rose, in pursuance of a notice which he had given on a former night, for the purpose of moving for leave to bring in a bill to carry into effect the measures recommended in the Report of a Committee of Inquiry into the Practice of the Court of Chancery. He should premise that it was not as a member of that commission that he now rose: the duty of bringing forward the bill he was prepared with, had devolved upon him, merely in consequence of his professional situation. The House, however, must be aware, that it would be necessary for him —after the various allusions which had been made by members to this subject, and the various debates which had occurred upon it—to enter at some length into the consideration of the manner in which the commissioners in question had performed their duty; the particular facts to which they had directed their attention; and the nature of the measures (the general measures, he meant) which they had recommended in their report, for the adoption of parliament. The House would also feel, that in detailing those measures, he must of necessity be led into much detail—perhaps of a dry and uninteresting nature, if considered by itself—but if honourable gentlemen considered that that detail was connected with one of the very highest judicial establishments in this kingdom—an establishment involving so much of the property, and so many of the interests of the whole community—he was persuaded that they would bear with him for a time, however dry such a detail might prove. Many observations had, at different times, been made, in that House, as well as out of it, upon the constitution of the commission to which he was now referring. It had even been said, by one individual, that nothing good could reasonably be expected from a commission which was composed of such parties as this. Indeed, in that House it had been affirmed, for he had heard it, that it was perfectly ridiculous to anticipate any good result from a commission so constituted. If, in an inquiry into the proceedings of an establishment thus closely affecting many 1206 interests and much property in the kingdom; and involving so much matter of a strictly technical nature; and such important considerations in every respect, —if it was really an objection to the persons appointed to conduct such an inquiry, that they were individuals deeply conversant with the subject to which it applied—of long experience connected with that subject—of great and acknowledged talent; then he must admit that the objection, in respect of the present commissioners, would tell with full force and effect indeed. For it would have been impossible to have selected, throughout the whole country, a greater number of persons possessing more information on that subject, or longer or more extensive experience, or greater ability, as applied to the objects of such an inquiry, than the commissioners he spoke of. But it had been further objected, that even admitting the correctness of the facts reported by them, still their feelings and prejudices must be such, that it was impossible to anticipate any important effects from their labours. He begged leave to appeal to the members of that commission who sat in parliament—some of whom were his personal friends, and from some of whom he was in the habit of differing upon political questions—whether, as to the proceedings of the commissioners themselves, it was possible for any such inquiries to have been conducted with a greater spirit of fairness and liberality of conduct? Although he had not himself the honour of being in that commission, he had been an attentive observer of its acts and its progress; and he would take upon himself to say (nor did he fear contradiction from any man who was acquainted with those proceedings) that any one suggestion of an abuse of any description, which was brought before this commission, was directly attended to by them; and an investigation into the particular abuse immediately instituted. When it happened to be established, after such investigation, that some further inquiry into the particular case or fact was expedient, the same facilities and means of investigation (and he again appealed to his honourable friends for the correctness of this statement) were afforded, during the whole course of this commission's inquiry. He did think, therefore, that not only could there be no reasonable objection to the constitution of this commission, but that the same 1207 observation applied very strongly to the tone, the temper, and the spirit, in which that inquiry had been conducted.
But then it had been said, touching the report which the commissioners had laid upon the table of that House—or, rather, the report which had been presented to his majesty, and by him referred to parliament— that the commissioners had overwhelmed their report with the immeasurable and unwieldy bulk of evidence they had attached to it. He had heard insinuations thrown out against them, as if it had been their object to cloud the question (on which they certainly desired to be most perspicuous), both to parliament and to the country. But surely it was impossible for them to have pursued any other line of conduct than that which they had adopted in the matter. It was impossible for them to do otherwise than to communicate that literal copy of the evidence which was now printed, and annexed to the report made to his majesty. He was quite satisfied, moreover, that if that evidence bad not been added, as it now appeared, some hon. member, the very day after the presentation of the report to the House, would have moved that such evidence should be printed. If the commissioners, again pursuing another course, had selected from the whole of the testimony taken before them that part only which they might deem most valuable, and most proper to be submitted to this House, then they would have been accused of garbling; and a similar motion would certainly have proceeded from some member on the other side, for the printing of the whole. The commissioners, therefore, must have felt that, in fact, they bad no alternative but that on which they acted; namely, to take the whole of the evidence and annex it to their report. That his hon. and learned friend, the member for Winchelsea, could not object to this mode of proceeding, was clearly to be inferred; for, at the close of a former session, his hon. and learned friend expressed his hope, that the government would not be satisfied with laying the report merely on the table of the House; but that they would produce, also, every particle of the evidence which might happen to have been taken by the commissioners during the whole course of their inquiry.
He wished the House to be informed, in the next place, of the manner in which 1208 this evidence had been taken, and the way in which this investigation had been conducted. Of course, the commissioners had thought it incumbent upon them to refer to persons who were best acquainted with the subjects of their inquiry, but they did not exclude any evidence whatever. Any individual who conceived that he had abuses to complain of, which abuses he attributed to the oppressive or the unjust operation of chancery proceedings, was received before the commission, and admitted, if he pleased, to give his evidence. And, in order that there might be no doubt on the subject of these examinations, the evidence of a party, after being taken down by the person appointed for that purpose, was regularly transmitted to the deponent, in order that he might read over his own testimony, and ascertain whether it was correct or not. There could be no complaint, therefore, on any side, afterwards, of misrepresentation. That inquiry, altogether, and from first to last, in short, had been conducted with the utmost candour and fairness, and the most anxious desire to detect abuse wherever it really existed, and to provide a remedy for it, wherever it could be discovered.
In proceeding to consider the manner in which the commission had been conducted, and the matters to which its attention had been directed, it appeared to him very important to notice some remarks which had been thrown out on the subject of a more extensive and important reform of the court of Chancery. He had heard an opinion intimated in that House and elsewhere, to the effect, almost, that the jurisdiction ought to be extinguished. He had heard it maintained, that it was a jurisdiction which should not be allowed to exist; that it was not founded on the common law of the country; that it was supported by no statutes of enactment; and that it ought to be got rid of altogether. If there was any foundation for these reflections, then the labours of the committee must have been completely misdirected; and, instead of consuming their time in an inquiry into the nature of the proceedings of such a jurisdiction, they should have at once recommended its entire abolition. He would beg the House, however, to consider how important, in the present state of the property and the law of the country, that jurisdiction had become; and how utterly 1209 impossible it now was to get rid of it. The House would forgive him, if he occupied some little portion of their time in pointing out a few of the legal objects to which the jurisdiction of the court of Chancery was applicable. Every Englishman almost, however slightly he might be acquainted with the legal institutes of his country, knew that nearly the whole of the property of this kingdom was vested in trust for a variety of purposes. It was well known that this was the case, not in regard to real property alone, but that almost all personal property was vested in trusts (either expressed or implied) for its preservation. And was it not obviously and extremely necessary that a jurisdiction should exist somewhere, for the purpose of securing those trusts, or of compelling their performance; seeing how large a portion of the wealth of the kingdom was involved in their due discharge. But, as it was notorious that courts of common law had no jurisdiction in matters of this nature, a jurisdiction like that of Chancery must exist. There were various other cases, in which a court of common law would be quite inefficient to redress injuries, which the powers of the court of Chancery would reach immediately; those, for example, wherein it was usual to apply to the latter for injunctions. Supposing that he were possessed of a patent, or a copyright, which was infringed upon by another party, he might, indeed, apply to a court of common law, and, after a year, perhaps, obtain a verdict of damages for the specific injury sustained, and on which his action was brought; but, in the mean while, the piracy or the infringement might be carrying on with comparative impunity. The only means by which he could prevent this latter injury was, by obtaining an injunction from a court of Equity, which would immediately suspend its operation. Was not this a case which sufficiently proved that such a jurisdiction should exist? He was not saying where it ought to exist; but he asked whether it ought not to exist somewhere? Another of those legal objects was, the performance of specific contracts. A court of common law could not give damages in such cases, except for breach of the contract; and even then, the party might be thrown into prison, and the suffering plaintiff would lose his damages. Why, then, it was necessary that there should exist a court empowered to compel the 1210 performance of a specific contract, according to the letter and spirit of the writing under which it was conditioned for. Another case for the interference of a court of Equity must be considered as one of immense importance in a commercial country like this: he meant, the settlement of accounts between partners. A jurisdiction for this purpose, again, it was absolutely necessary should exist, and it had been vested in Chancery; and, when he said this, he repeated that he was not now contending for the particular quarter in which it should be confided, but for the necessity of having it. Another class of cases was that of frauds of various kinds—such as those in which a court of Equity alone could compel the surrender of deeds fraudulently obtained or withheld; a most important function, which courts of common law could not exercise; and if to those cases the House added those wherein the protection of the interests of widows and infants was intrusted to the courts of Chancery, he might safely put it to them, whether they would hold that a jurisdiction of this nature could or ought to be dispensed with. The question, then, remained, where must that jurisdiction reside for he assumed that it must be somewhere. To those who contended, that a system of equity jurisdiction was adverse to the interests of the country, and who were for having it united with that of the courts of common law, he would beg to point out the danger of such an alteration. In the first place, it would be absolutely necessary to double the number of all the courts of common law; and with what sort of advantage could this be done? The nature of the two jurisdictions was so perfectly distinct, that if those courts would afford one day for the equity of a cause, they must devote another to the law. Nominally there would be but one tribunal; but, in reality, there would be two; and this, without the substantial advantages arising from the present system of administering justice in our courts of common law.
According to that system, as it now existed, a pretty sufficient share of previous study, preparation, and long experience was required in those who were so to preside in those courts; and, under the circumstances of the country, the system of our equity law had become so refined, that it depended, also, very much on decided cases and precedents; and its 1211 principles and practices were equally difficult to be mastered with those of the common law. He would ask, therefore, whether it was at all probable that the two systems of equity and common law could be properly or beneficially administered by one court. But, in fact, had they no rule to guide their judgments on this question? An hon. friend near him had just suggested one that was most apposite. They had a rule: but it was not one which they would wish to imitate. He was alluding to the court of Exchequer; not, however, as at present constituted, but as it was constituted at the latter end of the last century. An alteration had subsequently taken place in it. The Exchequer, as the House would be aware, had a jurisdiction at common law, and another at equity. Before the change he had just adverted to took place, every body who desired to have a question at common law, in which he happened to be interested, well tried, would apply to the court of King's-bench and not to the Exchequer; and every body who had an equity case to be determined would carry it into the court of Chancery in preference to the Exchequer court. Here, then, was an instance which would not be very strong, he thought, to induce parliament to abandon the old equity jurisdiction, in which equity alone was administered, for the purpose of uniting an equity and a common-law jurisdiction in one and the same tribunal, as in the Exchequer court prior to the commencement of the present century. Indeed, so greatly was the inconvenience of the union of the two jurisdictions felt, that an hon. and learned gentleman, accustomed to vote upon the other side of the House, brought in a bill to effect their separation on that very instance. The consequence of this proceeding was, as gentlemen already knew, that since the equity jurisdiction of the Exchequer devolved on the chief baron entirely, while the common law one was administered by the other three barons.
It appeared to him, that he had now succeeded in establishing these two main points; first, that the equity jurisdiction which at present exists in this country must continue to exist; secondly, that the facts and cases he had mentioned tended to prove, that not only must such a jurisdiction continue to exist, but it must exist in courts separate and distinct from those of common law. He in- 1212 ferred, therefore, that the country would derive no benefit from a change of the principles upon which that equity jurisdiction in the court of Chancery was founded. A word or two as to this branch of the subject upon which he was addressing the House. If it were admitted to be better that this jurisdiction should exist separately from that of the common law, must they make any effectual change in the substance of that equity system? What was the substance of that system? It was the proceeding by bill, and the answer upon oath. With this machinery, and this mode of proceeding, the jurisdiction was most powerful. Take away the answer upon oath—alter the jurisdiction in that respect,—and they would leave it useless and powerless. Why, then, hon. gentlemen who had done him the honour of listening to the statements into which he had entered, would allow, he thought, that he had established the positions, that this equity jurisdiction must exist in separate courts from those of common law, and substantially in the form in which it at present exists.
Having laid down these positions, he begged hon. members to observe how they applied to the question before the House. To what principal points had the attention and inquiry of these commissioners been addressed? To what subjects had their attention been called with a view of rectifying the abuses which were supposed to exist in the court of Chancery? It was impossible for the persons who composed this commission to have imagined for a moment that the jurisdiction must not continue to exist; and exist in this proceeding by bill and answer upon oath. Let that be laid down as a principle, and it would then be seen, that it was absolutely necessary for the commissioners under such circumstances to confine their attention to those points and to those points only. Here, then, was a system that did exist, and must continue to exist, substantially in the same form. But it was complained, that it gave rise to great expenses, and great delays. And how were these evils to be met? That was the problem that the commissioners applied themselves to solve. They said, "Here are defects which we may remedy; and if we may put an end to many of these expenses, we may diminish much of the complaint against the jurisdiction." This was the plain course for them to pursue; and they 1213 had pursued it with a laboriousness, an activity, and a care, which had never been surpassed by any commissioners.
His observations had hitherto been of a general nature; but he trusted the House would consider them not inapt, for the purpose of introducing some others, applying more immediately to the real question before the House. Those he had already submitted had been intended to prove, that the points to which the attention of the commissioners had been carried, and the manner of their inquiry, were, in every respect, the most proper. Referring to the report itself, it would be seen that the commissioners, naturally enough, had begun with the very first step in a cause,—the subpœna for personal attendance. It had been complained, and with great justice, that the terms of that subpoena to an unlettered man conveyed no sort of definite information. The commissioners had taken care, therefore, in the first place, that for the future this subpoena should be so formed, as to be clear and intelligible in its expression. It was apprehended that, in town causes, more delay than was proper was allowed to intervene before the defendant pleaded or demurred, as the case might be. In town causes the return was usually but short, compared with country causes, in which it was much longer. The commissioners found that the time which a defendant could, under the present system, take before he entered his appearance in the suit was too long, and they therefore recommended that the period should be abridged.
