HC Deb 05 April 1827 vol 17 cc252-65
Mr. D. W. Harvey

said, that it was only within the last five minutes he had been apprised of the intention of the law officers of the Crown to oppose the motions of which he had given notice; and he was at a loss to conjecture on what grounds this opposition could be given. The House would recollect that the bill for regulating the practice of the court of Chancery, had been deferred to the 4th of May, when doubtless a long and important discussion would take place; but he would venture to assert, that no satisfactory result could flow from that debate, in the absence of the information sought for by his motions. It was not to be denied that the proposed bill contained many useful reformations in the practice, and some commendable curtailments in the expenses, of the court; but these were altogether subordinate to the crying evils arising from the delay in disposing of the causes when matured for hearing. It was little consolation to a patient to be brought to the physician's door in a sedan, if he waited for hours before he could obtain a prescription: and how was it possible for the House to provide a remedy, unless it was in possession of the nature and extent of the evil? This information would be supplied by the motions he now intended to make; and he should reserve himself in reply to such arguments as ingenuity or perversion might suggest. The hon. member then moved as follows:—"That there be laid before this House returns of the number of causes set down before the lord Chancellor, from the year 1820 to the present time, specifying when they were set down, how disposed of, how many were referred to the master, and their final result. Similar returns from the master of the Rolls, the vice-chancellor, and the chief baron in Equity. The number of appeals to the chancellor from the judgments of the master of the Rolls—also, from those of the lord Chancellor to the House of Lords. The number of petitions in bankruptcy, and in lunacy, now standing in the paper of the court—and finally, a statement of the number of original causes, further directions, exceptions, pleas, demurrers, re-hearings, appeals, and causes on the equity reserved, standing to be heard on the last day of Hilary Term, 1827, before the lord Chancellor, the master of the Rolls, and the vice-chancellor, respectively; specifying the period when each petition was set down."

Mr. Attorney General

said, it was apparent that under the cover of this motion, the real object was to make an attack on the lord Chancellor. The return for which the hon. gentleman moved was not at all calculated to further this object; for even if it should be shown that the lord Chancellor had not disposed of many causes, it did not follow that his time had not been otherwise fully, and to the public, satisfactorily exercised. This subject had already been sufficiently handled by the report of the parliamentary committee, who had stated in the appendix to their report, the business done by the lord Chancellor, de die in diem. A motion similar to that now before the House had been made some time ago, by the hon. member for Westminster, who afterwards, on the matter being explained to him, gave it up; because he was convinced that no returns of the number of causes in the court of Chancery could inform him of the quantum of business done there by the judge. It was, then, because the information when obtained could not be satisfactory; because the commissioners had not thought it necessary to give it in their report, and because nobody but the hon. gentleman had thought it necessary to enable the House to form an ultimate opinion on the bill brought in by the master of the Rolls, that he opposed it.

