed Saturday next for that purpose; and requested to be informed as to the mode of appointing overseers at the time the charity was founded. 2 0 0 11. Attending court all day, three petitions, when the same were called on; and Mr. Shadwell applied, on the part of the dean and chapter of Canterbury, to let the petitions stand over, and the same were ordered till the first seal before Hilary term, to give the dean and chapter an opportunity of considering what course they should take 2 0 0 Jan. 11. 1825. Attending court on three petitions, when Mr, Shadwell, on the part of the dean and chapter, stated, he was not prepared to go on; and the lord chancellor ordered the same to stand for this day fortnight peremptory 2 0 0 25. Attending court all day, three petitions on the paper, but same not called on 1 10 0 26. The like attendance this day 1 10 0 27. The like attendance this day 1 10 0 28. The like attendance this day 1 10 0 29. Attending court, three petitions in the paper; same called on, and ordered to stand for Tuesday next, for the dean and chapter to prove themselves entitled to interfere in this matter as visitors 2 0 0 Feb. 1. Attending court all day; three petitions in the paper, but same not called on 1 10 0 4. Attending court all day; three petitions in the paper, but same not called on 1 10 0 5. The like attendance in court this day; three petitions in the paper 1 10 0 9. The like attendance this day 1 10 0 10. The like attendance this day 1 10 0 11. The like attendance this day 1 10 0 23. Attending court, when the lord chancellor directed the registrar to put the petitions in the paper for Tuesday next 0 6 8 "This." said Mr. Williams, "is a dies creta notandus, as it is only 6s. 8d., and neither 2l., nor 1l. 10s."
972
March 1. Attending court on three
petitions; same in the paper, and called on, when the various points suggested by the court were again argued at some length, and his lordship promised to give his judgment this day week 2 0 0 8. Attending court, but the lord chancellor did not give his judgment according to his promise 0 6 8 The learned gentleman then proceeded to say, that though there had been all these attendances on the part of the solicitor, and all these promises on the part of the lord chancellor, the matter had not yet been brought to a decision [hear, hear]. He had stated, that out of forty persons who were entitled to the benefits of this charity, nine had died; and he must now add, that the consequence of this suspension of its funds had been, that nine individuals, who had been selected to fill the vacancies occasioned by the deaths, had been driven to the necessity of seeking parochial relief, and had so rendered themselves incompetent to become partakers of the charity. The petitioner stated, that he considered such a state of things a grievance, and he therefore humbly prayed the House of Commons that it would take some measures to remedy the delays of the court of Chancery.
The next petition which he had to present was the petition of a Mr. Walter Honywood Yate, who describes himself as an individual entitled to estates in the counties of Worcester, Gloucester, and Hereford. He said he was now entitled, provided he filed a bill in equity, to several important estates, which, however, it was in vain for him to attempt to recover, as he had not the pecuniary means which a man ought to possess before he embarked in the dangerous voyage through the shoals of Chancery. To give the House an idea of the enormous expenses to which it was believed that proceedings in that Court necessarily gave rise, he stated, that a late respected member of that House, Mr. Ricardo, had left by his will a sum of 50,000l. as a nest-egg to provide funds for the defrayal of any expenses to which his heirs might be put in the court of Chancery, in defence of their title to the estates which he had bought; thereby giving his opinion of what he conceived likely to be the result of being lugged by any unfortunate circumstance into that most dreadful and most vexatious of English courts. He would read the 973 last paragraph but one in this petition to the House, because he considered it worthy of its most deliberate attention. It stated, that "the petitioner being wholly debarred from recovering his property or obtaining his rights by an appeal to a court of equity, throws himself in respectful confidence on the compassionate benevolence, wisdom, and justice of the House, and with all due deference and humility begs leave to suggest, whether it would not be expedient for a committee of the House to ascertain how the present system of administering justice in courts of equity can be ameliorated, so as to render the appeals thereunto less expensive and dilatory, and more within the reach of all classes of his majesty's subjects, especially to suitors of scanty means, and to those similarly circumstanced with the petitioner, that equity and law may be administered with facility, promptness, and cheapness, which would indeed be conferring one of the greatest boons the House could bestow on the community, especially to the poor and oppressed, as it would be more universally beneficial and more gratefully appreciated than the repeal of any impost, or the reduction of any tax."
The next petition which he had to present, was a petition from a person of the name of Gummow, who, he believed, was someway or other connected with the family of the marquis of Stafford. The petitioner stated, that he had been left, by the late duke of Queensberry, an annuity of 300l. a-year; and declared that there was a provision in his grace's will requiring the trustees to invest, immediately after his death,as much stock in the 3 per cent consolidated annuities as would secure to the petitioner such an annuity. Shortly after the duke's decease his property was thrown into Chancery by the executors of his will—a measure of which the petitioner did not complain, though he did of the delays of the court of Chancery. This was in 1810. For sever years, though there were avowedly large funds in the court belonging to the estate; the petitioner did not receive one farthing of his annuity. At the end of those seven years the petitioner received one-fourth part of the arrears due to him. A period of three years elapsed before the petitioner had received further payment and there were now arrears to the amount of 1,386l. due to him, though the funds belonging to the estate were ample and 974 almost inexhaustible. The petitioner calculated the loss he had suffered by the non-payment of these arrears at simple interest at 1,100l., and at compound interest at 1,400l. He further calculated, that if the money, as it had accumulated, had been purchased into the funds, it would at this time have made a difference to him of 2,800l. To compensate him for this damage, he had the satisfaction of being told, that every thing was done according to the ordinary rules of equity [hear]. That might be very fine satisfaction for the hon. gentlemen opposite, but it was very cold comfort to this petitioner. He therefore thought his case worthy of the notice of the House, and recommended it to their consideration, with this piece of information—that many annuitants under the duke of Queensberry's will had been compelled to hide their heads in work-houses, in consequence of the non-payment of their annuities, for which there were funds enough in the court of Chancery, had they not been locked up by the proceedings instituted in it.
The next petition which he had to present, came from Mr. Gourlay. The petitioner stated, that he had presented two petitions before, to which the House had paid little attention, but that their inattention did not prevent him from presenting to them a third. He dated the origin of his ruin from the day in which he was forced to enter into the court of Chancery. He detailed some of the struggles in which he had been engaged in it; stated that he had recently been victorious in two issues, which be had obtained from it; but he added, that his victories, like those of Pyrrhus, had been as fatal to him as defeats. He declared that the result and benefit of them had been nothing, and that retreat from the contest appeared to him now to be the only good he could obtain. He prayed the House to assist him in that object. He said he had a manual of his own case in readiness, and that he wished the House would afford him aid to print it; and he should certainly move that his wishes should be gratified, when the proper time should arrive.