The hon. and learned gentleman then observed, that he proposed to notice only the most important of the propositions contained in this report, and referred to that which regarded the process served On parties not appearing. At present, if the party being served did not appear within a certain time, he was liable to have an attachment taken out against him. Under that process the sheriff might take him and throw him into prison. By the present practice, he might be brought up by Habeas Corpus; but, if he still persisted in refusing to appear, an appearance might be taken for him, by authority of the court. The commissioners were of opinion, that these measures were unnecessary and burthensome. If, said they, we have here an authority to enter an appearance for a contumacious party, why all this unnecessary expense? In- 1214 stead, therefore, of waiting till the sheriff returned the party in contempt, they proposed, after the lapse of a certain time, to obviate all the expense and inconvenience of such a mode of proceeding, by the entry of such an appearance, in defect of the party's presenting himself. With respect to putting in answers,—as a general proposition, the commissioners suggested, that there should be allowed eight weeks for that purpose in town causes, and ten in country ones. By the present system, if a party refused to answer, he was first liable to be taken by an action; then he might be brought up by Habeas Corpus to the bar of the court; and if he still refused to plead or answer, might be committed to the Fleet Prison. From thence he might be brought up again by another writ. He was next called upon by an alias pluries, and if he still refused to put in his answer, a pro confesso issued. The commissioners had considered all those writs, and had decided, that if, after a certain time had elapsed after the filing of the bill, the defendant did not put in his answer, he should be taken pro confesso. Then, if he was not taken pro confesso, the sheriff returned non est inventus; then the defendant was attached by proclamation—the writ of rebellion followed that—the next, the sergeant at arms and lastly came sequestration. It was proposed to do away with all that machinery, and take the summary remedy at once.
In the next place, they would suppose that the defendant had put in his answer. That answer might be evasive. It was essentially necessary that the plaintiff should have the power of compelling a clear and specific answer to the questions which he proposed. If, therefore, the answer should be evasive and insufficient, the plaintiff had a right to except to it. This was an extremely important point, and he begged the attention of the House to it. Mark the consequences of an exception to an answer, under the present system. The plaintiff having put in his exceptions to the insufficiency of the answer, the defendant contended, that the answer was sufficient, and the question was then referred to the master, who, perhaps, decided against the sufficiency, and in favour of the exceptions. The defendant appealed from the master's decision to the vice chancellor. The cause was set down for hearing, and perhaps three or four weeks, 1215 perhaps three or four terms, might elapse before it was decided. The vice chancellor decided against the answer, and confirmed the master's report. The defendant then said, that he was not satisfied with the opinion of the vice chancellor, and he appealed to the lord chancellor. The cause was set down for hearing, and, after another delay, was decided, and the report of the master again confirmed. Was this final and conclusive? By no means. The defendant might appeal to the House of Lords. The cause was again set down for hearing, and a year, or a year and a half, might elapse before it was decided; and then the result would be the confirmation of all the previous decisions. The defendant then had as much time allowed for putting in a further answer, as he would have had if he had taken no exceptions to the master's report. The further answer might be insufficient, and the same round of decisions and appeals might be gone through again. He did hot mean to say that the course of proceeding which he had described was always pursued; but it was certain, that a defendant had it in his power to, and not unfrequently did, avail himself of all those causes of delay. A third answer was put in, and this, like the other two, was for the purpose either of gaining time or of causing vexation, insufficient. Then came the fourth answer, in which he was bound to put in a good and sufficient answer to the bill, or else be taken pro confesso. He need not remind the House of the delays that must be necessarily attendant on such a course of things; and yet such, he had been assured, had been the practice, since the time of lord Bacon. It had been carried on during the chancellorships, and with the sanction of lord Nottingham, lord Somers, lord Hard-wicke, and lord Camden, down to the present day.
The subject had engaged the attention of the commissioners, and they recommended that the decision of the master should be final, and that a period should be prescribed within which a second and a third answer should be put in, and if the third were not satisfactory, the defendant should be committed to custody. He was aware that great diversity of opinion existed as to whether the decision of the master, upon exceptions, should be final, and it was fit that the point should be maturely considered; but if he obtained leave to bring in the bill, an opportunity 1216 would occur, in a future stage, for debating all such particulars. The commissioners had bestowed the most anxious attention on the subject, and their opinion was, that the decision of the master should be final, unless he himself chose to refer the question to a higher authority. It sometimes happened, that after an answer was put in, the cause was substantially at an end. The plaintiff found the answer to be completely decisive as to the merits of the case, and was satisfied that he could not proceed further. After the cause was thus substantially at an end, and the plaintiff was unable to proceed another step, and did not intend to do so, the bill could not be dismissed for three quarters of a year. This was not all. The plaintiff might then, by taking advantage of a mere form, prevent the bill from being dismissed for three quarters of a year longer. This was a practice which called for remedy. The commissioners had in consequence recommended, that if a plaintiff did not undertake to speed the cause within the first term after the answer was put in, the bill should be dismissed.
He would next beg the House to consider the wide difference between suits in equity and suits in courts of law. In the courts of law they tried one or two simple issues; in the courts of equity several issues were tried, extremely complicated, wherein the parties were all differently interested, and drew in different directions. The duration of a suit in a court of law, and the duration of a suit in equity, were not therefore to be compared. According to present practice, a party was not entitled to call for the dismissal of the plaintiff's bill in less than a year and three quarters. To this evil the commissioners had directed their attention, and also to another, which was this—Almost in the last stage of a suit, when delay after delay had taken place, and when the party was on the eve of being dismissed, all he had to say was, "I am advised to amend;" and, on the payment of nominal costs, the case had to begin de novo, and all the former machinery was renewed. This could be repeated: he had the same power in every stage: he had only to say "I wish to amend." The commissioners said, "You shall not amend after a particular stage, and not more than once." This power of amending was most essential to the party, because he amended on account of the 1217 answer which was put in: the answer obliged a party to amend; but it was a power which should not be abused, and therefore the commissioners recommended that the party should not be permitted to amend more than once, unless a proper case was made out to the satisfaction of the court. Another and a most essential check was this—the party now amended without the payment of costs; but the commissioners said,—"You shall pay the costs of the order for amending;" and this will prevent improper applications. Herein the commissioners had acted wisely. He hoped the House would not misunderstand him, when he pointed out these delays which might take place, if parties were willing to abuse the opportunities afforded them,—to affirm that it was common for this power to be abused. There had, however, been instances of gross abuse; but if there had been but one instance, it was the duty of the House to interfere.
As he had already shown that the jurisdiction of the court of Chancery must exist, the commissioners could not do more than they had actually effected. That they had pursued a wise and judicious course, every person in that House, he felt persuaded, must agree. His hon. and learned friend, the member for Calne, (Mr. Abercromby), than whom there was no person more competent to form a judgment upon this subject, must approve of this part of the report; for his hon. and learned friend had observed upon a former occasion, that a great deal might be done in abridging the causes between the commencement and the issue, and that it should be a special direction to the commissioners to attend to this point. The commissioners had pursued the course here suggested; and he confidently appealed to the hon. and learned gentleman for his support on this part of the question. He would here beg to deviate for a moment from the course which he had marked out, to slate the course of a Chancery suit. After the answer had been put in, the parties might go to a hearing by bill and answer: the plaintiff, however, might amend. Evidence was then gone into before an examiner, and the case and evidence then came before the judge; but as questions often arose not exactly fit for discussion in an open court—such as matters of debt, and points requiring close investigation,—the judge directed these points to be heard before the master, who 1218 investigated the subject privately, and made his report to the judge. After this, the cause was set down for final hearing. He had pursued the case up to the issue; there was bill, answer, and evidence. By the present course the evidence was taken before the examiners by interrogatories, not viva voce, as in a court of law; and it formed a very important subject of consideration for the commissioners, whether this practice should be continued or not. He confessed that his prejudices, as a common-lawyer, were strongly in favour of viva, voce evidence; and he could not understand, at one time, why a different course should be pursued in the court of Chancery from that adopted in a court of law. After reading the evidence taken before the commissioners, and after mature consideration however, he confessed himself a convert to the practice of the court of Chancery. He was convinced that no advantage would be gained by a change in the mode of taking evidence in that court; but that, on the contrary, a great injury would arise. He would refer to one most important consideration; namely, that the evidence could not by possibility be heard by the judge who heard the cause, unless the court was entirely remodelled, and unless two or three additional judges were appointed. If the party who ultimately decided the cause, decided it on evidence taken viva voce by another, all the advantages attending vivâ voce evidence would be completely lost. Such evidence so taken could not be allowed to be decisive of the cause; it would be sent in the shape of an issue to be tried by a jury. If no advantages were gained, what was lost? The expense was increased, and the suit was prolonged; for questions would arise respecting the admissibility of evidence, and whether the decision was one way or the other, delay would be produced. He had seen evidence taken before the commissioners of bankrupts, and the length to which it extended, and the inexplicable confusion which it exhibited, were such, that he could not have made up his mind to decide on such evidence. Besides, these examinations would go on without end. A party would be able constantly to supply any deficiency he might perceive in his proof; hence the examinations would be protracted, and there would be strong inducements to the commission of perjury. Plausible, therefore, as the alteration seemed, it would be productive of no 1219 real advantage; but, on the contrary, would be attended with the disadvantages he had described. He remembered that one of the witnesses, a gentleman of great experience now retired from the bar, Mr. Bell, when he was asked whether any instance had occurred to him in which the ultimate justice of any case had been disappointed by the present mode of examining witnesses in the court of Chancery, replied, "I do not recollect any case in which I have gone out of the court with a dissatisfaction of the decision of the fact, where the judge, in the first instance, thought proper to decide. Whenever it was a case where one could entertain a serious doubt, the judges have always sent it to an issue." He referred to this opinion with confidence, for there was no individual who had possessed more extensive experience in that court. This question had been discussed in another country; the same topics had been treated of, the same view had been taken, and the same result had been arrived at. According to the constitution of the state of New York, no alteration was allowed to be made in the constitution, or in the system of administering justice there, unless proposed in a convention. About four or five years since, a convention was summoned to consider some alterations of the judicial system. It was there stated, that the law of the state was the English common-law, modified by new statutes; that their court of Chancery—was constituted precisely On the same principles as ours. It was proposed to abolish the court of Chancery, not to abolish its jurisdiction, but to unite the equity court to the courts of law. The proposition was discussed with great talent, particularly by one member; and, after a full consideration, it was deemed more wise and expedient to continue the present system. It was also discussed whether the examination of the witnesses should be viva voce, and an individual of great weight and respectability in that state, Mr. Kemp, had expressed an opinion which he would quote, because it coincided with the opinion delivered by Mr. Bell. [The hon. and learned gentleman then read the opinion, which stated, that during the period of the English Commonwealth the existing mode of examining witnesses had been observed; that it had produced no in-jury, nor had a case been lost or injured by that mode; that if it were altered the mode proposed would increase expense 1220 and delay, and lead to abuses prejudicial to the court and to the public] Here was an extraordinary concurrence of opinion between experienced persons in two different countries. It was proposed by the commissioners, that no alteration should be made in this point. If, in the progress of the bill, it should appear desirable to adopt any alteration in this respect, it could be introduced hereafter. He believed that there were several persons who had entered upon the inquiry with the same prejudices upon this point as himself, and who, in the progress of the inquiry, had arrived at the same conclusion as he had come to.
He had now brought the matter down to the time of hearing; but he should postpone what he had to say on this head, till he came to consider that part of the case which related to the second hearing after the Master's report. Every body must be aware that great delays existed in the Master's office. He had been curious to ascertain the cause of these delays: he wished to know what led to them. The House and the country were not to imagine, from what he had stated, that the inquiries could be despatched with great expedition. The subjects which came before the master required great time for investigation; such as, intricate accounts, disputed titles and pedigrees, and questions of detail, which consumed a large portion of time. All the commissioners could do was, to take the circumstances under consideration, and provide the best remedy they could. Under the present system, the master was passive. He could only wait until the case referred to him came before him, as he had no means of compelling the attendance of the parties. Summonses might be issued on the one side which might be neglected on the other; that added to the expense of the suit without benefitting the suitors. Now the commissioners had made it their business, having ascertained where the fault lay, to provide the remedy, and that would be by rendering the master an active person. The commissioners recommended, in the first instance, that where a reference was made to the master, and the decree should not be brought into his office within six weeks of its having been made, the benefit of that decree should be lost. When the decree got before the master, it was proposed that he should have the power of enforcing the attendance of the parties interested, for the purpose 1221 of expediting the matter through his office; and if he saw either of the agents inattentive, that he should be permitted to act without him, by transferring his duty. If, therefore, the suggestion of the commissioners were carried into effect, and the master was attentive to his duty, there would be no longer any complaints of delay in his office,—they had only to invest the master with the power to act, and there would then be a person responsible for the delay, if it should occur.
He had now brought the case down to the final hearing, from the commencement. The commissioners had travelled the same route before him, and he thought he could say with confidence that not a single circumstance had escaped their attention. He now came to the consideration of a most important point—What use was expedition in the progress of a cause, unless there was an expeditious decision? This point had not escaped the commissioners. It was necessary to apply a remedy, and an adequate one, to the evil as it existed. Before he inquired into the extent of the evil, he would mention the remedy they had prescribed. He was perfectly sure that gentlemen would think the remedies wise and proper; the only question was, whether they were operative or not. With respect to appeals: according to the present practice, on the hearing of an appeal from the vice-chancellor before the lord chancellor, new matter was introduced; although, from the very nature of an appeal, it ought to be decided on the old facts. Instead of which, a cloud of new affidavits was introduced before the lord chancellor, who, in fact, decided on a new cause. Nothing was more unjust to the character of an inferior judge than this proceeding. It was an anomaly in the nature of appeals for new matter to be introduced into an appeal from a subordinate to a higher tribunal. The very nature of an appeal called into question the judgment of the inferior, which ought to be reviewed by the superior, on an examination of the same facts. But it happened, from the circumstance of the lord chancellor and the vice-chancellor being considered as belonging to the same court, that this extraordinary anomaly had crept in, whereby a party could resort to indirect means of remedying a defective cause. The hon. and learned member for Calne had pointed out this as an evil demanding redress. The commissioners bad recommended, that there should be no appeal 1222 allowed except on a consideration of the same facts. The effect of this regulation would be to diminish the number of appeals; for it was owing to the admission of new facts that appeals had so much increased.
