§ Mr. M. A. Taylor
, being called upon by the Speaker to make his motion on the subject of separating the jurisdiction in all matters of Bankruptcy in the High Court of Chancery, said, that, as his right hon. and learned friend, the Master of the Rolls, intended on that night to submit to the House his bill for the improvement of the Administration of Justice in the Court of Chancery, he thought it due as well to his right hon. and learned friend, as to the convenience of the House, to withdraw his motion, until they should be in possession of the measures which were intended to be carried into effect by that bill. He hoped, however, that in thus withdrawing his motion, he should not ultimately lose any thing, as he reserved to himself the power of bringing the subject under their consideration at a future opportunity, as well as to make any observation in the course of that night, which he might think necessary to a proper elucidation of the subject. No exertion, he begged to assure the House, had been wanting on his part, to have those evils and abuses of the Court of Chancery, under which the suitors of that court had so long writhed, fully and fairly examined, and he trusted the time was now arrived when they would be effectually redressed.
The Master of the Rolls
(sir John Copley) then rose, and addressed the House to the follow purport:—
I have, in the first place, to return thanks 693 to my hon. friend for his courtesy in giving way on this occasion. I certainly did anticipate the indulgence which he has afforded me; but, at the same time, I am hound to express my acknowledgments for the readiness with which it has been conceded. I rise now, therefore, in pursuance of the notice I gave some time back, to move for leave to bring in a bill to alter and amend the practice of the High Court of Chancery. The House is aware, that, in the course of the last session of parliament, I gave a notice of nearly the same description, and that in pursuance of that notice I obtained leave to bring in a bill for the same purpose as that which I am now about to propose. It will be necessary, therefore, in the first place, to explain, in a few words, why I did not avail myself of the permission I then obtained, and why I did not follow up the measure I then proposed in the subsequent stages. It must be quite obvious to every one acquainted with the subject, that a measure which purposed to alter the course of proceeding in the highest court of the kingdom, must involve great complexity of arrangement, and call for extraordinary minuteness of detail. In the measure which I submitted to the House last session, there were provisions which would have rendered it necessary to make an application to parliament for a very considerable pecuniary grant, in order to give them full and efficient operation. After having given that and other circumstances due consideration, it appeared to me, and to others, by whose advice I was influenced, that it would be almost impossible, during the remainder of the session, to succeed in carrying that bill, and the other measures by which it must have been accompanied, through the two Houses of parliament in such a manner as to give them the effect of law. These considerations, therefore, in conjunction with others, induced me to abstain from pressing the bill upon the attention of this House during that session; for I thought it would be an idle waste of time to enter upon the discussion of the matters contained in it, without a prospect of coming to any satisfactory issue, and involving the House in discussions which could only lead to unprofitable debates. I thought it, therefore, better at once to abandon the bill which I then introduced, reserving to myself the right to repeat the motion when I considered it to be more expedient, and to follow it up by a bill, 694 embodying those provisions which I thought adequate to effect the reformations which were proposed. This is the short history of the measure which I then introduced; and I am happy to be able to say, that 1 have reason to believe I acted correctly upon that occasion, and that the course I pursued has obtained the approbation of those whose soundness of judgment entitles them to respect. I rejoice, indeed, that I did so postpone the consideration of the question, because that postponement has afforded me additional opportunities of considering subjects, as I have already observed, of very great difficulty, and of maturing the plans which I am about to submit to the House. I am satisfied, too, from that more mature consideration, that it will not be necessary, in the bill which I am now about to propose, to make any provisions which shall call for pecuniary assistance; but that, on the contrary, we shall be able to carry all its objects into effect, without requiring from the country any grant of money.
It will not be expected that I should now go into an explanation of all the particulars of the evils or the remedies, as applicable to the practice of the court of Chancery, with the same minuteness of detail, as when I had last the honour to address the House on this subject. I am convinced, that such a course would be as irksome to the House, as it would be painful to myself. I shall endeavour, therefore, to treat the subject generally, and to render my references as clear and as intelligible as possible, not only to those who are acquainted with the practice of the court, but—at least in its outline—also to those who are not practically acquainted with the court, and who have no practical knowledge upon the subject.
In the first place, therefore, it will be necessary to understand the nature of the subject, that I should get rid of all those cavils and objections which have no bearing upon the question we are about to examine. I may say, with confidence, that I have never found anyone individual, upon whose judgment I could place the least reliance, who attempted to find fault with that system of jurisprudence which distinguishes the court of Chancery from the other courts of civil and criminal law, and which is with us called Equity. I never recollect any one who ventured to assert, that the jurisdiction of that court could be dispensed with; and, considering 695 the nature of the subjects brought under its consideration, which it is called upon to be conversant with, I consider it impossible that such a court could be dispensed with, in the present state of society. If one party, for instance, enters into an agreement, the stipulations of which may be binding to a great extent, every person knows that, if we attempt to call him to a specific performance of his contract, the law affords no remedy. The relief which, in that case, must be obtained, is peculiar to a court of equity. If I have a tenant who, under the power of a lease, attempts to cut down my timber and to commit other dilapidations upon my property, what remedy have I in a court of law? There is none to be had. If I wish to obtain my object, I must call upon a court of equity to interpose, and prevent what would otherwise prove perhaps an irreparable injury to ray property. I mention these instances to shew that a court of equity possesses a power of affording relief which cannot be dispensed with, and which we might seek in vain from a court of law; and I repeat the observation which I made before; namely, that I never knew an individual, who possessed any knowledge upon the subject, and whose opinion could be relied upon, who would venture to say that equity could be dispensed with, that what is called equity could be even administered by the courts of law, or that it could be obtained by any other means than a distinct and different tribunal, limited to a peculiar object. If that be so—and I can scarcely think it will be denied—then it will not be difficult to understand the points to which our inquiries must be directed.
Before, however, I go further, I think it right to endeavour to remove a reproach which has been frequently cast upon the court of Chancery, with respect to the slowness of its operations, as compared with those of the courts of law. In one respect, the operations of the court of Chancery are impeded from the very nature of the questions which it is called upon to determine. In a court of law, there is only one issue to be tried, upon which the court may be, perhaps, able to decide almost instantly. In a court of equity, the judge who presides is called upon to determine upon many complicated questions connected with large masses of property, in the hands of various individuals, and to decide between the claims of 696 one body of men, and another body, supporting their rights upon different interests. To take, for an illustration to the House, a familiar instance of the nature of proceedings in the court of law and the court of equity. A man sues another for a debt in a court of law. The questions to be determined are simple—the existence of the debt, and its amount, and the process is ended. Let us take an analogous case in a court of equity, and see the course of proceeding there. A man dies, perhaps insolvent, the whole mass of his creditors step in, and demand a division of his effects; but, instead of the question being determined there, as in a court of law, by one action, every individual creditor is called upon to prove his debt, and there are, consequently, as many causes to be tried as there are creditors to claim. It would be no difficult matter to enumerate many other instances in which a complexity, arising from the claims of several parties, might occur, which could only be settled in a court of equity. The interests, and the proportion of interests, which contending claimants had frequently in property, could only be adjusted in such a court. No person, therefore, I presume, supposes that equity can or ought to be dispensed with; or that it is not essentially necessary to continue and persevere in our system of jurisprudence. I yield to no man in my admiration of the simplicity of proceedings in courts of law. I have been brought up in early prejudices in favour of that simplicity; but it is in consequence of the separation of the business in the courts of law, from that which should be conducted in courts of equity, that the simplicity of the former has been preserved. It is in consequence of this just distribution, that a single judge in one year has been able to dispose of, causes during the sittings in Middlesex and Westminster, to the number of three thousand.
These preliminary observations I have deemed it necessary to make, to assist me in directing the attention of the House to the points which it appears to me most requisite that their attention should be directed. If, then, it appears obvious, that there can be no question of destroying the jurisdiction of courts of equity, nor of uniting and blending the two jurisdictions—and if it is found that individuals come forward with evidence of great delay existing in the business of these courts—to what branch of the subject must our minds 697 be directed with a view to a remedy? Of necessity, to the machinery, with a view to quicken its motion. And, accordingly, we find, that when the government commissioners commenced their labours, two years ago, it was to this point that their attention was directed by his majesty's government. The instructions to them were, to inquire into the practice of the court of Chancery; to ascertain whether any alteration or amendment in that practice would diminish the time and expenses usually attendant upon suits in that court. This was the inquiry directed by government; and its object was, in my opinion, a most proper and legitimate one.
Thus much, the right hon. and learned gentleman said, he felt himself called on to explain to the House, in introducing to their attention the nature of the measure founded upon the report of these commissioners. This commission was directed to persons of great learning and intelligence, and who, with the exception of two or three, whom he should afterwards mention, had spent their lives in the study and practice of equity. It was impossible that persons more fitted to the task could have been found in the country. He knew it had been said, that, although all of them were qualified, from their long acquaintance with the subject, to take a better view of it than any others, yet the prejudices of habit would prevent them from taking a just judgment on the subject. But in answer to this, he would point to his hon. and learned friend, the member for Tregony (Dr. Lushington), who, if he had any prejudices, were such as would lead his mind rather in a contrary direction; yet he found his hon. and learned friend's name signed to the report, upon the recommendation of which the bill which it was his intention to introduce, was founded. He would also point to another name (Mr. R. Smith's) in the same situation—the name of one whom he was proud to call his friend—a man of great learning, seldom voting upon his side of the House, an accomplished scholar, uncompromising in his principles, and industrious, active, and zealous in attending on the commission, day after day, in the progress of the inquiry. He found the report had the sanction of his distinguished name; and he appealed to the authority of these two names to refute the charge of bias brought against the judgment of the commissioners.
The House, then, would distinctly un- 698 derstand, that the bill which he should have the honour of introducing, was framed upon the propositions contained in this report; and, therefore, that in calling upon them to consent to certain alterations and amendments, in long-established practice, he was suggesting no new speculations, no visionary improvements, but the adoption of certain changes, which had been recommended, after two years deliberate inquiry, and the elaborate examination of witnesses, by persons such as he had described. This being the basis of his bill, he was sure the House would be disposed to receive it with the same approbation which they had bestowed upon the report itself. He had not, however, implicitly followed the directions of the report. It was upwards of a year since that document had been laid before the House; it related to subjects of the most intricate and complex nature; and since its first appearance, it had been submitted to the eyes of an acute, discerning, and accomplished, profession; and not, he might add, without commensurate benefit. During that period, a noble lord, a member of the other House, and also a member of the commission (lord Redesdale), but whose name did not appear to the report, had published to the world his opinions on the propositions contained in it. No one in the country was better informed upon the subject of the propositions investigated by the commission, and further, as to the details of the subject, no one was more intimately conversant; and he regretted, with all the respect that he entertained for his talents and integrity, that that noble lord had not, day by day, attended in his place as a commissioner, to inform his own mind, and the minds of his colleagues; but that he had waited, until the end of their labours, to give the public, in the form of a pamphlet, the benefit of his reasons, why the propositions of the commission ought not to be relied on. This much he had felt it his duty thus boldly to state, notwithstanding the admiration he felt for the extensive knowledge and talents of that noble and learned lord, and his general disposition to serve his country; still he had profited by one or two suggestions made against the recommendations of the commission. He would not enter into a lengthened detail of these suggestions, but confine himself to the mention of one of them. Gentlemen acquainted with the practice of 699 Chancery would know what he meant, when he said, that the commissioners recommended that the master's report should be final upon exceptions. Now, the voice of the profession was decidedly against; the adoption of this recommendation; and he would tell the House why. Without defining the precise meaning of the term, he would state, that it not unfrequently happened, that the issue of a suit, involving property to an immense amount, depended upon the exceptions. The noble and learned lord was of opinion,—and he agreed cordially in that opinion—that the decision of no single judge ought to be final. If it were, it would be an anomaly, and contrary to the whole tenor of the jurisprudence of the country. Besides this, as there were no less than ten masters in chancery, there might be so many different rules of decision; which alone was fatal to the proposition, when it was considered, that those exceptions not un-frequently involved the decision of large property, and that nothing could be so dangerous as any thing like vagueness or uncertainty in the law with respect to property. Therefore, he had, in this respect gone against the resolutions of the commissioners. He did not, however, propose to leave the power of appeal from the master so extensive as at present, by which the appeal might be from the master, in the first instance, to the Master of the Rolls, then to the Chancellor, and then to the House of Lords. Without compromising the right of appeal, he proposed to give the individual his choice of the tribunal, but to make that tribunal final.
He was sorry to trouble the House with these details, but he had thought it right to present an example, as an instance of this kind of difference between his measure and the report of the commission. In order to render the subject intelligible to the House, he would endeavour to present an outline, the most simple possible, of the practice hitherto prevailing in the court of Chancery. It was the minuteness in filling up the picture that generally proved intricate in works of art; it frequently happening, that a general design and outline, the most striking and magnificent, were destroyed by elaborate details. There was this peculiar feature in the practice of the court of Chancery—that the party to the suit was obliged to answer on oath, and it was this part of the practice which gave to that court the 700 power of sifting secrets, and eliciting truth, beyond the means of any other tribunal. He was aware, that delays existed in this court more than in any other, at the period, when in other courts, the cause had arrived near its termination. He alluded to the time when the cause was ripe for hearing, and set down for that purpose, the bill and answer having been regularly filed. The result of a hearing, at this stage of the business, frequently was an order to take accounts, and to enter into new details, which the court, of itself, not being able to do, necessarily referred to the master. That officer investigated the matter referred to, and made his report; whereupon the cause came on again for hearing, and finally for judgment. Nothing could be more simple than this, or better calculated for the purposes of the court. This being the course of practice, the commissioners had thought it their duty, in compliance with the instructions they had received, to follow the cause from its first process to its conclusion, in order to see if any thing could be abridged, altered, or extinguished. They had pursued this part of the inquiry in a manner that entitled them to the thanks of the country. In the spirit of this part of their inquiry, no one would accuse them of not having done enough—the only doubt upon any intelligent mind was, whether they had not done too much. With reference to that part of the cause which related to the hearing, no one, he apprehended, would go so far as to say, that it was to be accomplished within a given time, to be fixed by commissioners, or parliamentary enactment. It must be left to the discretion of the individual presiding. Here, it was obvious, upon examination, that the great impediment was, the multiplicity of business; and, accordingly, the legitimate course of inquiry for the commissioners to pursue was, whether any portion of it could be transferred to other hands. This course of investigation they had, indeed, followed up, and whether they had done enough in what they had recommended, or not, was a fair subject for discussion. They had sedulously applied their minds to the question, and had recommended the utmost they felt themselves warranted in doing. It appeared to him that they had gone far enough in their recommendations, upon this branch of the subject; and he formed his opinion from the returns on 701 the table of the House. When he had last addressed the House on the subject, he had said that there was no "growing" arrear of business. He admitted that there was, at that time, an arrear of two years, which had arisen from a variety of causes. One of these was the illness of sir Thomas Plomer; and the illness of the present Vice-chancellor had also contributed much towards it. He knew, however, that there had been no increase for the last four or five years; and it followed that, from the increased facilities which it was now proposed to provide, that arrear, of which they had so long heard complaints, would be speedily got rid of.