Mr. M. A. Taylor

said, that at that late hour of the evening it was not his intention to go at any length into the subject of the court of Equity, or into any of the momentous matters which that subject involved. Until he, saw the notice of this motion, which was inserted in the order-book of the House, he had received no intimation of it; therefore, as to any attack which was to be made, by means of it, upon the lord Chancellor, he was perfectly guiltless. He begged, however, the attention of his hon. and learned friend the attorney-general, while he said, that if he (Mr. Taylor) was the friend of the lord Chancellor—as he was sure he was not his enemy—the last thing he could have done would have been to rise in his place and resist the motion which had just been made. He thought that if, upon any occasion, a judge was attacked, it was the duty of his friends to bring before the House all the facts relating to his conduct, so that a decision might be formed, whether the attack had been made fairly or unfairly. The motion before the House, without being at all an attack upon the lord Chancellor, was calculated to give the House the knowledge necessary to be possessed by them, before they came to a decision on some questions of great importance, which were about to be brought before them, connected with the court of Chancery. The returns would particularly furnish the House with the means of judging whether the lord Chancellor had or had not more business to do than it was possible for him to perform; and whether the suitors of the court of Chancery had that prompt and satisfactory administration of justice to which they were entitled. The House would then be enabled to say—the subject being fairly placed before them,—whether the lord Chancellor's duties were such as ought to be imposed upon him. There could be no blame imputed to the Chancellor, if it were shown that the delays in his court arose from his having—as he would on some future occasion, show he had—more to do than it was in the power of any human being to dispose of. In this House, he and every other member had a right to know what was the nature of the Chancellor's duties, and the manner in which they were performed. Was there any libel in inquiring into these facts? He denied that there was any libel. Was the truth to be called a libel here, as it was held to be in a court of common-law? In the House of Commons every member had a right to say that which he believed to be the truth; and to demand such information as might lead him to ascertain the truth. If it were not so it would be better to shut the doors, and quit the House. He wished to say nothing unkind of lord Eldon. If any unkindness had been displayed towards him, it had proceeded from himself and his friends, who wished to secure to him the emoluments for duties which he did not perform. He had known lord Eldon for more than forty years, during a part of which period he had lived in habits of intimacy with him; and in no part of which period had any unkindness on either side disturbed the good understanding between them. Looking at this matter, however, in a public point of view, he would ask the House, if any friend of the lord Chancellor ought to resist this motion? If he were in the place of the learned lord, he would wish for no such defenders as sought to conceal his conduct. If his hon. and learned friend, the attorney-general, should sit, as his talents entitled him, and as he had no doubt he would one day sit, in as exalted a station as the noble lord now filled, would he choose to have such defenders? On the contrary, would he not wish to have all his actions thoroughly investigated? His hon. and learned friend had said, it was unfair to judge of what the lord Chancellor had performed, by moving for returns respecting a particular branch of his duty. It was fairer, said his hon. and learned friend, to form a judgment, from the whole of what he performed. Why! This was the very ground of the present motion. It was to get the whole of his conduct investigated—to get all that was done, and omitted to be done, in the court of Chancery, that the returns, which were now required, were moved for. Then the House would be able to form a judgment what part of the business might be separated from the court of Chancery. If he could not exercise his jurisdiction in bankruptcy cases, consistently with his other functions, why might not that be separated from his court? He did not speak now of the emoluments of the office of the lord Chancellor; but either that portion of his business, or some other, should be transferred to another tribunal if he could not get through the whole. It was said that the office of lord Chancellor, was the first prize in the profession; but, if all the business could not be done by him who had won the first great prize, why, for the benefit of the public, should there not be two great prizes, and part of the present duty apportioned to him who attained it? For his own part, from his advanced time of life, as well as from political circumstances, he had long since abandoned any hope of professional advancement; and, indeed, if he had held any official appointment on the opposite side of the House, in the state in which that side of the House now was, he would pray to God that he might get rid of it as soon as possible. There were two great parties upon the present question. The one were anxious for concealment, the other were advocates for investigation. For his part, he would always vote for letting in light upon all subjects; and more particularly upon that now before the House. It was impossible for the government much longer to screen the court of Chancery; it was not only too deeply steeped in abuses, but its sins were too well known to the people. He begged those who wished to cleanse the court of its impurities, to persevere in their efforts. The public voice was with them. Whatever the phalanx on the opposite side might arrange against him, he would not cease to show the court up in the way in which it ought to be shown. Hundreds and hundreds had been ruined by the court; and the right hon. gentleman opposite knew the fact but too well. He did not see why the property and happiness of many hundred persons should be sacrificed, merely that lord Eldon might be continued at the head of a party. The safety of the suitors in that court, the benefit of the whole country, required the removal of the learned lord; and, as far as his time and abilities could tend to effect that object, he would most willingly give them. It might be said, that he was libelling the learned lord. In this sense, every newspaper in the country was guilty of the same offence; for not one was published that did not contain cases in that court, the facts of which militated against the learned lord, as strongly as any thing he had uttered. It was only about three weeks ago that his lordship had given a certain judgment. It appeared by the newspapers, that the counsel all stared with astonishment. They had forgotten the case; but of course they bowed, and. said, "My lord, no doubt the judgment is right." But lord Eldon afterwards declared that his judgment had been wrong; on which the counsel again stared, and bowed, saying, "My lord, no doubt your judgment was wrong" [a laugh]. He had read the Report of the Chancery Commission, and he could hardly believe it possible that so many men could have lent their talents for two years to form such a report. The report was useless, a mere nonentity, with the exception of one single thing relating to the masters, and which the Chancellor himself ought to have effected twenty years ago. He would have opposed the establishment of the commission, could he have foreseen of what materials their Report would have been composed. The right hon. the Secretary of State, thought that the report would do good; but he little knew the nature of the commission, and as little did he know the nature of the man. His lordship might be a very pleasant man, but mark his words, the learned lord would get the better of the right hon. gentleman. He hoped his lordship had no unkind feeling towards him (Mr. Taylor); for he had none towards his lordship. He had often taken the liberty of talking and walking with his lordship; and his lordship had as often explained to him two or three things in the practice of the court of Chancery with which he did not concur. Perhaps this might make his lordship think him a very foolish fellow. He might be foolish; but he had sense enough to know right from wrong, and in his appreciation of his lordship and of the court, the country went with him. The motion of the hon. member for Colchester could possibly do no mischief; for it was essential that the House and the country should see what the court of Chancery had done, and how the lord Chancellor had been torn away from his duties. If the Secretary of State knew the miseries which had arisen out of the delays and errors of that court, he would not consent to purchase lord Eldon as a cabinet minister at such a price.