The next petition which he had to present was from an individual of the name of Joseph Hescott, who was now confined in the Fleet prison, under an attachment from the court of Chancery. This individual stated himself to be more than 71 975 years of age, and that he had been committed for not answering certain interrogatories. A bill had been filed against him and another person of the name of Brown, and in consequence of his not putting in an answer to it, he had now been in confinement two years and five months. Brown, it appeared, was his intimate friend and his co-defendant. The petition stated, that, before his committal, he was living at Navenby near Lincoln; that he was utterly ignorant of the nature of law proceedings; that he had never been engaged in a law-suit in his life; and that he had trusted every thing relating to this suit to his friend Brown, and to the solicitor whom Brown had employed. It proceeded to say, that certain interrogatories were filed; that an answer to them was not put in in time; and that the consequence was, that he had been committed, not to the county gaol at Lincoln, but to the Fleet-prison in London, by a special messenger, at an expense of 50l. in hard money. Here he must interrupt the course of the petition to state, that, until those costs were paid, the contempt of the petitioner could not be cleared, and he himself could not be heard in court. The petition then went on to declare, that for more than a year and a half, immediately subsequent to his committal to the Fleet, he was entirely bereft of his intellects; that in that interval his friend Brown died, and that he must have died too from want, had it not been for the kindness of the warden of the Fleet prison, whose name he was sorry he did not know [Here some member said it was Brown]. Well, then, he must have died, had it not been for the kindness of Mr. Brown, and the humanity of one of his fellow-prisoners. The petitioner further stated, that he had no means whereby to defray the expenses which had been incurred in the execution of the attachment against him, though he had now put in his answer to the interrogatories filed against him. He remained in the Fleet prison at this moment, and there, he said, he must remain till the end of his life, if the House did not exercise its humane and necessary interference in his behalf. He asserted that many individuals in that prison were similarly situated with himself; and that the course of the court of Chancery was, not to inquire why no answer had been put in, but to proceed to imprison the offender, no matter whether his offence proceeded from ignorance and inadvertency, or from deliberate obstinacy and malignity. 976 The only remaining case which he had to state was that of Tunbridge school. And here be wished it to be distinctly understood, that he was not now bringing forward the worst cases within his knowledge; by no means; he was acquainted with cases much wore than any of those he had mentioned; but those he would not bring forward, as his day was not yet come. He presented this case of Tunbridge school to the consideration of the House, because it had been given to him for that express purpose. The case was known in the profession as "The Attorney-general v. the Skinners' Company;" and the object of it was, to recover an estate for the school, worth from 4,000l. to 5,000l. a-year. In 1820, the case was heard before the vice-chancellor, and was promptly decided. There was an appeal, as there always would be where there was money to support it, from the decision of the vice-chancellor to that of the lord chancellor; and that appeal, after standing for just one Year and eight months before his lordship, at last came on for hearing. It was heard, and the lord chancellor confirmed the decision of the court below, on the correctness of which he understood it was impossible to harbour a single doubt. In 1821, on another petition, the decision was the same way. The case then went into the Master's office, and there it remained two years. Death took off the master; and the case then went to another, who succeeded him. He had exerted himself, no doubt, to the utmost; but, in spite of all his exertions, the matter was in Chancery still. It was now in the seventh year of its age; and how much older it might grow was a point he would not pretend to determine. The income in dispute was between 4,000l. and 5,000l. a-year; and all parties had agreed, that it should be applied in increasing the amount of exhibitions belonging to the school. One generation of boys had been defrauded of, or if that were too strong a word, had lost the benefit of, these exhibitions: and another generation of boys was likely to have the same loss to submit to; for the court of Chancery unfortunately laid fast hold of all the funds in dispute. Let the vice-chancellor decide promptly —nay, let the lord chancellor do the same; let there be doubt upon the question or no doubt, if property were involved in it, the court of Chancery fixed its fangs into it: if there were money, it fattened upon it; if there were life, it fed upon it 977 [hear]. The evil was not of modern creation: it existed a hundred and fifty years ago, as Butler bore testimony in his Hudibras. For there the knight, after he had tried every means to win the widow, direct and indirect—and direct means were always the best to be pursued in such cases—after he had assailed her with all the artillery of sighs and glances—after he had attempted to draw her into an epistolary correspondence, and had tried, but in vain, many other amatory proceedings, received the advice of his squire to write her "a love-letter in Chan-eery," which, he stated,
Would bring her o'er to be his wife, Or make her weary of her life."—[A laugh.]Yes, he would undertake to say that the widow would have consented to take the knight, the squire, "the general camp, pioneers, and all," rather than take in that bill of Chancery, which was as great a nuisance a hundred and fifty years ago as it was at present.He begged leave to remind the House, that all the petitioners applied for relief to the grievances they had stated through the Commons House of parliament. He thought that they were right in so doing; for, through the House of Commons was their remedy to be obtained, or through no other quarter. Of the commission now sitting he would say nothing; into Chancery it had been cast and thrown, and he anticipated that, at no distant time, the House would receive a suppliant petition from the members of it, praying to be delivered from the irrelievable court into which they had been cast by the manœuvre of the right hon. Secretary for the Home department. He expected no good from the sitting, of that commission. In that House, and in that House alone, could the recovery of the court of Chancery be effected from the diseases which beset it. A committee of that House, or nobody, must be the surgeon to accomplish the cure. It was in vain to tell him of lawyers reforming themselves—of courts of justice sitting upon their own abuses,and flogging themselves out of their jurisdictions and their fees, as Sancho Panza flogged himself out of his vices and peccadillos. Whatever might be thought or said within the walls of parliament, the people of England knew full well that from such proceedings no amelioration of the system could be rationally expected. It was therefore incumbent on the House—for the time was now come—to take some deci- 978 sive step forward. For, how stood the matter with regard to the law of England? With regard to the right hon. Secretary opposite, he was willing to make no niggardly allowance to his credit. He knew not how many statutes he had got rid of at one blow, in his attempt to amend the system of juries. It might be forty. [A voice from the ministerial benches, "Ten times forty."] It might be five hundred; and if so, the greater the merit of the right hon. Secretary. Let him, however, recollect, that there might be a multiplicity of other statutes which might equally require to be repealed.
In referring historically to the legislative anxiety for the proper administration of justice which characterized this country, there was one splendid act which bore the date of the reign of James 1st, and which required that that House should annually resolve itself into a committee for the consideration of matters of justice —an act productive of great and salutary results, and capable of being rendered, when properly applied, a blessing to the country. The forms or this committee still remained, its annual appointment was arranged—by name the country had it—they had the bones and skeleton of the original thing—these, these alone remained; but the form and substance were wasted away. However, the principle of this committee had been since conducted, no great general benefit had accrued of late times from its application. Some specific and crying grievance, it was true, had occupied attention—some partial ameliorations had been attempted, or applied, —some patch of purple, or black, had been attached to the covering—
Purpureus late qui splendeat unus et alter—Assuitur pannus—but no great leading reformation had been effected. The subject had never been considered as a whole—never looked upon with an enlarged and comprehensive eye, and therefore the microscopic glances which were occasionally taken at it, had not only helped to render "confusion worse confounded," but instead of improving that which required improvement and was capable of it, to bring the general system from bad to worse and make it what it was—a disgrace to the country [hear, hear]. Was it fit, in the present enlightened and advanced state of public information and improvement in this country that such a mass of abuse and absurdity should be suffered to continue? 979 He would loudly answer no. To suffer it was a disgrace. For what else but a disgrace was it, to be behind a neighbouring country, in so valuable an institution as that of law, and in such essential requisites as the clearness, fulness, expedition, and cheapness of its administration? And yet, this was the condition of England at this very time, as compared with France.But, while he deplored on the part of his own country this imperfect administration of her laws, he did not affect or venture upon any thing so foolish as to propose any remedy. It was no answer to his complaint, to say, that he was unable to suggest a remedy. Whether such remedy could or could not be applied was what he should not say; but, this he would say, and did say, that whether the reformation were practicable or not, it was due to the people of England that the attempt should be made [hear, hear]. The enlightened feelings of the nation were at variance with the existing system of the court of Chancery; it put men to the blush, and stopped the channel of justice. In times of antiquity at Athens, officers of knowledge and reputation were annually appointed, whose sole business it was, not to make new laws, but to consider what reformation the fluctuation of the circumstances of times required in the old: they were bound to consider what had grown useless, what had grown foolish, in the Athenian code; and to report upon it, in order to move for its repeal. Where, be would ask, had this country so excellent and useful a mode of revision, to chasten the pruriency which, in the lapse of time, had obtained in its laws? They had, indeed, in its full operation the machinery of legislation which added largely to the already incumbering bulk of their code; giving enough to its dimensions, but nothing to its permanency—nothing to its utility. It had been a long-established maxim, that every thing which was worthy of being attended to was difficult to be obtained; but, admitting the difficulty in the present case, were not the people of this country worthy of the attempt to have their system, their conflicting system, of laws reduced to some rational standard, instead of having their time and money wasted in perpetuating shameless and interminable proceedings, like the Chancery bills to which he had alluded? They had instances enough in other countries of similar attempts being made with success to re- 980 form old and bad institutions. The king of Bavaria had introduced an improved penal code into his dominions. They need not look, indeed, beyond the neighbouring country of France, to see the beneficial results which attended a revision of the old law: there, indeed, it was effected by a usurper, a man of great and singular qualities; and of