The next subject of inquiry had been the mode of conducting business in the Master's office. He was perfectly ready to admit that there was great delay in that quarter; and he believed, indeed, that the great secret of delay in the practice of chancery resolved itself into the course of proceedings before the master. He begged, however, to be distinctly understood as not imputing to the respectable individuals who filled that office the delay in question. The business, when once left to the master to make his report, was carried on in as prompt and rapid a manner as possible. The evil was, that the master had no power to give activity to the cause. He was at his post when the parties thought fit to appear before him; but he was passive in all other respects; having no adequate authority to compel the attendance of the parties. To whom, then, was the blame imputable? It was never his wish to cast a stigma upon any class of individuals; but, speaking from his experience, he must say, that the blame of delay rested with the agents of the suitors. He would state the case fairly against them, without imputing more blame than was due. The fact was, that there was scarcely a respectable solicitor in the metropolis who had not more business than he knew what to do with; so that it was only to those parts of his business to which he was obliged to attend from their urgency, that he, in reality, did properly attend to. Now, in a court of law, if the solicitor did not attend for his client at the appointed hour, he found his opponent moving for the costs of the suit; to which costs the solicitor was liable for his negligence. In the Master's office, on the contrary, if the party did not attend, he was subject to a fine of two shillings 702 merely. Upon this view of the subject, the House would be disposed to concur in the recommendation of the commissioners to arm the master with power to give activity to the cause, by compelling attendance. How this was to be done it was not necessary then to state; the principle only was important; and if it should be found that the mode adopted did not go far enough, it would be open to the House to adopt further proceedings, with a view to the removal of this stigma upon the practice of the court.
The last stage of the cause to which he now came, was the hearing of the cause, upon the report of the master; and, up to this point, it would be found, by reference to the report, that the commissioners had, if he might use the expression, hunted the cause until they had got rid of all forms which they thought could be dispensed with. Amongst other amendments proposed by the commissioners, was one which deprived the suitor of delaying, for two years, to complete his bill, without the defendant having the power to dismiss it for want of prosecution. The commissioners had also turned their attention to the power of amending the bill, by which the greatest mischief might be inflicted, and a suit prolonged almost interminably.
These were the kind of evils to which the bill would be found to refer. The House would now expect him to state what was the form of legislation proposed upon the one hundred and eighty-eight propositions of the commissioners, to many of which it was right the House should know, that the lord Chancellor might have given the force of law by his mere fiat—[cries of "hear" from the Opposition benches]—and many of them must have had the sanction of parliament, before they could have had that force. Some hon. gentlemen opposite had cheered, when he said that the fiat of the lord Chancellor could have given to many of these propositions the force of law; but he had to inform the House, that though the lord Chancellor might have done this, it had been considered that it would have been unwise if he had done so. It was certainly better to call in the authority of parliament for the whole. In addition to which he must beg leave to say, that these propositions had undergone a long and severe scrutiny and examination of twelve gentlemen of consideration, research, talent, and experience; and that 703 it was a little too much to expect that the lord Chancellor of this country, whose occupations were so numerous, and whose whole attention was necessarily taken up by the business of his office, should have stepped in and answered all the purposes of this commission himself. There had not been wanting, however, some gentlemen who could find fault with the Chancellor, because he had not clone that which it had taken twelve learned gentlemen no less than two years to perform. [Here the hon. and learned gentleman paused.]
He was afraid he had gone out of the order which he proposed. He was about to state to the House the mode in which it was intended to legislate on this subject. It had been considered that there were two ways in which these propositions might be carried into effect—either by parliament authorizing the lord Chancellor to give them the effect of a law, or by parliament doing so by its own enactment. The last was, in his opinion, the better and the more direct and rapid mode. It would, moreover, bring the whole subject before the House; and, in a committee of the whole House, they might enter into all the details—into all the minute particulars—of the subject. Any member might then have an opportunity of proposing amendments of the regulations as they now stood, or substitutions of new and better ones in the place of those to which they saw any objection. It was for these reasons that he had adopted the mode of proposing, that, from a certain fixed period, these propositions, with certain alterations and qualifications, should pass into a law; but, as the subject was so complex, that, until the propositions had been submitted to the test of experience, it was impossible to say that they would all of them be found to succeed, it was proposed, that they should thus pass into a law, reserving to the lord Chancellor, in conjunction with the Vice-chancellor, or the Master of the Rolls, the power to alter and vary them [hear, hear]. In proposing this he was not proposing any thing new. It had always been the custom not to trust wholly to the working of the machinery—not to risk any thing upon its operations, until it had been tried. An act which regarded the office of the Accountant-general, and passed in the reign of George 1st., was constructed in a similar manner. It was thought proper, in that act, to insert a clause, author- 704 ising the court to alter and to vary the regulations which it contained, where it saw occasion. He was not, therefore, acting altogether without precedent, nor, in his opinion, with the slightest impropriety. He felt anxious, he begged leave to say, for the measure of improvement—he had no partiality for the bill he had framed—he wished for the success of the object. When in the committee, he should anxiously avail himself of the suggestion of every individual; and, if possible, adopt it. He had near him gentlemen minutely acquainted with the subject, and from them he should expect assistance. Upon learned gentlemen opposite he should call, to co-operate with him, in no spirit of party, but with a sincere desire to promote the welfare of the nation. If those hon. gentlemen who had so long assailed the system of the court of Chancery were sincere—and he had no doubt that they were sincere—let them come forward and lend him their assistance; let them put their shoulders to the wheel, and endeavour to remove the errors of which they complained in the practice of that court. He saw another hon. gentleman also, one who had been a member of the committee, and whose assistance he trusted that he should also obtain. There were gentlemen around him eminently qualified for the task; and he was sure that they would not attempt to thwart or oppose him, but join heart and soul in the work, and exert their talents and ingenuity to promote the cause, for the success of which they had so frequently expressed their anxiety.
The commissioners had directed their attention to the subject of the masters of the court of Chancery, and particularly to the manner in which they were remunerated. At present it appeared that the principal part of their emoluments consisted of what was called copy-money; that was, the money paid by the parties in causes for copies of the several proceedings of the Masters' offices. These were paid for at the rate of twelve-pence per folio, or about three times as much as the usual professional charge for the same articles. Out of this practice had grown a reproach, which was, by unjust or unthinking persons, urged against the masters, that they extended the number and duration of proceedings in their offices, for the sake of the gains which they thus obtained. Nothing, he hardly need assure the House, could be more unjust than 705 this imputation; but, in order that there might be no colour for the censure of illiberal minds, the committee recommended that it should be altogether abolished. He was sure the House would agree with this recommendation; but when he stated that in the office of each of the masters this copy-money amounted to 1,500l. or 1,800l. a-year, and that there were ten masters, they would see how great a deficiency remained to be supplied. The services required from the masters were extremely arduous and important; it was necessary that the persons called upon to fill that office should possess great legal knowledge, and unquestionable integrity. The remuneration which they received was by no means too large; but, from what source, when the copy-money was abolished, should it be supplied? All their other fees were on the lowest possible scale. The masters were sometimes laboriously engaged for ten or fourteen days in making a report. The House would feel that such exertions should be paid for adequately; and to this end he proposed, that the fees should in future be regulated so as to bear a due proportion to the particular services which had been performed, taking care always that no more should be exacted than the masters were fairly entitled to. How, then, he repeated, was this deficiency to be supplied? His proposal was, that it should be supplied in a way which appeared to him extremely simple, and without any extraordinary application to parliament. The masters were at present paid 600l. a-year each, and these sums came out of a fund in the court of Chancery, and which had been accumulating for many years. The salaries of the Vice-chancellor, and the expenses of the office of the Accountant-general, were paid out of that fund. A residue was left after these payments, more than sufficient to cover the expense which would be occasioned by the change he contemplated. To this object he proposed the surplus of the fund should be applied. He hoped the House would approve of this suggestion. He was sure the masters would be pleased with it; and he was himself very anxious to free them from the shadow of a reproach, which was so unfoundedly urged against them, that they had an interest in prolonging the proceedings in their office, and that they permitted themselves to be swayed by that in- 706 terest. While, however, he said this, he must take occasion to protest against the opinion which had been recently expressed, in a public manner, by the senior master of the court of Chancery (Mr. Stratford); namely, that the parliament had no right whatever to interfere in the affairs of the Masters' offices, or to alter the nature of their regulations. That learned person might, in promulgating this motion, speak his own sentiments; but certainly they were not those entertained by the body to which he belonged. The learned person insisted that the masters ought to be allowed to retire. Now, he had no objection to their retiring; but the learned gentleman wished that they should, on their retirement, retain their full emoluments—a position which could certainly not be acceded to. This learned gentleman being, as he was, the senior member of the body, ought to be aware, that no session had ever passed of late years, in which the parliament had not exercised its undoubted right of adding to the official burthens of the law and equity judges, for the service of the public, and this without any additional fee, because, in fact, it was well known that, on such terms the judges accepted their offices. He might respect the motives of the learned gentleman to whom he alluded—he might believe that he was sincere in what he said—he might admire the industry with which he had circulated his opinions—he might even respect his prejudices, be delighted with his style, and the judicious introduction of the topics he had chosen to illustrate his work; but he could not agree with him. "But," said that learned person, "I am under the necessity of discharging my duty. I have taken an oath on my entrance into office, not to see any damage done to the sovereignty of the Great Seal, and therefore I publish this to the world" [a laugh].
The committee recommended also the appointment of two additional registrars. Now, this point he had not only considered deep himself, but he had taken the opinion of several gentlemen well qualified to decide upon it, and his own idea, strengthened by theirs, was, that at present the House ought not to legislate on this point. If they did legislate, they could not avoid entailing on the country a long series of compensation, which would press heavily on the people at this moment. This part of the recommendation, 707 therefore, he thought ought to be suspended for the present; and, if it should appear upon trial, that the present officers were inadequate to the duties required of them, an application might be made to parliament for additional ones, as he did not wish to encumber the bill, to the success of which he looked forward with great hope, with any pecuniary clauses: he was afraid—perhaps the fear was unfounded—it would be objected, that in the attempt to effect reforms in the court of Chancery, the burthens of the people had been increased.
There was another subject of great and paramount importance connected with this subject—he meant the jurisdiction in bankruptcy cases. Feeling, as he did, how deeply it affected the interest of the commercial portion of the community, he had maturely considered it, and had consulted others upon it; and the result of his own deliberation, and that of others was, that it would not be advisable to adopt the recommendation of the commissioners as part of this bill, and that it ought not to be blended with any other matter whatever. It ought to be well and maturely considered by itself; and, if the House would go with him, be would pledge himself to bring in a separate measure, when it might have the full consideration of the House, in as deliberate a manner as it was entitled to [hear, hear]. Did the House go with him? Were they persuaded that the regulations of the court of Chancery was enough for one bill? It should be understood, that the lord Chancellor did not sit as chancellor in bankruptcy, but as keeper of the great seal, holding a special jurisdiction, delegated to him by various acts of parliament; that he did not decide upon bill and answer, but upon petitions presented to him in the May pointed out by those acts. Being, therefore, entirely separate, it was not necessary—it was not, he thought, even expedient—that on this occasion it should be included in the proposed bill; and he pledged himself if it should be allowed to pass over now, to bring it forward without delay, in such a shape as must ensure its full consideration and decision.
He had said, that he was anxious for the success of this measure: he knew that anxiety was shared by his majesty's government, who had hitherto afforded every facility to the inquiry made by the com- 708 missioners. He knew it would be said, that the commission originated in motions made on the other side of the House; but he was desirous of not looking back at what had been done, or by whom. He wished rather to see both sides of the House united to accomplish the object of the bill. If they did so, there was no difficulty that could deter them; and no considerations, personal or otherwise, ought to be allowed to interfere with that which was of vital importance to the whole community. The right hon. and learned gentleman then concluded by moving, "That leave be given to bring in a bill, for the improvement of the administration of Justice in the court of Chancery."