Mr. Secretary Peel

said, he must confess himself a little surprised at the course which the hon. member had taken, and at the warmth of the observations which had fallen from him. The hon. member, in the course of his speech, had stated that his object was to separate all political functions and feelings from the duties of a lord Chancellor. This might be a very legitimate and proper object; but it was stange to see, after such a declaration, how the hon. gentleman could make such a motion a source of reflections upon the lord Chancellor. Whether an active partisan and political functionary ought to hold the great seals, was a constitutional question, which certainly ought not to be discussed upon the present occasion. It was evident, when the hon. gentleman had given notice of his motion relating to the Chancery, and which he had fixed for the 25th March, that he did not think it necessary to possess the information which was now called for by the hon. member for Colchester. The conclusive fact was, that the House was already furnished with the information required by the motion, in the report of the commissioners. If the House were prepared to say, that that commission was entirely futile, let them supersede its labours. He would maintain that that was the legitimate and fair view of the subject. Yes; he would say, supersede the commission, and call for further inquiry. The subject would be discussed immediately after the holidays; and therefore it was only fair to the lord Chancellor to postpone the present motion, until after the debate upon the bill brought in by the master of the Rolls. He held in his hand the return of the business heard and disposed of by the lord Chancellor in the court of Chancery, from Trinity vacation, 1822, to Michaelmas vacation, 1825. This return had been moved for by the learned member for Ilchester, who had considered it to contain all the information necessary to the subject. If hon. members would refer to page 1,121 of the report of the Chancery commission, they would find a detailed statement of the occupation of the lord Chancellor for three years. He did not mean to say that the object of the hon. member was a personal attack on the lord Chancellor; but he did say, that the motion was a reflection upon the report of the commission, and that such a proceeding was placing the judges of the land in a very embarrassing situation. [No, no.] He did think so; and he had a right to state his opinion. It was a hard thing for the lord Chancellor to have his conduct thus inquired into, after he had furnished a statement of his daily business for three years; it was humiliating to that noble judge to be called upon daily to answer motions made in that House, before it had been decided whether the report of the commission was satisfactory or not. Without imputing to the hon. gentleman what he did not intend, he would oppose the motion; because it placed the lord Chancellor in a situation in which he ought not to be placed, after what had passed.

Mr. Ferguson

denied that the present motion was a personal attack upon the lord Chancellor. He had read the report, with the appendix. If the information now required was not to be found in that report, it ought to be produced ["It is not there," from all parts of the House]. The present motion concluded with a return of the number of cases referred by the lord Chancellor to the Vice-chancellor. This was not contained in the report; and it was most material information for the House to possess. In 1814, the Vice-chancellor's court was established. It was a new jurisdiction, but dependent on the lord Chancellor. The Vice-chancellor was now about to have an original jurisdiction; and was it not most important for the House to have full information upon the business transacted in that court? It was useful to see how the lord Chancellor was drawn away from his business by the vice-chancery court. The report of the commission comprised a body of valuable information; but was it not material to have the means of deciding what part of the judgments of the Chancellor might be transferred to other tribunals? If it should turn out, that nearly all the causes in the chancellor's paper were transferred to the Vice-chancellor, it would be much better that the system should be changed. The number of appeals in the House of Lords was another important subject, which it was necessary to consider before the bill came before the House. He had a high opinion of the lord Chancellor; but he thought the information should not be refused.

Mr. A. Dawson

said, that the motion was not confined to the court of Chancery, but related to five other courts: the sensitiveness of the Attorney General, and his alarm at an attack upon the lord Chancellor, were therefore misplaced. If, as the Secretary of State had said, the information required in the present motion was before the House, the object of the motion could not be to heap additional disgrace on the lord Chancellor. Two years ago the evils of the Chancery court were acknowledged, in the appointment of the commission. One remedy was, to diminish the amount of business before the Chancellor. If his income was so agreeable to his lordship, let him preserve it; give him what emoluments they pleased, but only take the business from him. Let them wipe away the tears from the widows' and orphans' eyes, and heal the wounds of those who were compelled to resort to the court of Chancery. It was most ungracious in the law officers of the Crown to oppose the inquiry. It was as much as to say, that the House should be satisfied with the smallest evidence which the general outcry of the country could wring from them.