great and singular fortunes—a soldier, one of whom it might be said, as was said of Cæsar—" Nimium, assueverat militaribus rebus," — a conqueror too, warring with the world, but while engaged, it could not be said absorbed, in these great achievements, he had left behind him a code of law which would eternize his fame, and form a monument to his greatness that would last, and be remembered with gratitude, when the history of his wars and the vices of his military ambition would have long passed away. What a great neighbouring country had so well done, might surely be tried in this: the reformation of the code was bequeathed to them as the legacy of a great man's genius and industry, done by him in prosperity, as they might do it now, having the same necessity and the benefit of tire successful example [hear, hear]. A professional gentleman had lately published a book upon the crying grievance of this court of Chancery; and when he alluded to the work, he begged to say, that were it not that the opinions it contained were thus avowed, he should not have originated them: they were not of his introduction, but of Mr. Miller, the learned gentleman who was the author of the book; and certainly there was an air of truth about them, and the absence of all apparent ill-will, which gave them strength. The author, after quoting the chancellor D'Agnesseau's opinion of what ought to be the constitution of a court of equity, adverted to what that court had practically become in this country, and said, "lord Eldon has not thought fit to follow these directions throughout the length of his reign"—(so that the author thought the present lord chancellor's dominion in Chancery deserved to be styled a reign)—" and had unfortunately for the people, and for his own reputation taken a different course." He went on to observe, that lord Eldon, "feeling that his strength did not lie so much in the depth or comprehensiveness of his general views as in the minutiæ of precedents and practice, had found that the surest way to continue in place was to abstain from 981 innovation, and he had therefore opposed all decided improvements, and looked with an unfavourable eye on such as were proposed by others." His next remark was, that "one of the disadvantages of permitting an aged person to continue too long in his office was, that he was apt to look upon it rather as a private possession than as a public trust." This observation was just as well as that by which it was succeeded: "it is probable that at this moment lord Eldon has no conception of the sentiment almost universally entertained of his judicial administration, either by those who frequent his court, or by those who are capable of judging of it." "Throughout his life," Mr. Miller added, "his lordship has made submissiveness, and mediocrity the passports to his favour." The writer then added, that he was not actuated by any personal or private considerations in giving his opinions publicity, but that he printed them merely because he felt a strong conviction of their truth. "Even at this moment his lordship" said, Mr. Miller, "was grievously obstructing the improvement of the law, and has done an injury to his profession, which is almost irreparable, omitting no opportunity of ridiculing and resisting every attempt at rectification." It was obvious that the author spoke the sincere conviction of his understanding; and if he (Mr. W.) had not been persuaded of that fact, he would have been the last man in the kingdom, circumstanced as he was, and in such a place, to give utterance to such sentiments. They had been made public, and therefore he was justified in using them; he quoted them as he found them, and he believed that they originated with a man who, with competent means of information, was satisfied of the truth of all he advanced.
Before he sat down he would only make one concluding remark. The intelligence of the country looked to the House for a remedy. Whatever might be asserted by lawyers, puffin the craft by which they lived, he would assert, that the great body of the people of England, the growing information, the march of intellect, the glorious progress of arts, and science among them, demanded that some effectual remedy should be applied to the evil: and an indifference to the demand would be felt as a gross censure upon those who permitted any longer the existence of a system which was as much at variance with the intelligence and in- 982 formation, as it was with the happiness and justice of the country.
Mr. Denisonwished to bear testimony to the character of Mr. Palmer, one of the petitioners, with whose respectability, probity, and honour, he had long been acquainted. He considered the public much indebted to the learned member, for bringing the subject before the House; for, whether the cruel delays of the court of Chancery proceeded from the system, or the numerous avocations, legal and political, of the dignified individual who presided in it, it was clear that the time had arrived, when some remedy ought to be applied to such enormous grievances.
§ Mr. John Smithsaid, that in presuming to address the House upon this occasion, he meant not to cast the slightest reflection upon the lord chancellor as an individual, still less to discuss the professional merits of the system under which he acted, and of which—speaking of its technical merits—he could not affect to be a judge. He only wished to state his opinion generally of the grievances which the people of this country, especially those engaged in commerce, laboured under from the practical operation of the existing administration of justice in the court of Chancery. The system of it was looked upon with terror by men of business: indeed, it was not an uncommon practice when individuals differed in commercial transactions, to threaten to file a bill in Chancery; which was such a threat, that he had known many instances of parties suffering the greatest impositions rather than incur. He could state a fact in illustration of this feeling, which had happened to himself. In the course of his pecuniary dealings, he had lent a sum of 4,500l. to an individual, on the bond of a most respectable third party. The bond fell due eighteen months after this loan, and when application was made in due course for payment, the answer of the grantor was. "True, I signed this bond, and negociated, but I do not owe the party so much now; for since I granted it I have had other transactions with him, and now only owe him 4,000l. instead of 4,500l., and that is all I shall pay." Thinking this answer a very extraordinary one, he (Mr. Smith) took the bond to his solicitor, and stated to him the circumstances, when he was informed, as he had expected, that the subsequent pecuniary affairs between the 983 parties had nothing to do with the original obligation of the bond; as affecting the holder who had discounted it, and his solicitor offered to serve the grantor with a notice of action for the recovery of the debt; but he added, "Sir, just as your claim is, this man can apply to the court of Chancery for an injunction to restrain you from proceeding at law; and though he must ultimately be defeated with costs, whatever process he may institute, still my costs, that will ultimately fall upon you in the progress of this litigation, will probably amount to more than the 500l. at issue." Startled at this prospect, he accepted the 4,000l., and put an end to the matter [hear]. Was it not, then, notorious that no man could enter the court of Chancery, to seek justice, without in the first place being a person of opulence? In another case, which also fell within his own knowledge, but without being individually a party in the suit, he had acted as one of the assignees of a bankrupt, and a defendant had converted a matter of business into a suit in Chancery; that suit had lasted for twenty-three years [hear, hear]. When he named the period of its duration, he meant not to cast any blame, in the particular instance, upon the lord chancellor; for he believed no judge would have been competent to have settled so voluminous a mass of accounts as were involved in the litigation of some West-Indian property. After seven years and a half a report was, however, made in the business; but this was excepted to, and he, as assignee, became perpetually harassed by the creditors of the estate, on account of the procrastination of the dividends they had a right to expect. After fifteen months of being placed in the form of a report at the top of the paper for a hearing, that report had been rejected by the lord chancellor; as he expected it would have been, from its insufficiency. Seeing that another report was to be framed, other exceptions probably taken, and still further delays in hearing such report suffered, and that he had little chance of surviving the protracted litigation; and happening accidentally to reside in Bath, for his health, he met there his hon. friend (Mr. Baring), the member for Taunton, who was a creditor upon the estate. They consulted what had better be done to relieve the parties from their existing difficulties, and his hon. friend sat himself down to unravel the accounts, and in three 984 hours put into order that which the court of Chancery had failed to do in three-and twenty years [hear, hear], and assisted in terminating the litigation.—He would beg leave, having stated merely what had come within his own knowledge, to express his opinion as to the cause of these inconveniences. He suspected that there was something inherently wrong in the whole formation of the court of Chancery. The system, he was persuaded, was in itself erroneous. He qualified this opinion by admitting that he was not a competent judge; but, he had seen many of the proceedings of that court. Let any man who had ever read a bill in Chancery—( the bill in the case to which he had alluded was as bulky as the table at which the clerks were now sitting)—let any man who had ever read such a bill, say whether he could understand its import? It abounded in words; but they were words without corresponding ideas. The whole bill was couched in the language of two centuries ago. Ought this form to be continued? When he said that he spoke in ignorance of the technical rules, he nevertheless trusted that he was not unacquainted with the broad and leading principles of justice and equity. But, independent of common sense and justice, he objected to the system, on account of the enormous power which it vested in the hands of the lawyers. Perhaps, the House would recollect a facetious periodical work, called "The Covent-garden Journal," by Fielding, in which he said, "It is erroneous to think that the English government is only composed of three estates, those of King, Lords, and Commons, there is a fourth estate—the mob." It was true, as the facetious writer had put it, that the mob had considerable power at the time when he wrote; but, a great change had since taken place, and the mob were dispossessed of their power, and supplanted by the lawyers. The lawyers were legislators: they made new laws, and their dicta had the force of enactments. When his learned friend, in his useful, able, and eloquent speech, for which he deserved the thanks of every Englishman—had alluded to the genius of Napoleon, whose code of law would survive the memory of his conquests, and, he would add, his crimes, his learned friend had omitted to praise it for one of its most essentially useful qualities. That law, if not so purely administered as the English law, was at least more expeditiously afforded to the suitor, and 985 twenty times cheaper [hear]. This forced upon their attention the comparative demerits of their own system. It was a case in which every individual in the land owed it to his country to state what he felt and knew upon the subject. When he said thus much, he repeated, that he meant not to disparage the lord chancellor. He knew that noble lord laboured harder in his office than any other judge: he believed he devoted much more of his time to business, and much less to pleasure, than any other man, but, nevertheless, he equally believed, that his whole system was bad, and required complete and entire revision, a revision which he did not expect from the commission which had the business in hand; for he knew that the members of it were unable to do what was essentially necessary for a beneficial change; namely, to turn the system itself upside down—for to that they must come, before they could accomplish the reformation which was called for.