There was another measure of considerable consequence recommended by the commissioners, and which he regretted he should be the instrument to bring forward. The measure to which he referred was the limitation of the number of counsel to speak in a cause. He regretted that it should fall to his lot to propose a regulation, which appeared calculated to prevent the junior members of the profession, from distinguishing themselves. But he knew so much of the character of the profession, that he could undertake to say, that there was nobody that possessed more probity and public spirit, nor more readiness to sacrifice their own interests to the good of the country, than that to which he had the honour to belong. After a long experience of their character, he was convinced that if they were satisfied the measure was necessary, they would submit to it with alacrity. The time which would be thus saved was evident. In page 96 of the report, Mr. Hamilton was asked, "How many counsel, to the best of your knowledge, were heard on each side?" He replied, "I think I counted seven on one, and five or six on the other; and there were as many in a case arising under Howard and Gibbs's bankruptcy." Only let the House think of this. They had heard him (the Attorney-general) for a considerable time, with great patience—let the House only think of seven of them! In another part of the evidence it was said, "there were seven or eight counsel in that cause: each of them spoke at great length." The lord chancellor made it a rule to read all the affidavits in a cause; and in the case of "Senior against Smith," there were eight counsel and ninety-six affidavits. He would, therefore, leave the House to draw their own inference as to the mischiefs of such a practice. Besides which, the fewer the counsel the better chance the client had of having his cause properly conducted; as, where seven or eight were concerned, they were each too much inclined to rely on the other; but where there were but two on each side, the best exertions of those two would be afforded to the client. But, if such a measure was calculated to injure the younger members of the profession, practising in 1223 the court of chancery, there was another suggestion of the commissioners which would, perhaps, in some measure compensate for it. The practice in that court at present was, that the seniors made all their motions at once; so that it rarely happened that a junior could make a motion. The same system was in vogue in the court of King's-bench, until lord Mansfield came to the head of it; and it was not above once or twice in a term that a junior could make a motion; but lord Mansfield altered that, by taking the bar in rotation, each member making one motion. It was now proposed, that in the court of chancery, no member should make more than two motions following; so that that would give the juniors an opportunity of making them more frequently.
There was another recommendation of the commissioners, which could not fail to be productive of very great advantage, by operating as a check upon the practice, now so general, of appealing from the vice-chancellor to the court of Chancery. They recommended that no person should be allowed to appeal from the vice-chancellor to the higher tribunal who could not produce the certificate of counsel, pledging himself to the sufficiency of the grounds on which the appeal was made. In this instance, too, the commissioners adopted a recommendation thrown out on a former occasion by the learned member for Calne. It might occur to gentlemen, that such a certificate could not, at all times, be obtained, without much difficulty, as it would be for the interest of counsel to promote litigation. He recollected, upon one occasion, to have heard it asserted in that House, that counsel were in the habit of recommending the prosecution of actions, though aware at the same time that there was no chance of success, and the assertion was, at the time, contradicted by an hon. and learned friend of his, the member for Winchelsea. He would not stop to inquire how that might be, but here it was perfectly clear that the case must be quite different. A counsel, in private conversation with his client, and under circumstances where he felt confident that no record was to be preserved of his opinion, might possibly recommend him to enter upon an action, knowing that there were no grounds for it. Here it was different. The certificate recommended by the commissioners could not be given without its being known to the 1224 court, to the judges, to the whole profession, and to the public; so that a professional man would naturally feel himself placed in a situation of responsibility. It could never therefore degenerate into mere matter of form No person, having a regard to his character would venture to sign such a certificate unless he felt that there were real and substantial grounds of appeal.
So much for the course recommended with a view to diminishing the number of unprofitable appeals. To that course he anticipated very little objection: but he now came to a part of the subject upon which greater difference of opinion might exist—the management of proceedings in cases of bankruptcy. The measure which was recommended by the commissioners had two objects as regarded questions of bankruptcy; the first to lessen the number of bankruptcy cases brought before the lord chancellor; and the second to facilitate the decision of such cases as should still continue to be brought before him. Now, let the House first observe the inconvenience which attached to the present system; and then the manner in which that inconvenience was to be got rid of. As the practice now stood, every question of fact connected with proceedings in bankruptcy came before the lord chancellor upon affidavit; and every hon. member who was familiar with legal transactions, knew how difficult—he might almost say impossible—it was, upon affidavit, to decide upon any disputed question satisfactorily. In the first place parties could not be compelled to make affidavits. Next there was no power of cross examination. Thirdly, it required an immense deal of time to balance and weigh conflicting testimony given in this way, particularly where either party was desirous of concealing the truth. For the serious operation of all these drawbacks, he appealed without fear to the hon. member for Peterborough (Mr. Scarlett) or any other of the legal members who were in the House. Now what was proposed was, that, in the first instance, a certain number of commissioners should be elected, who should be the first judges applied to in all cases of bankruptcy. These commissioners were to form a court, which should decide, not upon affidavit, but by witnesses examined viva voce before it, upon all facts, in the first instance, disputed in cases of bankruptcy; and after their decision, each party should 1225 have a right to appeal to the lord chancellor in person, if he desired to do so. The effect of this would be, that a great number of cases which now came before the lord chancellor would be disposed of by the commissioners, and never trouble his lordship at all; and, moreover, that those which still went into the upper court upon appeal would be decided there, not by the present lengthy and inconvenient system of hearing upon affidavits, but upon the notes of evidence taken by the commissioners before whom the cause had originally been investigated. Thus far, therefore, having endeavoured to show the way in which the time, both of the vice-chancellor and of the lord chancellor himself, was proposed to be saved, he now came to the no less important branch of the subject—how far this saving of time proposed was suffciently material. Now, upon this question: he might as well state, that in addition to the measures already detailed, it was intended to relieve the lord chancellor from his jurisdiction in cases of habeas corpus; but, upon this question, which connected itself with what were called the arrears of the court of Chancery, it was scarcely conceivable what a mass of misrepresentation and misunderstanding bad gone forth. The House would be surprised, after all that it had heard as to the arrears of the court of Chancery, to learn, from the best authority, what was the real state of the case. With respect to the vice-chancellor's court, in which all causes were first heard upon petitions, the arrear of business was very small indeed. The late master of the Rolls, it would be remembered, had laboured for a long time under severe illness; in consequence of which a slight arrear had been occasioned in the vice-chancellor's court; but previous to that event there had been no arrear of business before his honour at all, and the causes set down in Easter Term had been regularly disposed of in the Trinity Term following. In consequence, however, of the illness first of the late master of the Rolls, and then of the present vice-chancellor, at the close of the year 1824, an arrear of about seven terms had been created. In eighteen months, which had elapsed since, that arrear of seven terms had been reduced to four. This was an extent of delay not greater than was experienced in the court of King's-bench; and he had no doubt that, in twelve months more—without any 1226 assistance from the new measures—that arrear would be worked up altogether. Substantially, therefore, there was no occasion to provide for any arrear of business, in the court of the vice-chancellor. And now, then, to look to the lord chancellor's court, with respect to which there prevailed just the same degree of exaggeration and misunderstanding. The portion of the lord chancellor's business which the House would now have to look to, lay in the rehearings and appeals: some gentlemen had declared that it would take forty years to work up the arrear of the lord chancellor's court, as to those two departments. The fact was, that in the month of January last, the total amount of causes in arrear had been 109. How little that arrear of business had increased within the last few years, might be gathered from the fact, that, by the return ordered in the year 1802, the arrear of causes then had stood at 105. No gentleman who was acquainted with the mode of transacting business in the lord chancellor's court, but must be aware how very quickly that arrear would be got through, if his lordship had only the power of directing his undivided attention to it. He had in his possession an account of the whole business which had been done in the lord chancellor's court during the last three years; and he regretted that it was not formally upon the table of the House, that honourable members might see the laborious life which that noble and learned person actually led. The fact was, that not a day elapsed in which the lord chancellor was not called upon to hear something or other in the shape of a motion, which it was of the highest importance to the parties concerned to have immediately disposed of. In a great variety of cases, where a hearing was not obtained instantly, the whole object of the proceeding was lost. In the case of an appeal for a decree, the hearing must be instantaneous. The proceeding, perhaps, embraced the whole merits of the cause; but, if the decree was not allowed to be carried into effect, the whole value of the appeal was lost. If it were said, that the lord chancellor lent himself too readily to requests of this nature, the answer was, that he trusted— what else could he do?—to the representations of counsel. The lord chancellor could have no intuitive knowledge of the merits of a case; he could only appeal to those who were acquainted with them. 1227 He could only say to a barrister—"If you assure me, as a gentleman, that if I do not take this case out of its common course, the greatest mischief will accrue to the parties—if you assure me that the thing is so, I will hear it." In questions of injunction —of lunacy—in a great variety of other proceedings—day after day, the same thing constantly occurred to interfere with the regular business on the paper; and yet, with all this, the House would observe there was no increase of arrear. The arrear was almost the same now as in the year 1802. There was no arrear of bankruptcy cases or motions; the only arrear was in the re-hearings and appeals. The question then was—how should this arrear be got rid of? It was easily answered. The vice-chancellor's court needed no alteration at all; and all that was to be done was wanted only for the court of the lord chancellor. In that court, then, every thing which went to save time would tend to reduce the arrear (which was not increasing); but it was hoped that the measures recommended by the commission — which diminished the number of counsel allowed to be heard—limited the quantity of business to be done in the court, and simplified that which was actually transacted—it was hoped that, subject to the operation of these measures, the existing arrear of 109 causes (which, as he had already said, was not increasing) would soon entirely disappear.
Having pointed out, as briefly as he could, the modes by which it was proposed both to diminish and facilitate the details of business in the Court of Chancery, he had little more to add beyond a hope that the House would feel the commission to have done its duty. The commissioners did not claim, in their report to have done every thing which might be done; but they had done all which, in their opinion it was wise or expedient, in the first instance to do. Let their present plan be carried into execution; and when the working of that alteration was seen, if further remedies were needed, those further remedies might be applied. In what he had stated to the House, he trusted it would be admitted that he had abstained entirely from every personal or party allusion. He had done so, because he thought that the object now was to amend, or make perfect, a great and important system; and, in fact, so completely did he feel the 1228 system, and the system alone, to be the subject in question, that he had not even once alluded, except incidentally, to the noble and learned individual who had presided for so many years, and with such distinguished zeal, and learning, and ability, over it. He abstained from such a course, because he felt that the character of the noble and learned lord, was not involved in the inquiry, and that nothing it was in his power to say could add, he would not say to his merits, but to the praises bestowed upon him, even by those who were his political opponents. He was in the House when his hon. and learned friend, the member for Calne, pronounced a panegyrick on the merits of that noble lord, which far surpassed in eloquence any thing he could say—when he bore testimony to the artlessness and simplicity of his manners, his anxiety to do justice, the depth and extent of his legal knowledge, the solidity of his judgment, and his vast and capacious memory. To go further, and to quote the opinion of one who, as his means of judging had been great, so his political hostility to the noble lord had been most marked—he might almost say most active—the late sir Samuel Romilly had said of the lord chancellor, that no man he had ever known, or read of, had possessed more talent to qualify him for his place. That he had never met with a judge so anxious to do justice to the suitors in his court; that if he had a fault —as what man had not? it was an over nicety and anxiety upon that head. To testimony like this, it became impossible for him to add any thing. The noble and learned lord had been fifty years in the service of the public. From the first moment when he had attracted the public eye, he had been marked out for the high situation which he now held; and not one act had there been in his whole life, which had not affirmed the opinion originally entertained of him. It was but due to the lord chancellor to say, that, as a member of the commission his conduct had been most active, candid, and liberal. No man could have been more ready to point out difficulties, to rectify any abuses, or to check any needless expenses in the constitution of his court, than he had been. Further in the way of commendation it would be offensive for him to go; and he had already, he feared, too long occupied the attention of the House; he should, therefore, sit down with moving 1229 "That leave be given to bring in a bill to regulate the Practice of the Court of Chancery."