Mr. Hobhouse

was surprised that so important a motion should be left to the opposition of only two law officers on the ministerial benches, and who differed from each other. The proposed bill was called for by the whole country, to put an end to the great abuses in the court of Chancery; and, considering its contents, he thought that the country had not been dealt fairly with by ministers. It was strange that the Master of the Rolls, who had introduced the bill, and who was responsible for it, should not be present at this discussion. The Attorney-general, instead of meeting the question with argument, had endeavoured to construe it into an invidious attack upon the Chancellor. It was too much for the Secretary of State to tell the House, that it was humiliatory for the lord Chancellor to have his conduct and his purposes questioned. He would tell the right hon. gentleman, that it would indeed be most humiliatory to the nation, if the House forbore to put the questions involved in the present motion. Because members of that House moved for papers calculated to elucidate the abuses of the Chancery court, were they to be told that party motives prompted them against the lord Chancellor? He knew the lord Chancellor only in his connexion with the political history of the country; and he would recognize him as no such man as his friends represented him. He viewed him as intimately connected with all the great political measures, the object of which was to put down the improving spirit of the age. He believed his lordship to be the principal antagonist of all who saw that it was essential for the happiness of the country to form an administration which should meet the wishes of the people, and unite the greatest possible share of talents. He was told, if he spoke against the Chancery court, he was speaking against the lord Chancellor. He was willing to proceed on this ground, and to identify him with the measures to be pursued upon the subject. The proposed bill effected nothing. It was a mere stop-gap, and altogether a delusion. He would ask the Secretary of State, who had applied his mind and his energies to other reforms, how he could resist all efficient reforms in the court of Chancery? He might feel an attachment to the lord Chancellor, who acted with him in politics; but he did not see that this ought to lead him to defend the abuses of his court. The right hon. gentleman might, perhaps, suppose that he owed the noble and learned lord something for the share he possessed of political power; but he was sure, if that right hon. gentleman followed up his views as to reforming our laws, he would be supported by the nation, and need not require the protection of any individual. Were he to carry into the Chancery the same spirit of reform which he had carried into the other courts—were he to enter into this reform with the same judgment and discrimination that he had set about reforming the Criminal law, and the law for regulating Juries, he would find that the nation would stand by him, and he would not want the aid of the Chancellor. It was painful to see, for so long a time, a great political judge exercising vast political power, so that it was impossible to set about any reform without its turning out vain and chimerical. It was the duty of the House and the country, therefore, to look at this question, and to take their stand on it. He should like to hear some of the commercial gentlemen in that House state what they suffered from the court of Chancery. He should like to hear some of the members of the great and paramount interest in that House—he meant the landed interest—tell them what they suffered. He should like to hear from them how they were mulcted at every transfer of their property. The motion only went to get necessary information; but the Attorney-general had told them, they were not to inquire into what the lord Chancellor had not done—they were to be contented with the information contained in the reports, and to be satisfied with knowing what the Chancellor had done. The right hon. gentleman said, that the information asked for was not necessary to the passing of the bill. He contended that it was; and, unless they had that information, how could they decide as to the merits of the one hundred and eighty-eight propositions which had been submitted to them relative to the court of Chancery? He had been induced to speak, because no gentleman on the other side would speak; but the principal purpose for which he rose was, to inquire of the right hon. gentleman opposite, why the measure had been dropped by the master of the Rolls? Why was the master of the Rolls not there to propose the second reading of the bill? This was what he wanted to know from the right hon. gentleman opposite. He had gone, he understood, to Bristol, to attend a cause. He thought the House was not treated fairly. He considered that the information asked for ought to be given, and should support the motion.