§ Mr. Ellicesaid, he had listened with great attention to what had fallen from his honourable friends who had preceded him. He had himself been long aware of the grievances attending; the system of carrying on business in the court of Chancery: and, bad as those cases were which had just been brought to light by his hon. friend near him, he believed they were comparatively trivial to those which could be brought forward by many individuals connected with the trade and industry of the country. He was also quite convinced with his hon. friend, than no good could arise from the labours of the commission appointed to inquire into the affairs of the court of Chancery. That commission was imperfectly constituted; besides having persons of legal knowledge, it ought to have been composed of men of business likewise. As to the case of the bankrupt assignee quoted by his hon. friend, he could assure them that it was not one of a solitary description for such cases were, he feared, too common. Why did not the court of Chancery, in matters of account, adopt the practice of the civil court of which his hon. and learned friend near him (Dr. Lushington) was so distinguished an ornament? for there such matters were referred to the registrar, assisted by mercantile characters, who sat once and continuously until they made their report. If an improvement could be made in the administration of the af 986 fairs of the court of Chancery, it ought to be made quickly and efficiently; and he begged to direct their attention to one point of practice which he knew to be at-tended with very injurious consequences—he alluded to the investing money in Chancery. It was a hopeless task to manage the money of others when it became once deposited there. He had represented the grievance of such a case some time ago to one or two of his majesty's ministers, and the monstrous inconvenience and loss which it imposed upon the guardians of minors. He could more particularly speak of one case in which he was himself, for his own security, obliged to lodge the money of children, the eldest of whom was only eleven years of age, in the Accountant general's office. There was the evil. The party lodging money in the court of Chancery, had no option: it must be invested in the three per cent stock, perhaps at 94 or 95: so that it was not impossible, before the eldest child became of age, in the intervention of a war, the stock would fall to 50. About thirty millions of property was sunk in that disadvantageous manner—an amount nearly equal to the whole floating capital of the country. Why not allow the suitors the benefit of investing the money so as to obtain a sort of exchequer-bill interest? He would, not, however, suggest the way in which it ought to be done; enough was it for him to have called the attention of his majesty's government to the evil, in the anxious hope of having some remedy applied to it; otherwise the property of minors must remain sadly exposed to fluctuation; as must he evident to all those who could recollect what had occurred during the American war. With respect to the difficulty of wading through a suit in the court of Chancery, he would mention, that in a case in which he was personally concerned, it had been required of him to make an affidavit for the satisfaction of the court. His affidavit was deemed inadmissible, and his succeeding attempts were equally abortive. His solicitor then tried, and after him his counsel, but their efforts were equally unavailing. At length, application was made to an eminent counsel, but he refused making the attempt. The point was of little importance; but, after the court had refused to admit five successive affidavits, it at last accepted and was satisfied with that which was first made. The property in dispute was about 1,500l., and the 987 litigation amounted to between 300l. and 400l. The time of the court ought not to be occupied by interlocutory matters, such business ought to be transacted elsewhere. The grievance of the Chancery court was now so severely felt, and was increasing so rapidly, with the multiplied business of the kingdom, that it would be a less evil to the people, if they were left to the common law entirely. Nor was it fair for the cabinet to throw the whole odium of the defects of that tribunal upon one man, by resisting a proper revision of its jurisdiction. Let the right hon. Secretary for the Home Department follow up the improvements which he had commenced in another branch of the administration of justice, and show that he had the disposition, if he had not the power, to redress the dreadful grievances of the court of Chancery.
The Solicitor-Generalsaid, that before he noticed the observations of his hon. and learned friend, respecting the constitution of the court of Chancery, he would advert a little to the five petitions upon which he had chiefly founded his speech. His hon. and learned friend had, properly enough, carefully abstained from vouching for the accuracy of the statements in those petitions; and, indeed, would have disparaged his understanding, had he done otherwise. He would devote a few remarks to each of these petitions. That of Mr. Palmer related to some alleged abuse of what was called "the Elephant and Castle charity," which was let for 600l. a-year, and had been brought into the vice-chancellor's court in the course of its administration. In the Elephant and Castle charity, the dean and chapter of Canterbury had formerly possessed the property, and they still held the right of visitation; being, in fact, according to the settlement at the Reformation, entitled to a resumption of the property. Their claim, however, could not so easily be brought into consideration; because, the affairs of the dean and chapter must undergo discussion in the Diocesan court in the first instance. The consequence was, that the cause was only ripe for judgment in January last. No man could labour in his multiplied vocations with more application than the present lord chancellor. But then this was not all. The convenience of counsel, as in every other court, was consulted in this; and many of the delays of hearing must be placed to the account of their 988 accommodation. It was not very surprising that, under these complicated accidents and causes of delay, 50l. should have been laid out in the expenses of the hearing. The next petition was that of Mr. Honywood Yate, who, by ins absurd and preposterous suggestions, would have the House to believe, that the late enlightened Mr. Ricardo had actually left 50,000l. upon some uncertain advent of litigation, as if that statesman-like person knew, that by the mere act of setting that sum apart, he could defend the estate which he had provided for his posterity against all claimants who might sue upon it in Chancery. The facts were just these:—At the time that Mr. Ricardo made the purchase of the Gloucestershire estate, the title was disputed by this Mr. H. Yate; and it was to defend the estate from that particular claim that Mr. Ricardo set apart the 50,000l. The third petition, from Mr. Gummow was more preposterous than the others. He was an annuitant upon the estate of the duke of Queensberry along with other creditors, whose united claims amounted to 400,000l. The duke of Buccleuch, obtained judgments in the Scotch courts against the estates for 100,000l., the amount of fines improperly levied. In the common course of proceeding the creditors could have had no claim to a settlement, until the final decision of the appeals in that which was well known by the name of the Queensberry cause. An accidental rise in the funded portion of the property took place; and the lord chancellor, finding that he had it in his power to do something for the creditors, and yet leave enough to answer the suit of the duke of Buccleuch, and make compensation to the tenants, went out of his way to do them this service, and ordered a dividend of one half to be paid them. The next petition was from Mr. Gourlay, who was a madman. That was the real situation of Mr. Gourlay. He advised the hon. and learned mover to look well to his safety. In the course of last session, Mr. Gourlay had knocked down the member for Winchelsea for not presenting a petition. But, his zeal was very indiscriminate. It would not be surprising to hear of his treating the member for Lincoln with equally unsparing severity, for having presented a petition. He knew his learned friend's courage, but Mr. Gourlay was stronger and taller; though no doubt his animus might defend his learned friend, 989 as the animus often decided the contest in favour of the smaller against the more powerful animal. The next petition was that of Mr. Hescott, who complained of his bill of 50l. If his bill were unreasonable, he might have it taxed. That person had refused to put in an answer in the court of Chancery; and for such contempt of the court he had incurred the expenses incidental to an attachment. What right had such a person to complain? This petitioner, he supposed, would wish to have a court of Chancery that could not put delinquents into prison. Mr. Gourlay would want a court of Chancery that would allow him to publish a folio volume for its consideration and decision; Mr. Honywood Yate would say, let me have a court of Chancery that would allow me to wait until the purchaser of an estate was dead, and make that the time for bringing forward nay suit. Mr. Palmer would have a court of Chancery that would decide upon a crude, irregular, and informal petition,and if the decision upon a document containing only half of the case should turn out to be wrong, he would then complain of delays and of erroneous judgments. The commission of inquiry into the delay in the court of Chancery consisted of gentlemen of unquestionable talents, of great application to business, and of undoubted integrity. His hon. and learned friend would not assuredly say, that it had not been laborious, when he was informed that it had sat already seventy days and examined forty-five witnesses, combining the most material information. For his own part, he had wished that the report of that commission should be in two parts, but the majority of the commissioners, had preferred its being in its present form. In the attack of his hon. and learned friend upon the incapability of lawyers as to reformations in the jurisdictions, he must have overlooked the hon. and learned civilian near him (Dr. Lushington). He could never have expected, that the shot which he was firing, after percolating and flowing through his own benches, and hitting those on the opposite side, would rebound, or drive back a splinter which was to wound his friends nearest to him. His hon. and learned friend had intimated