§ Mr. John Williams
said, it had never been his intention to anticipate the motion of the attorney-general, and by several postponements, not unsuitable to the topic of discussion, he had shown that, he was willing to concede precedence to the clear and luminous statement just delivered. Through that statement he should not follow the hon. and learned gentleman; but he could not avoid observing, in the outset, that although his hon. and learned friend had taken a wide range over the report of the commissioners, he had omitted all explanation of the immediate object of the bill. For any thing that appeared to the contrary, the reforms to which he had alluded, these exploded and ridiculous errors, these continued abuses, the bare statement of which excited ridicule and contempt, might have been amended by a simple order of the court. The lord Chancellor, the court of Chancery, and the Commissioners, would, no doubt, by themselves, or by some representative of the whole body, return most hearty thanks to the attorney-general for the gorgeous panegyric which he had bestowed upon them. He (Mr. Williams) would, however, show what they had done, and what they had omitted to do; and then it would appear how far they had ascertained whether the courts of equity, as at present constituted, were capable of administering justice, in the manner in which it ought to be administered. The attorney-general had said, that the delays which had been so much clamoured about, were fancied grievances, and had no real existence; yet he trusted he should be able to show that those grievances were not fanciful, and that the commissioners had not done enough to silence the clamour that was raised all over the country against the practices which prevailed in the courts of equity. Still he hoped the report would do some good; and when good was done, no matter from what quarter it came. The people now did not look to the individual who did an act, but to the act done; and they were ready to give their just applause to any individual for the good he had done. Whatever good this report might do, it was all to be ascribed to an eminent individual, who really monopolized all the merit of the act. The credit of originating this inquiry was wholly due 1230 to his friend the hon. member for Durham. He hoped the report would do some good; for the least abridgment of the time which had been usually spent in the administration of justice in the equity courts must do some good. But, in the accurate and luminous speech of the attorney-general he had not heard any thing which showed that the subject had been fully investigated. Whether the report applied to the main body of the grievances complained of, was a matter which he would sometime or other examine. The report, however, had excited public attention, and he now confidently expected that it would soon be thoroughly known, whether the proceedings in the equity courts were as perfect in theory and in practice, as they had been represented to be. He apprehended it would appear that their merits were very little, and their mischief very great. There once existed a lawyer, or quasi lawyer, named Cicero, who had complained of the mischievous practices of certain courts and lawyers in his time, and those were the chancery lawyers of his age and country; but the panegyric of the attorney-general on our equity system, was so florid and gorgeous, that he would have cheered him, had he not been rather ashamed to do so; since he observed that nobody else did. The attorney-general had stated, that the commissioners had taken all the proceedings in the equity courts seriatim; and suggested such alterations as they thought might be properly made. But was not the attorney-general aware, that almost the whole of the reforms mentioned in the report might have been made by the court of Chancery itself? The fact was, that almost the whole of the abuses mentioned might have been remedied by the court five and twenty years ago: and if the individual at the head of that court had fulfilled all the expectations formed of him—one who had been half a century in the profession, and for a quarter of a century in its highest office—if that noble and learned person had all that acuteness and intelligence which the attorney-general had ascribed to him, how happened it, that in so long a period he had not corrected those abuses, which could, at any time, have been done by a simple order of court? He had suggested that this course should be taken two years ago; and, if that course had been taken, the commission would have been unneces- 1231 sary. That this course might have been taken he would show upon the authority of an eminent chancery lawyer (Mr. Bell), who had mightily praised the court of Chancery, and very naturally, since it was to that court he owed his fortune, and all the fame he had. "Much," said Mr. Bell, at page 392, "should be left to the discretion of the judges, who, I think, are competent, without legislative assistance, to make most of those reforms which have been alluded to, and are best able to do it, as they may vary and alter their rules as experience demonstrates the necessity; and without the cordial support of those who are to carry them into execution, the best digested plans will fail." This confirmed him in his opinion, that the court itself might have long ago carried into effect every thing that was now recommended by the commissioners. In this opinion he was further confirmed by the observations of Master Stratford:— "The above resolutions are respectfully submitted to the commissioners; but it is a matter of great regret, looking to the circumstance that the more material ordinances heretofore made for the regulation of the several offices of the court of Chancery, were made by the lord high chancellors for the time being, or persons holding the great seal, from the time of lord Bacon downward, not forgetting even the time of the Protectorate, and much less the times of lords Clarendon and Nottingham; and looking also not only to the learning, but the experience and the wisdom of the present lord high chancellor; that he has not followed the example of his predecessors, and of himself determined what alterations in the practice of the several offices of the court may now be usefully made, and ordained accordingly." And still, notwithstanding the manifest, and now avowed, inconveniencies of the existing system, no alterations or improvements had ever been made. With reference to the report itself, he did not make the fact a subject of complaint, but it did appear that it had not by any means been generally assented to by the commission. As to the remedies suggested for the abuses of chancery which were recommended by the commissioners report, it would be dealing unfairly not to state, that there was a division in the profession as to whether, if those one hundred and eighty-seven propositions were adopted, a public benefit or a public mischief would have 1232 been the result. As to his own individual opinion on the subject, he believed that there was at all events, a very reasonable prospect, that the public would have been benefitted by the adoption of those measures. It had been stated by the attorney-general, that the commission had afforded every facility to inquiry; that they threw their arms wide open to complaint; and that the whole profession were invited to furnish their suggestions, and to offer such hints for the improvement of the chancery system, and the remedying of its abuses, as their experience might suggest. When the commission was about to commence its labours, it was stated that they had given notice to the profession that they were willing to receive such hints as would be found useful, and to adopt them, if approved. But neither the solicitors, nor the metropolitan law societies, were applied to or consulted, although the evidence of the former body of men in particular would have been found most useful. Indeed, he had been informed that no person, who had not been especially summoned, had been brought before the commissioners. He had not heard of one single volunteer; and not one witness had been called upon, who had not been specially summoned to attend. He therefore contended—and he thought he had a right to contend—that although the evidence brought forward before the commissioners was not, perhaps, deficient in weight, there certainly was, from the circumstance he had stated, a considerable diminution of authority on the face of the report. Another circumstance that furnished, in his opinion, matter of just complaint against this report— and his hon. and learned friend must excuse him if he stated that he certainly had an original bias against the commission, for he did conceive that those who were appointed to act as commissioners were the last men who could bring their minds to bear upon the minute and complicated details which the chancery system presented—the other ground of objection was, that solicitors were not duly represented in that commission. Judges were well represented, and learned gentlemen with stuff gowns, and with silk gowns, and the masters and officers of the court, were all duly represented; but not a single solicitor had a voice in the commission. The reason implied, if not assigned, for this exclusion, might be found in the twenty-third page of the report, 1233 where it was said, that the delays in Chancery were to be mainly attributed to the solicitors. He did not believe one word of that charge. Every man who knew any thing of the conducting of a chancery suit must be aware, that large advances of money were frequently made by the solicitors at the commencement of a suit, in order to meet preliminary expenses and to fee counsel, who, in many instances, were nine or ten in number. On a question last term, the counsel for the plaintiff said he should be obliged to pay 300l. for an office-copy of the bill, in order to see what had been sworn against him, so that in this instance 300l. were advanced by the solicitor before the suit commenced. He mentioned this, in order to show that costly advances were constantly made by solicitors; and with this fact on record, with what consistency could that body of men be charged with creating delays in Chancery? Was it not their object that the suit should not linger—that it should be as speedily determined as possible? and for this sole and convincing reason—that the sooner it was decided, the sooner would they be reimbursed their heavy advances? With what show of truth or consistency could it be maintained, then, that solicitors were the cause of delays in Chancery, when their dearest interest lay the other way? He believed that if solicitors had been on the Chancery commission, they would have laid the blame of delay on higher quarters; who, perhaps, were not less liable to be implicated in a charge of that nature.—With respect to the subject of injunctions, the report had stated nothing satisfactory on that head. To this part of the jurisdiction of the court of Chancery he had great objection; because it operated to snatch from a suitor at common law the hard-earned fruits of his patience and labours, at the very moment when he was about to gather them by means of the last process in his suit—the execution. He objected to it as part of a system acting by two separate jurisdictions, upon two distinct sets of rules; by means of which the judgment of one court might be arrested by the interposition of another, and the suitor kept out of his rights as long as a suit in equity could be prolonged. The means provided against an abuse of this power, namely, by affidavit, under the recommendation of the report, he deemed a very incompetent remedy. It was merely a formal process, 1234 and would have no effect whatever in checking one of the greatest evils that ever disgraced the forms of judicial process. There was another point to which the report had not paid the least attention. He meant the question of con-tempts. It had fallen to his lot and to that of several of his friends, in the discharge of their duty in that House, to present more than one petition from parties actually in custody upon alleged con-tempts of the court of Chancery— not because they were contumacious, but because poverty prevented them from taking the requisite steps. He should not object to imprisonment so long as contumacy was evinced, but it was otherwise under the circumstances he had mentioned. His hon. friend the member for Montrose, in the course of the present session, had presented a petition from a person of the name of Richardson, stating that he was in custody for a contempt, under circumstances for which it was not in his power to provide a remedy. In that petition he confessed there were circumstances detailed which set his mind against the truth of the complaint. Those circumstances, which were without doubt in the recollection of the House, related to the imprisonment of a child of the age of seven or eight years, along with his stepfather. He well remembered that the right hon. secretary for Foreign Affairs took the same view of the case as he did, and plainly declared to the House, that the thing was impossible; and he certainly did at the time think with the right hon. gentleman, that the allegation must be a shameless exaggeration of fact, of a nature to disgust all who heard it. From circumstances, however, which had since arisen, he had reason to believe that that statement was mainly true; for, in order to be correctly informed as to the merits of a case of such an extraordinary description, he had taken the trouble of writing to the governor of York castle, the prison where Richardson was confined. A reply had been forwarded to him verifying the truth of the statement in every particular, and stating distinctly, that the child was committed a prisoner for an implied contempt of the court of Chancery. What were the facts of this case? The boy had no father: he was confined a prisoner with Richardson, who was his father-in-law. The child, it seemed, had a title to a portion of an estate in right of its; father; 1235 and so, because it was said that the child had an interest in the property, a subpœna was issued against the child; and because he had no one to stand up for him the child was imprisoned from the month of October to the present hour. This was the system that was without reproach—the immaculate, unerring, court of Chancery. There was another subject which the commission had touched upon with a degree of gentleness that was truly edifying—he meant the subject of conveyancing. This, he contended, was very defective. A noble and learned lord, who had written a celebrated pamphlet on this subject, particularly charged the conveyancers with perverting words, and adding much to the labour of the courts by their mystifications. He also complained of the counsel for their long speeches. But of all the speakers ever heard of, the counsellor spoken of by the right hon. secretary for the Home Department, who kept up his speech for eight consecutive days, was the most extraordinary. He really hoped the name of that wonderful orator would not be lost to history, but that he would be handed down to immortality, as he deserved, as the head of a new department of oratory. He would now come to the most important part which the commission had overlooked in their report—he meant the three stages of a bill. The first stage was the time set down for a hearing; secondly, the hearing; and thirdly, the decision. In all those stages the delays were excessive. Had the committee taken pains to examine into the abuses which arose during the progress of a suit? Did they not know, in committees of appeals, that five or six years had elapsed from the time of setting down for a hearing, until the hearing actually took place? In the case of "the Attorney-general against Brooke," six years elapsed from he setting down to the hearing; and in he case of "the Attorney-general against Brown and De Tastet," it was nine years from the setting down to the hearing. In cases of motions, some of them had occupied two or three years before they were lisposed of. Mr. Basil Montagu, the commissioner of bankrupts, had given three instances of prolonged cases of ankruptcy. One of those had been vouched upon by the report. It appeared hat they severally occupied nine, eight, and seven years up to the year 1824, and 1825 two cases out of the three still 1236 stood upon the paper. Had the commissioners heard of the quantity of causes that remained for judgment when they commenced their labours? It would appear that they did not think an inquiry practicable, nor did they think they could produce any good, unless by diminishing the quantity of business. The House and the country both demanded that something should be done to expedite the business of a suit towards its termination. The period from the hearing of a cause until judgment should be pronounced upon it, was a stage, with respect to which the country was totally in the dark. That, he contended, was one of the most crying grievances of the Chancery system. It was the longest and most expensive period, not to speak of the increased anxiety and torture which every moment of delay gave to the unfortunate suitors. The expense at that time was enormous. He himself knew of a case, in which 1,000l. had been expended before judgment was pronounced. Instead of going upon evidence, the dexterity of his hon. and learned friend referred to papers; which mode of inquiry he, no doubt, found better for his purpose than the barren field of legal investigation which lay before him. By a reference to page 453 of the report, where the case of "Fitzgerald v. Balfour" was quoted, an instance would be found of the incorrect manner in which a minute had been taken. He would just read the passage. It was the case of a bill filed for the specific performance of an agreement entered into in the East Indies, respecting a debt from the Nabob of the Carnatic. "On the 30th of July, 1817, a motion was made before the lord chancellor that the defendant might be directed to pay into court the amount of the debt in question, with interest thereon at 12 per cent (the Indian rate of interest); and an order of some kind or another having (as it was supposed) been made by his lordship, minutes of such supposed orders were drawn up by the register according to the notice, and delivered out to me; but the defendant's solicitor having alleged that no order was made, or at least no order to the effect stated in the register's minutes, and which question the register (not having, as it afterwards appeared by his book, taken any minutes of his lordship's judgment) was unable to decide, a further application to the court became necessary; and on the 10th of December, 1237 1817, such application was made, when the lord chancellor promised to look into the papers (which he took home with him for that purpose), and give his judgment at some future time thereon. No judgment, however, was afterwards given, although repeated applications were made by counsel for that purpose. On the 22nd of May, 1820, I took the liberty of addressing a letter to his lordship on the subject, in answer to which, he promised to give judgment on the Saturday following. No judgment was, however, given, and in the month of November 1820, I determined to set the cause down for hearing before the vice-chancellor, who decided that the defendant was bound to pay the principal debt, and 12 per cent interest thereon up to that day; but upon the defendant objecting to have interest decreed against him at the rate of 12 per cent, the matter was referred back to the lord chancellor, who decided that he had already made an order in the case. So that it appeared, that the matter slept for four years, subject to 400l. on one supposition, and 600 on the other, although the party was in the utmost possible distress and misery." In page 454, of the evidence in the case of "Erskine v. Garthshore," the whole business was obliged to be begun de novo, after an expense already incurred of at least 1,500l. But those were imaginary cases of grievance. There was no delay, no distress. "Oh," said, the hon. and learned gentlemen on the other side, "those are only individual cases." In the year 1814, an appeal was made against a decision of the vice-chancellor: from the year 1819 to the year 1824, a period of five years, this case was sometimes at the bottom and sometimes at the top of the paper, without being heard at all; and in July 1825, counsel wrote a letter to the lord chancellor, entreating for judgment. The lord chancellor sent him word he would decide it speedily; but he had not done so up to the present time. There was yet another case of a gentleman, a banker,—a Mr. Wellings,—who came into the lord chancellor's court, and addressing his lordship, stated that he had seventeen children and twenty-seven grand children; that he could not dispose of his property until the suit in which he was engaged was first decided; and he prayed his lordship to decide the case. The lord chancellor, in answer to this application, after reflecting a little, said, that he had given judgment 1238 six months ago; but it turned out that his lordship had omitted to hand the minutes to the Registrar, and the suit remained to this moment in statu quo. But, let the House mark the consequences in this particular case. The individual of whom he had spoken had been a banker. In March last there was a great run upon his bank; 32,000l. might then have saved him, but as it was, he became a bankrupt. Another case was that of "Simpkins v. Fowler." According to affidavits, this case waited four years for decision. He knew of another case that had been delayed thirteen years. The matter was depending from an appeal from the Rolls: the unfortunate suitor became a bankrupt in the mean time, and died in a poor-house at Kensington. The hon. member next adverted to another case of delay, which he said he knew of his own knowledge to be correctly stated. He would not name the party to the suit, nor the solicitor who was engaged in it; but if asked, he would disclose their names. The hon. and learned gentleman, after detailing the progress of the suit from its commencement in Easter term, 1813, proceeded to state, that in Michaelmas term 1818, the appeal came on to be heard; but no decision, no judgment, was given. It had then stood for nearly six years, amid all the doubt and anxiety inseparable from such a cause. The party felt that the delay was a denial of justice, and despairing to live to see the final issue of the suit, he was at last obliged to make a compromise with the opposite party, much to his pecuniary loss. After this, he would ask the House were there any grounds for complaint? The hon. and learned gentleman then alluded to the expenses attendant on a protracted suit, which in many cases amounted to 1,000l., in some 1,500l., and in one instance to 12,000l. He should mention only one other case which he found in "Jortin's Ecclesiastical History." It was the case of a remedy for procrastination of justice, of a nature which he certainly despaired of finding recommended in the Report upon the table. The individual to whom he alluded was King Theodoric, who was represented as equally shining in war as in peace. A woman of quality had a case before one of his tribunals for a space of three years, and notwithstanding her efforts and those of her advocates to obtain a decision, her cause remained during the whole of that time undetermined. At 1239 length she made an application to Theodoric himself, who, having sent for the judges, and questioned them as to the cause of delay, was so little satisfied with their explanations that he caused them to be put to death. He then took the subject of dispute under his own consideration, and immediately gave sentence for the lady in question, issuing a proclamation, that any judge who should in future delay justice should incur the penalty of death. The effect of which was, that delays suddenly and completely ceased. This case was one which certainly had not been brought before the commissioners; and, adopting the language of regard being had to the venerable age of the noble lord who presided over the court of Chancery," he would be the last to recommend any such thing. He would infinitely rather leave the noble lord to the commissioners of whom that noble lord was the head. He was sure those commissioners would not, any more than himself, hurt a hair of the noble lord's head. He was sure their mild and milky nature would not touch a feather of the plume of his patronage, authority, and high station. Their labours abridged none of the patronage or authority of the noble lord, but, on the contrary, they gave him more patronage in the nomination of new officers; never-ending cases, patronage and new beginnings were the order of the day. Although he would not say that the measure introduced by the attorney-general was not advisable, he would say that the two branches of inquiry, to which he had before called the attention of the House, ought to have been gone into, and, in the absence of information upon those two branches, the House could form no accurate judgment, and giving credit, therefore, to the hon. and learned gentleman, for the purity of his intentions, he must say that the House if they should, under present circumstances, legislate upon the subject, would be legislating in the dark.