§ Mr. M. A. Taylor
trusted the House would give him credit for having no other object in view than the public good, when he cautioned it, and particularly such members of it as had not been many years in parliament, against the measure now brought forward, and urged them to look at it with the greatest suspicion. That measure he looked upon as a mere expedient; and he thought that, while it seemed to offer some relief, its real tendency was to keep back the only effectual relief. His right hon. and learned friend, the Master of the Rolls, had very judiciously made out what appeared to be a plain and fair case, and had carefully avoided, as far as was possible, any allusion to what had been done, or attempted to be done, in that House, respecting the court of Chancery, in the course of the last twenty years. He could not agree with the view taken by his right hon. and learned friend. He knew that the repeated applications which had been made to the House were the cause of procuring at length the commission, of which he should say a few words by and by. The lord Chancellor, after refusing and neglecting, for so many years, to do anything towards the redress of the grievances which were every where complained of, could no longer prevent the appointment of the commission, which had made the famous report that had been so often alluded to by his right hon. and learned friend. He was inclined to believe that the commission had never intended to do much; and the little they had intended to do they had been frightened out of. It was impossible that any man possessing the acute mind of his right hon. and learned friend could fail to see the difficulties he 709 had to contend with, and to perceive that those difficulties were insurmountable, if he should enter fairly and fully into the subject. For this reason his right hon. and learned friend had put the case to the House in a very ingenious way certainly; but one to which he by no means intended to accede. He would not consent, that the question should be discussed, without a single glance back at what had been done formerly. Again, he warned gentlemen against believing that the proposed bill was calculated to do all the good that might be effected in the way of amendment in the court of Chancery, and of relief to the suitors and the community—against the hope that, by the assistance of this and the other side of the House, such amendments might be made in the committee, as would eventually prove satisfactory. He was sure that the measure would not expedite the business of the court of Chancery, and he took it to be the better, as well as the more manly, way, to state broadly and at once where the real source of the evil they complained of lay. What had the lord Chancellor done towards the reform of his court, notwithstanding the repeated applications that had been made for that purpose? A variety of expedients had been resorted to; but all of them, rather for the purpose of keeping off the reform which was sought, than of effecting it. The only good that could be expected consisted in the separation of the bankruptcy jurisdiction from the court of Chancery. He had himself repeatedly called the attention of the House to the subject of the delays in Chancery before 1811, but he had always found it impossible to gain any one point. At last he did succeed in getting a committee appointed to inquire into the causes of the delay; and he carried that question by the casting vote from the chair. Mr. Perceval was then minister, and he threw great difficulties in the way, at every step. He did not mean anything unkind to the lord Chancellor, but the truth should come out, and the truth was, that that learned lord was sitting in his room to learn whether the vote would be carried or not. Mr. Perceval did all he could, after the committee was appointed, to prevent its being of any use; and inserted as many names as possible of persons who were known to be friends of the Chancellor. He (Mr. Taylor) was so fortunate still to retain the assistance of sir Samuel Romilly, and his 710 learned friend the member for Calne (Mr. Abercromby). The mention of the name of his learned friend reminded him that his right hon. friend, the Master of the Rolls, hoped to ensure the assistance of his learned friend, in the committee on the bill he was about to bring in. He thought he would be mistaken in that expectation, and that all his hon. friend could do-would be to strike out all the words after the words "and whereas." To return, however, to the subject before the House—he could see the cloven foot sticking out here again, notwithstanding all the pains his right hon. friend had taken to disguise it. When Mr. Perceval had, at length, been obliged to grant the committee, notwithstanding all his exertions to prevent it, he (Mr. Taylor) was enabled to get at the then state of the causes in Chancery, and at the nature and effect of the appellate jurisdiction. It appeared then that twelve years would not have been sufficient to subdue the arrear of causes undetermined. In 1812, for the committee was not able to get through their task in one session, the committee was renewed, and was worse packed than before. As he had ascertained the immense and scandalous arrear of causes which existed, he was then desirous to examine into the causes by which they had been suffered to accumulate. "Oh! no," said one of the new members of the committee, who had just before been made a master in Chancery, "you are only to inquire into the amount of causes in arrear." It was in vain that he showed him the order of the House. Mr. Morris knew very little of the business, and asked in what way he proposed to get at the information he wanted? His excellent friend, sir Samuel Romilly, replied, by calling before the committee gentlemen in the profession, and asking them what was, in their opinion, the cause of that delay, the existence of which every one admitted, and every one had reason to regret. "No," said Mr. Morris again, "that would be to libel the Chancellor," and he (Mr. Taylor) was consequently left in a minority, but a minority which contained names so illustrious, that they might well reconcile him to his defeat. He then made a fresh application to the House, which was negatived; for the lord Chanlor said, he would not suffer it to be carried, and that if it should be agreed to, he could no longer be Chancellor. There 711 could be no doubt of this fact, because the Chancellor had told him so himself. Under these circumstances, he was of course obliged to abandon his purpose. But did his right hon. and learned friend think that he was likely to forget these transactions, or that he would not apprize the House whenever he saw the cloven foot again sticking out? Then, a few years afterwards, or rather in the very next year, the Chancellor proposed in the other House of Parliament, the expedient of a Vice-chancellor; that was, that he would have another gentleman to do his business. That proposition came down to this House; and then he proposed that a committee should be appointed to inquire into the statute of the reign of Queen Elizabeth, and those which followed it, by which the power of the Chancellor in bankruptcy had been delegated to him. On proposing this amendment, he had the honour of being supported by a right hon. member, whose absence he could assure his right hon. friend, nobody could deplore more sincerely than he did, and who had told him that if he divided the House he would support him. In this he had failed; but he then gave a pledge which he never meant to forfeit, that he would bring forward the subject every session, and at every opportunity when it could be started. In pursuance of this intention, he meant to move for a return of the arrears of business, showing what cases had been heard by the lord Chancellor, and what remained undecided, with the number of appeals, and the length of time they had remained undecided. It was by such inquiries only, that the House could be enabled to do justice; and it was in vain to attempt to smooth over, by elegant orations, or by attributing to the Chancellor all the virtue and talent in the world, the injustice which had been constantly, and for so many years, inflicted on the suitors. If this would not do, some other measure must be tried. When the Vice-chancellor's bill was proposed, he (Mr. Taylor) said it would not do, and it proved that he was right; for the lord Chancellor himself, a few years afterwards, in the House of Lords, confessed that it would not do, and asked to have a Deputy-Speaker appointed. That excellent individual, lord Gifford, whose death they all lamented, was appointed, and did get rid of the Scotch appeals. The Chancellor sat two days in the week, and the 712 Master of the Rolls three; but had this arrangement got the court on? He believed, if it was looked into, that it would be found the lord Chancellor had hardly tried and disposed of a cause in a term. Then the Chancellor said, he had too much business; he had tried two experiments, and both had failed. For how many years, and particularly for the two last, had this state of things continued. And was it not to the discredit of the government to permit the longer continuance of a court like this, without attempting that striking feature of reform which his right hon. friend had omitted? Had he happened to have been in the House when an hon. and learned friend of his (Mr. J. Williams) made and carried his motion, he would have proposed, that the subject of bankruptcy should have been specifically included. The loss of that friend, in that House, he sincerely regretted, as it forced him to work double tides, because he was determined not to relinquish his object, nor to follow the counsel of his right hon. friend, the Master of the Rolls. He would tell his right hon. friend why the lord Chancellor would not touch the bankruptcy. When in the reign of Queen Elizabeth, the jurisdiction in bankruptcy had been taken from the commissioners of the Treasury, and transferred to the great seal, it was for the purpose of relieving the former tribunal. Why, then, could not the same course be again pursued; and, if the great seal was overburthened, why could not this jurisdiction be transferred elsewhere? Why, because it was the most profitable. If it had not been so, it would have gone long ago. He stated this decidedly and plainly; because this was no time for affecting to conceal that which every one knew. Let any one look over the evidence as he had done, and they would see that this was decidedly the opinion of the members of the profession. Of the constitution of that committee, he had little to say. The Chancellor was a difficult person to deal with. He held in his hands all the patronage in the law, and a great deal of the patronage in other quarters. He was not only a clever, but an agreeable man. He sat by, and without taking any active part in the business of the commission, said, occasionally, "Gentlemen, that is my wish." The Attorney-general opposite seemed to doubt this, but he could assure him it was so, and that he was 713 himself one of the persons taken in by it. Here was the cloven foot again [a laugh]. He did not mean this unkindly, and he was glad that any thing could vary the dryness of the debate; which was, indeed, so disagreeable, that nothing but a sense of public duty could have induced him to take it up. The object of this commission was to conceal the real state of the court, and to prevent the reform which was sought for; and so he had told the Chancellor in correspondence. If the learned lord did not choose to effect this reform, and threatened to go out, although he had great respect for his talent, he was satisfied that any plain, intelligent, honest man, with only a third part of his talent, would be able to get rid of all the business before him. The measure of his right hon. and learned friend reminded him of a ludicrous circumstance which happened when he was first in parliament. He was then member for Poole, in Dorsetshire. Mr. Palmer's scheme for the mail-coaches had just been started, and his constituents were desirous to avail themselves of the benefit of it, by which they would gain four hours in the despatch of their letters. One of the persons engaged in the old system remonstrated against this, and pointed out to him, that by putting a boy forward with a horse, in certain parts of the line of road, he would save half an hour. So his right hon. friend intended, by his bill, to keep parties in Chancery only fifty, instead of sixty years, as they were at present. Now, he would tell his right hon. friend why he would have nothing to do with the proposition respecting bankruptcy. It was, because he found it so foolish and absurd that he was glad to get rid of it. The report suggested, that in addition to the present expensive system, there should be ten more commissioners; and that the patronage of these places should be added to those which the Chancellor at present held. Three parts of the bar were of opinion, that the court of Chancery could not go on without a separation of the jurisdictions. Mr. Cooke, Mr. Shadwell, and other persons had told the commissioners plainly, that to take away the bankruptcy jurisdiction was the only effectual relief that they could give. The Chief Baron went further, and said, he had no doubt a man would readily be found to preside over such separate jurisdiction, who by his intelligence and deci- 714 sion would soon gain the confidence of the public. But was it doubted that, in the nineteenth century, a sufficient number of men could be found to fill such an office? The learned lord who now presided in the court of Chancery, must, in the course of nature, soon depart this life; and was it supposed that all virtue, all law, all talent, were to die with him? He would not so libel the bar, nor many men with whom he was in habits of intimacy, by doubting that they were as well qualified as the learned lord. There were persons in the profession of the law fit to hold any rank or fill any high station, and in whom the public placed as perfect confidence as they ever had done in the lord Chancellor. But if gentlemen on the other side of the House were suspicious of the talents or integrity of those who voted with them, let them turn an eye to his side, and they would find persons amply qualified for such an office [hear! hear! and a laugh]. He had no objection to the bill; but in saying this, he wished it to be understood, that he by no means pledged himself to any part of it, but again he cautioned the House against the inefficiency of it. The objections which he had now made to the bill were not brought forward vexatiously, but for the purpose of rousing the country to the importance of the subject. He called upon gentlemen of landed property, and on the commercial part of the state, to protect their interests. No man knew how soon he might be dragged into the court of Chancery, and no man knew whether, being once in, he should escape with his life. The complaints against that court were universal; and it must be always remembered, that there was not one of the evils which the lord Chancellor might not, if he had chosen, long ago have himself remedied. Three parts of the time of the court were occupied with bankruptcy causes. The daily papers, and every man's own personal knowledge, must convince him of the inadequate portion of time which was devoted to equity business. One solicitor had told him, that his cause had been put down twenty times without coming on: another, after having two causes, at considerable expense, on the paper for five years, prevailed upon the parties to refer them, and got the business settled in one month. A third obtained a decree against a gentleman for 23,500l., who threatened to- 715 appeal, unless his adversaries would take 20,000l; which they were glad to do, to avoid the expense and delay of a protracted litigation.—He hoped he should have the opinion of the House and the country with him; and in this hope he should, session after session, and week after week, if it were necessary, force this subject on the attention of the government. The hon. member then referred to the evidence of Mr. Bickersteth, the barrister, whose examination would be found in page 217 of the Chancery Report. That gentleman had before told the commissioners the real state of the court of Chancery, and his opinion of the remedies which should be applied for the better administration of its powers. The following question was then put to him: "What are the consequences of the great delays which now take place in the court of Chancery?" What was the learned gentleman's answer? "Oh, I can scarcely answer so general a question, nor have I personally seen much of the distress and agony of mind which must arise from delays in the administration of justice; those who are in direct communication with the parties may give more accurate information. What is obvious, is, that many parties die after years of litigation, but before their rights are established; and that many suits end in compromises, by which some parties obtain advantages to which they are not entitled, whilst others sacrifice advantages to which they are entitled in order to prevent the loss of the whole costs. Cases have occurred within my own knowledge in which the whole property sought to be administered in Chancery has proved insufficient to pay the costs of the suit, and in which the last question discussed in that cause has been, as to how the deficient fund was to be apportioned amongst the different solicitors in part payment of their respective bills." This was the evidence of a man of practical information on the subject of Chancery practice. Yet, with this evidence before him—for his right hon. and learned friend must have read it—he wished to get rid of the ungrateful subject, and to remedy the greatest and heaviest curse of the country, by the introduction of his tinsel bill, and the House was told, if that measure proved ineffectual, that some other would be tried. How many years, then, had this country waited—and how many more 716 years were we destined to wait—for a reformation of Chancery abuses? And, after all, when the promised period arrived, were we to be lulled by the assurance that if the plan proposed should prove ineffectual, we were to have another trial. It was proposed to create another office, and it was also proposed to create another vice-chancellor, who was to be attached to the court of Exchequer. If, however, we were to have these changes, why not strike at the root of the evil, and cut away, at one blow, the growing mischief of Chancery abuses? Let any one compare the business of Chancery in the time of lord Hardwicke, with what it was at present under the administration of lord Eldon. It would be said that lord Hardwicke, although he might have had as many bills to dispose of, had not so many motions brought before him. But, he firmly believed that lord Eldon had less motions to decide than his noble and learned predecessor. If his majesty's ministers succeeded in getting the bill passed which was that night, for the first time, proposed to the House, he hoped that, although that bill would, he was certain, fail of producing all the good it was intended to do, the inquiry which was now on foot would not stop where it was; but that the real cause, of the mal-administration of the affairs of Chancery would be sifted to the bottom, and that such speedy and effectual remedies would be applied as would best correct the evil. He had now to crave pardon of the House for intruding himself so long on their attention, and to thank them for the patience with which he was indulged.—The hon. member sat down, and was warmly cheered.