Mr. Secretary Canning

said, he did not know why the hon. gentleman had fixed on him to account for the absence of the master of the Rolls. He could only say, which was as far as he knew, that the learned gentleman was not there. He had, probably, been more agreeably employed, as it was evident the hon. gentleman had, than in attending to the debates of that House [a laugh]. If the hon. gentleman asked him, why the master of the Rolls was not there to propose the second reading of his bill, he must reply, that the second reading had been put off at the express desire of the gentlemen opposite; and, therefore, to ask him why the master of the Rolls was not present to move the second reading, was, of all unreasonable interrogatories, the most unreasonable. The master of the Rolls had objected to putting off the second reading, but he had done it at the request of members opposite. He would not say that that request was a final bargain; but he would say, that it did imply, that, during the interval asked for by the gentlemen opposite, and granted by the master of the Rolls, no motion should be brought forward so very like the second reading of that bill, that it could not be distinguished by the optics of the hon. gentleman. He had not, however, then brought forward the second reading; and he (Mr. Canning) thought, from the tone of the hon. member's remarks, that, if it had been brought forward, the hon. member could not have voted on it, except from a hostile feeling to the noble and learned lord. He did not agree exactly with his right hon. friend, the Attorney-general, who had, he thought, been carried too far. He opposed the motion on the ground that it ought not to have been brought forward during the time the other motion had been postponed; and that it was not right to get up an incidental debate, involving all the points to which the bill referred. He was not prepared, however, to say, that he should at all times oppose the motion; if ground enough were laid for assenting to it; nor was he prepared to say, that the information required was not necessary. He must observe, however, that the motions of the hon. mover went far beyond his notices. He was not himself lawyer sufficient to know whether the information was desirable or not; but, if he had looked at the notice of the hon. mover's motion, he should not have found it so defined, that he could have known before-hand whether or not it was right to concede it. He must say, from the temper of the debate, and from all that had passed, it would carry to the public an air which implied condemnation, were the House to give its sanction to the present motion. Since the motion had been brought forward, it had been swelled into nothing less than a direct attack on the noble and learned lord in his judicial, political, and personal capacity. On these grounds he should oppose it.

Mr. D. W. Harvey,

in reply, observed, that while he would not imitate the vitiated taste of the Attorney-general, in ascribing motives to hon. members, he would remind the learned gentleman, that he was the last man who ought to resort to this hazardous course, for he could not be unmindful that he had been open to very severe misconstruction. At the time when the learned gentleman disrobed himself of his equity apparel, and entered the court of King's-bench as the hired defender of treason, it was remarked, that he had volunteered to be the eulogist of Watson and Thistlewood, to mortify the lord Chancellor for overlooking those high endowments which had since been substantially recognized [hear, hear]. It had been said, that this motion was an attack On the lord Chancellor. The same thing might be said of the Vice-chancellor, the Master of the Rolls, and the Chief baron; for it embraced them all, and equally affected all; that was, it touched neither of them personally, but over-reached the court of each. The motion was indeed friendly to the lord Chancellor, as it would show that though the Vice-chancellor got through more business, he only got rid of it, but did not dispose of it. It was his practice to refer every thing to the masters, whose offices were choked with references: and in a few years the tide would roll back, and the delusion with it. The hon. member disclaimed all personal feeling towards the lord Chancellor. He neither had received, nor did he seek, any favour at his hands.

The House divided: Ayes 66; Noes 132: Majority against the motion 66.

List of the Minority.
Althorp, viscount Lester, B. L.
Archdeckne, A. Lombe, E.
Baillie, J. Lumley, J. G.
Baring, F. Maberley, J.
Baring, W. B. Maberley, W. L.
Birch, J. Macdonald, sir J.
Calcraft, J. Maitland, visc.
Calvert, N. Maitland, hon. A.
Clements, vise. Marjoribanks, S.
Clive, E. B. Marshall, W.
Davies, T. Maule, hon. W. R.
Davenport, E. D. Monck, J. B.
Dawson, A. Morpeth, visc.
Dick, Quintin Pallmer, C. N.
Dickinson, W. Ponsonby, hon. G.
Du Cane, P. Ponsonby, hon. W. S.
Duncannon, visc. Rice, T. S.
Dundas, hon. sir R. Rickford, W.
Easthope, John Robinson, sir G.
Ebrington, visc. Robinson, G. R.
Euston, earl of Sebright, sir J.
Fazakerley, J. N. Smith, W.
Fergusson, sir R. Stuart, H. Villiers
Gordon, R. Taylor, M. A.
Graham, sir J. Thompson, C. P.
Grattan, H. Tierney, right hon. G.
Greene, T. Warburton, H.
Guest, J. Western, C. C.
Guise, sir W. Wilson, sir R.
Heathcote, G. J. Wood, alderman
Howard, H. Wood, C.
Howick, visc. $#nbsp;
Kennedy, T. F. Ferguson, R. C.
Langston, J. H. Harvey, D. W.