contended, that the commissioners had done their duty in the report which had been made to his majesty, and laid upon the table of that House. He could, as one of those commissioners, bear testimony to the diligence with which his colleagues had applied themselves to the subjects referred to their consideration, and had discharged the important trust reposed in their skill and judgment. So persuaded was he that they had performed that duty con- 1240 scientiously and effectively, that he had no fear of incurring the slightest risk in calling upon any hon. gentleman who heard him, to point out a single particular in which they had not performed that duty. It had been alleged, that they had not obtained all the information within their reach; that solicitors should have been made members of the commission. To this he would reply, that in similar commissions, solicitors had not been included; that, for instance, in the chancellorship of lord Hardwicke. But there was nothing in the commission itself, or in the course of proceedings adopted by the commissioners, which at all precluded solicitors from coming forward, and giving whatever information they felt disposed to communicate. Not only were they at liberty to attend, but gentlemen of that part of the profession were specially invited to do so, and the invitation was issued at the very first sitting of the commissioners, when it was signified that they might come forward and be examined, or make written statements of their views, relative to the questions under the consideration of the commissioners. If the hon. and learned member doubted this, let him apply to Mr. Lowe, and that gentleman would satisfy him that information from solicitors was not rejected, but was, on the contrary, sought after. Let him look through the list of witnesses, and he would find that this statement had the best foundation in fact, and he would find also that there were no less than twenty pages of the evidence of that same Mr. Lowe embodied in the report of the commissioners. In no case was the evidence or information of any solicitor rejected, in no case were any of them impeded in coming forward. On the subject of delays in giving judgment, it had not been found that any one attorney had come forward to give testimony. The hon. member for Malmesbury had been examined, and no one was better qualified than he was to give evidence on the subject of delays in giving judgment. But, proceeding without further notice of these topics, he would say that little remained for him to address to the House, if he could succeed in establishing a sufficient defence for the commissioners. This he was persuaded he should have little difficulty in effecting, and this he conceived was the only duty he had to perform; but he trusted that the performance of that duty would not be suffered to rest entirely 1241 on his shoulders, but that each commissioner would get up in his place, and vindicate themselves as a body from the imputations with which it had been sought to cover them. They should get up and declare, and prove, that they had done their duty, and meet the hon. and learned member for Lincoln on his own arena. He would now proceed to notice some of the leading points in the speech of that hon. and learned gentleman, and one of the first to which he would direct attention was one of a character most unfair-he meant that which would bring a charge against the practice of the court of Chancery, on the ground of particular cases brought under the consideration of that House, without the slightest notice. It was to no useful purpose that hon. members stood up with cases, which were previously unknown, and respecting which it was, therefore, impossible that any one could be prepared to vindicate the court of Chancery. He was satisfied that not one of the cases to which the hon. and learned gentleman had adverted would bear the character he had attributed to them, if there had been time given for inquiry and explanation. There was one case in which he himself had been counsel, and to which he could, therefore, the more particularly speak. It had been alleged relative to it, that the lord chancellor had delayed giving judgment; but it was to be recollected, that his lordship had never been called on to give judgment, counsel had never arisen to pray the decision of the court. He could assure the House that counsel had never been instructed for such a purpose; and surely there was no great delinquency in a judge's not deciding a cause, which he had never been called on to decide, and which he had every reason to think had been compromised. He was not sufficiently acquainted with the other cases which the hon. and learned gentleman had mentioned, to go into any explanation respecting them; but he was sure that if they were known and examined, they would be found to be equally destitute of ground for imputation against the learned lord at the head of the court. There was one case, however, which he could not pass over without some remark. It was one, founded not only on a misstatement of the fact, but on a gross calumny. It had been made the subject of a petition presented by the hon. member for Hull, and supported by the hon. member for Aber- 1242 deen. Loud complaints were made, that after twelve years, the lord chancellor had ordered the re-taxing of a bill of costs which had been taxed so long before. Now, what were the facts of that case? A solicitor in the case obtained from his client, not only his bond for the full costs of the case, but had taken a further security, by obtaining a mortgage for it on a legacy to which the client was entitled. The money was paid; but subsequently, when the case was brought before the lord chancellor, he ordered it to be re-taxed, and the money thus improperly obtained to be refunded. But it was said, that only 3s. 6d. was taken off one bill. Now the fact was so, as to part; but in another bill, arising out of the same case, 100l. was taken off. Yet this was called a three-and-sixpenny case, on which the hon. and learned gentleman had taken occasion to throw off so much asperity of language, a case on which he had indulged himself in so many pleasantries from Cicero and Theodoric; but, after all, it turned out to be the taxing of a bill of costs which had never been regularly taxed before He was sure that, on this occasion he might calculate on the vote of the hon. member for Aberdeen, who had favoured them a short time back with forty-seven resolutions for regulating the finances of the country. He at least would not oppose the lord chancellor for having ordered the re-taxing of a bill which had been obtained by fraud. He had dwelt on these points thus much, not because he meant to contend, that there was no case decided by the lord chancellor which might not have been decided in a shorter time (for he would admit, that in his case, as in that of every honest and upright judge, a slight delay of a cause might sometimes occur, though without an intention to delay), but that the cases thus delayed were very few, and that in most of the cases complained of, the delays arose from circumstances over which the lord chancellor had no control. As to the general practice of the court, he would contend, without now going into the detail, that the resolutions of the commissioners, when carried into effect, would very considerably abridge the time and expense necessary to cany through a suit of Chancery. It might be asked, and he would admit the question to be a fair one, why had not any of those amendments and improvements now proposed been made by lord 1243 Eldon? To this he would reply, that the general rules of practice in the court had continued the same from the time of Cromwell's commissioners down to the present period. In that time there had been many chancellors—many of them Tories, and some reformers—yet no attempt had been made (with the exception of some regulations of unimportant detail) to alter the practice of the court. If, then, lord Eldon erred in not having made such alterations, he erred in common with some of the ablest men which the country had seen at different periods at the head of that court. Even at the present day, lord Redesdale, who stood as an equity lawyer inferior to no man in Westminster Hall, was said to disapprove of many of the resolutions of the commissioners; and as he dissented, why, he asked, should the lord chancellor take upon himself the whole responsibility of the alteration? No doubt he, as head of the court, possessed the power to make them; but so had the lords King, Camden, Rosslyn, Thurlow, and others, who had presided in the court. But they had omitted to take on themselves the responsibility, and he was satisfied, that any error or inconvenience arising from such alteration would be attributed to the party by whom the alteration was made. In fact, no great alteration had ever been made in the practice even of our common-law courts, without the aid of legislative enactments, and on this principle—that the person making the alteration by his own authority would be considered rash and adventurous. The hon. and learned gentleman then proceeded to show some of the advantages which suitors would obtain by the alterations proposed by the commissioners. In some cases a year would be saved, and in others a year and a half; and in all, the duration of a suit would be limited to the shortest possible period, consistently with the rights of the litigant parties. The hon. and learned gentleman opposite had made some general objections, but he had not pointed out one of the propositions of the commissioners, as that which ought not to be followed. It was said, that great savings of time and costs might be made in many cases where no question of law was at issue, by allowing the masters a discretionary power to refer the matter to accountants. In this he concurred, and he would go further, and in cases where married women or lunatics were parties to 1244 a suit, would allow the master a discretionary power to refer the matters (not being questions of law) to arbitration. Another important improvement would be, that in cases of trusteeship a detached part of which was brought for the opinion of the court, the trustees were not to be compelled to administer to an equitable jurisdiction; but to take the opinion of the court only on what was wanted, and no more. Another satisfactory regulation would be, that parties bringing cases before the master of the Rolls, or the vice-chancellor, would have the power of appeal to the lord chancellor, or the House of Peers; but not to both. This would be a considerable saving of time and of expense. Another point, which had been much talked of, and from which great delays had arisen, would be improved in a way by which those delays would in future be prevented. As the law now stood, a solicitor in a cause, having obtained a decree, was not bound to bring it before the master, for the taxation of costs, within any specified time. But by the proposed alteration, he would be obliged to bring it within six weeks, and the master would be invested with the power of compelling him so to do, and would be responsible for its exercise. Without going further into detail, he would observe, that when the subject was fairly examined, it would be found that the commissioners had done all that could be fairly expected from them, to improve the general practice. One word on another point, which had been much dwelt on by on members on the other side. It was said, that the general business of the court had accumulated so much, that for the sake of the public, the jurisdiction over bankrupt cases should be detached from the court of Chancery. In this suggestion he could not concur: but he thought that the business before the commissioners of bankrupts might be so regulated as to remedy the evil now complained of. That evil was the bringing of so many unfinished bankrupt cases for the decision of the lord chancellor. Now, he thought the cure would be, so to select the commissioners as that they should have power and time to oblige the parties before them to state their whole case completely, and to have judgment given upon it. If this were done, he would say that nineteen out of twenty of the cases now brought before the lord chancellor would be finished without 1245 calling for his interference, and that cases only of real difficulty would be brought before him. But it had been objected to the report, that it recommended nothing which was calculated to exonerate the chancellor from any part of the business in bankruptcy. Now, last year no less than five hundred bankruptcy petitions were presented to be heard by the lord chancellor; and he would undertake to say, that by the amendment that was suggested in the report, three fourths of these would have been got rid of. It was said, the report ought to have recommended a separate court for the bankruptcy business; but he was persuaded that the merchants of this kingdom would not be willing that this power should be intrusted to any person less than the chancellor; and even if a separate court had been instituted for this purpose, there must still have been an appeal to the chancellor, and as appeals would have been preferred in far the greater majority of cases, the chancellor would have been relieved from very little burthen by the establishment of such a court. He would say no more on this subject; on which, however, he would not deny that there had been a slight difference in the committee. As to the case of the imprisonment of an infant which had been alluded to, this did not arise from, nor ought it to be attributed to, any defect in the system of the Chancery practice; but was owing to the negligence of the friends of the infant in not taking proper steps to prevent it. He believed the same thing might have occurred in the courts of common law, if there had been the like negligence on the part of those who ought to have attended to the interests of the infant. There was another thing which had tended very much to take up the time of the chancellor. When bankrupts conceived that they had been improperly committed by the chancellor, they had a right to cause themselves to be brought up by habeas corpus, either before the common-law judges, or the chancellor; and it had generally happened that they preferred being brought up before the latter, from his high character, and from the great patience and attention with which it was well known he always examined into these matters. Indeed, he himself knew, that during last year, the chancellor was occupied twenty whole days upon business of this nature. He would not trespass 1246 any further on the attention of the House; but when the bill came before them for their consideration, it would, of course, be competent for them to qualify or alter any of the resolutions, as they should think proper. The commissioners, however, he must take leave to say, had fully and impartially examined into every point in which they conceived any improvement could be made, and had spared no trouble in suggesting such amendments, as it appeared to them could be practically useful to that court.