§ Mr. D. W. Harvey
said, it was not his intention to address the House at any length upon the important subject which was now under discussion. He did not mean to reply to the arguments of the right hon. and learned gentleman who opened the debate, and to combat the opinions which he had expressed. But as the right hon. and learned gentleman had called upon the learned and unlearned part of the House to give their sanction to his measures, if they agreed in their propriety, or to oppose them if they disapproved, he felt himself bound to accept the challenge, and to withhold his support to the motion of the right hon. and learned gentleman. In the outset of the right hon. gentleman's remarks, he had 717 said that there were some persons who stated that a court of equity could be dispensed with altogether; but although he was not prepared to maintain that argument—because he conceived that the jurisdiction of such a court was requisite to guard and control various descriptions of property, besides the performance of other important functions—still he would hazard thus much, that it were far better if no court of Chancery existed—assuming, as it did, all the property of the country—dealing with it, as it did, and usurping the best principles of the common law—than that it should exist burthened with such abuses. The peculiar province of a court of equity should be, to soften down the harshness of the common law, and mitigate the asperities of the statutes. It was the province of such a court to interpose whenever the common law exerted an undue and arbitrary rigour over the property of the subject; and therefore it was the more necessary that such a tribunal should be purely constituted, and free from the odium of abuse. And what had been done to purify the court of Chancery? He was sure that there was no individual who had looked at the bulky and voluminous report now upon the table of the House, but must feel deeply disappointed; because, whoever weighed the suggestions of the commissioners appointed to that inquiry, must come to the conclusion, that little or no advantage could arise from those suggestions. In reviewing the abuses of the Chancery system, two simple questions presented themselves; first, as to the delays that occurred in the prosecution of suits, and secondly, as to the expenses inseparable from those suits. Now, he put it to the House, was there one efficient and intelligible plan among the one hundred and eighty-eight propositions contained in the Chancery report, by which those evils could be remedied? In what way, he would ask, could economy be effected, with reference to those propositions? A saving of 2s. was proposed to be made on all warrants, by regulating their issue from the Master's office; and it was next proposed, that in all copies a saving of 8d. per folio might be made, by which means 1,700l. or 1,800l. a year would be saved from the allowance of the masters' salary, Take the allowance of each master in round numbers, at 2,000l. a year. There were ten masters, and ac- 718 cording to that computation there would be a saving of 20,000l. a year, added to which there would be the 2s. saved on the diminution of summonses; and those were the only benefits, on the score of economy, that the right hon. and learned gentleman proposed. But then the question was suggested, how were these ten masters to be compensated for their pecuniary loss? Why, this 20,000l. a year was to be supplied from a fund, the application of which was for public purposes. Presuming that these ten masters should be compensated, the right hon. and learned gentleman had not suggested any mode to make that measure economical. Why should not that 20,000l. a year be taken from that overgrown and enormous fund, out of which the commissioners of bankrupts were paid? It appeared that there were no less than seventy of those bankrupt commissioners, whose salaries amounted to 35,000l,-a year,—a sum which was paid for no other purpose than that of administering, not justice, but injustice, and perpetuating the most injurious, corrupt, and degraded, system that ever burthened an unhappy country. It was fit, the right hon. and learned gentleman observed, that the masters in Chancery should no longer draw their salaries from such an unseemly fund. But he was sure that if the right hon. Secretary opposite, whose exertions to amend the criminal laws had earned for him the applause of the country, would walk into the court adjoining Guildhall, and see how the commissioners of bankrupts were paid—if he could witness the disgraceful scenes of quarrelling, haggling, and contention, between those commissioners and the solicitors who tendered their one-pound notes, he was sure that a scene so indecent and improper would call for the right hon. gentleman's immediate interposition. If, therefore, there ever was a sincere wish to purge the Chancery system of its gross abuses, the re-construction of that part of it allotted to bankruptcy business should have been first thought of. It was ridiculous that young men of comparatively no experience in the law, or old men unfit for any business at all, should be commissioners of bankrupts, with salaries of 500l. a year each. Yet so it was; and what with the inexperience of youth, and the stultification of age, the House would judge what efficient men those commissioners of bankrupts were! [hear, hear]. How 719 much better, he conceived, would the bankruptcy business be managed, if, instead of seventy useless pensioners, five judges were appointed with a salary of 400l. or 500l. a year to each. If some such plan were adopted, the number of appeals to the lord Chancellor would be sensibly diminished. And now, he would ask, had the Chancery committee been sitting for the space of two years without effecting one measure of practical utility? That committee had never taken any decided step to inquire into the cause of the abuses on which they were called upon to report. They never suggested one plan, with a view to a sober effectual reform. The object of a Chancery suit was the same as that of a suit at law; and if any thing arose, either in law or equity, to retard or prevent a final judgment, it was a positive evil for which a strong remedy was required. The hon. member, in alluding to the suggestions of the Chancery committee to render the facilities of prosecuting a suit in equity more easy, observed that such facilities, however desirable they might be in one point of view, might, nevertheless, be conducive of mischief. It would be like pressing men to advance to a door in case of fire: every one would rush forward at the same moment, yet nobody could get out. What suitors in Chancery wanted was, an early decision of their cases; and he would venture to affirm, that those who had suits in Chancery would sooner give a sum of money at once, to obtain a decision, than await the issue at a less expense. Care should be taken, on the other hand, not to suffer them to be pressed too much by the flood of expedition; because, in that case, you might paralyze the energies of the head of the Court, and render him more incapable than ever of deciding. He did not mean to fall into the error which had been attributed by the right hon. and learned gentleman to members at that side of the House. He would not join in the general line of observation, that the fault of the delay was to be attributed to the personal defects of the learned lord who filled the judicial seat in that court. He did not mean to panegyrize that noble personage; indeed, any panegyric which could be pronounced by an individual in his station could be no gratification to the learned lord. But he must say that, take him all in all, he did not think it would be easy to find a judge 720 who would dispose of the business of the court with so much strength and solidity of judgment as the present lord Chancellor. There might be a tardiness and a hesitation about details, but any delay thus occasioned was amply rewarded by the soundness and solidity of the judgment when pronounced. There was one great claimant, whose call we must all one day obey. And would it be argued that, when that summons was issued to the lord Chancellor, there would immediately be an end to all the vexatious and ruinous delays of the court of Chancery? could any man believe that such would be the result? Could any man believe that the right hon. and learned gentleman who brought forward this measure, with a combination of simplicity and eloquence, would be able to put an end to the fatal pauses in equity proceedings? He could not persuade himself that such would be the result. The only remedy was, to disburthen the present, or any future, Chancellor of the immense mass of business with which he was overwhelmed. It was useless to argue, as some had done, that there was no occasion for a court of Chancery in this country. While we had a wealthy aristocracy, and as long as wills, deeds, and settlements, were making daily, involving sums of money to an enormous amount, the existence of a controlling power was necessary, and that power was best exerted by a court of equity; provided it were properly constituted. Not only had the court of Chancery power and capacities peculiar to itself, but it involved questions of common law also. There was in the report one suggestion, which he considered the most valuable contained in it; namely, that sooner or later the government must take into their hands the question of the present state of real property in this country. If this question were simplified, one of the most formidable impediments to the regular and easy execution of the business of the court of Chancery would be removed. But the Chancellor was encumbered not only with this but with other judicial arrangements—cases of lunacy, the rights of married women, and, though last not least, the protection and management of idiots. All these matters were incessantly pressing upon his lordship's mind; and he would call upon the House to consider how it was possible for any single individual, however gifted, to retain the different argu- 721 ments and facts urged in the discussion of such a variety of subjects? In order to form some opinion upon this subject, let any hon. member consider the difficulty he would have in endeavouring to keep in his recollection the different arguments urged in that House in support of any one question, and let him from that comparison judge of the difficulty of any man's carrying in his recollection the speeches and arguments urged by dozens of learned and eloquent counsel, upon a variety of grave and intricate cases. It was really impossible that any mind, however powerfully constructed, could grapple with such difficulties, or retain a clear and detailed account of the facts and bearings of the different cases. The noble and learned lord had, it was true, one quality, and it was one which fitted him, in a certain degree, for this part of his duties. He possessed that pan-tile kind of mind, which allowed the arguments of counsel to fall upon it, and drop from thence to the ground, without making the slightest impression. They had heard much about the ability, the talents, and the other excellent qualities of the present lord Chancellor. They had heard, too, of the delays complained of in the various departments over which the learned lord presided, ascribed to one cause and to the other—in a word, to every body but his lordship himself. But he would ask was it possible to expect that his lordship would consent to the slightest alteration which went to deprive him of the emoluments which he derived under the great seal? It was idle to suppose that any such remedy would be admitted. Indeed, any body who knew the learned lord must feel convinced that he would never rest satisfied with the pitiful pittance that would remain to him after the bankruptcy cases were removed from his jurisdiction. This was his decided conviction upon those points. Was it at all likely that the Chancellor would give up the 15l. or the 20l. which each bankruptcy case produced him? He firmly believed that the Chancellor derived not less than 20,000l. a-year from the bankruptcy cases alone [a cry of "No!" from the ministerial benches]. He contended that such was the fact; and further, that it was the great cause of the evils complained of. It might be urged, that this was not the period for making the proposed alterations. If that could be satisfactorily proved, then he should readily acquiesce in the post- 722 ponement. But in the mean time he must impress upon the right hon. gentleman that there could be no permanent remedy of the evils complained of, without distributing the enormous mass of business now devolving upon the lord Chancellor alone. He understood that one of the proposed alterations was, to add a Vice-chancellor to the court of Exchequer. What, he asked, would be the extent of this remedy? They had already four barons of the Exchequer, and what duty did they perform? Let them look at the court of King's-bench, in which the chief justice alone disposed of three thousand cases in the course of the year, while the four barons of the Exchequer had scarcely anything to do; and the court itself only afforded situations for the old women of the profession, who, amongst them, did not get through one-fifth of the business performed by a single judge in the court of King's-bench. It was not his intention to trouble the House much longer, but he must suggest, as there were twelve masters, of whom the right hon. the Master of the Rolls was the head, it would be advisable, that all appeals from these masters should be to the supreme master; and that, in cases of bankruptcy, the appeals should be first to the Vice-chancellor, and ultimately that the lord Chancellor should have an appellant jurisdiction, he having no previous interference in the cases. He protested against the mode of alteration now proposed to be adopted. It had been said, and it was a lamentable state of things if true, that all alterations of the law were merely experiments which required trial, in order to ascertain how they would work; so that a bill must be brought in as an experiment, another to amend that bill, and thus the most obvious improvements must be led on step by step, and the most beneficial alteration might take some fifty years of gradual progression before it could be fully accomplished.
§ Mr. George Bankes
assured the House, that the lord Chancellor, instead of having 15l. or 20l. upon each bankrupt commission, had no more than 1l. 2s.; and that his income from that branch of his duties brought him, not 15,000l. or 20,000l., but from 3,000l. to 5,000l. a-year at the utmost. He denied altogether that there was any disposition on the part of the commissioners of bankrupts, to delay proceedings with a view to personal advan- 723 tages. He knew not how far the hon. member's charge with respect to the appointments to those offices meant to extend, or whether it was meant to include him amongst those who were too young, or those who were too old, to fill such appointments [a laugh]. This, however, he could assure the hon. member, that the greater part of the appointments within his recollection, had been of persons about his own age.
§ Mr. John Smith
said, that he rose with considerable reluctance upon a question of this nature, as it might be readily imagined that a man of his pursuits in life was not qualified to enter into a discussion upon it. It did so happen, however, that he had turned his mind to the subject, and had devoted considerable time and attention to it.—In 1818, when he was chairman of a committee appointed to inquire into the Bankrupt-laws, Mr. Cullen, a commissioner of bankrupts, and a gentleman of great abilities and learning, had stated that "the Commissioners of Bankrupts were the worst constituted court of Judges to be found in the land: that they were divided into lists, who were separated from, and had no communication with, each other: that there was no uniformity in their decisions, no guide by which they could act upon any fixed principle; so that one list was constantly in the habit of acting in direct opposition to another: that every question brought before them was argued upon first principles: and that in their decisions they were all supreme." The hon. member, after making some observations on the way in which commissioners of bankrupts were paid, said, he had no wish to deprive the commissioners of all their emoluments, but he had a strong wish to see a code of law formed with regard to bankruptcy, on which the country could depend with as much certainty as it could on its law with regard to any other subject. Instead of seventy commissioners let there be six;—let them receive a handsome remuneration for the services they may have to perform, and then private individuals would know what they were about, when they had any thing to do with matters of bankruptcy. He alluded to some recent decisions of the commissioners, which had created great surprise in the commercial world; and said, that such was the uncertainty prevailing in all questions of bankruptcy, that creditors daily acceded to the most 724 disadvantageous compromise, rather than run the risk of losing every thing by suing out a commission. He thanked his hon. friend the member for Durham, for the great exertions which he had made to obtain a reform in the court of Chancery, and trusted that the success with which they had been attended, would induce him to continue them. He would not, however, join his hon. friend in the reflections which he had cast upon lord Eldon. He was of opinion that no man in England had so much to do as that learned lord, and that no man succeeded in doing so much. Indeed, it was his belief that to do more was not in the power of man, and would require super-human abilities. It would therefore not only be a benefit to the public, but a relief to the lord Chancellor, to have the bankruptcy jurisdiction separated from the court of Chancery. He hoped that the learned and right hon. gentleman would reflect on the inconveniences occasioned by the existence of seventy commissioners, and would entirely alter that part of the system of bankruptcy. Whilst upon this subject, he would just mention a circumstance connected with it. There was one list of commissioners which, it was said, had committed more bankrupts to prison than all the other lists put together. Now in that list was a gentleman whom he had the honour of knowing, and who he was sure would take no step which he did not feel justified in his conscience in taking. He thought that if other commissioners had acted with equal firmness in the discharge of their functions, the community would have been much benefitted by it. He had no doubt that if the commissioners were armed with sufficient powers, and the law, with regard to commitment of bankrupts equivocating in their answers, was rendered more clear than it was at present, the power of commitment would be exercised more frequently, and would thus create a great reform in bankruptcy cases altogether.
rose. He commenced his address in so low a tone of voice as to be almost inaudible in the gallery. He said, he could not behold without deep regret the probable termination of this discussion, without any part being taken in it, either by any member of the legal profession, or by any member of the commission, whose recommendations had given rise to it; for, independently of the topics which 725 had been discussed by the learned and right hon. gentleman, and of the points of interest which had been introduced, both now and at other times, to the notice of the House, as emanating out of the report of that commission, there was much that called for explanation, and also for answer—if, indeed, answer could be, given—in the luminous speeches which had been made in reply to the statement of the learned and right hon. gentleman. In that observation he alluded not only to the speech of the hon. member for Colchester, but also to the speech of his hon. and learned friend the member for Durham, who, in these inquiries, had the singular merit—which he rejoiced that both sides of the House now seemed willing to acknowledge—of having originated them, and of having struggled, at all times manfully and at last successfully, to give them effect, and who had also the satisfaction—on which he congratulated him—of having lived, unlike many projectors of great and salutary reforms, to witness his efforts, not yet crowned with the success which they deserved, but still in a train which gave him a fair prospect of seeing them brought to a prosperous termination—provided the House did its duty in standing by his hon. and learned friend as firmly at the close as it had done at the commencement of his labours.