something of the plan of his attack on the court of Chancery, whenever his day should come, by the assertions which he had made of the usurpation effected by this court over the 990 powers of the other jurisdictions. Now, he most positively denied what had been asserted, relative to the powers and jurisdiction of the court of Chancery being assumed or usurped. The court of Chancery claimed no power, authority or jurisdiction whatever that could, in any sense of the word, be said to be usurped. Nothing of the sort had ever been charged against the court, since the celebrated dispute between lord chief justice Coke, and the lord chancellor Ellesmere. There the chief justice had disputed the power of the chancellor to interfere with the verdict of a jury. That dispute had taken place two hundred years ago, and since that day there had existed no contest or dispute whatever between the equity courts and the courts of Westminster Hall. His learned friend had questioned the propriety of the present division, or distinction made between law and equity, and seemed to talk of it as a thing without precedent. Surely his learned friend must forget that the same division existed in the republic of Rome in the brightest periods of its history. Was it not the duty of the Prætorian court to correct the proceedings of the Common law courts of the republic? in other terms, were not the judgments of the Prætorian court similar to the judgments of the court of Chancery in Great Britain? Did not his learned friend know, that the court of Sessions in Scotland was notoriously a court of equity as well as a court of law? It possessed a power, and exercised functions analogous to the powers and functions belonging to the court of Chancery in England. If his learned friend would consult the page of history, he would find many institutions amongst the ancients, formed upon the principle of distinguishing between law and equity, and many of them were evidently analogous to the equity courts of this country. It was impossible for his hon. and learned friend to say whether the labours of the commission were or were not adequate to the object for which it had been appointed, until the report was made. It would then be time for him to say, whether what they had done had been well or ill done, and whether it was commensurate with the whole subject of inquiry. He did not wish to intimate any thing disrespectful to his hon. and learned friend, but he must say, that sufficient unto the day was the evil thereof. His hon. and learned friend threatened them 991 with another day. He (the Solicitor-general), however, trusted that he had got rid of that day of wrath. With respect to the five petitions, he pledged himself to prove, to the satisfaction of the House, that five more unfair, false, fabricated, fallacious, and deceptive petitions had never been laid on the table of the House.
Dr. Lushingtonsaid, he wished to add some reasons to those advanced by the Solicitor-general, to justify the delay of the report of the commissioners. The House would recollect, that they were almost all men engaged in the duties of judicial situations, or the practice of their various courts. Few were the days which any of them had free from their avocations, and fewer those upon which they could collect a full meeting. Another circumstance had tended to delay the report of the commissioners. Scarcely had they commenced their labours, when the vice-chancellor was taken ill; and many months elapsed before he was able to return to the performance of his judicial duties, or attend at the sittings of the commission. As a member of that commission, he (Dr. L.) declared his conviction, that it was the anxious desire of all the commissioners to fulfil their duties with as much expedition as the nature of their own avocations, and the difficulty of the undertaking in which they were engaged, admitted. He was anxious, however, that the House should not expect from the commission more than it could possibly effect. The commissioners were invested with certain limited powers: but, the objects of the inquiry, and the nature and tenor of their commission, would not enable them to take into their consideration many important subjects which bad been touched upon by his hon. and learned friend. They had no power to inquire whether the present system of jurisdiction which prevailed in the court of Chancery was right or wrong [hear, hear!]. Their inquiry was confined to an examination of the practice which had hitherto prevailed in the court of Chancery. The object of inquiry was, not the law which governed the decisions of the court, but the practice which prevailed in the court, from the commencement of a suit until it was brought to a final hearing. Their investigations could never, by possibility, produce any of the extraordinary effects which some persons expected from them. Another object of the inquiry was, to as- 992 certain, whether any branches of the present jurisdiction of the court might be advantageously taken away, and attached to other courts. If this commission had been appointed for the purpose of reforming the whole system prevailing in the court of Chancery, he, for one, should have hesitated before he undertook a task for which he should have considered himself altogether unfit. In making this observation, he did not mean to say that it might not become necessary to inquire into the system on which the court of Chancery proceeded; but, he did mean to say, that this commission could not, and would not, do it. Narrow, however, as the limits to which the commission was confined might appear to that House, they would be found exceedingly extensive, when they came to be considered in all the minutiæ of detail. Every branch of practice, from the first process down to the registering of the decree, had been minutely inquired into, and a vast number of witnesses had been examined.—Having said thus much with respect to the commission, he would add a word or two on what had fallen from his hon. and learned friend, as to what he considered as likely to be beneficial alterations of the present system. His hon. and learned friend had stated that, by the practice of the court of Chancery, it was not possible, in a case where personal property to any amount was involved, to order a trial by jury, in order to ascertain whether the party bequeathing it by will were of sound mind. In the case of real property, if it amounted only to 20l., an issue could be directed; but this could not be done, if the property were personal, to whatever amount it might extend. He believed that he had had as much experience as any individual in that House with respect to the disposition of personal property by will, and he must say, as an honest man, though it was directly contrary to his own interest to make the avowal, that it would be a benefit to the country at large, if the power were vested in the court of Chancery, of the want of which his hon. and learned friend complained. Such a power would, in many cases, tend to lessen expense, and expedite legal proceedings,—His hon. and learned friend had stated, that very considerable abuses existed with respect to the transfer of real property, and he entirely agreed with him. He could not conceive it possible that the present system could be defended on any rational 993 grounds. In one case he knew, of his own knowledge, that the mere abstract of a title had filled 800 brief sheets. It was drawn by as honest a solicitor as was to be found in the city of London; who nevertheless found it impossible, with a due regard to the safety of his client, to compress it into a less space. He really thought the attention of those members who were called country gentlemen, ought to be called to this state of things. They could scarcely conceive the extent of the taxes which were imposed on the sale and other conveyances of real property. The taxes were not merely enormous in the shape of stamps imposed upon conveyances, but the intricacies introduced into title-deeds, subjected the parties to long, painful, and sometimes ruinous litigation. It was impossible, that with common honesty, reasonable diligence, and ordinary understanding, the great and radical defects of the present system might not be altered and amended. He saw no reason why these abuses should continue to exist, or why a remedy should not be applied to them. He attributed no blame to any one, that no attempt had hitherto been made to correct these abuses. He trusted that, since his hon. and learned friend had brought this subject before the House, effectual means would he taken to ameliorate and introduce a judicious reform into the existing system. Of such a reform the right hon. Secretary for the Home Department had already set a splendid example, in the enlightened principles which had been adopted by the government of the country—principles which, a few years ago, would have been denounced as chimerical and jacobinical, but which he had carried into secure and advantageous effect. He entreated the right hon. gentleman to proceed boldly in his career. It had been well observed by lord Bacon, that "time was the greatest of all innovators," and, as that system of policy which prevailed when our commerce was only a twentieth part of what it was at present, and the personal property of the country was not a five hundredth part of its present amount, was ill suited to the present times, so he was convinced, that the intricacies in which the system of conveyancing was involved might be simplified. It would be necessary to proceed with the utmost caution, and not to attempt to pull down until they were prepared to build up; but, this at 994 least might be safely admitted by every man of sound understanding, that to that which was equally bad, both in theory and practice, it was high time to apply a remedy. To carry into effect this great task, persons of the highest qualifications should be selected from all the departments of life; so that there might be a combination of all the legal talents of the lawyer, all the extensive views of the statesman, and all the practical acquirements of the merchant. By these means the united talents of the country might produce a system of law which might enable the subjects of Great Britain to obtain justice, which they could not under the existing system obtain, cheaply, easily, and effectually. He would not enter at present into any disquisition on the existing system, still less into any examination of the faults of those who presided in courts of justice. His object was, as a member of the commission, to find where the grievance pressed, and to endeavour to find a remedy for it, and not to impute blame where it was not deserved.