§ Mr. M. A. Taylor
said, that as many other gentlemen were desirous of delivering their sentiments on this subject, he should not have presented himself to the House on this occasion, but, from the line of conduct which he had so frequently followed with regard to these matters at former periods, if he remained silent now, it would have been imagined that he entirely approved of the report of the commissioners. He would admit that that report did possess some merit; but he could not avoid thinking that it had fallen far short of the object which it ought to have effected, and that it had left very much undone which it ought to have performed. That the commissioners had diligently investigated and examined into the subject, he would not deny. But, was that all which they ought to have done? He wished the House to look to the evidence of Mr. Shadwell, a most able Chancery barrister. When this gentleman was asked by the commissioners, whether he considered the judges of the court competent to get through the business of it, his reply was, that he was persuaded three angels could not do it. Yet the commissioners had entirely passed this matter over. They ought to have recommended the separation of the bankruptcy business from the great seal. He was well aware, however, that lord Eldon would rather part with his life than permit this separation to take place. He himself had had repeated conversations with the noble lord on this subject, and had sat on two committees relating to it. The opinions of these committees had been nearly unanimous. Sir Samuel Romilly, indeed, had doubted; but still, even he had said, that some measure ought to be adopted, to relieve the chancellor from the weight of the bankruptcy business. Besides, did the chancellor perform the bankruptcy business, except in the cases 1247 of appeals? He believed it would be admitted that he did not. The court of Chancery ought to be a court entirely independent of political power or principles. The judge of it ought not to be distracted by political business, but should be able to sit, de die in diem, for the despatch of business. He meant nothing personal against the chancellor—he had not the slightest wish to give him any offence, but he had a right to deliver, and he should not be performing his duty if he did not fearlessly deliver, his sentiments on this subject. He certainly did not think the report had gone any thing like far enough; and this he conceived would appear from the attorney-general's own statement. He himself and his friends had been working hard for twenty years, endeavouring to convince the government and the country, that the system of this court was not as perfect as it might be, and to procure some reform in it; and he might presume to say, that he ought to know something about the court, as he had practised fourteen years in it; but all their efforts had proved fruitless.—No attention was paid to their representations; but now, all of a sudden, a new light had broken in upon the government, and they had found out that the system was bad. But still it was said that most of the evils complained of were "fancied" abuses. When, however, men were ruined and undone, and when the fortunes of orphans were locked up in the court for years, owing to the system which prevailed in it, the sufferers would not readily be persuaded, that their grievances existed only in their own fancies. There was no need to specify or to enter into any detail of cases of this kind; they were already in print, and all who wished might read them. The learned gentleman stated, that there had been no delay. People, however, did not understand how suits could be going on for years without there being culpable delay somewhere. The commissioners would not admit that there was any just ground for a charge of delay against the court; although it was a notorious fact that there were suits in it which had lasted half a century. Would the country be satisfied if parliament neglected to abate so gross an evil? Would they not think their representatives worse than idiots if they failed to purge the court of the causes which led to so monstrous a denial of justice? What was 1248 the reason that so crying an evil had been so long suffered to exist? He remembered that when, many years ago, he submitted to the House a proposition upon the subject, a member of that House had a suit in the court of Chancery respecting a large estate, and had been complaining loudly of the great length of time the question had been before the court, without any judgment having been given in it. This was not more than two or three weeks before he himself, in 1810, brought forward his motion respecting that court; and, when he did bring forward his motion, that very gentleman voted against it. Upon this gentleman's afterwards going to sir Samuel Romilly, who was his counsel, to renew his complaints about the delay, sir Samuel told him that he had himself been instrumental in causing such delay by the vote he had given, and that he (sir Samuel) would not fail to do his duty in the cause, but that he never wished to see him again at his chambers respecting it. But it was said, if an appeal was to be allowed to the chancellor, no one would be satisfied with the decision of the commissioners; and the report was filled with compliments of the ability and patience of the chancellor. No one ever thought of doubting the chancellor's ability as a Chancery lawyer; but surely it was a libel on the bar to say that no person could be selected from it competent to decide on bankruptcy cases. Were not the attorney and solicitor-general, as well as some of the hon. and learned gentlemen who sat on the same side of the House as himself, fully qualified to perform a duty of this kind? When lord Eldon should be taken from them in the course of nature, what must they do if no one else were fit to discharge this duty? It had been suggested, that the hearing of the cases of parties brought up on habeas corpus should be transferred from the chancellor to the common-law judges; but he believed most people were of opinion, that instead of adding to the duties of these judges, they ought rather to take from them, for the labour which these learned personages had to undergo was immense. What then he would ask, had been gained by this report? The commissioners had not suggested any thing in it on that particular point to which their attention had been peculiarly turned by the direction of his majesty; namely, whether the court, as at present 1249 constituted, was competent to perform all the duties which were attached to it? He must say that he thought government were to blame in not having looked into this system before now, and in having suffered it to go on for so many years, notwithstanding their attention had been so often called to the evils which flowed from it. The solicitor-general had said, that he would have been a bold man who should have taken upon himself to alter this system of his own accord, and without the sanction of the legislature; and had contended, that lord Eldon had, in this respect only acted as former chancellors had done before him: but he would mention one instance in which a very considerable improvement had been made by lord Eldon, ex mero motu, and which he himself had repeatedly recommended without effect. This was the appointment of a deputy Speaker, who might sit in the House of Lords from day to day, for the determination of appeals. Before this appointment took place, there was a twelve years arrear of appeals, and within two years after it was made they were all disposed of. He could not see why a deputy Speaker was not quite as necessary in 1811, when he proposed that there should be one appointed, as in 1822, when the appointment was actually made. Whatever might be the talents or industry of an individual, it was not possible for him—it could not be expected of him—that he should be able to do every thing. The solicitor-general had contended, that there was no arrear of business in the court of Chancery; but he believed there was a very great arrear, and of that sort of business in which any arrear was most to be deplored—he meant of causes remaining for judgment. There was also a very considerable delay in making out the minutes of the decrees; and indeed the Register's-office was in a slate of the greatest confusion. But he would conclude his observations, by repeating that he should wish more to be done on this subject than what had been recommended by the commissioners. He did not find any fault with them. He thought the report would do some good, but in his opinion it had not gone far enough.
Mr. Secretary Peel
wished to say a few words on this question, but the moderate tone in which it had been discussed, and the considerate forbearance which had been evinced by the hon. and learned 1250 member for Lincoln, in not pressing his motion for referring the report to a committee at that late period of the session, would prevent many observations on his part, with which he might otherwise have been obliged to have troubled the House. The object of his hon. and learned friend, the attorney-general, was merely to get the bill printed, in order that a full opportunity of considering and examining into its principles might be afforded before next session. This was not the precise time for discussing those principles. He could not however, avoid saying, that the hon. and learned gentleman who had just sat down had not dealt fairly with that report. He had not treated it with his usual candour and justice. He had said, that the report had dealt very lightly on the subject of delay, and represented that achancery suit might be beneficially carried on for fifty years. Now, the report had only said, that there was a great popular misunderstanding on the subject of delay, and shown, that in cases of trusts, and in matters relating to infants, it might often happen of necessity, that a cause must remain in that court for a great many years; and indeed, when it was recollected that property might be tied up for a life in being, and one-and-twenty years afterwards, during all which time the administration of it might unavoidably be under the direction of a court of equity, it would be readily seen that it might very possibly happen, without any delay, mismanagement, or prejudice, that a cause might remain in that court for half a century. It was to evince this, and correct a popular error, and not to palliate any culpable delay, that the statement was made in the report which had been alluded to by the hon. and learned member. Neither had the question as to the separation of the bankruptcy cases from the great seal been quite fairly stated by the hon. and learned member. Certainly, Mr. Shadwell had advised such separation; but then he was the only witness (and many other witnesses of the greatest knowledge, experience, and ability had been examined) who had recommended this; and Mr. Shadwell himself had proposed, that the bankruptcy business should be committed to four or five judges to be appointed for this purpose. The commissioners said, We must pause before we can recommend the transfer of bankruptcy from the business of the lord chancellor; we have another expedient, which we consider to 1251 be sufficient to remedy the existing evil. If experience prove that the time of the lord chancellor is not sufficient for performing the business of bankruptcy and the ordinary business of his court, there is no alternative but to transfer it away from him." They added, however, this important remark to it—that the knowledge required to decide in cases of bankruptcy comprised a complete knowledge of the practice in equity; that the business in bankruptcy was not sufficient to occupy the entire time of one judge; that it was of a nature which required the existence of a court of appeal; and that the course which they recommended for adoption appeared in many points of view less open to objection than the entire transfer of bankruptcy from the court of Chancery. His hon. friend, on the other side, complained that the commissioners had not gone far enough in the recommendation which they offered to the House, whilst others of his hon. friends, and especially some near him, complained very loudly that the commissioners had gone too far, and had even sanctioned, by the innovations which they proposed in their report, certain attempts which had been made to degrade the character of the lord chancellor in the eyes of the country. What did he infer from these conflicting opinions? That the commissioners had steered sufficiently between the two extremes, and had submitted such propositions to the House as they deemed wise and necessary, even though they knew that such propositions must lead to very extensive innovations and reforms. He was likewise surprised at the different views which the hon. and learned member for Lincoln had taken of this report, on the present and on a former night. He had formerly complained that it contained 180,000 different propositions: he had now reduced them very quietly down to 187. He had formerly complained, that the report contained too much—he had now changed his note, and had found out that it contained too little. In the course of his speech he had declared that there were most important omissions in it. He had lamented, that the commissioners had not entered into the question of conveyancing, or into that of injunctions, or into that of contempt. Now, if the commissioners had entered into the Consideration of these questions, it was his opinion that they would have entered into the consideration of an inquiry that was not re- 1252 ferred to them. As he was convinced that the present was not a fit period for entering upon this discussion, he should conclude the few observations which he had to make upon this subject, by saying a few words upon the charge which had been, made against the lord chancellor, in respect of the delay which was said to occur in the pronunciation of his decisions. Now, he would beg leave to read to the House part of the evidence on the degree of delay that was imputable to the lord chancellor. The evidence to which he wished more particularly to call the attention of the House was that of a gentleman whom he had not the honour to know personally, but who possessed a very high character for talent and integrity—he meant Mr. Basil Montagu. That gentleman began by stating, that there were not two men in the world who differed more widely upon all political questions than himself and the lord chancellor. He was, therefore, an unprejudiced witness on the subject. He further stated that with the late sir S. Romilly he had lived and acted, and that it was his pride to reflect on the long and sincere friendship which existed between them. He said, "There are delays in the pronunciation of the judgments which the lord chancellor is called upon to give. I cannot deny it; but I impute them to; three distinct circumstances. The first is, that the lord chancellor takes a different view from that taken by his predecessors of his duties as a judge; for he feels himself called upon to decide, not only on the law, but on the controverted facts of the case. Other judges had referred the decision on controverted facts to a master or to a jury: but the lord chancellor makes up his mind to the facts as well as to the law in all cases of bankruptcy. Mr. Basil Montagu then stated, that he agreed with the lord chancellor, in the opinion which he had formed of the duties which his situation as a judge had imposed upon him in this respect. Would any man therefore condemn the lord chancellor, because he felt it to be his duty to make up his mind upon controverted facts, and because he took some time in doing so, with a view to save the suitors of his court the various expenses of litigation? It might be easy for the lord chancellor to act upon precedent, and to devolve such considerations upon other parties; but he conceived it to be his duty not to follow such a course, and he 1253 acted upon it, regardless of the imputations to which it was almost certain to expose him. The next case mentioned by Mr. Basil Montagu was, that in all cases of bankruptcy, there was no appeal from the lord chancellor's decision. The parties came to him as appellants from the judgments of the vice-chancellor, and the consequence was, that the lord chancellor naturally paused before he decided upon them, as he knew that there was no appeal from his decision. The third cause was one which he considered to be an honour to the lord chancellor—the particular constitution of his mind, and his extreme anxiety to decide justly. Now, if the delay imputed to his lordship arose from his indulgence in pleasure or in frivolous amusements, he should be one of the first to condemn it; but, if he saw a man devoting twelve out of the twenty-four hours, without remission, to the public business, and allowing himself no longer a vacation than three weeks out of fifty two, he would pass over with a light hand the venial fault of him who decided slowly, from the peculiar constitution of his mind, and his ultra anxiety to decide justly. Mr. Basil Montagu, who was the antipodes to the lord chancellor in politics, further went on to say—These two circumstances have occurred within my knowledge. In the case of Blackburne, which I argued two or three times, I certainly never was more satisfied in my life with my own argument than I was then. I mentioned it again and again to the court, but I could not obtain judgment. At last the lord chancellor stated, that he had been deliberating upon the case for many hours during the night, and that there was one point which had escaped me in my argument to which he wished to direct my attention, and he was pleased to direct my attention to it, and to desire it to be re-argued; and upon re-arguing it, I was satisfied that he was right, and I was wrong; and whatever may have been the cause of the delay, the consequence has been, that he has prevented the injustice which I should have persuaded him to have committed. Not only in that case was there an advantage to public justice from the delay which took place, but there would have been, had the lord chancellor come to a hasty, decision on the case, a false light set up aloft to allure other judges to erroneous decisions in future." Mr. Basil Montagu then proceeds—"I beg also to mention another case (ex-parte Leigh), 1254 which will be found in 'Glyn and Jameson,' 264,—the case of a habeas corpus; where, to my knowledge, the prisoner was detained illegally, upon an affidavit upon detainers for debt by a Mr. Claughton (I think for 10,000l.). The court of King's-bench refused to discharge him. I presented a petition to the chancellor on behalf of the bankrupt, being convinced that the decision of the court of King's-bench was erroneous; and, it being in the case of the liberty of a prisoner, the chancellor heard it immediately, and took the trouble of applying to the chief-justice of the court of King's-bench; and after deliberation, thought it his duty to reverse the judgment, and to order him to be discharged; and, but for this care and deliberation, I am satisfied he would have been in prison at this moment, as I know the hostility between these parties is continuing to this very day." Now, if one counsel could state such facts as these as occurring within his own knowledge, he thought that if other counsel would be equally explicit, it would be proved, beyond all dispute, that the delay of which the lord chancellor was accused could not produce much danger to the interests of public justice. He contended that the conduct of the lord chancellor m the administration of his court was such as to entitle him to lasting honour. When he heard the learned lord blamed for not having made the reforms in his court which were now recommended, he would say, that nobody would have given his time to such a pursuit more readily than his lordship, had he had any time to bestow upon it; but, absorbed as he was in the various duties of his office, he had not the leisure to consider such reforms with the necessary deliberation. He conceived that the presence of the lord chancellor before the commission, on all occasions Where his presence was necessary, and his absence on all occasions where his presence was likely to exercise any control over the witnesses, were facts which must tell to his immortal honour. In conclusion, he said that though he might have spoken warmly in defence of an individual whom he was proud to call his friend, he had done nothing more than an act of justice in vindicating the ability and industry with which the lord chancellor, now an old man of seventy-six, performed the duties of his office; who, though he might be accused of delay, had not had his motives impeached by a single voice in that House, 1255 or been blamed by any one for having devoted his time to frivolous or even pleasurable amusements.