He, for one, agreed heartily with the observation of his hon. and learned friend, that the time was come for their again repeating their regret, that the course had not been pursued which had been suggested by his hon. and learned friend the late member for Lincoln, now for a season, and he hoped only for a short season, excluded from a seat in that House—he meant the appointment of a committee of that House to inquire into the abuses of the court of Chancery, instead of the appointment of a commission out of it to supersede all inquiry. A commission, however, had sat, and reported; and three years had now elapsed, during which, the House had had time to consider of the result of its inquiries, and it now stood, he would not say in the same position which it occupied before his hon. and learned friend, the member for Lincoln, made his motion—for it had cleared away, or was going to clear away, some of the smaller rubbish which impeded the progress of those who had to work their toilsome path through the court of Chancery:—but, as 726 far as any thing effectual was either contemplated or performed, as far as any measure of real relief was to be granted, as far as the commission had devised any mode of applying a remedy to a mischief so enormous that he would not fatigue the attention of the House by giving it, for the hundredth time, the epithets which it deserved, and the expressions which it had extorted, from lawyers and from laymen, from suitors and from spectators, fortunately for themselves exempted from the sufferings which it was their lot to witness, as far as the evil was affected, which had been so long suffered to exist as a contamination to, and mockery of, the pure administration of justice, the House was still at the very commencement of its labours. Inquiry had been instituted—but no progress had been made: investigation had been gone through—but no result had appeared. We had groped about in the dark for the tedious space of two long years, and at the end of a third year were beginning to consider whether, after all our groping, any light had broken in upon us; but, as to any thing that had either been done, or proposed, or brought before the notice of the House, or of the people, who had been so long mocked by the present system, and who would soon be insulted if they submitted to be mocked by it any longer, no progress whatever had been made, and the country was now, in 1827, almost in the very same position in which it was at the commencement of 1824. And where was the man who had a right to complain of being surprised at a result at once so lamentable and so ludicrous? Where was the man so thoughtless as to say, "I know the pains which have been taken, and am therefore astounded that nothing has been done?" Why, the whole country was forewarned on the subject. Every man who had ears to hear was reminded, that nothing to redress the evils of the present system either could or would be done by a commission so constituted, emanating from such a quarter, and actuated by such a spirit; nay, the very object of it was not concealed by ministers, for he recollected that a smile played upon their lips, and flickered on their faces, when his hon. and learned friend, the member for Lincoln, told the House, that such a commission could be formed with no other view than that of frustrating inquiry; and defied the ministers—aye, 727 even the gravest among them—and he believed that his hon. and learned friend defied even the gravest among his majesty's chaplains, to preserve their countenances, whilst they informed the House, that a commission, formed as the Chancery commission was formed, was intended to make a real and searching investigation.
Let the House recollect the manner in which that commission was composed. At the head of it was the learned lord, whose conduct was to be inquired into, from whom it emanated, and into whose proceedings it was to make inquisition; and the principal question for its decision being, "is the delay of which every body complains, are the costs which grind to dust all who have concern with them, is the denial of justice, which converts the court of Chancery into a nuisance which ought to be abated, are those expenses, which all must suffer before they can obtain a hearing and judgment, the fault of the individual who administers the system, or of the system which he is bound to administer?"—the principal question being, he repeated, of such a nature, the noble and learned lord was appointed to preside over those who had to inquire into his own conduct. To whom, then, was the fault attributable when such a commission proved unproductive of any good effect? He had been told, however, that the noble and learned lord had never taken the chair at any of the meetings of the commissioners. It might be so; but then, who did take the chair? The lord Chancellor's deputy, the Vice-chancellor, or in his absence the then Master of the Rolls—an individual whom the noble and learned lord had promoted from the ranks of the profession, to assist him in his judicial labours in his own court, and to make up his deficiencies in another court, in which, by some fatality of his nature, he must sit, in order that he might attempt to perform more various duties than it was in the power of man to perform, and might perform them all inadequately. Who, too, he would ask, were the other members of that commission? Masters in chancery, and others into the abuses of whose office it was one of the duties of that very commission to inquire. To these were added a few gentlemen unconnected with office, and yet unsprinkled with the clew of ministerial favour, among whom were his hon. and learned friend, the member for Ilchester, and the late member for 728 Lincoln (Mr. R. Smith). These, he believed, were the only two members, unconnected with the noble lord at the head of the court, whose proceedings were at issue; but what could two do amongst so many? Had they been two angels and not two men, who were sent into that den of chancery, among chancellor's judges, and chancellor's masters, and chancellor's commissioners of bankruptcy, and chancellor's elevès—all looking up to his lordship for further promotion, and all having a right to expect it from their past promotion—what could they hope to effect by their most strenuous exertions? Gentlemen might speak of his two hon. and learned friends in the most flattering terms,—and it would be scarcely possible for any man to speak more favourably of them than he thought—still he would say, that it was impossible for them to make any effectual resistance against the tide into the very midst of which they were plunged. The House was well aware how matters went on, under such circumstances. It was not by the noble and learned lord's going down to the commissioners and professing, whilst he tore his venerable locks, and deluged with salt tears his aged cheeks, that he was a desolate and injured old man, and that he was distressed beyond measure as to what would become of his poor family, if he should only leave to it a million and a half plus his good name. It was not by making of speeches at their board, and then by counting of noses among the committee, that he contrived to wheedle from them golden opinions; but it was by appearing seldom at their deliberations. O! no. The noble and learned lord well knew that the seldomer he appeared, the better it was for himself and for his views—it was by not prostituting his influence among them, by frequently displaying it,—it was by not courting divisions against him on paltry questions, which might perhaps have accustomed his colleagues to oppose him upon important ones which he had much at heart, and then to defeat him, when his efforts were made not only for glory but also for victory. The learned lord was too skilful a tactician to commit any of the blunders into which spirits less acute might accidentally fall. He had not passed fifty years of his life amid the intrigues of cabinets, the turmoils of the senate, the conflicts of the forum, and the consultations and tricks and tacks of the 729 profession of law—for which he (Mr. Brougham) had considerable veneration, as he knew a little about them—he had not passed fifty years of his life in a profession in which men were accustomed to consider closely the interests of their clients, and sometimes, peradventure, their own interests, to commit any of those blunders into which weak and inexperienced men might be hurried: and short of his committing any of those blunders, there was little danger of his being frustrated in his purpose of checking and stifling inquiry. No. He, the noble and learned lord, attended the commission, endowed with all the graces of a complete courtier, with the most entire and unbroken good humour, with all the fascination of manner which his experience had taught him to ingraft upon a naturally affable temper, with all the weight which invariably attends a man of influence in a learned profession, with a great reputation for profound research in the laws of his country, with a name already associated with its legal history—the noble and learned lord, rich in all these accomplishments, came down to the commission, clothed in smiles and courtesies, and laying aside the authority which he had a right to assume, endeavoured to mislead those whom he had no right to attempt to influence. The noble and learned lord eventually succeeded in his endeavours: he prevailed, as the House well knew, over the hopes of some, the fears of others, and the good-nature of all, until the inquiry, dwindling away step by step, was paralyzed as to its power, and neutralized in its result. He believed, that if there had been any one member of that commission of inquiry who had not been so far seduced by the fascinations of the noble lord, of which he had been just speaking—[a laugh on the ministerial benches] in describing the fascinations of the noble lord, he merely meant to show the House, how they would act upon those whom the noble lord might think required seduction, not upon those who required no seduction, such as the judges in Chancery and the masters in Chancery, individuals whom he believed to be attached to the man, but who might be attached to the system; or who, like the person in the fable, placed at a mean distance between two equal powers of attraction, neither of which could prevail, might be so equally divided between their attachment to the 730 man, and their attachment to the system as to be unwilling to blame either. His learned friends, the late members for Ilchester and Lincoln, were not exactly in that situation, but the other members of the commission looked all one way, saw with the same pair of eyes, and those the eyes of John Lord Eldon.
Having made these observations on the manner in which the commission was constituted, and in which its inquiries were conducted, he would next call the attention of the House to the situation in which it then stood. Out of the labours of the commission had arisen a mass of propositions, of which it had been said, and said justly, that nine out of ten related to mere details of practice in the court of Chancery, and might have been carried into effect by an order of the lord Chancellor, without coming down for a bill to parliament; whilst such of them as would have required an act of parliament to give them force and efficacy had been abandoned entirely, and without remorse—he meant the propositions for taking away the appeal from the masters, and for altering the jurisdiction of bankruptcy. His right hon. and learned friend had endeavoured to parry the objection which he foresaw would be made against his mode of proceeding in this instance, by observing, that some of the alterations in detail in the practice of the court could not be effected by an order at all, but must be effected by a statute; and that others of them, which could be effected by an order, were so closely interwoven with those which must be effected by a statute, that it was in vain either to make the orders without the statute, or the statute without the orders. He could have wished that his right hon. and learned friend had given the House a specimen of what he meant by that declaration. His speech had been, in many respects, a most able speech, abounding in illustrations couched in plain and forcible language, giving an explanation of all the stages in a suit in Chancery, from its commencement to its conclusion—of which he might remark, by the way, that no man ever heard except in a speech [a laugh]—but filled with examples which were clearly superfluous, as the points were quite intelligible, that they were used to illustrate, and devoid of every thing in the shape of information which the House and the country desiderated in common. The proposition which his right hon. and 731 learned friend now offered to the House, was to do every thing by bill, and then to give to the lord Chancellor a power of suspending or dispensing with that bill. Let the House look a little to the consistency of his right hon. and learned friend's argument. The grounds upon which his right hon. and learned friend had vindicated the noble lord's conduct, in not making these necessary reforms by order in his court, were, that he had not time to take them into consideration. Suppose the bill were to pass, would he have more time for that object? No such thing: but he would just have time to issue a short order to this effect—"I do not like these alterations and orders; let them therefore be suspended." The Chancellor then was to be invested with a power to suspend or dispense with the solemn enactments of the legislature. Would the House, he would ask, be exercising its legislative functions properly if it gave to the noble lord such a power? Would parliament, after waiting two years for the deliberations of the commission, founded upon the most solemn investigation, consent to treat the country in so shamefully negligent a manner? The propositions which his right hon. and learned friend had submitted to the House had been prepared, after grave and serious reflection, by men of great learning and industry—men whose learning and diligence had been that evening praised up to the very echo, as if none but they were either learned or diligent; and yet, though such was the case, though they were to meet the approbation of that House, of the house of peers, and of the sovereign himself, they were not to be declared by the paramount authority of those three great branches of the constitution, as fit reforms for the crying abuses of the courts of equity. "The propositions may be very good," say the hon. gentlemen opposite, "but we dare not accede to them unconditionally; for there is a power behind the throne greater than the throne itself—lord Eldon is not sufficiently acquainted with them. His time is already sufficiently engaged; he may be angry that we give him more to do; we must therefore pacify his temper, and mitigate his wrath: we must yield to him, or we shall lose his support; and we must not legislate without leaving him a controlling power over us."
He begged leave to say, that with all the contempt which his right hon. and 732 learned friend had showered, deservedly showered, upon the senior master in Chancery, who had written in vindication of the sovereignty of the Great Seal, he had still taken a leaf out of that learned master's book. For he had himself talked of the accroachments, to use a legal phrase, which the one hundred and eighty eight propositions made on the sovereignty of that seal, and had absolutely given to the sovereign, who held it, that which the sovereign of the country did not enjoy—a dispensing power over acts of parliament. And how did his right hon. and learned friend justify the grant of this dispensing power? By reference to a case which by no means warranted the conclusion which he drew from it. What was it that the statute of the 12th Geo. 1st., establishing and regulating the office of accountant-general in the court of Chancery, effected? He would shortly inform them. The lord Chancellor of that day had made certain orders which related to one of the most immaterial objects that legislation could be applied to; for they related to the manner in which the master was to be accompanied by the six clerks to the Bank, and in which the securities of the suitors were to be there deposited. They stated the manner in which the money was to be put in and taken out of the Bank chests; and even the manner in which the securities were to be grasped by the finger and thumb of the master at the Bank. These matters were settled originally by an order of the court of Chancery, and all that parliament did was to confirm them, and say, "Be it enacted, that these orders shall be law, until they be altered by the decree of the lord Chancellor." Was there nothing more important than this enactment in the bill just presented to the House? If there was not, then his argument fell to the ground, and his right hon. and learned friend triumphed over him. But why did his argument fail, and his right hon. and learned friend's succeed? For no other cause than that the matters contained in the present bill were just of that same nothing-complexion as the matters contained in the act of Geo. 1st.,—a fact which he expected would be incontestably proved, whenever the accounts of the two bills were fairly contrasted with each other.