§ Mr. M. A. Taylorsaid, he had, many years ago, endeavoured to awaken the attention of parliament to the existence of great and alarming evils in the system of the court of Chancery, and of the appellate jurisdiction in the House of Lords. It was now long since he had first attempted to prove that those evils and defects amounted to a denial, and indeed a complete subversion, of justice. If hon. gentlemen were disposed to look at the reports of the committee appointed to inquire into those evils, and of which committee he was chairman, they would find it stated that so rapidly were causes accumulating at that time in the jurisdiction in question, that it was judged they could not be disposed of in less than five-and-twenty years. At that time, however, he found it difficult to convince people of the enormous injury that resulted to individuals from the consequent delays in causes and appeals. Of the eminent individual who presided both in the House of Lords and in the court of Equity, he had never uttered a single word but in the spirit of perfect good feeling and respect for his distinguished probity and talents; but he had an objection, on the noble and learned lord's account, to offer to the commission that had been appointed. To him it appeared, that the public had been seriously wronged and aggrieved by the proceedings of the court of Chancery. 995 With regard to the appellate jurisdiction, he had proposed, some years ago, to provide assistance in the House of Lords, either by an additional number of lords for the determination of appeals, or by the appointment of an additional judge in that jurisdiction. And, what was the consequence? Why, that after a twelve years' hard struggle, lord Gifford had been at last appointed to preside with the lord chancellor at the hearing of appeals: and the effect of this arrangement had been, that the lords had reduced the number of appeals in an astonishing degree. Why should not an arrangement of a similar nature be adopted in the equity jurisdiction? Last year, he did not move the question in respect of these delays in Chancery; but, had he been present on that occasion, he, for one, would not have consented to such a commission as was then named. For, who was nominated at the head of it? The very individual of whom it was complained that his conduct tended to encourage those delays. Had he been gifted, or cursed, with the utmost power of flattery, he could not have told that noble and learned friend of his, that he considered him a fit person to be put at the head of such a commission. If his noble friend could only follow the dictates of his own judgment, which was always sound and excellent when he did pronounce it, and which he never seemed to have reason to change; when he could be persuaded to hazard it, the delays of Chancery would be much less. The fact was, that, as it existed at present, this Chancery jurisdiction was perfectly detested throughout the country; and, in an age like this, such cumbrous forms of proceeding could not much longer be endured. He would mention a case or two that illustrated the evils of the present system. There was a case recently adjudged. It was what was called an amicable suit; but, amicable though it was, it was not determined under thirty-three years. Then, again, as to the expenses of suits in that court, attributable in the main to the same protracted delays, they were perfectly enormous. It was admitted by the most experienced practitioners in that court, that under some circumstances, to recover a property of 3,000l. out of Chancery, would not cost less than 1,500l. or one half. What was such monstrous injustice as this owing to? To the immoderate amount of fees accruing and accumulating upon such long 996 delays. Now, having noticed what he thought to be a capital defect in the commission, he would say, that there never would be any reform of the court of Chancery, until the House should come to a vote, as to the absolute necessity of instituting an investigation of such a kind as should sift the whole history of the system of Chancery proceedings to the very bottom. To no other, and to no less a resolution, would he give his support. What could furnish a stronger instance of the shameful delays of the court of Chancery than Mr. Palmer's case, where a petition in a case of charity was delayed three years?
§ Mr. M. A. Taylor—Well, for two years! And, did the learned gentleman consider that no grievance? The Fleet and other prisons of the metropolis, which he had visited, contained numerous victims, without clothes, and in a state of despair, who would not have been in those melancholy abodes, but for the injuries they had suffered through the court of Chancery. Perhaps the House were already aware of that affecting case of the two widow ladies, sisters, who were interested in a property, the proceedings about which, being in Chancery, the attorney managed to hang them up there until, after a long lapse of time, a writ of error was obtained against him. Pending the proceedings, one of the ladies died at the age of 81, nine years after she became invested with the right to a beneficial interest in that property. Her sister, too, survived her only by about half a year. Last summer, when looking over a list of Chancery cases, he actually found some that were depending as long ago as when he himself was at the bar. If the commission which had been appointed did not speedily report, he pledged himself to come down to the House and demand a parliamentary inquiry into the whole details of this ques-tion. With respect to the inefficiency of the commission, and the causes assigned for the long delay of its report, he would only say, that if some of the members were incapacitated from attending it properly by reason of professional or any other engagements, they ought never to have been put upon it. Until this inquiry was granted, and the abuses remedied, he hoped the subject would never be allowed to rest. In his view of the matter, the 997 court of Chancery was the greatest evil and the greatest curse the country had to bear.
Mr. Secretary Peelsaid, that after the very able manner in which this subject had been discussed, he would not have said a word upon the question but for the direct allusions which had been made to him in the course of the debate. In one part of the learned opener's speech he had directly adverted to him, as if he wished to impede or defeat the objects of an inquiry into the delays of Chancery. The learned gentleman had said, that the appointment of the commission, was a mere parliamentary manœuvre to stifle effective inquiry. This he positively denied. He wished for full and effective inquiry. He denied that any inference could be drawn unfavourable to full inquiry, from the nature of the commission. It was only on the preceding night that he had heard the commission which had been appointed to inquire into the Scotch judicature praised very highly. No commission ever gave greater satisfaction, it was said. But that commission was composed of lawyers, whom the learned gentleman thinks unfit to conduct such inquiries; and moreover, six members of that commission were judges of the court to be reformed. He certainly held the conscience of a lawyer in higher estimation than the learned gentleman who was so well qualified to judge of it, and he thought an honourable minded man was better qualified for being a member of such a commission because he was a lawyer. It had been stated in the course of the debate, that a master in Chancery ought not to investigate accounts, because he was not an accountant; and yet it was stated in the same debate, that a lawyer was not fit to inquire into abuses in courts of law, because he was a lawyer. But, what possible object could he be Supposed to have, if not a full and candid examination of this subject? He would fairly own, that he had hoped ere this, that the report of the commissioners appointed last session would have been made. He thought, too, that it would have been much better if they had determined to report in the first place on some isolated and specific branch of their inquiries, instead of waiting to prepare their general report upon the whole of the topics embraced by the commission; because it was quite evident, that any such general report on the court of Chancery must of necessity be postponed for a considerable 998 time. But, when he considered that these commissioners had already sat seventy days; had examined forty-five witnesses; and had adopted the excellent rule of rejecting no witness who came forward voluntarily to tender his evidence, or to furnish information; and when he reflected that they had their own various avocations also to attend to, and knew that it was their intention to publish the whole of the evidence taken before them, and not merely their general report upon it, he could not charge them with unnecessary delay. He would again ask, what possible object could he have in view but a full and perfect examination? What were the names which he found in this commission? There was the learned lord at the head of his majesty's law officers: could any thing like a toleration of unfairness or disingenuousness be dreaded from him? But, if the guarantee of his noble friend's integrity were insufficient to ensure the public confidence in this commission, would it not be confirmed by the names of the rest of his colleagues? Was there not the hon. and learned civilian (Dr. Lushington), whose speech of that evening had attested the manly independence of a mind that would not suffer any thing like evasion, or a want of faith, in any such inquiry as that which was the object of the commission. The language of his (Mr. Peel's) reference had, however, been complained of as going to justify the suspicions of the hon. and learned gentleman. But, he must contend, that at the very least they were as comprehensive as those of the learned gentleman's reference, which latter was in these terms—" Inquiry into the delays and expenses of the court of Chancery, and the causes thereof." The object of the commission of last session was thus stated, "Inquiry into the forms and process of a suit, from its first institution to its close." Why, these terms surely opened every detail connected with the system of Chancery proceedings, and the Chancery court. Was this all, however? By no means; for the reference would be thus—" and whether any part of the present jurisdiction of the court can be removed." Now, with respect to what had been said about the present defective state of the law as to the transfer of real property, if he had referred any such extensive subject to that commission to report on, besides its more immediate inquiries, would he not have render- 999 ed himself liable to the charge of purposely doing so, with the view of withdrawing and diverting the commission's attention from the great objects of its labours? He wished not to be misunderstood. If the laws relating to the transfer of real property were, as the learned gentleman stated, they ought to be amended. With the great wealth of this country making the transfers of real property very frequent, it was a disgrace that our laws on this subject should be in so defective a condition. To reforms of this description no man was more a friend than himself; but, if he had proposed to add this to the commission, as an object for its inquiries, would he not have been liable, and justly liable, to the imputation of wishing to clog the inquiries into the court of Chancery?