said, that any gentleman who considered the complexity of the subject which had been referred to the commissioners, could never have expected that they would give their unanimous support to 187 propositions, promoting great and important changes in a system which had now been pursued for more than a hundred and fifty years. It was more extraordinary that so many of them could conscientiously put their seal to such a report as they had presented, than that some of them should have differed from their colleagues on its details. Against this report it had been urged, that though the reforms which it recommended were beneficial, still they were ineffectual in destroying the delay so much complained of in the court of Chancery. It was likewise objected to the commissioners, that they had omitted to consider many important subjects, and particularly two, which, if they really had omitted to consider, they would have been guilty of a most pusillanimous dereliction of their duty. It had been said, that they had not dared to inquire whether any and what delay took place between the setting down of the cause and the hearing, and then between the final hearing and the judgment of the chancellor. Those points came within the direct terms of the commission; and, if the commissioners had shrunk from their investigation, they would have left unexamined the most important points on which they were directed to inquire. Now, he had to inform the House, that of the mass of evidence taken by the commissioners, part was still unprinted, and that part which would have proved beyond all dispute that they had attempted to elucidate these two points. The reason why it was not printed was, that it was given at the latter part of the inquiry—that it consisted principally of documents,—that those documents were only produced at the conclusion of the sittings, and that it had been found impossible as yet to get them into type. He would state the heads of those documents, and would then leave the House to judge-first, whether the commissioners had done their duty in inquiring; and secondly, whether the lord chancellor had done his duty with regard to the judgments he had given within the last three years. There was the cause-paper of the lord chancellor 1256 and the vice chancellor—the motions set down for hearing, the account of business in bankrupcy and lunacy cases, and also the manner in which his lordship had expended every one day in court during the last three years, together with a special account of the business set down and left undone each day, and the reasons of its postponement. Besides these documents, any person who read the evidence would see that every witness was asked what was the cause of the delay, and also what were the best remedies for it? He was aware that some of them had felt great reluctance to answer that question; but he contended, that the commissioners could not have gone further, unless they had purposely sought for matter to criminate the lord chancellor. Having said thus much, he would proceed to inform the House, that it was his wish and object in rising at present to state candidly his opinion of what had been done by the commission, and of what was likely to be the result of its recommendation. And first, with regard to the conduct of the lord chancellor. He did but discharge a debt of justice to that individual, when he said, that from the beginning to the end of the investigation, he had given the most material assistance to the commissioners. He did not deliver his opinions to them as to dogmas, but allowed those who doubted of their correctness to investigate them thoroughly, affording them every explanation which they required, and that, too, in a manner which left on his mind a most favourable impression with regard to the learning, intelligence, and integrity, of that learned lord. So far from ever seeking to check inquiry, be had done every thing to promote and forward it. With respect to the number of appeals, he admitted that there were at present one hundred and nine in arrears, that forty-five was the average number which the lord chancellor got through in a year, and that it would thus take about two years to clear the paper. Whatever opinion might be entertained as to the delay regarding appeals, he was bound to say, that there were other cases in which it was impossible to deny that great delay existed. Some cases which appeared to be almost entirely laid by, had been productive of injury to the suitors, which every feeling mind must deplore. Whether that delay had arisen from the lord chancellor finding difficulties in the cases, which render- 1257 ed him averse to consider them, or whether it had arisen from the too great pressure of his other avocations, or from any other cause, it was to be lamented and ought to be remedied; otherwise individuals would be ruined in their attempts to obtain redress. He confessed that he was not one of those who entertained sanguine hopes that the business of the court of Chancery would be much facilitated by the alterations now proposed; but he was satisfied that, in recommending their adoption, the commissioners had done all that was consistent with prudence, in the first instance. It would be wiser to try the effect of these proceedings, and if they were not effectual, then to adopt bolder remedies, than to sweep down at once a system which had lasted for ages, and of the annihilation of which no man could calculate the consequences. As to the dividing the business of bankruptcies, from that of Chancery, there was not a witness whom they had examined, that did not consider such a proceeding as extremely detrimental. The commissioners would, therefore, have been very bold if they had ventured to recommend such a proceeding against the experience of all their witnesses, and even against the opinion of many of their own body. He would, however, state his own opinion on the subject with the same frankness as he had used on all the subjects to which he had alluded. It appeared to him, that of all the systems connected with the court of Chancery, that of bankruptcy was the very worst, from the infinite delay in justice, and the ruin which it occasioned to the suitors. When he saw that there were no Jess than seventy commissioners of bankrupts, costing the country at least 20,000l. annually, many of them notoriously incompetent for the duties of their office—when he recollected, that they met only for one, two, or at the outside three hours at a time, for the despatch of several commissions—when he saw their opinions and their actions conflicting daily, he had almost said hourly, with each other—when he saw that one list had committed ten times as many individuals as all the others put together—when he saw the whole business of bankruptcy conducted with any thing but a view to economy and despatch—when he saw the various difficulties which arose in it, from the collision of opinions amongst the commissioners themselves—when he considered all these facts, and reflected, 1258 that bankruptcy formed the great source of the lord chancellor's patronage, he thought that it would have been the pride of the report if it had recommended the destruction of such a system. But when he saw that the lord chancellor was to select ten out of those seventy commissioners as a court to decide on bankruptcy, and that from them there was to be an appeal to the vice-chancellor, and from him again to the lord chancellor, he saw nothing but increased delay, expense, and confusion, and he was doing only his duty in stating his opinion as to the fact. There were other points connected with the subject, on which he would not speak at present, though he must hereafter claim the privilege of entering into them at large. He could not, however, refrain from saying one word upon the subject of conveyancing. It was to be lamented that subjects connected with the jurisprudence of the country were not sufficiently attended to by the House. Instead of remedying the defects which had been occasioned by time, hon. gentlemen had covered the table of the House with statutes, till they had made the law respecting real property, such a mass that it was impossible to find any individual who, on any important point, could say what was or what was not the law. As to conveyancing, no country gentleman could guess the tax (until his solicitor's bill was brought in) which the present system imposed upon him. It never could be right, that the abstract of a man's title should take up eight hundred brief sheets, as appeared from the report to have been the case in one instance. Indeed, of a large estate which he held as a trustee, and which was valued at 800,000l., many small plots were to be sold; and would the House believe it when he told them, that the abstract to the title of those small plots filled four hundred large brief sheets? Such a system inevitably led to injury and confusion. If any body neglected the precaution of examining such abstracts, their heirs and assigns might years after have occasion to repent the negligence. He therefore called upon the House to devise a remedy for an evil which had increased, was increasing, and which he believed every body would admit ought to be diminished. The learned gentleman concluded with a declaration, that he reserved his opinion on many points connected with this report to some future occasion.
§ Mr. Brougham
said, that as he was quite ready to agree, that it would be better to allow the bills proposed by his learned friend to be printed and considered before they pronounced an opinion upon this subject, and as he was aware that they would have many other and better opportunities of investigating every thing connected with the question in detail, he would not have trespassed on the time of the House, by any observations, had it not been that he could not allow the impression respecting the report of the commissioners, contained in the two last speeches addressed to them, to go forth to the world without some kind of contradiction or explanation. The effect of those speeches would be indeed to propagate a delusion which he was most anxious to avoid. He wished to avoid any thing like personal reflection in speaking upon the court of Chancery, and he agreed in so far most readily with his hon. and learned friend, the member for Lincoln, that in such matters they should look upon every thing rather as a subject of general discussion than individual reflection. With such a feeling he would argue the case; and he thought he could not commence better, or lead to a better understanding of the course he meant to pursue, than to quote an extract from a work, which he understood to be the production of a noble and learned lord, of high reputation. In it he says, that it was advisable to work as much as possible prospectively, because the remedies which were to be provided, were to benefit hereafter; and it was their duty to look rather to what could be done for the future, than to complain of the past, yet it was necessary still to examine affairs a little retrospectively, that they might not, in their proceedings, impute blame to individuals, for committing evils which were inherent in the system, and which individual exertions could not remedy or avoid. In attending to the course here laid down, he did not apprehend that he could be supposed to touch upon any thing personally offensive or contrary to his disposition to avoid allusion to the conduct of the noble person who presided over the court. He would not, therefore, say, that the commissioners slumbered over certain matters subjected to their consideration any more than he would say that the lord chancellor had slumbered in abstaining for the five and twenty years he had presided over the court to adopt 1260 some remedy for the evils which he must have known, which he acknowledged to have existed, and in which he could have effected some kind of beneficial alteration. He would only say, that there had been an omission on behalf of the commissioners—an omission which his hon. friend, the member for Lincoln, had well described to consist in an aversion to any acts which could lead them into an inquiry or examination, as to the cause of that delay which took place between the final hearing, when the case became ripe for judgment, and the pronouncing of the judgment itself. Having found no allusion to this delay in the report, and having found that some questions put to a witness upon another subject were answered voluntarily by that witness, with reference to this subject; and yet, that the commissioners took no steps to follow the clue, or ask any other questions which might throw light on those delays, he could not avoid supposing that the subject had been left out of the report on purpose. It was true, that some evidence had been given on the subject, but it was not to be found in the report, although they had given an opinion upon matters connected with it. In no part, however, of the report itself—neither in the preliminary matter, which might be called the labours of the commission, nor in the one hundred and eighty-seven propositions, nor in the researches of Mr. Beames, was there to be found the slightest allusion to that great integral portion of the abuses in Chancery—the delays in giving judgment. Some explanation could, doubtless, be given of this most extraordinary omission. Surely it could be said whether it had been postponed for future consideration. If they wished to ascertain what course was to be adopted prospectively, why had they not looked retrospectively to ascertain the origin of the evils which were admitted? There was the expense, and all the other evils of a Chancery suit, admitted to be produced solely by delay; and on what ground had they omitted to inquire into the cause? It was allowed on all hands, that the greater portion of the evils of Chancery proceeded from delay; and were they to begin with the branches, and not inquire into the state of the root? Could they inquire into collateral points, without looking to the system of which these points formed only a small and unimportant division? Could they 1261 proceed without examining whether the delay was owing to the system of the court of Chancery, or to any manner in which that system was supported? Could they, in short, in plain, honest, downright language, and without sacrificing any thing to unnecessary delicacy, determine upon the course they Ought to pursue, without knowing whether there were mischiefs in the system of Chancery, which were incurable? or whether they were not mainly owing to, or at least greatly aggravated by, the incapability of the noble person who held the power of dispensing its equitable provisions? He understood his learned friend who spoke last to say, that the commission felt all this, but could not help it. This was one of the results of the lord chancellor's being appointed a member of that commission. His learned friend said, they had been greatly assisted by the noble lord's knowledge of facts, by his learning and experience, and that he had facilitated the objects of the commission. It had been, however, more than hinted, that there were reasons why the inquiry he alluded to had not been made. He, for his part, knew right well, that the chancellor could not be guilty of an action so impolitic, or a course of management so clumsy, as to interpose any open obstacles to the inquiry which had been recommended by the House; but what he said was this, that the chancellor all the while was present with the commission—that if they were there, he was sure to be there; and he could conceive the effect likely to be produced by the presence of a man, whose conduct was much less repulsive than lord Eldon—of a man of much less fascinating manners than that learned person, upon the inquiries of those who sat to investigate the cause of the evils of Chancery, and whether those evils resulted from his own personal incapacity. He could well conceive how such a person might silently impede, or altogether quench, any disagreeable inquiries, without the slightest appearance of a disposition to oppose a strict examination. He foresaw all this. When the commission was appointed, he knew it would happen so; and he now looked in vain in the report, a report which should have had works rather than professions, for any explanation of those delays which should have been the principal object of their investigation. He knew much good might be done by the commission; that they 1262 might make fine researches into the history of the court of Chancery; and that they might suggest many improvements with regard to minor and inferior points of complaint; but that with respect to the great question—the delay of the court, and whether that delay proceeded from the nature of the system, or from the conduct of the noble person who acted under it—they never could either obtain any satisfactory information from a commission so constituted, or expect any satisfactory security for its being remedied if it was suspected to exist.—The hon. and learned gentleman then alluded to the observations of the right hon. secretary for the Home Department upon the opinions of Mr. Basil Montagu, and observed, that it was quite new to him to learn, that there had been any thing in the political life of Mr. Montagu which rendered it at all important that his opinions of public men should be taken as any thing either for or against the declaration of his feelings upon the conduct of the lord chancellor. The principle itself, even admitting it with respect to Mr. Montagu, might be carried to any conceivable extent. The assertion, that the opinions of sir Samuel Romilly upon the conduct of the chancellor were the same as Mr. Montagu's he now heard for the first time; but, as far as he recollected, and he had some opportunities of ascertaining sir S. Romilly's opinions, they were decidedly adverse to the present system of Chancery; but even without that coincidence of opinion, he considered it extremely unfair to bring in Mr. Montagu's commendations on the strength of a difference of political opinion, as a test of the propriety of the judicial or political conduct of the lord chancellor. He did not mean to deny that Mr. Montagu was a very respectable man, and a very able practitioner, in cases of bankruptcy; but he did not think his opinions could have an influence on the case, or that, if they had, it would be fair to use them. He could not help calling upon his learned friend who spoke last to look at a part of the evidence, which, if it did not shew n disposition to avoid the subject altogether, at least, marked a palpable omission of what could not but have been presented to the minds of all the commissioners. The passages were these:—
"Q. 106. After a Cause has been heard, is there, generally speaking, much delay 1263 in obtaining a decision?—That depends upon the different Judges before whom it is heard. Q. 107. Supposing the Cause to be heard before the lord Chancellor, is there much and what time elapses, before obtaining a decision?—Certainly; frequently months; sometimes years; and I have heard of many cases in which the parties have not been able to obtain any decision at all."