It was at all times an unpleasant duty to make observations which might be construed into personalities against an in- 733 dividual. But, though this was the case, still he would not shrink from the discharge of what he considered to be his duty to the House, to the country, and to his own conscience—if he might be permitted, as well as the noble and learned lord, to talk of his conscience—he talking of conscience seldom, the noble lord perpetually. His belief was,—and he shared it in common with many of the wisest men who had gone before him, of the ablest statesmen who had ever lived, of the most experienced practitioners in the noble lord's own court, of those who had watched and studied the noble lord's judicial conduct longest and nearest, and who, therefore, were best qualified to know it,—his belief was, he said, the same as that of many distinguished members of that House, who, though they lived no more among them, still lived enshrined in the memories of their countrymen, that it was the man [cheers], aye, the man, the individual judge, more than the system, that was to blame, for the delay existing in the court of Chancery. [Loud cheers.] On a former occasion he had stated his reasons for forming such a conclusion. He had stated, that it arose, in some degree, from the excess of laudable scruple which the lord Chancellor entertained, not to do injustice by his decision; and from a slowness to pronounce his opinion, not from a slowness to form it. He knew, from persons of competent authority, that the noble lord did not hesitate to form his opinion, and that, after he had formed that opinion, he never changed it. He did not impute that as matter of blame to the noble lord; for, as no man had a more acute and penetrating mind, or was more accomplished in all the learning of his profession, or had derived more benefit from his long experience, no man had a greater right quickly to form and fastly to hold by his opinions. Still, though he formed his opinions quickly he was unfortunately haunted by a reluctance, amounting almost to a morbid infirmity, to pronounce and to act upon the opinion he had formed. He had heard, in the course of the discussion, that the Chancellor was overwhelmed with business—that he had more occupations to attend to than one man was competent to fill; nay, that he was laden with heavier duties than any two men could support, and therefore that it was no just ground of complaint against him, supposing that he left some of them undone. He agreed with his 734 right hon. and learned friend as to the causes of the delays which so often occurred in the Master's office. Undoubtedly those delays arose from the attornies in the metropolis having too much business to attend to. The consequence was—and he marvelled exceedingly that his right hon. and learned friend had not applied the remark to the lord Chancellor—that those duties were left undone which could be done at any hour, and that those which were more exigent in their nature, and lucrative in their results, were performed first. If that remark was good as applied to the solicitor, it was also good as applied to the lord Chancellor. If it was the certain lot of all the inferior practitioners to neglect business which could be done at any hour at a small expense, for that which required to be done immediately and with considerable profit to themselves, it was also the lot of the head of the profession; and it was no more to be expected that an individual who held the great seal, who was lord Chancellor, who was Speaker of the House of Lords, who had numerous connexions, who had a large fortune, and great property to manage, who had vast patronage of all kinds to dispose of, legal as well as clerical, who had great parliamentary duties to perform, not only as Speaker of the House of Lords, but as the most able and efficient debater of the government—his own government, he ought to have said—and who, besides all these functions, held some of a highly influential nature about his majesty's person—who was much with his sovereign and his ministers, who was conversant not only with every transaction in the cabinet, but with every transaction in parliament,—it was not to be expected, he said, unless they could get a man not only far above the ordinary run of solicitors, but also far above the ordinary run of frail humanity, that his multifarious duties should be adequately performed; and, therefore, as all of them could not be adequately performed, an abatement was to be made upon each in proportion to their importance. The going to the House of Lords, the taking a prominent share in its debates, the visits to his majesty, the conferences with his colleagues, the discharge of his political duties, which, though not remunerated in money, were, on that very account, more urgent in their tendency, and, which if neglected, might be attended with loss, not to the suitor, but 735 to himself, in the diminution of his favour at court, and his influence in the cabinet—all these avocations were considered by the noble lord as the most exigent in their nature, and being considered the most exigent, were performed in preference to the ordinary business of the court in which he presided as judge.
This was an exact explanation of the manner in which the business of the noble lord's court was neglected. What was the consequence of it? Arrears in his own court; only three causes heard in—he would not say what time,—as it was quite immaterial—a degree of delay which his right hon. and learned friend had greatly underrated, as he would find when he had been a little longer in that court, of which he was destined to be the head and ornament. His right hon. and learned friend would soon learn that it was a complete mistake to say that there had been no arrears, or accumulation of business, since the time when lord Gifford began to act as deputy Speaker in the House of Lords, or even since the appointment of the present Vice-chancellor. The delusion which had been practised on the easy nature of his right hon. and learned friend on this subject, by those who had provided him with instructions, was one of the grossest that had ever been practised upon man. He could assure his right hon. and learned friend, that the fact was by no means such as he had stated it. It was unnecessary to look for many proofs of what he had just asserted—one would suffice, and he would therefore take for the purpose of proof a case which he believed was mentioned in the evidence taken before the commission. The case to which he alluded was "exparte Macnaghten." It commenced in 1820, and was still undecided. There was a bankruptcy; then an appeal from the commissioners of bankruptcy, he believed, on the choice of assignees, and the granting the certificate. The appeal was by petition brought before the lord Chancellor in 1820 by five creditors, whose debts amounted to 427l., and no more. The creditors at large were very numerous and their debts amounted to 20,000l. The petition went on, and was spoken to, and heard over and over again. There were also some minor proceedings in the Vice-chancellor's court; there were appeals from the Vice-chancellor to the lord Chancellor, and there were hearings, and re-hearings innumerable. All the gauntlet of intermin- 736 able litigation was run through. The suit had been in existence for seven years, and now stood at the head of the lord Chancellor's list for judgment. The estimated expense of the proceedings was 5,000l., and he mentioned it as a proof of the expense of litigation in the court of Chancery, and of the operose progress of suits in that court, which looked so fair in the picture of that great equity artist, who had used his masterly hand in embellishing it till it seemed as innocent as a sucking babe, and which would never be recognized again, when he filled it up with his coarse and vigorous daubing. Yes, 5,000l. he repeated, were the costs to decide a question of 427l.; and the brief of an excellent and learned friend of his, Mr. Basil Montagu, engaged in the litigation, as he had stated in a pamphlet which he had recently published, when weighed in the scales, not of law, or justice, or equity, but of the tallow-chandler, weighed twenty-five pounds—his learned friend did not say whether troy or avoirdupois [a laugh.] Therefore it was, that men did not cease to cry out against the oppressive jurisdiction of the court of Chancery—therefore it was that they would not hold their peace, nor be put off any longer by the offer of palliatives, from those who had the means of applying a speedy and adequate remedy for the portentous evils of which they complained. And, as long as those evils were permitted to exist—as long as there were men who had such tales to tell of their sufferings in equity, and men honest enough and bold enough to repeat them to the country, no matter how parliament received them—so long would it be a vain attempt to put off the remedy, by giving the nominal power of inquiry to a parcel of packed commissioners, the majority of them connected with and chosen by the party whose conduct was the matter at issue. If that attempt were vain, still vainer would be the silly attempt to legislate on the subject, by a series of measures, which, taken separately, were of no force, and, taken together, were as dust in the balance, when compared with the evils they were professedly intended to remove.
The hon. and learned gentleman then proceeded to contend, that the bill which had been that night introduced, did much to relieve the judge, little to relieve the suitor, in equity. What ought to have been the object of the bill? To destroy the arrears now on hand—arrears which, 737 upon the authority not only of sir Samuel Romilly many years ago, but also of the present Vice-chancellor, he would say, were owing, not to the system adopted in our courts of equity, but to the manner in which that system was administered. He would now proceed to notice the circumstances which had occurred when, at a former period, a reformation in the court of Chancery was attempted. At that time, six or seven gentlemen, of the first character, and the first experience in the profession, were occupied with this important subject. Amongst the rest his late lamented friend, sir Samuel Romilly, exerted all the powers of his great mind to bring the business to a successful issue. But the friends of improvement were constantly outvoted, whenever any essential point came to be discussed. And outvoted by whom? Why, by masters in Chancery. The balance was turned on the main question—on a point of the most important nature—by the arrival of a master in Chancery. That was at the period when it was proposed to create a new court of Chancery in aid of the old. That proposition was strongly opposed by many able and eminent men. It was brilliantly opposed by an hon. and learned friend of his (sir James Mackintosh), whose absence on this occasion, in consequence of indisposition, he deeply regretted. It was opposed, too, by the right hon. gentleman who now filled the situation of Secretary of State for the Foreign Department; and it was also opposed by a learned gentleman, now no longer a member of that House, although he afterwards became Vice-chancellor, under the measure then in progress. That measure of relief passed in spite of opposition; and yet they had the lord Chancellor complaining of the additional weight of business that was thrown on him. Lord Thurlow and lord Loughborough contrived to get through the whole of the Chancery business. In their day, such a complaint was not heard of. Lord chancellor Eldon, however, complained that there was an accession of business to the amount of one third or one fourth. How did this happen? Because he was in the end, vested with the powers of this new court of Chancery, in consequence of the system of appeal. The court of Chancery, under this new system, really ceased to be a court of decisive jurisdiction, and became a court of appeal from the judgments of the Vice- 738 chancellor. But this preposterous system was not without its strenuous defender. They had seen the senior master in the high court of Chancery coming forward in his own proper person, with all his titles to deck him, and all the authority of his office to back him; they had seen him thus supported, not putting forth a pamphlet, but promulgating a manifesto. He had come forward, no doubt, assisted and followed by all the masters in Chancery, with the exception of the Master of the Rolls, who appeared to have abandoned the cause; and he had not scrupled to scatter his censure about very liberally. In speaking of the manifesto to which he had alluded, his right hon. and learned friend opposite had, somewhat jocosely, observed, that there was a great deal of wit and humour in it. If this were the case, the wit and humour had most unaccountably escaped him in its perusal. It might be considered witty and humorous in the Master's office, but he really could see no trace of either wit or humour in it. Of this document (continued Mr. Brougham) coming from so high a quarter, I have, as the Speaker sometimes does with documents from other high quarters, "to prevent mistakes," obtained a copy, and I will now read a few passages from it. The title of it is, "The Sovereignty of the Great Seal maintained against the one hundred and eighty eight Propositions of the Chancery Commission." The effect of the one hundred and seventy-fourth proposition, the senior master contends, would be not only to dispossess the lord high Chancellor of his authority, but, coupled with the eight following propositions, to despoil the great seal of its sovereignty; and what, he adds, would be worse, to despoil the suitors of its protection. And then comes the passage in which I suppose my right hon. and learned friend found the author's wit—PROSPERO: You'd be King of the Island, sirrah?STEPHANO: I should have been a sore one then.But the writer adds, that he alludes to no particular Vice-chancellor; nor, I might say, do I to any particular Chancellor [cheers]. What he says, however, is quite unfair. Every man of common candour, acquainted with the facts, must know that this is a groundless charge against the Vice-chancellor. If the right of appeal was direct from him to the House of Lords, we should sec an altered state of things. Though, unquestionably, 739 the present condition of the appellate jurisdiction is inexpressibly absurd. The merits of the case can signify nothing to the three lords who hear one half of it; nor to the other three lords who hear the other half of it; nor to the three who sit while judgment is given by a man who is not a lord; and thus is ridicule brought on the highest assembly in the land, in order to save John lord Eldon, where he is as deficient as in the court of Chancery. In another part of this pamphlet, the senior master observes insidiously, "The number of appeals from the lord Chancellor to the House of Lords is very, very few, while those from the Vice-chancellor to the lord Chancellor is very, very great." This, I take it, is the eloquence which my hon. and learned friend found in the pamphlet, as the other was the wit. "The inference," the senior master goes on, "is so obvious, that I cannot bear the pain of drawing it more strongly." But, Senior Master, you shall bear the pain of having it drawn more strongly. The meaning of the passage is this: "I will praise the lord Chancellor, who made me a Master in Chancery. I will praise lord Eldon, who in the vigour of a green old age, is still the principal dispenser of favour to men of my stamp in the legal profession; and I will do so at the expense of the Vice-chancellor, who does not enjoy the same influence at court." And that he has it not I lament, from the bottom of my heart; for he deserves every honour, for the struggle he has so manfully and gallantly maintained, if he had no title to honour better founded before. He discharges his duty perseveringly, constantly, uninterruptedly, under the pressure of bodily infirmities that might well excuse him. "Him," however, in effect, says the senior master, "I will not praise. He has no favours to dispense. He has neither power nor perquisites to give to those of our cloth who will laud him. But the Chancellor I will praise. I will say the appeals are many from the Vice-chancellor to the Chancellor, because of the unfitness of the Vice-chancellor; and that they are few from the Chancellor to the House of Lords, because of the eminent fitness of the Chancellor" [cheers]. What! did it never strike this grave authority, that the reason why the appeals were few to the House of Lords was, that an appeal from the lord Chancellor in the court of Chancery, to the 740 lord Chancellor in the House of Lords, was an appeal from himself to himself [hear, hear!]? The man is a fool who hopes for any result from this protracted litigation, except the loss of additional time and money. Did it never strike this grave and erudite authority, that some of the judicial habits of the Chancellor tend directly to the multiplication of business? A very good explanation of the many appeals from the Vice-chancellor may be given, without imputing them to any defect or infirmity on his part. What, I ask, would be thought of a judge, who never hears the decree of another judge read before him without carping or cavilling at it? I do not believe the lord Chancellor does so from invidious motives. The practice may result from subtlety, from ingenuity, from extreme refinement of mind, which leads him always to look out for what has never struck the mind of any other man before. This may be a very fine quality in the abstract, and afford a gratifying display to tire professional listeners, but to the suitors it is far different. One effect is, that it gives hopes of unsettling the judgment, and thus extends the costly and ruinous sphere of unnecessary litigation. Where he docs not reverse the decree, he throws so much doubt on the main point, that he destroys the authority of the case when it is reported. I appeal to every lawyer versed in equity, whether, since the commencement of lord Eldon's chancellorship, so many doubts have not been expressed on every appeal heard before him, so much dislike and disapprobation manifested, on his part, to the grounds of the decision of the inferior judge, that where he does not reverse the decrees, he shakes them so, that other suitors are advised, as the phrase is, to take "the chance of the tables," in expectation that some of the difficulties may be made available to themselves. That is one reason why appeals are so frequent from the Vice-chancellor to the Chancellor. It forms, also, very often, a ground for re-hearing his own judgments [cheers].
No man has had so much done for him as lord Chancellor Eldon. In the House of Lords a deputy Speaker (lord Gifford) was made to assist him, who certainly despatched the Scotch appeals with great success, and gave general satisfaction to the practitioners and suitors. The courts of Scotland were entirely satisfied with 741 his administration of the appellate jurisdiction. That noble and learned lord sat from day to day, six hours each day, and during every one of those hours his mind was on the stretch, attending carefully to what passed before him, and making himself master of the case. He was then prepared to give judgment without any interval, without "taking home the papers" [a laugh], or keeping the parties in anxiety, to the great increase of their costs, until he had forgotten the arguments altogether, or perchance lost or mislaid the papers. That was the way in which lord Gifford administered justice in the House of Lords. I will not follow the example of the senior master of the high court of Chancery. I will not state the contrast unfairly and insidiously; but I will state clearly and expressly, that the conduct of lord Gifford, in the House of Lords, was a great and striking contrast to that which lord Eldon follows, both in the House of Lords and in the court of Chancery. The same may also be said most justly of the Vice-chancellor. Nothing keeps him from his court, except severe illness, when he is actually confined to a sick bed. Six days in the week, during six hours each day, he sits patiently attentive to his duties. He suffers nothing, positively nothing, to interfere with them. He docs not waste an hour at the beginning, and an hour and a half at the end, of the day. His mind is on the stretch the whole time. He decides more causes, and gets through a greater mass of business, than any of the equity judges. In the diligent and able performance of his duty, he resembles those great judges, of past times, who were the ornament of their own day, and the envy us well as the regret and admiration of ours [cheers].