— The learned gentleman had quoted Hudibras, to show the inveterate evils of the court of Chancery; but, if they had previously lasted one hundred and fifty years, it was not surprising that a commission had not made more progress in remedying them in thirteen months.—Before he sat down, be wished to refer to a motion, of which notice had been given by an hon. baronet (sir M. W. Ridley), for a commission to inquire into the best means of consolidating the laws. It was his own intention to persevere in his attempts to consolidate and amend our laws. He had, at the commencement of his labours, done that which appeared most urgent; namely, repealed all the laws inflicting the punishment of death, where it appeared not necessary. He thought the learned gentleman undervalued his labours; for, he believed he had repealed nearly one hundred statutes —certainly, more than eighty. He had given his best consideration to the subject, and be doubted whether the commission proposed by the hon. baronet would be the best means of accomplishing his object. He rather thought it would be better that parts of our criminal code should be taken up by individuals acquainted with the subject, and disposed to devote themselves to it; and who would digest the reform necessary to be introduced. If a commission were appointed, he was afraid of the difference of opinion which might ensue; and he thought, therefore, it would be better to leave the matter to well qualified individuals. He would quote, as examples of what he thought might be done, the laws of larceny and the laws relating to forgery, which he thought might be taken 1000 up by individuals, and consolidated. If the criminal law were proceeded with in this gradual way, he thought the whole of the laws relating to different subjects might be consolidated, and that our penal legislation might be consolidated into a complete code, worthy of this great and enlightened nation. He did not mean by this to do any thing more than throw out a suggestion to the hon. baronet, as to the propriety of postponing his motion. If he brought it forward, he should be ready to state his opinion more at length. He was convinced that great reforms might be made, and he was only anxious that the most effectual mode might be adopted.
§ Mr. Humebegged to refer to a passage from Mr. Miller's book on the abuses of Chancery. That author stated, that it was in vain to hope for any reform or improvement in the system, so long as the power and patronage of a vast number of offices, such as the six clerks, masters, cursitors, &c. remained in the hands of the lord chancellor, who thus disposed of numerous posts, some of them mere sinecures, the united salaries of which amounted to not less than between 200,000l. and 300,000l. a-year.
§ Sir M. W. Ridleyprofessed his willingness to attend to the suggestion of the right hon. gentleman, and would certainly not bring forward his motion. He was thoroughly persuaded, however, of the necessity of reforming our penal code; and he should reserve to himself the power of bringing forward the measure, if he should see that no progress was made in consolidating our penal statutes.
Mr. Hobhouserose only to say, that, judging by the bill which the right hon. Secretary had brought into the House, the measure of reforming our criminal code could not be in better hands. The country would long be grateful to him for the Jury bill, and if he carried his benevolent designs into execution, he would add to the high character he already enjoyed throughout the kingdom. On the subject of the debate before the House, he wished only to ask, and the right hon. Secretary, or his hon. and learned friend below, might inform him, what had been done with regard to those informations which had been filed in consequence of the inquiries of the commissioners into the abuses of charities? He should like also to know what progress had been made by these commissioners.
§ Mr. Broughamsaid, he should be very happy to answer his hon. friend to the best of his power; but his information on these subjects stopped short at a certain point, or line of demarcation, which separated, as it were, light from darkness. As to the proceedings against the trustees in Chancery, beyond the institution of them he knew nothing—neither did any body else. As to the commissioners for inquiring into the abuses of public charities, they had published many reports which contained much valuable matter. Those reports were contained in some twelve or thirteen rather unsightly and decidedly bulky folios. The commissioners, he must say, had done very considerable service. They had inquired into a groat many charities; and, he might be permitted to add, that those charities which demanded inquiry were far more numerous than would at first sight be imagined. The task was more difficult, more extensive, and more operose, than, on a superficial view of the case, might be supposed. Owing to the reluctance of individuals to come forward, to the remote period at which many of those charities were founded, and to various other difficulties which the commissioners had to encounter, those reports were delayed longer than had been expected. The information obtained by them was, however, of infinite value, and exceedingly curious. No person who wished to obtain a knowledge of the charitable foundations, lay and ecclesiastical, which were established in former times, could consult more satisfactory authority than the information which had been brought into one body by those commissioner& Where matters of a various and extensive nature were to be examined into, for the purpose of pointing out what ought to be done, in order to check some specific grievance, such an inquiry was, he conceived, best carried on by a commission. But, where the business to be disposed of appeared in the form of a series of statutes, which it was intended to consolidate, or where it was meant to act on the information obtained by a commission, in those cases he thought the work would be better performed by the hands of an individual. The unimpeded labour of an individual—(and it should be remembered, that a man always worked more pleasantly and agreeably if left to take his own course)—would do more towards a digest of the statutes than the unequal efforts of a 1002 number of persons. As to the application of this principle to those voluminous reports which he had alluded to, he thought it would be attended with most beneficial effects, if some laborious individual would apply himself to the task of extracting from them every thing that was valuable—of condensing and bringing into a moderate compass all they contained that appeared to be curious or useful. He was sure that such a project would, in every way, be well worthy of any labour that might be bestowed on it. Even the love of gain, if there were no other stimulus to an exertion of this nature, would be amply gratified by the project. The information contained in those reports, which was extremely interesting, was at present almost entirely lost to the public; and he was perfectly convinced, that much good might be effected by disseminating that information. Independent of those reports which emanated from the commission, it had been his province to bring into parliament certain measures connected with their labours, after the commission had sat for some time. When they had exercised their functions for two years, he saw his way far enough to perceive that it would be necessary to introduce two bills founded on the discoveries they had made. Against one of those bills he saw that a decided opposition prevailed. On sounding different individuals, he discovered that it would not be in his power to carry both the Education bill and the Charitable Uses bill, and he came to the determination not to press either. He took that course, because he was afraid of doing mischief. He a second time expounded, and at great length, the principles on which those measures proceeded, in the hope that he should have been able to abate the hostility which was manifested towards them. He was afterwards attacked for sloth and laziness, because it was said that he did not push this subject forward. A more unfounded accusation never was made. He was, at the time, about to retire from parliament, on account of her late majesty having expressed her desire that he should conduct her cause in the House of Lords; as it was held that it was not proper for a member of the House of Commons to appear as her majesty's leading counsel. But, though he then laboured under indisposition; though he was oppressed with a variety of business; and though, above all, he had to attend to the com- 1003 plicated intricacies of the late Queen's case, yet, so little was he obnoxious to the charge of forgetting his duty, that he had developed the subject at the time in a very extensive way, much to his own personal inconvenience. He carried the two bills which he had introduced to a certain point; and he then found that parties whose scruples he respected, and whose independent principles he admired—he meant the Dissenters—chose to oppose with all their strength one of those bills. He then saw there was so little chance of making any efficient progress with these measures, that he deemed it prudent to abandon them for the present, in the hope that time and reflection, and the recollection that the individual who introduced them was a zealous friend to civil and religious liberty, would induce the opponents of the bills at least to meet him half way, and to state what they were willing to do. He thought they should support the Charitable Uses bill; and he hoped the time was not far off when he should be enabled to carry that important measure. He thought the present was a favourable opportunity for carrying those measures, or measures of a similar nature; but he should be afraid to hurry the commissioners in the performance of their duties, because any precipitate step might be attended with irreparable mischief. He