How could the commissioners, after that, fail to have the main subject presented to their consideration? Or was it not pretty evident, that there must have been some reasons for the omission of so important a point of their inquiries? In another part of the evidence, they would find Mr. Shadwell asked, if he thought one man could do the present business of the court of Chancery in the manner in which it should be done to satisfy the suitors, and he answered, No, nor three angels. His learned friend, who was a very good classical scholar, as well as a good equity lawyer, would recollect, that it was a rule of dramatic critics, that a God should never be introduced, except the occasion required his presence, and he believed the same rule would hold good in a court of Equity, with respect to the introduction of angels. Another witness was asked if he thought it possible that any man devoting his whole time to the court of Chancery, could get through the business ordinarily before it, and he answered it was utterly impossible. If, then, a judge, sitting from ten o'clock to four, for nine or ten months in the year, and devoting the whole powers of his mind to his duties, could not get through the ordinary business of the court, what hope was there that lord Eldon could ever accomplish the task allotted him? But a question actually arose, did lord Eldon devote all his powers to these duties? Mr. Bickersteth, it was true, had on his evidence said, the lord chancellor sat six hours a day constantly. It might be, he was not well enough acquainted with his movements to deny it, and it might happen every day; but he should like to see some member of that House get up in his place and say, that the lord chancellor did sit constantly, applying the whole powers of his mind to the interests of the suitors of the court of Chancery. Now, beautiful as was the allusion of his learned friend, Mr. Shadwell, about the three angels, he would prefer some experiment being made—some practical suggestion pro- 1264 posed, which he did not find on the face of this report—toremedy the inability, the now admitted inability, of one judge to perform the functions, which, with a variety of other duties, were now thrown upon one person, and which one person, nor three persons, no not even if they were three angels (he did not like to lose sight of the allusion) could perform. There did not appear, notwithstanding all that had been said of the increased despatch, any great or material working down of arrears in the court of Chancery. From the evidence it seemed there was no less a number than one hundred and nine in arrear. Now this was no great evidence of despatch, considering that no original cause of motion had been entertained by the lord chancellor, and considering that these appeals were the arrears of only two years. Besides, it was to be taken less as satisfactory evidence of despatch, when it was remembered that there were only forty-five appeals heard and disposed of in a year by his lordship. In short, upon a review of the whole business done in the court, it was evident on the face of the report, that the delays prevailed to an extent grievous and ruinous to the suitors of the court. For these delays he saw one only effective and necessary measure—the separation of the political from the judicial character of the judge presiding in the high court of Chancery. It was in vain to deny that his political avocations must be a distraction to him, effectually preventing him from the due and efficient fulfilment of his judicial duties. Add to this—what there was the less need of concealing, as the noble and learned lord himself admitted it—that his doubting disposition amounted to a positive mental infirmity. He was addicted to over-much doubting—to too nice subtlety—which led him sometimes, from an overanxious observance of close and intricate points, to lay a trap, as it were, for his sound and excellent judgment. And that he was gifted with an excellent judgment, and a most eminently endowed understanding, from his own observation of that noble lord, he did not hesitate to admit. With such high capabilities of forming his decision, it was impossible that he could be long in making up his mind—nor did he believe that he was long in doing so. He was only long, and slow, and hesitating in giving his opinion. For he had a mind large and capacious, filled with ample stores of learning, drawn from 1265 every source, but more especially with the learning of his profession, trained by a course of experience extending through a period of unusual length, and pregnant with almost all the vicissitudes of social life; he had an extraordinary subtle and nimble fancy, and could bring his faculties, which were great, at the smallest period of time, to bear on the largest and most difficult questions. He spoke thus of the lord chancellor, not out of any peculiar respect for him; but he delivered the sentiments he had formed through long and watchful observation. It would therefore be strange if that noble and learned person could not see through the greatest difficulties, as indeed it was well known he often did, at a glance. He must candidly confess that he was entirely of sir S. Romilly's opinion, that the lord chancellor made up his mind soon, but that the infirmity under which he laboured, led him into those subtle speculations which so long held back his opinions. But of what avail was it to the suitors of the court that he made up his mind quickly? It was no benefit to them; as he would not express it.—He had spoken thus freely what he thought of that noble lord; and he felt less the scruple or hesitation in saying it, as in doing so he had said little more than what he had heard the noble lord admit himself. It was not, perhaps, so much a matter of blame as it was of excuse to the noble lord, that he had too much to do; that he was obliged, by his political duty, to be in one place, when his judicial duty required of him to be in another—that he was now there when he ought to be here—that he was one day obliged to Attend the presenting of the Recorder's report, and on another day to attend the cabinet council. Again, he was engaged in hearing appeals before the House of Lords; and these, with a variety of other occupations, allowed him little or no time to attend the efficient discharge of his judicial duties in the court over which he presided. Amongst other disadvantages of these various avocations, to which his lordship was subjected, the suitors had to experience this material and important one—that the lord chancellor could not attend continuously, at any one time, to hear the whole of a case, so as to be able to take a full view of it, and to decide at the moment that all the arguments on both sides were fresh upon his mind; but, by being now called off here and again called off there, he was only able to col- 1266 lect the case as it were by piecemeal, and to decide (when he did decide) upon it, after that disjointed and disconnected hearing of it. These various distractions realised the observation which was so familiar in the House about ten years ago in discussions on this question, that on account of the political and judicial functions of the lord chancellor interfering with each other, that thereby the judicial year was diminished, not by minutes or hours only, but by days and weeks and months." So it was now, and would continue to be, until the judicial was separated from the political character of the lord chancellor.—It had been said, that the present chancellor was beset with charges and imputations which were never laid to the door of his predecessor. To be sure not, because the grievances of his court had not grown to so great a height, the arrears of his business had not become so enormous. There had been then no motions made in parliament; none made and rejected; none made, granted, and then their object defeated by artful management. There was not then, as in the present time, an inquiry granted; a smooth unruffled course pursued in that inquiry for some days, and then, when it began to reach some delicate points, some sore places, the whole completely extinguished by a cloud of masters of Chancery thrown into it. That man must be not only very candid and charitable, but also very foolish, who could have any doubts whatever that the lord chancellor was very extremely averse to such an inquiry. The abuses of the court of Chancery had been brought before the House in the years 1810, 1811, 1813, 1820, and 1823. For sixteen years the reform of this court had been the frequent subject of debate. The abuses were palpable, glaring as noon-day; no one doubted of their existence; half the property of the kingdom was crumbling away under their pressure: the suitors of this court were daily ruined by their operation; yet, during the whole of these sixteen years, the noble person at its head had not made a single reform; had not made one improvement; had not advanced a single step; had not put himself in motion, nor moved even the little finger of his left hand, to procure the remedy of one evil—the correction of any, even the smallest abuse, that under his own eye, and with his own knowledge, existed in his court, It had been said, that lord 1267 Somers, and the great men who preceded lord Eldon, had not been required to make those alterations and corrections, which were now so loudly called for in the practice of his court. But, in the first place, neither lord Somers, nor any other lord chancellor, had, like lord Eldon, the experience of twenty-five years as judge of that court, and twenty-five years more as a practitioner in it: secondly, the grievance was never in former years represented to be so great as it was now and had been of late years: thirdly, such abuses had never been known to exist without any control whatsoever to check or restrain them: fourthly, with the admission of these abuses, there never had been displayed such an opposition to every motion, plan, and measure proposed to remedy them, as had been displayed during the last sixteen years in that House; and lastly, and most of all, there had been no former instance of such injury being entailed upon the suitors of the court of Chancery by the union of the judicial and political character of the lord chancellor, and without the separation of which, it was idle to expect any effectual reform in the abuses of the court of Chancery—abuses greater, and more flagrant and enormous, than those by which the people of any country had been aggrieved by a tribunal instituted for the purpose of administering equity and justice. The hon. and learned gentleman concluded by saying, that with whatever reluctance, he was induced to address the House, he could not allow this, the only opportunity that would be afforded him during the session, of reminding parliament of the necessity of applying some effectual and early remedy for the many and crying abuses that at present prevailed in the practice of the court of Chancery.
Mr. R. Smith
said, that as a member of the commission, he begged to disclaim any intention of inquiring into or scrutinizing the conduct of the lord chancellor. If such a power had been imposed upon the commission, he would have objected to it as unconstitutional; for it would have subjected him and the commission to the necessity of deciding upon ex parte evidence against the lord chancellor; or to the alternative, equally objectionable, of deciding upon the testimony of the lord chancellor, in reply to the criminatory evidence adduced against him. However, it was no part of the 1268 duty of the commission, and no inquiry into his conduct was instituted. He would not say that the commission had prosecuted its inquiries as far as the powers granted to it permitted. They had, however, suggested something in the way of improvement, which might be brought to the test of experiment; and, if found to answer, it remained for government to determine whether or not further improvement might be introduced. He was satisfied that the right hon. gentleman (Mr. Peel) who had already so distinguished himself by his improvements in various branches of our laws, would not leave this most important department unattended to; the more particularly, as it was the one in which improvement was the most required, and most loudly called for.
§ Mr. Denman
could not concur with the hon. gentleman who spoke last, that there was any thing unconstitutional in scrutinizing and inquiring into the conduct of the lord chancellor. Nay, he even thought it the most important and necessary part of their duty; for they were appointed to inquire into the causes of the delay and expenses attending suits in the court of Chancery. If these suits were occasioned in any degree by the conduct of the judge presiding in that court, it was their duty to report it to the House. It was alleged, that those delays materially and principally occurred in consequence of delays which, by the efficient discharge of his duty, the lord chancellor might have prevented. If such were the fact, it ought to have been stated in the report. That there was sufficient ground for entertaining this opinion, would be found by the evidence of Mr. Hamilton, an extract from which he would read, shewing a comparison of the delays which cases met with in the respective courts of the lord chancellor, the vice-chancellor, and the master of the Rolls. The evidence met with some interruption, he believed, by some master in Chancery. The extract was to the following effect:—
"Can you at all state what is the lapse of time which usually takes place between a cause being set down for hearing and its being heard?—It has varied so much, that it is impossible to give an answer to that.
"If you set down a cause before the vice-chancellor in Trinity Term, when is there a probability of its being heard?—I think it could not come on in less than eighteen months, if ail the causes which are now set down are fully heard.
1269 "Supposing a cause to be 6et down for hearing before the master of the Rolls, what lapse of time would take place before it could he heard?—If it were set down now, I think it would be heard before Christmas; there are very few causes at present before the master of the Rolls.
"After a cause has been heard, is there, generally speaking, much delay in obtaining a decision?—That depends upon the different judges before whom it is heard.
"Supposing the cause to be heard before the lord chancellor, is there much and what time elapses, before obtaining a desicion?—Certainly; frequently months; sometimes years; and I have heard of many cases in which the parties have not been able to obtain any decision at all."
It would thus be seen, that the lord chancellor was not of that description precisely which entitled him to the eulogy which had been pronounced upon him. Here was evidence to show that cases were postponed far beyond the time they required to be disposed of in the other courts of Equity; and, if further evidence upon his conduct was permitted, perhaps it would appear that the delays of the court were, in a great degree, attributable to it. But it seemed that, although no testimony unfavourable to the character and conduct of the lord chancellor was admitted, yet that there was a great disposition manifested to hear every thing favourable to him. Accordingly, a series of questions were proposed by his learned friend, the solicitor-general, which conveyed the perfect portraiture of a most accomplished judge, and which were put in such a manner as only to require the answer "yes," to paint lord Eldon as the very paragon of virtue.
intimated, across the table, that he had not been present at any part of the examination of Mr. Hamilton. Had he been present, he should not have been disposed to permit some things which that witness volunteered in evidence.
§ Mr. Denman
said, he was sure Mr. Hamilton was incapable of saying any thing untrue, or of resorting to any discreditable trick. The passage which he had read from his evidence was one, in his opinion, which satisfactorily shewed, that the character of the lord chancellor, for despatch, was not so clearly established as his right hon. friend would induce the House to believe. The mem- 1270 bers of the commission had disclaimed alt inquiry into the conduct of the lord chancellor, and in doing so, one of the most important objects of the commission had been defeated; for, after all, it would be found that the subject to which they ought to have most sedulously directed their attention was left most unnoticed. This was the consequence of making the lord chancellor a member of the commission; against which he and his learned friends had ineffectually remonstrated. As to the measure proposed by his learned friend, he was disposed to hope the best from it, although he knew not the precise nature of it. His learned friend had told them of a great many propositions which were to be found in the report; but he did not say which of them he intended, to embody into the bill he proposed to introduce, and which he intended to reject. He hoped, however, that members would be put in possession of a printed copy of the bill, so as to come prepared, to examine and decide upon its usefulness. As to the character of the lord chancellor, as the commission cautiously abstained from offering any observation, he would imitate their example. If called upon, on any future occasion, he would not hesitate to express his individual opinion of that noble lord. Posterity would, however, pronounce the true and impartial decision upon his conduct. For the present, he would only express his concurrence in the sentiments of his hon. and learned friend (Mr. Brougham), that there were more flagrant and enormous abuses in the court over which the noble lord presided, than were to be found in any tribunal of justice in any other country.
defended the conduct of the commissioners; nine hundred and ten pages of whose report had already appeared, and nine hundred and ten more were on their way—a pretty considerable report, he thought. The question for consideration was, whether what the commissioners had done was not sufficient to remove the existing arrear of causes, and to prevent the accumulation of causes in future. In looking to this part of the case, they must observe that, in 1822, the arrear of causes was one hundred and five, and that in 1826, the arrear amounted to one hundred and nine, making an increase of no more than four causes in four years. There was reasonable ground to believe, therefore, that the measures proposed by 1271 the commissioners would produce the most beneficial effects.
thought, that the report of the commissioners would, if acted upon, have the effect of giving more business to the minor courts, and, of course, of increasing the number of appeals to the lord chancellor. With respect to that noble lord, he thought, and he assured the House that he spoke sincerely, that his lordship was placed in a most awkward and difficult situation. Insinuations had been thrown out that the causes of delay between final hearing and decision had been touched upon by the commissioners, and that the inquiry was found to be by no means satisfactory. He meant to give no opinion as to whether this inquiry ought, or ought not, to be gone into; but he was sure that every friend of the noble lord had to regret that the matter was left in this undecided and unsatisfactory state.
§ Leave was given to bring in the bill.