But the Chancellor still needs help! [a laugh.] No doubt something must be done to give him assistance in the House of Lords. My right hon. and learned friend has invited us on this side of the House, to give him suggestions for the improvement of the court of Chancery, from our own experience of that court and others. Now, Sir, I have a suggestion to offer with regard to making a deputy Speaker, who may not be a member of the House of Lords. This, in my view of it, is one of the most unwise steps that can be taken. I cannot express my condemnation of it too strongly. What 742 has been the course of this practice? The lord chief baron was first taken from the Exchequer. In 1819, he fell ill, and the lord chief justice of the court of King's-bench was planted as his successor, under a royal commission. Still he was not a member of the House. He could not open his lips on the merits of the cases argued before him. All he could do was to put the question. That, literally, was the whole amount of his authority. Surely, then, I am justified, without transgressing the bounds of propriety, in stigmatizing this practice as anomalous and absurd. Nothing can be more inconvenient—nothing more degrading—in appearance and in substance—to the dignity of the upper House, than the situation of the lord chief justice under these circumstances, sitting with a bishop and two lords to hear causes, in the decision of which he has no more voice or vote than the door-keeper of the House, or his own train-bearer. While I am on this part of the question, I will relate a fact that occurred while chief justice Abbot was sitting in that capacity in the House of Lords. A case was one day half heard before the chief justice, and appointed for further hearing on a day on which lord Eldon, who had in the mean time recovered, came down to the House. The case was postponed till another day, when the chief justice heard the residue of it. The House then adjourned during pleasure, and other cases were heard by lord Eldon. The chief justice went away to his own court, and on another day judgment was given in this case. Do I say that judgment was given by the lord Chancellor without knowing any thing of the case? No. I am perfectly well aware what was done. The lord chief justice had communicated to some one or other what should be done. But is it not, I ask, a mockery on the sacred forms and attributes of justice, that in this manner we should make a puppet of the highest judge in the kingdom, the next in rank to the Chancellor himself, the lord chief justice of all England. Undoubtedly it is an insult upon his office—an unseemly mockery, I repeat it, on the administration of justice [cheers]. But now the practice is even still more absurd. The lords are ballotted for to insure their attendance. Two of them come daily. Two on one day hear one part of the case; on the next, two others hear the remain- 743 der; and the case thus proceeds day by day, before a different set of lords every day, until the deputy Speaker, who, not being a member of the House, cannot, in fact, speak at all, whispers the judgment to be passed by those who, perhaps, have not heard one word of the argument. I do trust that the administration of justice will be spared this foul blot.
How is it that the House of Lords is so destitute of those resources which, in former times, stood it in great stead; I; mean the presence of law lords? This, I know, is a very delicate subject to speak on; because, in treating it, I must look at the lord Chancellor, not only in his official character as head of the court of Chancery, Speaker of the House of Lords, and as a senator and a minister; but also as the chief adviser of the Crown, and the supreme dispenser of its patronage. I am one of those who think—and daily experience convinces me more thoroughly that I am right—that lord Eldon is of the number of those sovereigns who "bear no brother near the Throne" [hear, hear]. He has lived to reap the fruit of that principle, if principle it may be called, on which he has so long acted, of not promoting men of his own profession, lest they should perchance become his rivals. He finds now, in these his latter days, that his fear of raising formidable competitors, has left him without able and useful assistants. If he had dispensed the honours of his profession, without regard to party feelings or political motives—feelings and motives of a kind to which I wish rather to allude than to describe—if he was surrounded by high law officers, able to render him effectual aid, he would be no longer driven to the miserable shifts which are now urging him to create a third court of Chancery, because the second has not been enough to make up the deficiency still existing in the jurisdiction of the court of Chancery, or to appoint another deputy Speaker to regulate the judgments of the highest court of judicature—a court, in which that deputy will be no member, nor even entitled to utter an opinion [cheers]. I will ask why the lord chief justice of the court of King's-bench has not been elevated to the peerage? If I am told that it has been offered to him, and he has refused it, my question is answered. I well remember when my friend the late member for Bramber (Mr. Wilberforce), remarking to me, when lord 744 Gifford was made a peer, that that was an arrangement which would suit the convenience of lord Eldon, as from the new peer he could fear no rivalry or competition. My respected friend observed, that he did not think it right to see the lord chief justice of all England waiting with a coronet in view, while an inferior judge, for some particular purpose, had one given to him at once. I ask again why has lord chief justice Abbott not been created a peer? He has every right which character, station, learning, and experience, can confer on him. Why should he not enjoy those honours which have been conferred on all his predecessors? I agree with my respected friend on the constitutional grounds stated by him, for his opinion; and with a view to judicial purposes, I repeat that opinion. If that learned person had been elevated to the state to which his talents and the regard of the profession for him entitled him, lord Eldon would now have been surrounded by other men, and other measures of assistance would have been projected to aid him in executing his judicial functions.
I have now concluded the observations which I felt it necessary to make on these propositions. I have discharged my duty; and a painful one it has been to me. I need not add, for I have often said it before—but I will repeat it, in case any member should be present who has not heard me, and in vindication of the opinion to which I have given expression—that it has been painful to me on this account, that whatever public differences of opinion I may have had, or have now, with that noble and learned lord, I entirely agree with all those who have mentioned his name in this House or elsewhere, that, holding a high situation, as he does, not only by his claims as a lawyer, and a man of talent and practical wisdom, I admit freely and cordially, that of all the judges before whom I have practised—and I have practised much—he is, out of all comparison, and beyond all doubt, by much the most agreeable to the practitioners, by the amenity of his manners and the intuitive quickness of his mind; though, if I must add the infirmity under which he labours, he is certainly the slowest in his decision. I have delivered my sentiments as the public adversary of lord Eldon—I say, as the public adversary; for no feeling of private enmity—no sentiment of personal 745 hostility—has any, the smallest share in the part which I have taken [loud cheers].
said, he would not occupy much of the time of the House, at that late hour, but felt himself called upon to offer a few observations, in answer to the remarks of his hon. and learned friend who had just sat down. As a member of the Chancery commission, he felt himself put upon his trial, and it was natural he should wait until he knew the nature of the accusation, previously to answering it. The four hon. gentlemen who had spoken on the other side of the House, had none of them raised any objection to the propriety of the one hundred and eighty-eight propositions of the commissioners, which it was the object of his right hon. and learned friend to carry into effect, by adopting a legislative measure, founded upon them. The hon. and learned member would not think that he intended any disrespect, if, while he allowed the admiration he felt, and the entertainment which he, in common with the House, must have derived from his speech, he took the liberty of remarking, that nearly the whole of that speech had no connexion with the subject before the House. Were the one hundred and eighty-eight propositions which the commissioners, after two years' labour, had prepared, fit or unfit to be carried into effect? Of the four hon. gentlemen who had spoken, none had questioned their propriety. They had all adopted different lines of argument, widely diverging from the topic actually before the House. The hon. member for Durham admitted the great merits of the lord Chancellor, and among other good qualities, gave him credit for his urbanity. The hon. member for Colchester came to the conclusion, not that the Chancellor did too little business, but that he had more to perform than it was in the power of human faculties to accomplish. Much of this pressure was attributable to the existing state of the bankrupt laws; but this was not the fault of the lord Chancellor. It was not his intention to dispute the propriety of improving the system of our bankrupt laws, but they formed no part of the present question; which was, whether or not the propositions of the Chancery commission ought to be carried into effect? He would solicit their attention to one or two points of his hon. and learned friend's speech. His hon. and learned friend represented all the in- 746 dividuals who sat upon the commission, as actually seduced by the lord Chancellor. If the House should credit the hon. and learned member, those individuals were unable to resist that suavity and amenity of manner, which formed the distinguishing attraction of the noble lord. Consequently, they had been obliged to think as lord Eldon thought; or, as the learned member had expressed it, to see with the eyes of lord Eldon. Really, it was unfair to represent the commissioners as deluded by the Chancellor. He himself was one of them; and he took upon himself to say, that he had exercised an independent judgment and opinion; but, perhaps, the learned gentleman would not admit him to be capable of exercising an independent judgment. His learned friend complained, that the Chancellor had not attended the meetings of the commissioners, and taken the chair. Now this was the very point for which he had heard the noble lord commended, by every one except the learned member for Winchelsea. His absence on these occasions proved that he had no intention of influencing the decision of the commissioners. The absence of the Chancellor proved the free agency of the commissioners. The learned gentleman's theory was irreconcileable with fact; and had the merit of singularity; for it was insisted on by himself alone. The lord Chancellor would not be present at their meetings, in order that he might not embarrass the free exercise of their discretion; but when they had made up their minds to any resolution, then he expressed his willingness to attend, and give his advice on any point, with respect to which his opinion might be required. The commissioners were thus left to the free and unbiassed exercise of their judgment; and they undoubtedly did exercise it. He had thus answered the complaint which formed the support and substratum of the learned gentleman's argument, when he stated, that the commission had been paralized and neutralised by the lord Chancellor. The late member for Lincoln, and the present member for Tregony, were among the supposed victims to the extraordinary attractions and seductions of lord Eldon. He would now offer a few words on the subject of the propositions come to by the commissioners. The practical question was, were these one hundred and eighty-eight propositions, the result of two years 747 labour, and which had received the recommendation of the Chancellor, and the Vice-chancellor (whom the learned gentleman would admit to be an independent person) to be adopted? The subject was so dry, that he could not expect the attention of the House, were he to enter into the details; but he would touch on: one or two main points. One subject of complaint had been, that, when a case got into the Master's office, there was no chance of getting it out again in any reasonable time. It was alleged, that there existed no sufficient stimulus in that department. Now, the propositions armed the Master, in future, with power; and required him to exercise it in accelerating the proceedings of the court. Under the proposed regulation, the Master was authorised to prescribe a limited period for every step, and to go on with the cases before him de die in diem. He was also empowered to examine witnesses in person, as well as by deposition. The defects of the Master's office had been complained of, and justly. Here was an attempt to remedy the evil. He had no hesitation in saying, that one considerable cause of the delay incident to proceedings in equity, was to be found in the Master's office. The learned gentleman said, that the commissioners had done nothing. Now, he referred him to the regulations on this subject. He put it to the candour of his learned friend to say, whether this was not an improvement. He believed the learned gentleman had scarcely troubled himself to read over the one hundred and eighty-eight propositions. If he had, he must have given them only an imperfect consideration. Now, much as he admired the eloquence and wit of the hon. and learned gentleman, he thought that, in discussing a practical question, it was too much to call the whole report a mockery. He had heard, with pleasure, the eloquent, facetious, entertaining, and ingenious speech of his learned friend; but he thought his arguments extremely defective. It had been complained, that no one had risen on the ministerial side of the House after the right hon. and learned Master of the Rolls. Now this was not extraordinary; for his arguments remained unanswered, and the resolutions which he proposed to carry into effect, had not been impugned. This was a sufficient reason why no one on his side of the House had followed his right hon. friend. The honour- 748 able member for Colchester had stated, and he fully agreed with him, that no individual could be found capable of administering the bankrupt laws of this country, in their present state, and, at the same time, discharge the other duties required of a judge in equity without assistance. It was made matter of complaint, that a dispensing power would be granted under this bill, enabling the lord Chancellor to alter the propositions as circumstances might warrant. Now, according to the constitution of all the courts in Westminster-hall, the judges might alter the practical rules of the different courts when they were found inconvenient. Here there were one hundred and eighty-eight propositions, and if any one of them was found not to work well, he knew not how it could be altered, unless a power for that purpose were regularly vested in the court. It would be absurd to think that a system of resolutions could be framed which would never require varying; and no one was better able to decide when such variation might be convenient, than the individual who presided over the court.
The hon. and learned gentleman had found fault with the manner in which the appellate jurisdiction of the House of Lords was exercised; but surely it was not lord Eldon's fault that there was so small an attendance of peers on these occasions; nor would it, perhaps, be decorous in that House to call in question the mode in which the other House might feel disposed to perform their peculiar duties. The general opinion, both of Westminster-hall and the public, was in favour of the resolutions; and when the bill came to be examined in detail, he should be happy to enter into a more minute explanation of the reasons of the regulations.
Mr. Secretary Peel
hoped, though the hour was late, and the House in a very exhausted state, that they would not think he was preferring, after the speech of the hon. and learned gentleman opposite, an unreasonable claim to their attention and indulgence, by detaining them by a few brief observations. There was no man, under any circumstances, more incapable than he was of entering into a discussion of the merits of the one hundred and eighty-eight propositions of the commissioners! though, if he had had leisure, he should have paid them great attention. But he would fairly own that his other avocations had occupied him so much, 749 that he had not had sufficient time to give them that consideration which they deserved, and which alone could enable him to form an accurate judgment of them. Before he referred to the speech of the hon. and learned gentleman, there was one point on which he wished to make one or two remarks. There was one subject upon which, whether a man were a Chancery lawyer or not, and whether he had studied the report or not, he would be able to form an opinion. He alluded to the state of our law relative to the transfer of real property, and the difficulty there was in making out a good title. There was no man who had purchased or sold real property, who had not been made aware of the numberless modes which might be, and sometimes were, had recourse to, to defeat a just contract; and thus, whether some means might not be adopted to put an end to such proceedings, to facilitate the establishment of titles to landed property, and to give its owner a more ample security, became an object well worthy of attention. There, therefore, was one passage of the report—for he had read that, though he had not had time to examine the whole of the resolutions—in which he heartily concurred. The commissioners state, that "no person can have had much experience in courts of equity, without feeling, that many suits owe their origin to, and many are greatly protracted by, questions arising from the niceties and subtleties of the law and practice of conveyancing. Any alteration in this system must be made with the greatest caution; but, as connected with the object of saving time and expense to suitors in the court of Chancery, we venture to submit to your majesty's consideration, whether it might not be proper to commit to competent persons the task of examining this part of our law, with a view of determining if any improvement may be safely made in it, which might lessen the expense and narrow the field of litigation respecting the transfer of real property." In this view he fully concurred; but he felt there were great difficulties connected with the subject, and that it was one which ought to be approached with the greatest caution. He did not exactly see why he should be applied to on this subject; perhaps it was on account of his situation, and because he had made the improvement of another branch of our law the object of his study; 750 but he had, on more than one occasion, received offers from men of the highest talents, to contribute their assistance towards improving this part of our law; and only a few days ago, he had received an offer of services from a gentleman of such great talents—an offer so tempting—that he did not wholly despair of being shortly able to devolve on a few persons—and he thought a few would be better than many—he did not despair, he said, of being shortly able to devolve on a few distinguished persons, the task of forming a commission, meriting the confidence of the House and the country, which should consider the best means of carrying into execution the recommendation of the report, to lessen the expense and narrow the field of litigation respecting the transfer of real property. If the inquiry were to devolve on such men, he was sure the appointment of such a commission would meet with the cordial approbation of the public [hear, hear!]. After these observations, he would proceed to notice the speech of the hon. and learned gentleman. He could assure him, that in speaking of the lord Chancellor, he was under no obligation to him; he had never received from him any personal favour; and if he then rose to repel what he thought unjust accusations, he could assure that hon. and learned gentleman and the House, that he did it only from that respect which he bore him as a colleague, and from that personal friendship which the House would not undervalue. He hoped the House would bear in mind, that the very severe attack which had been made by the hon. and learned gentleman on the lord Chancellor had been made in his absence.
interrupted the right hon. Secretary, by stating, that he was authorized by the constitution of that House, to make what observations he thought fit, with reference to a minister of the Crown, notwithstanding that he was, of necessity, absent.