did not know their precise object, but he felt that any premature proceeding at present might be attended with evils which he should deeply and sensibly regret. He knew perfectly well, that, in the way of prevention, the labours of those commissioners had produced every where the most important effects. Many persons, not knowing when the inspection of the commissioners was likely to take place—not knowing at what hour the commissioners might arrive—yes, persons who had abused charities, being placed in this state of uncertainty, found it necessary to set their House in order: not knowing when the inquiry might approach their doors, they felt themselves obliged to prepare for it at all hazards. Over and over again he had received letters of thanks from individuals, who had fairly given their names, admitting that abuses had existed in different charities, but that in consequence of the appointment of the commission, those abuses either were removed, or were about to be removed. Others, wrote anonymously—for con- 1004 science sake, he supposed, stating generally what they had themselves done, but complaining that their neighbour, belonging to such a charity, had not taken the same course, and hoping that the efforts of the commissioners would be directed to that quarter. Frequently it had been notified, that if the commissioners appeared within a reasonable time, they would find such and such abuses in existence. It thus appeared, that where abuses were not actually examined into, the guilty parties, from very dread, had set about rectifying them. He wished that some person would take a portion of these voluminous reports—suppose it related to the charities about Exeter, or any other given place or places—and publish it. If, instead of thousands of pages, some few pages were devoted to one place, the like number to another, and so on, and a copy sent to the principal clergyman of a county, and to the acting magistrates, the statement would soon get into the country papers, and the nature and extent of each charity would become generally known. It would then appear that charities established on a particular foundation existed in those places, and the abuse of them would be effectually prevented. This would form the most effectual registration of those charities. Instead of paying a shilling for making an inquiry at an office, an individual need only proceed to the next newsvender's or bookseller's shop, where for sixpence he might procure a brief history of the foundation, and regulations of all the charitable institutions in a county. This was all the information he had on the subject; and he hoped it would give satisfaction to his hon. friend, the member for Westminster. There was, in these reports, information as to the number of charities in each county, distinguishing those whose endowments were above ten pounds, from those the endowments of which were below that sum. This was rather a long answer but it would soon be over. Fortunately, unlike the proceedings in Chancery, there was some hope that it would be terminated at one time or other [a laugh].—He now came to the subject immediately before the House, which, as compared with that he had just touched upon, was like plunging from light to darkness. He alluded to the practice of the court of Chancery. He never thought of that court without recollecting the words of the poet—" Let those who enter 1005 leave all hope behind;" that was Chancery [a laugh], and he certainly did not wish to enter there if he could avoid it. In consequence of the discoveries made by the inquiries of the commissioners appointed to investigate the state of public charities throughout the country, thirty-seven informations had been filed in Chancery against different parties. He believed answers had been put in to some of them. One of those cases had been reported so long back as 1820: but what had become of the great body of them, he was at a loss to know. Not one of them, so far as he was aware, had been brought forward. [The Solicitor-general said, "Many of them bad been heard."] He was very glad to hear it. But he knew of some of them, which had been introduced in 1820, and of which he had heard nothing since. If, however, they had been thus delayed, they were only taking pot-luck with the rest of the cases in that court [a laugh]. Having now answered the questions of his hon. friend as far as he could, he should conclude by saying a word or two with respect to the commission that had been appointed to inquire into the practice of the court of Chancery. He did not expect, he confessed, any gratification from the partial report of that commission, of which report the learned Solicitor-general had, he believed, given the exact description it would deserve, when he said he expected that it would be very unsatisfactory to all parties. The learned gentleman would laugh at him, would despise him, if he pretended to think that that commission was calculated to do any good. The powers of countenance possessed by the learned gentleman were very great, as were those of every gentleman who practised hi Chancery; but he was quite convinced that the learned gentleman would find it impossible to retain the gravity of his features if he (Mr. Brougham) declared that he expected the Chancery commission to effect much benefit. It was wrested from government by the force of public opinion, and by the expression of sentiment which has been heard within those walls; but the objects which those who called for it had in view were entirely frustrated. The learned Solicitor-general, in speaking of the Catholic relief bill, had said, speaking of one of its provisions—"Oh, this clause with respect to the correspondence of the Catholic clergy with the see of Rome, is intended as a 1006 check on the Pope. But who is to make the necessary inquiries? Why, the dependants of the Pope. This is just as absurd, as if a charge had been advanced against the chancellor of the Exchequer,"—(by the way, it was strange that the learned gentleman should have stumbled on a chancellor)—" his conduct being impeached, he were to request that; a commission should be appointed, under the great seal, or under the seal of the Exchequer more properly, to look into his proceedings, that commission to consist of the Secretary for the Home Department, the Secretary for the Foreign Department, and so forth, those individuals being his colleagues in office. What would be thought of the chancellor of the Exchequer if he acted thus?" His answer to this would be, that such a proceeding would be very absurd, and very unsatisfactory: that it would be a monstrous proposition—a very mockery. But certainly not so monstrous a proceeding, not so gross a mockery, as if they put the chancellor of the Exchequer himself at the head of the commission. And yet the commission he was now speaking of was exactly of that sort [hear]. That commission was appointed to inquire into the practice of the court of Chancery, and the abuses thereof, and whether those abuses were owing to the system itself, or to the conduct of the individual at the head of the court. And, who was selected to superintend that commission? Who was called on to control those abuses, and to carry into effect the wishes of the legislature? Why, John, earl of Eldon, who presided in the court of Chancery [hear]. No man, he was sure, could point out those abuses better than that noble and learned lord, if he would speak. But, he had not spoken on this subject for a whole year; and he never expected that the noble and learned lord would speak. To say that he was surprised at this commission not having done any thing, would be a ludicrous assertion—to declare that he was disappointed at their efforts, would be a laughable assertion, too ludicrous for the gravity of the subject. He expected nothing from the first; and he had just got what he expected [a laugh]. A good deal had been said about the commission appointed to inquire into the Scotch courts. That, however, was a very different thing. There they had the assistance of persons who came from another country, and who 1007 were free from any of those prejudices which might stand in the way of improvement; and, above all, they had the benefit of the advice and assistance of lord chancellor Eldon [hear]. However he might disapprove of that noble and learned lord as the superintendant and censor of his own conduct in his own court, he really must say, that he knew no better or fitter man than he was, to act as an inquisitor into the practice of any other court. He was anxious to do justice to his talents, to the acuteness of his understanding, and to the subtlety of his mind: and, admitting these, he declared that if he belonged to any other court save the court of Chancery, in England, Scotland, or Ireland, he knew no individual whom he should so little wish to investigate the profitable abuses of that court, as the noble and learned lord. He would be a most rigid investigator—a most zealous inquisitor into the errors of any other court but his own. To other courts he would deal out the most even-handed justice; but the noble and learned lord certainly was not the person whom he would select to place at the head of a commission for inquiring into the practice of his own court. [hear]. He only knew of one instance where an individual was found just and bold enough to accuse and condemn himself; and he suspected, as that individual happened to be a pope, that the noble and learned lord would, from a religious scruple, decline following his example. The pope to whom he alluded had adjudged himself to be burned. He accused himself with having committed various crimes—such as the pronouncing false judgments, delays of justice, extortion &c.; and he held himself to be in a state of mortal sin. He exclaimed "Judico me cremari;" and what followed? "Et judicatus fuit—et crematus fuit—et Sanctus fuit." [Laughter.] He feared, however, that the noble and learned lord would stick to the estate for life, and that he would not give either to his country or to his soul, the benefit of his abdication. He undoubtedly considered the noble and learned lord to be the last man who should have been appointed on such a commission.
§ Mr. J. Williamssaid a very few words in reply. He again referred to the authority of Mr. Justice Blackstone, to prove that the ancient law-writers did not allow that extent of authority to the court of Chancery which was now contended for. He objected strongly to the two jurisdic 1008 tions possessed by the court of Chancery; and concluded by observing, that if he had thought proper he could have brought forward much stronger cases than even those which he had laid before the House that evening.
§ The petitions were ordered to be printed.