Mr. Secretary Peel
said, he did not deny the hon. and learned gentleman's right to make the attack; he only wished to remind the House, that it had been made on the lord Chancellor in his absence, in a place where he had no right to come, and which made it the duty of those who entertained for him feelings of respect, to vindicate him from an attack, which he had a right to say could not have been expected on such a motion 751 [hear, hear!]. And he wished the hon. member for Durham, who now cheered, would recollect that in his speech he had been very tender of the character of solicitors, and had called on the House not to attack men who had no means of replying to the accusations, and who were not present to vindicate their characters. Though he was sensible that there was a great difference between these solicitors and a minister of the Crown, yet the absence of the lord Chancellor was the reason why he stood up to defend him, not intending, however, by so doing, to question the right of the hon. and learned gentleman to make any attacks he pleased on the ministers of the Crown. He would first state that he thought it was not consistent with fairness to attempt to throw discredit on the minister of the Crown for his private conduct. He would admit the right to call into question his mode of discharging his public duty; but he appealed to the good taste of the hon. and learned gentleman, and to the sense of the House, if it were proper to go into an examination of the faults of his private character, and make it a matter of reproach to the lord Chancellor that he employed the emoluments of his office in heaping up money, until he had accumulated a fortune of a million and a half. If this accusation were not true, he would appeal to the House whether he was not justified in repelling it? The hon. member for Colchester also had stated, that the lord Chancellor's emoluments had been swelled by the enormous sum of 20,000l. a year, accruing from the bankruptcy department of his office. And was such a statement not to be contradicted? The amount of the income of the lord Chancellor had, on a former occasion, been laid before the House; and, out of that income, he had to pay subordinate officers' salaries, amounting to 2,500l. per year. He did not recollect the exact amount of the Chancellor's income, as he had not looked at the subject lately; but he believed it was less than 14,000l. per year, and about 13,500l. When it was considered that this was the chief prize in the lottery of a very uncertain profession, he thought no man would consider 13,500l. per year too large a salary. The hon. and learned gentleman had insinuated, that the lord Chancellor had used the influence conferred on him by his situation, to prevent some of the judges being promoted to the 752 peerage. He believed the hon. and learned gentleman to have been misinformed. He would not enter into the circumstances which induced his majesty to confer a peerage; but he would say, as to the present chief justice of the court of King's Bench, who had at all times discharged his duty in a manner that would do honour to judges of the highest character who had ever filled his high office, that the lord Chancellor had never thrown the slightest obstacle in the way of his promotion to the peerage, and could have no occasion to fear in him either a competitor or a rival. But the lord Chancellor had, according to the hon. and learned gentleman, used his influence to raise an equity judge to the peerage, in whom he might, indeed, have expected a rival, and he had used his influence to keep back the chief justice, who, from being in another branch of the law, could never have come in collision with him. Nor could he fail to remark the conduct of the hon. and learned gentleman, in holding up a judge to approbation, for his undivided attention to business, and for his despatch in giving his judgment, when his object was to disparage the lord Chancellor; when, at other times, that learned judge was the object of the hon. and learned gentleman's attacks. But it served the hon. and learned gentleman's purpose now to praise that noble lord at the expense of the Chancellor. It was but justice in him to pay a tribute to the memory of lord Gifford; but, if there were any judge more capable than another of exciting a feeling of jealousy, such as the learned gentleman imputed to the lord Chancellor, it was lord Gilford, but who had excited no such feeling as that which the hon. and learned gentleman had attributed to the Chancellor, and which had certainly never influenced his conduct. The learned gentleman had been exceedingly severe on those who had advocated the appointment of the commission, and had said that when the commission was proposed, he had observed a smile on the faces of the ministers, as if they intended by the commission to defeat some hostile purpose of the opposition. He denied that the smile—if smile there was—could justify such an inference. He had consented to the appointment of that commission, in common with his majesty's ministers, from a sincere conviction, that its members would 753 honestly, conscientiously, and zealously perform the duties assigned to them, and confer essential benefit upon the country. The choice the House was called upon to make rested between the commission then proposed and that which was sought to be obtained by the hon. and learned member for Lincoln (Mr. J. Williams), after a speech in the highest degree criminatory of the lord Chancellor.—It was impossible for him, or for any other man, to deny that the system of the court of Chancery presented great impediments to the administration of justice, and entailed a grievous expense upon the suitors. He had proposed the commission with a full sense of those evils, and from a conviction that a commission so constituted could devise the most effectual means of relief; but if he had stood alone in that House, and not a single member could have been found to support him, he never would have consented to the appointment of a criminatory commission, such as was moved for by the hon. and learned member for Lincoln in a speech in which that criminatory commission was advocated, and which speech was seconded and supported afterwards by many other members of the same side of the House. In that speech the hon. and learned member said, "It is not the system, but the man. I mean not to criminate the system, but the man; and it is into his conduct that I call for an inquiry." He thanked God that they did not listen to that appeal. He thanked God that the House had withstood the attempt to humiliate the lord Chancellor; and that they did not submit to have the lord Chancellor dragged from his high situation, forced to abandon his court, and brought to wait in humble attendance upon a quorum of those who were to be appointed to sit in judgment upon his conduct. He believed they never could, however, have had the satisfaction to witness such an act of degradation. He was sure that that illustrious individual knew too well the respect due to his own character, and to the high station he occupied, to have consented to hold office for one instant after such a commission had been appointed. He was sure the lord Chancellor of England never would have been found dancing attendance upon a quorum appointed to inquire into his conduct, for the purpose of crimination; and that he never would have so far forgotten the respect due to the 754 office which he held, as to have brought the great seals of England to the doors of any place which such a commission might occupy. And who was the man that it was now sought to bring to that degradation? And, in what terms did even his enemies speak of him? The hon. member for Colchester admitted that the learned lord had done more than any of his predecessors, and that the defects of the system ought not to be attributed to him. That hon. member, in a speech which displayed great knowledge of the subject, and which was calculated to make a considerable impression upon the House, admitted, that the defects belonged to the system, and not to the man. And, after admitting, that the learned lord had done more than all his predecessors, the hon. member concluded his panegyric with these emphatic words—"his decisions, though slow, are always accompanied by a security which amply compensates for the delay." The hon. member for Colchester was followed by a gentleman totally unconnected with the profession of the law, holding a high rank in that House, and among the commercial men of the country. The hon. member for Midhurst (Mr. John Smith) admitted, that "no man in his high situation had ever had so much to do as the lord Chancellor; and that no man had ever done so much." He again was followed by the hon. and learned member for Winchelsea. And, in what terms did that hon. and learned gentleman speak? He admitted, that in the whole course of his experience, he had never pleaded before any judge with so much satisfaction as before the lord Chancellor; not alone from his invincible patience, but from his urbanity, his profound legal knowledge, and his discernment in detecting the slightest fallacy. And the learned gentleman went on to say, that if he had a fault, it arose from a sincere desire to administer the most rigid and impartial justice. He had thus quoted, he would not say from the mouths of his enemies, for enemies he hoped they were not, but from the mouths of his political opponents, testimonies to the character of the lord Chancellor, as high as any man could be ambitious of obtaining. He would not attempt to weaken their effect by any thing which he could say; and he would therefore, only add, that if the description thus given was a true one, he had great consolation in 755 the reflection, that he had raised his voice against the appointment of a commission, the avowed object of which was, not to inquire into the system, but to criminate the man.—He would now say a few words with regard to the charges brought against himself. It was perfectly true that he had recommended the appointment of the members of the commission, and he had done so, because he thought they would honestly execute the task assigned to them, and because he further thought that they were the men most competent to the duties which were to be performed. The hon. and learned gentleman said, however, that the commission was composed wholly of the friends and immediate dependents of the lord Chancellor—persons who either owed him obligations for favours past, or were seeking obligations for the future. He could not, he confessed, avoid feeling astonished at such an assertion. The Vice-chancellor was one of the commission. What motive could he have to screen the lord Chancellor's errors, or to decide according to his wishes? Mr. Hart was another—a gentleman high at the Chancery bar, seeking neither favour for the future, nor owing obligations for the past; for he believed that he was indebted for his silk gown to the recommendation of lord Erskine. He could have no motive for concealing a fact or changing the truth. Mr. Bell was another person proposed to be a member of that commission, he had himself intimated to Mr. Bell his wish that he should become a member; but not until Mr. Bell had retired from practice at the bar. It was impossible, therefore, to accuse that learned gentleman of a desire to curry favour with the lord Chancellor. Then there was the hon. and learned member for Tregony (Dr. Lushington), and the hon. member for Lincoln (Mr. R. Smith), and the hon. and learned member for Calne (Mr. Abercromby) none of whom were likely to be influenced by any improper motives in their decision upon the objects of the inquiry. Was it possible, he would ask, that all these gentlemen, some of them members of that House, who almost uniformly espoused the hon. and learned gentleman's views in politics, should be so weak and effeminate as to suffer themselves to be deluded by the lord Chancellor's urbanity of manners, into a consent to propositions which they knew to be decidedly erroneous? The very supposition 756 on the part of the hon. and learned gentleman, was a species of censure which he would not venture to cast upon them. If they felt, however, that the commission was pursuing a course which they could not approve, why did they not decline to give their attendance? Was not that the course which would have been obvious, if the proceedings were not satisfactory to them? But even the hon. and learned member for Lincoln (Mr. John Williams) had declared at the close of the last session, that he thought, it due to the commission to state, that the whole of their proceedings had been marked by the most anxious desire to investigate the subject of their inquiry. No man, however hostile, had refused to bear testimony to the indefatigable perseverance of the commission, in getting up what the hon. member for Durham had, however, been pleased to call a very flimsy report [hear!]. If any gentleman wished to know what was the daily labour of the lord Chancellor for the last three years, and what was the amount of business disposed of in the court of Chancery, let him turn to the pages of that "flimsy" report, and he would find it described with the most, painful particularity. It was, to his mind, a most painful and humiliating sight, to see the daily occupations of such a man, as lord Eldon detailed. But, if any gentleman wished to see them, let him turn to that report, and he would find them. He was not one of those who thought the lord Chancellor—the first lawyer in the kingdom—ought to be excluded from all connection with the cabinet. He did not think that the first law officer in the realm should be precluded from giving his opinion upon those cases of criminal law which came before the government; and if there were any who thought, in looking at that report, that the lord Chancellor had not done enough in his six hours a day, let them recollect the various other avocations which required a share of his attention. Let them take the whole tenor of that excellent person's life: let them consider the panegyrics bestowed upon him: let them remember that there never has been the slightest imputation of any thing like a departure from the purest integrity: let them consider, that the whole gravamen of all the charges against him rested upon a too scrupulous desire to administer impartial justice; and when they had further recollected that he has 757 held the situation of lord Chancellor for a longer period than any learned lord who ever preceded him—dispensing justice with an impartiality never questioned—let them say, whether any man of feeling could consent to a course which must have brought down those grey hairs with sorrow to the grave, as he was confident they must have been brought down, had the motion for a criminatory inquiry into his conduct received the assent of that House.
, in explanation, begged to observe, that in speaking of the private fortune of the lord Chancellor as being a million and a half, he did not intend to describe it as amounting to that sum, but merely as being, according to common rumour, very large.
said, that his earnestness on the subject proceeded from a desire to guard against the probability of such report going abroad among the people at the present moment, as that the lord Chancellor had amassed an immense fortune by bankruptcies; such an assertion being calculated to make an impression which might be extremely prejudicial.
said, he had made inquiries as to the income of the noble and learned lord, and had found that it never exceeded 18,000l. annually, and that the bankruptcy portion of it did not amount to a fourth of that sum.
§ Mr. Abercromby
said, he would not at that late hour detain the House by many observations; but he could not allow the argument which had been pressed so strongly by the right hon. gentleman upon the subject of the Chancellor's resignation, to pass without a slight explanation. The right hon. gentleman seemed to think that the motion of his learned friend the late member for Lincoln (Mr. Williams) contained propositions so degrading, that it was impossible for the lord Chancellor to hold his place for an instant, if the House had consented to adopt it. Now, the motion of the year 1811, which the House had actually adopted, was in every respect the same; the motion of the hon. member for Durham in 1811, was for a committee to inquire into the means of expediting the decision of cases in the court of Chancery. The motion of the hon. and learned member for Lincoln, was for a committee to inquire into the causes of the delays and expense of that court. He believed it would puzzle the conveyancers with whom the right hon. gentleman 758 seemed to have had such an intimate connection, to point out what there was in the one motion, which must cause the lord Chancellor to resign the instant it was carried, different from the other, which, being carried, yet allowed him to remain contentedly in office.
Mr. Secretary Peel
said, he was sure the learned gentleman must recollect, that the speech of the learned member for Lincoln was mixed up of grave charges, and ridicule; and that the notion of the motion for a commission was taken from the complexion of his speech.
§ Leave was given to bring in the bill.